Barnes v. Wilkiewicz

• Decision Date: 29 January 1990
• Docket Number: No. 89-114,89-114
• Citation: 783 S.W.2d 36,301 Ark. 175
• Parties: Gary D. Barnes, Appellant, v. Robert WILKIEWICZ and Rothchild Wallace, Jr., Appellees.
• Court: Arkansas Supreme Court

Page 36

783 S.W.2d 36

301 Ark. 175

Gary D. Barnes, Appellant, v. Robert WILKIEWICZ and Rothchild Wallace, Jr., Appellees.

No. 89-114

Supreme Court of Arkansas.

Jan. 29, 1990.

James Gerard Schultz, Little Rock, for appellant.

Ralph R. Wilson, Little Rock, for appellees

HOLT, Chief Justice.

Gary Barnes appellant, sued Rothchild Wallace, Jr., appellee, and Robert Wilkiewicz for personal injuries sustained on December 31, 1986. Barnes and Wallace are employees of Virco Manufacturing Company. Wallace is Barnes's supervisor. Barnes alleged that his injuries were the result of the combined negligence of Wilkiewicz and Wallace, in that Wilkiewicz collided with pickup truck which Wallace had parked adjacent to a disabled tractor trailer belonging to virco.

Wallace moved for summary judgment, contending that Barnes's remedy against him was limited to the Arkansas Workers' Compensation Act. The trial judge granted summary judgment and Barnes, after taking a non-suit against Wilkiewicz, has appealed. We affirm the order.

Barnes concedes Wallace's supervisory status, but maintains that Wallace is not being sued as an employee, but as a driver for having 'breached the rules of the road, not the rules of his job.'

Barnes's reliance on King v.Cardin, 229 Ark. 929, 319 S.W.2d 214 (1959), is misplaced. In King, the appellant, King, drove a dump truck in hauling asphalt on a highway construction job and the appellee, Dyer, spread the asphalt hauled by King. They both were employed by the same contractor. King negligently backed a dump truck over Dyer, contrary to a company practice that dump trucks were not to be backed up to an asphalt paving machine while the machine was shut off, and fatally injured him. The workers' compensation provisions did not prevent Dyer from maintaining an action for negligence against King, and the trial court awarded damages to Dyer's estate.

In King, however, a master determined that a company practice established that dump trucks were not to backed up to an asphalt paving machine while the machine was turned off, which was the underlying act which caused Dyer's fatal injury.

Barnes interprets King as holding that the duty Wallace owed to Barnes was a personal duty of due care in the use of the public streets , unrelated to any duty between co-employees. But we read that decision as merely recognizing that an employee is held to be a 'third party' under Ark.Code Ann. § 11-9-410 (1987) and, therefore, claims between co-employees are not barred by the Arkansas Workers' Compensation Act. The opinion makes a distinction between rules of the job, as opposed to rules of the road, nor does it deal woth the issue of safety at the place of work.

The problem with confronting appellant Barnes is that this court has adopted what we regard as tha majority view that supervisory employees, like employers, are immune from liability for failing to provide a safe place to work or when their general duties involve the overseeing and discharging of that same responsibility. Simmons First Nat'l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985). This court in Simmons announced itself solidly in agreement with language from State ex rel. Badami v. Gaertner, 630 S.W.2d 175 Mo.App.1982):

Under present day industrial operations, to impose upon executive officers or supervisory personnel personal liability for an accident arising from a condition at a place of employment which a jury may find to be unsafe would almost mandate that the employer provide indemnity to such employees. That would effectively destroy the immunity provisions or the workmen's compensation law.

We have continued to adhere to that position in later decisions: Fore v. Circuit Court of Izard County, 929 Ark. 13, 727 S.W.2d 840 (1987); Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987); Lewis v. Industrial Heating & Plumbing, of St. Joseph, Mo., 290 Ark. 291, 718 S.W.2d 941 (1986).

The interrelationship between Barnes and Wallace was described as follows:

Rothchild Wallace , Jr., is an employee of Virco Manufacturing Corporation, Conway Division. He is currently classified as a Maintainance Mechanic 'A', lead person, third shift, truck shop. Mr. Wallace was so employed and held that title on December 31, 1986. As lead person for third shift truck shop, Mr. Wallace has supervisory responsibility for all persons employed by Virco Manufacturing and assigned to the truck shop third shift. Mr. Wallace had those same responsibilities on December 31, 1986. In his capacity as third shift lead person, Mr. Wallace had supervisory responsibility over the person of Gary D. Barnes who was a third shift mechanic. At the time of the accident which occurred in the early morning hours of December 31, 1986, Mr. Wallace was acting in his supervisory capacity.

In this case, both Barnes and Wallace were assisting in the repair of a disabled Virco tractor trailer. Wallace was Barne's supervisor at Virco and he transported Barnes to the location of the tractor trailer in a Virco truck. The disabled tractor trailer was located next to a highway; according to Barnes, Wallace partially parked the Virco truck on the highway. While they were engaged in the repair of the tractor trailer, Wilkiewicz collided with the rear of the parked Virco truck and injured Barnes's leg.

Consequently, Barnes was injured during, and within, the course and scope of his employment with Virco. The accident scene was the employee's workplace; Wallace was acting in his capacity as Barnes's supervisor. As in Allen, Barnes's allegations and Wallace's actions involve a failure to provide a safe place to work. As a result, Wallace is immune from suit for negligence in failing to provide a safe place to work.

Accordingly, we agree with the trial court that there was no genuine issue of material fact and that the Workers' Compensation Act provides Barnes's exclusive remedy.

Therefore, the judgment of the trial court is affirmed.

GLAZE and TURNER, J.J., not participating.

HAYS, J., concurs.

NEWBERN, J., dissents.

HAYS, Justice, concurring.

The complaint of Gary Barnes against Rothchild Wallace tells us that Wallace positioned the pickup truck beside the the disabled tractor trailer rig of Virco, on which the two men were working. The only allegation of negligence is that Wallace 'failed to excercise ordinary care in the manner in which he positioned the pickup truck.'

Several crucial factors are undisputed: Barnes and Wallace are co-employees of Virco; Wallace is Barnes's supervisor Barnes's injuries occurred while the two men were regularly engaged in their duties to Virco; Wallace's conduct was not intentional; Barnes's injuries are covered under the Arkansas Worker's Compensation Act.

Barnes does not challenge any of those factors, he simply asks us to draw a distinction based on his contention that Wallace 'failed to prove that his breach of duty was not a personal duty, as opposed to a duty imposed by his employment.'

As the majority opinion notes, in a number of cases we have recognized immunity from tort liability by supervisory employees: Fore v. Circuit Court of Izard County. 292 Ark. 13, 727 S.W.2d 840 (1987); Allen v. Kiser; 294 Ark. q, 740 S.W.2d 137 (1987); Lewis v. Industrial Heating & Plumbing, 290 Ark. 291, 718 S.W.2d 941 (1986); and Simmons First Nat'l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985). Were we to adopt the position proposed by the appellant we would, I believe, be effectively overruling those cases (which appellant implicitly disavows he is asking us to do) or, at the very least, be creating a precedent that would not be easily reconsiled with those cases. Moreover, we would be further distancing ourselves from a pronounced majority of other jurisdictions. According to Professor Larson only eleven states allow suits against co-employees. 'The great majority of states and the...