Bass v. National Super Markets, Inc.

• Decision Date: 21 November 1995
• Docket Number: No. 77915,77915
• Citation: 911 S.W.2d 617
• Parties: Louise BASS, et al., Appellants, v. NATIONAL SUPER MARKETS, INC., Respondent.
• Court: Missouri Supreme Court

Page 617

911 S.W.2d 617

Louise BASS, et al., Appellants, v. NATIONAL SUPER MARKETS, INC., Respondent.

No. 77915.

Supreme Court of Missouri En Banc.

Nov. 21, 1995.

Rehearing Denied Dec. 19, 1995.

Leonard P. Cervantes, Edward J. Deghroony, St. Louis, for appellants.

Ronald C. Willenbrock, Mark R. Dunn, St. Louis, for respondent.

ROBERTSON, Judge.

We granted transfer to reexamine the manner in which appellate courts of this state have made determinations of statutory employment under section 287.040, RSMo 1994. The specific issue in this case is whether the trial court properly concluded as a matter of law that section 287.040, RSMo 1994, rendered plaintiffs' decedent, who performed floor care duties as the employee of an independent contractor, a statutory employee under The Workers' Compensation Law (the "Act"). As more fully explained, we hold that the performance of routine, frequent, and regular contractual duties is within the usual business of the employer and falls under the coverage of the Act.

Our jurisdiction is founded on article V, section 10 of the Missouri Constitution. The judgment of the trial court is affirmed.

I.

There is no dispute as to the facts in this case, only their meaning. We take the facts from the evidence the Bass plaintiffs offered.

In August, 1986, Building Butlers, Inc. ("BBI") orally contracted with National Super Markets ("National") to furnish personnel and provide janitorial services at National's Natural Bridge store in St. Louis. Under the agreement, BBI personnel swept and dust mopped the floor, scraped up gum or labels stuck to the floor, scrubbed, spot mopped, and buffed the floor with a propane powered buffer every night after National closed the store. In addition to the nightly cleaning, BBI agreed to wax the floor periodically and to strip the floor and apply fresh wax at less frequent, but regular intervals.

BBI hired Kenneth Bass. On the night of September 4, 1987, BBI assigned Bass to perform the routine janitorial services required by the agreement with National at the Natural Bridge store. Between 10:00 and 11:00 p.m. that night, two men forced their way past a security guard and into National's store. During the course of the robbery, these men shot and killed several people, including Bass.

On May 4, 1988, Louise Bass, decedent's wife, and Maurice and Christopher Bass, decedent's surviving children, filed a civil action for wrongful death against National averring that National negligently failed to provide adequate security to protect Bass. National filed a motion to dismiss for lack of subject matter jurisdiction on the grounds that decedent was its statutory employee. The trial court initially overruled the motion.

The case proceeded to trial. The jury returned a substantial verdict against National. National filed a motion for a judgment notwithstanding the verdict, renewing its argument that jurisdiction of the Bass' claim was in the Labor and Industrial Relations Commission. The trial court reviewed the evidence, concluded that it lacked subject matter jurisdiction to entertain a civil action for damages in wrongful death because Bass was a statutory employee of National subject to the compensation provided by the Act, sustained the motion and entered judgment accordingly. On appeal, the Court of Appeals Eastern District, reversed and remanded with instructions to reinstate the verdict.

II.

A.

The common law provided an employer with several defenses to a civil claim for damages filed by an employee. Three of these, assumption of the risk, contributory negligence, and the employer's non-liability for acts of third parties, effectively barred the negligent employee from recovering damages in a common law action for work-related injuries in most cases. The common law permitted an injured employee to recover for work-related injuries only if he or she could prove that the accident resulted solely from the employer's negligence. See generally Arthur Larson 1, The Law of Workmen's Compensation, § 4.30 (1952).

Responding to the common law's seeming inability to fashion a remedy to provide redress for workers injured in increasingly common industrial accidents, state legislatures adopted worker's compensation laws that imposed a statutory contractual provision on the employee-employer relationship. Oren v. Swift & Co., 330 Mo. 869, 51 S.W.2d 59, 61 (banc 1932). The statutory contract provided a means of compensating the injured worker that, with exceptions, eliminated the common law's concerns with negligence and fault altogether, established levels of compensation and provided for administrative determinations of the nature and extent of injury, subject to judicial review.

In 1925, Missouri's legislature adopted its first workmen's compensation law, 1925 Mo. Laws 375, directing that "[a]ll of the provisions of this act shall be liberally construed with a view to the public welfare." § 3374, RSMo 1929. Cf. § 287.800, RSMo 1994.

Appellate courts of this state have interpreted the legislature's admonition to construe the Act liberally to mean that "[t]he legislative design ... was to ameliorate, in the interest of the workman and the public welfare, the losses sustained by himself and his dependents from accidental injuries received by him in the proper course of his work...." Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909, 912 (banc 1935). Further, liberal construction of the Act requires that "where a question of jurisdiction is in doubt, it should be held to be in favor of the [Labor and Industrial Relations] commission." Ringeisen v. Insulation Services, Inc., 539 S.W.2d 621, 626 (Mo.App.1976).

This Court is aware that the adoption of comparative fault in Gustafson v. Benda, 661 S.W.2d 11, 15 (Mo. banc 1983), makes the policy rationale underlying the Act less compelling. The Court is further aware--as this case illustrates--that an injured worker often prefers that a jury decide liability and damage issues in a civil suit rather than submit to the statutorily imposed compensation limitations found in the Act. Nevertheless, the legislature has not altered the scope or applicability of the Act since Gustafson, nor the requirement that courts liberally construe its provisions.

B.

The dispositive issue in this case is whether Kenneth Bass worked as a statutory employee of National under section 287.040.

Section 287.040.1 defines a statutory employee.

Any person who has work done under contract on or about his premises which is an operation of the usual business he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business.

The General Assembly adopted section 287.040 to prevent employers from circumventing the requirements of the Act by hiring independent contractors to perform work the employer would otherwise perform. Walton v. U.S. Steel Corp., 362 S.W.2d 617, 622 (Mo. banc 1962).

As the statute makes clear, statutory employment exists when three elements coexist: (1) the work is performed pursuant to a contract; (2) the injury occurs on or about the premises of the alleged statutory employer; and (3) the work is in the usual course of business of the alleged statutory employer. McGuire v. Tenneco, Inc., 756 S.W.2d 532, 534 (Mo. banc 1988).

The first two elements are not at issue in this case. The parties agree that National orally contracted with BBI for floor cleaning services and that Bass's death occurred on National's premises.

The third element--whether the floor cleaning services performed by BBI and Bass were within the usual course of National's business--is the focus of the case. National contends that the care and maintenance of its floors is within the usual course of its business. The Bass plaintiffs urge that Kenneth Bass was not a statutory employee because National's usual business is to buy, sell, manufacture, process and otherwise deal in groceries, produce, meat and general merchandise. Further, they argue that BBI used specialized equipment and procedures to perform the contractual duties. Under the plaintiffs' reasoning, National is not in the floor-cleaning business and the work performed by BBI employees under BBI's contract with National lies outside National's usual business.

C.

Courts have wrestled with the meaning of the phrases "usual business" and "usual course of business" in section 287.040.1. Although the cases do not fall neatly into rigid categories, two basic, analytical constructs inform the courts' decisions. The first line of cases say that the usual business of a company encompasses all of those activities that are essential and integral to the statutory employer's business. See, e.g., Viselli v. Missouri Theatre Building Corp., 361 Mo. 280, 234 S.W.2d 563, 567 (banc 1950) (window washing is within the usual business of a company that rented property to commercial tenants because essential); Wooten v. Youthcraft Manufacturing Co., 312 S.W.2d 1, 3 (Mo. banc 1958) (janitorial service at a clothing manufacturer formerly performed by employees not an essential part of manufacturer's trade or business when contracted to an independent contractor); ¹ March v. Bernardin, 229 Mo.App. 246, 76 S.W.2d 706, 708 (1934) (annual repair of boiler within usual business of coal mine because necessary to operation of business); Kennedy v. J.D. Carson Co., 149 S.W.2d 424, 428 (Mo.App.1941) (repair of an elevator is essential and therefore within the usual business of a furniture company where exhibition, sales and delivery of...