Biller by Summers v. Big John Tree Transplanter Mfg. and Truck Sales, Inc., WD

• Decision Date: 04 September 1990
• Docket Number: No. WD,WD
• Citation: 795 S.W.2d 630
• Parties: Eric Charles BILLER, a minor by Gary D. SUMMERS, next friend, and Judith Biller, Respondents, v. BIG JOHN TREE TRANSPLANTER MANUFACTURING AND TRUCK SALES, INC., and Jim Meade, Appellants. 42580.
• Court: Missouri Court of Appeals

Page 630

795 S.W.2d 630

Eric Charles BILLER, a minor by Gary D. SUMMERS, next friend, and Judith Biller, Respondents, v. BIG JOHN TREE TRANSPLANTER MANUFACTURING AND TRUCK SALES INC., and Jim Meade, Appellants.

No. WD 42580.

Missouri Court of Appeals Western District.

Sept. 4, 1990.

David R. Buchanan, and Michael A. Childs, Brown, James and Rabbitt, P.C., Kansas City, for appellants.

John K. Thomas, Strop, Thomas and Burns, St. Joseph, for respondents.

Before LOWENSTEIN, P.J., and CLARK and FENNER, JJ.

CLARK, Judge.

This is an appeal from a judgment entered in favor of plaintiffs-respondents, Judith Biller and her grandson, Eric Biller, in a wrongful death action brought on account of the death of Charles Biller, the son of Judith and the father of Eric. At the time of his death, Charles Biller was at work as an employee of Moffet Nurseries. The suit charged that Biller's death was the result of negligence on the part of defendant-appellant Jim Meade, the president, owner and manager of Moffet Nurseries. The principal issue in the case is whether Meade, as the corporate officer of Biller's employer, is entitled to assert immunity from civil suit under the worker's compensation law as provided in § 287.120.1, RSMo 1986.

In general, the facts of the case were not in dispute. Moffet Nurseries was owned and managed by Meade and his wife. In 1988, Meade hired Biller as a heavy equipment operator. It was Meade's intention that Biller be charged with operating a machine known as a Big John Tree Transplanter. Although Biller had operated other machines for previous employers, he was not familiar with the tree transplanter. Accordingly, Meade undertook to train Biller by having Biller observe as Meade ran the machine on jobs and by allowing Biller to operate the machine controls under Meade's observation.

The tree transplanter is a mechanism mounted on a tandem dual wheel flat bed truck. It is a cone-shaped assembly with four independently operated digging spades which are extended to the rear of the truck, lowered to ground level and then maneuvered to prepare a conical excavation for planting a tree. By the same action, the spades are used to remove an existing tree from the ground and replant it in another location. The controls for operating the device are located to the rear of the truck bed on the driver's side of the vehicle.

On the date of Biller's death, he and Meade had been operating the tree transplanter during the second day of Biller's training. Five or six trees had been transplanted and toward the end of the afternoon, Meade was operating the machine's controls to handle the last tree planting for the day. According to Meade, he had not seen Biller for a period of from five to fifteen minutes, but Meade was proceeding with the work. The job was interrupted when Meade was alerted by Larry Runyan, a bystander, that Biller was pinned under a stabilizer bar of the machine on the opposite side of the truck.

The actual event of Biller's death was not witnessed by anyone. As the accident was reconstructed, however, it appeared that by some mischance, when the stabilizer bars used to balance the truck had been lowered preparatory to operation of the digging spades, Biller's head had been caught under the pad and crushed. At the offside location of the stabilizer bar, the extension of the bar and the lowering of the pad cannot be observed by the machine operator at the controls situated on the driver's side of the vehicle. Thus, as Meade was operating the controls which activate the stabilizers and the digging apparatus, he had no view of the site where Biller met his death. It is apparent that Meade, although having no knowledge of where Biller was during this final operation or what he may having been doing, decided to finish himself the task of planting the last tree for the day.

The suit by respondents claimed Meade to be liable in damages for the death of Biller because Meade was negligent in extending the stabilizer pads and proceeding with the digging operation without first ascertaining that Biller, and perhaps others, were clear of the work area and in no danger from the machine. Meade contends on this appeal that no cause of action in negligence could be asserted against him because the alleged breach of duty to keep a careful lookout, as respondents' suit claims, is merely the duty of the employer to provide the employee a safe work place. That duty, Meade argues, is non-delegable and therefore if Meade did not discharge the duty, the claim is actually against the employer who is shielded from civil suit by the Worker's Compensation Act.

An employer owes various duties to his employees including the duty to provide a safe work place, to provide safe appliances and equipment, to warn of dangers about which the employee may be ignorant, to provide suitable fellow employees and to make and enforce rules for employee conduct. Prosser & Keeton on Torts, § 80, p. 569 (5th Ed.1984). The duty to provide a safe place to work is a duty which the master may not escape by delegating the task to someone else. State ex rel. Badami v. Gaertner, 630 S.W.2d 175, 177 (Mo.App.1982). Thus, as in Stanislaus v. Parmalee Industries, Inc., 729 S.W.2d 543 (Mo.App.1987), where a corporate officer or agent of the employer is performing a delegated duty involving the safety of the work place, he stands in the shoes of the employer and has no personal liability for non-performances of the duty.

Where an employee has been injured in consequence of some unsafe condition in the work place, his claim and the liability of the employer must also take cognizance of any applicable worker's compensation law. Once an employer, an employee and an accident fall under the Worker's Compensation Law, the case is cognizable by the Worker's Compensation Commission and the Commission's jurisdiction is original and exclusive. Section 287.120.1, RSMo 1986; Parmer v. Bean, 636 S.W.2d 691, 693 (Mo.App.1982); Sheen v. DiBella, 395 S.W.2d 296, 302 (Mo.App.1965). An employer is immune from common law liability for breach of his duty to provide a reasonably safe place to work. JMF v. Emerson, 768 S.W.2d 579, 581 (Mo.App.1989).

In consequence of the foregoing propositions, an employee injured pursuing his work duties and sustaining the injury because the work place was unsafe has no common law suit against either the employer or the employer's agent, but is relegated to those benefits afforded under the applicable worker's compensation law. ¹ It is this theory upon which appellant rests his contention that respondents' civil suit should not have been entertained.

The rules considered above and relied on by appellant assume that the injured employee suffered an accident caused by the failure of the employer's agent to discharge a duty delegated by the employer in the area of work place safety. The immunity from civil suit depends on a factual matrix involving a duty owed to the employee by the employer. Personal tort liability may be imposed on the individual agent or corporate officer if it appears that the duty of care which was breached was one personally owed to the injured employee as a fellow employee. Craft v. Scaman, 715 S.W.2d 531, 537 (Mo.App.1986). Where the corporate officer or employer's agent steps out of his role as an agent acting for the employer and assumes the status of a co-employee working with the injured employee, a different relationship is created in which civil liability for negligence or non-feasance may follow.

As relates to the limitations on civil actions for job related injuries covered by worker's compensation laws, such immunity from civil suit is available only to the employer and to the employer's agents acting to discharge some duty owed by the employer. Where the act or omission is one affecting rights and duties of co-employees, Missouri courts have consistently held that a co-employee is a third person within the meaning of § 287.150, RSMo 1986, and the co-employee may be sued in a civil action by the...