Butts v. Express Personnel Services

• Decision Date: 28 March 2002
• Docket Number: No. 24274.,24274.
• Parties: Timothy J. BUTTS, Plaintiff-Respondent, v. EXPRESS PERSONNEL SERVICES and Teresa Connor, Defendants-Appellants.
• Court: Missouri Court of Appeals

73 S.W.3d 825

Timothy J. BUTTS, Plaintiff-Respondent, v. EXPRESS PERSONNEL SERVICES and Teresa Connor, Defendants-Appellants.

No. 24274.

Missouri Court of Appeals, Southern District, Division One.

March 28, 2002.

Motion for Rehearing and Transfer Denied April 19, 2002.

Application for Transfer Denied May 28, 2002.

Laurence R. Tucker, Armstrong Teasdale LLP, Kansas City, for appellants.

Michael J. Patton, Joseph P. Winget, Turner, Reid, Duncan, Loomer & Patton, P.C., Brad Bradshaw, Eric M. Belk, Springfield, for respondent.

KENNETH W. SHRUM, Presiding Judge.

In this personal injury suit arising out of an "on-the-job" accident, a jury found for Timothy J. Butts ("Plaintiff") and against Teresa Connor ("Connor"), an employee of Express Personnel Services ("Express").¹ On appeal, Defendants' claim reversal is mandated because (1) the trial court lacked subject matter jurisdiction; (2) there was insufficient evidence to support the verdict; (3) the verdict-directing instruction was erroneous; (4) the court erred in an evidentiary ruling; and (5) newly discovered evidence, i.e., evidence first learned about after trial, would have affected the outcome of the case.² We disagree. We affirm.

FACTS

On April 12, 1995, Plaintiff and Connor had been assigned by different employers as temporary workers at a Rawlings Sporting Goods warehouse in Springfield, Missouri, when Plaintiff sustained an injury that led to this suit. Specifically, Plaintiff was working for a firm called "Manpower," whereas Connor was working for Express. Both Manpower and Express were temporary service firms, that is, they hired workers who were then temporarily assigned to other companies on an "as needed" basis.

At the time of the accident, Plaintiff was removing boxes containing baseballs from a conveyor belt and stacking them inside a semi-truck trailer. The conveyor, which had metal rollers but was not motorized, extended from the end of a dock to the interior of the trailer. The conveyor was operated by persons outside the trailer who filled the conveyor with boxes and then pushed each newly loaded box against those already on the rollers. As Plaintiff explained it, the "boxes don't crash together on their own[;]" "for any box to be moving somebody has to be doing something to the boxes."

Plaintiff testified that he was working with a person named Bob Cosby. At the time, Plaintiff was inside the trailer taking boxes off the conveyor and stacking them. Cosby was outside the trailer unloading boxes from a forklift and placing them on the conveyor. When Cosby finished unloading his forklift, he left to go to the restroom. After Cosby left, Plaintiff continued unloading boxes from the conveyor belt. As Plaintiff lifted a box "eight or ten inches off the conveyor," with his left hand under the box, Plaintiff "heard a bang" and felt his left hand being "smashed between two boxes." Thereon, Plaintiff yelled and turned around to see what was going on at the loading end of the trailer. It was then that Plaintiff first knew of Connor's involvement in this incident. He explained it as follows:

"Q. [To Plaintiff:] [W]hen this incident happened ..., you didn't actually see what may have contacted the end of the boxes?

"A. That's correct, sir.

"Q. So you ... can't tell this jury with any degree of certainty that a forklift contacted the end of these boxes. Isn't that right?

"A. I disagree with that personally. I mean, as soon as it hit I turned around and looked and Ms. Connor was getting off the forklift saying she was sorry, she was sorry, she was just trying to scare me.

"Q. And you drew the conclusion from that somehow or other her load had contacted the boxes?

"A. Yes, sir."

At the time Plaintiff's hand was injured, there were at least forty boxes on the conveyor belt, with some of the boxes weighing as much as seventy pounds.

Connor's recollection of the accident differed from that of Plaintiff. Connor testified she drove a forklift up to the rear of the trailer where Plaintiff was working, lowered the "skid down on the floor of the dock[,]" got off the forklift, and was loading boxes on the conveyor when Plaintiff's hand got smashed. Although Connor could not recall who was pushing the boxes on the conveyor when Plaintiff got hurt, Bob Cosby's written statement about the accident included the following:³

"Teresa Connor brought her order to the loading area. Teresa transported her skid or cart to this area by using a battery powered hand jack. My order had to be completely loaded before she could start her own order. To speed this up, Teresa began helping me load my order onto the conveyor. At this particular time I had the conveyor fairly full of cartons. Teresa began pushing the cartons closer together on the conveyor to make room for more cartons. I did not observe Teresa check to see if Tim was clear of the conveyor and boxes before moving the boxes. She moved the boxes by placing her hand flat against the side of a carton and using the strength in her arm, push[ed] the boxes together. The boxes then quickly came together not crunched together resulting in an injury to Tim's hand."

Much of the other evidence dealt with the nature and extent of Plaintiff's injuries and damage issues. The jury returned a verdict for Plaintiff in the amount of $820,900 and assessed fault as follows: Fifty-one percent to Connor and forty-nine percent to Plaintiff. Thereon, the trial judge entered judgment for Plaintiff and against Defendants for $418,659. Defendants appeal from the judgment thus entered.

Did The Trial Court Have Subject Matter Jurisdiction?

Preliminarily, we consider Defendants' claim that the trial court lacked subject matter jurisdiction over this case.

Specifically, Defendants maintain in Point IV that Connor and Plaintiff had the same statutory employer, i.e., Rawlings; therefore, Defendants argue the pair were "co-employees."⁴ Based on this premise, Defendants argue that Plaintiff must allege and prove "something extra," i.e., "something beyond a breach of ... duty of general supervision and safety[,]" State ex rel. Badami v. Gaertner, 630 S.W.2d 175, 179, 180 (Mo.App.1982), before liability grounded on negligence principles may be imposed on Connor. Defendants base this argument on the assumption that the immunity from common law suit provided by the "The Workers' Compensation Law" (the "Act")⁵ extends to both Express and Connor.⁶ On this assumption, Defendants argue that unless Plaintiff pleaded and proved affirmative negligent acts by Connor (which Defendants insist Plaintiff did not prove), Plaintiff could not proceed on her common law suit against Connor. See, e.g. Workman v. Vader, 854 S.W.2d 560, 564 (Mo.App.1993) (holding an employee who works for an employer with statutory immunity can only be sued at common law for his or her affirmative negligent acts that cause injury to a co-employee). We disagree. Based on our conclusion below that Express was not immune from Plaintiff's common law suit, Plaintiff did not have to meet the "something more" test of Badami as a precursor to suing Connor. 630 S.W.2d at 175.

Neither the exclusion clause (§ 287.120) nor the subrogation provision (§ 287.150) of the Act abolishes an employee's common law right to recover damages from a negligent "third person" for injuries sustained by the employee while on the job.⁷ Schumacher v. Leslie, 360 Mo. 1238, 232 S.W.2d 913, 916-18 (banc 1950); State ex rel. W.J. Menefee Constr. Co. v. Curtis, 321 S.W.2d 713, 719[2] (Mo.App.1959). Although the Act, via § 287.150, does subrogate the employer to the right of the injured employee to proceed against a third person, the employee may sue the third person tortfeasor without the employer joining in the suit. Schumacher, 232 S.W.2d at 916; General Box Co. v. Missouri Utilities Co., 331 Mo. 845, 55 S.W.2d 442, 444-45 (1932). A "third person" within the meaning of the Act means "`one upon whom no liability could be entailed under the act[ ]'" to provide an injured employee with workers' compensation benefits. Schumacher, 232 S.W.2d at 918[7] (citation omitted). Stated otherwise "[a] third person is one with whom there is no master and servant relationship under the Act." Id. at 918[8].

With the term "third person" as used in § 287.150 thus interpreted, it logically followed that courts would find a "co-employee" to be a "third person" within the meaning of § 287.150 and "that [such co-employee could] be sued by an injured co-employee for his negligence resulting in the compensable injury." Badami, 630 S.W.2d at 177. However, the Badami court limited the scope of such suits when the co-employees in question, i.e., the injured employee and the tortfeasor employee, both worked for an employer who had immunity from general tort liability. The Badami court ruled that if co-employees are involved in tort litigation arising from an on-the-job accident and if both work for an employer with immunity, the injured employee must charge the tortfeasor employee with "something more" than breach of the duty to provide a reasonably safe place to work. Id. at 180[3]. As the Badami court explained it, the general duty to provide a safe work place belongs to the employer, but is ordinarily delegated to an employee. Because such delegation ordinarily occurs, the court reasoned that immunity (enjoyed by the employer) from a breach of such duty should flow to the employee. Id. Continuing, the court observed:

"The purpose of the Act was not to transfer the burden of industrial accidents from one employee to another.... 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 of the workmen's compensation law."

Id.

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