Davis v. Henry

• Decision Date: 07 January 1997
• Docket Number: No. 70037,70037
• Parties: Leautry B. DAVIS, Plaintiff/Appellant, v. Eugene HENRY, et al., Defendants/Respondents.
• Court: Missouri Court of Appeals

Page 862

936 S.W.2d 862

Leautry B. DAVIS, Plaintiff/Appellant, v. Eugene HENRY, et al., Defendants/Respondents.

No. 70037.

Missouri Court of Appeals,

Eastern District,

Division Two.

Jan. 7, 1997.

Ray B. Marglous, P.C., Ray B. Marglous, Christopher J. Quinn, St. Louis, for Plaintiff/Appellant.

Edward C. Vancil and Associates, Inc., Edward C. Vancil, David G. Kullman, Creve Coeur, for Defendants/Respondents.

PUDLOWSKI, Judge.

Leautry B. Davis (Davis) was injured while driving a tractor for Five Star Hauling, Inc., (Five Star). Davis was directed to do so by a general order from the company's president, Eugene Henry (Henry). After receiving workers' compensation, Davis brought an action against Henry personally, alleging active negligence on Henry's part. The trial court granted Henry's motion to dismiss for lack of subject matter jurisdiction. Because Henry's actions were not outside the scope of his employment as a supervisor, we affirm the trial court's dismissal for lack of subject matter jurisdiction.

I. Background

Because this is an appeal from a motion to dismiss, we assume the facts pleaded by Davis to be true. Hedglin v. Stahl Specialty Co., 903 S.W.2d 922, 924 (Mo.App.W.D.1995). In April 1989 Davis was employed by Five Star as a truck driver. On April 25, Henry ordered Davis to pick up a thirty-five ton load of dry cement from a local cement company, Continental Cement Co., (Continental). The truck Davis drove had five axles. After picking up 70,200 pounds of dry cement, Davis headed back to Five Star. The total weight of Davis' vehicle, including the load of cement, was 98,140 pounds. The uncontroverted facts showed Davis' entire drive was within a commercial zone.

While driving back to Five Star Davis' truck overturned causing extensive injuries. Davis filed a workers' compensation claim, from which he received medical benefits and disability payments. Davis then filed this action against Henry, Continental and the Heil Co. (Heil), who designed the truck Davis was driving at the time of his accident.

In May 1995 the trial court granted Continental's motion for summary judgment. Davis then voluntarily dismissed his action against Heil. Henry filed a motion for summary judgment, arguing he was immune from personal liability for Davis' injuries because his action amounted to nothing more than a failure to provide a safe work environment. Davis' action, Henry argued, lay within the Workers' Compensation Act. In January 1996 the trial court decided to treat Henry's motion for summary judgment as a motion to dismiss for lack of subject matter jurisdiction. The trial court granted the motion, recognizing Davis was alleging nothing more than Henry's failure to provide a safe work environment. As such, Davis' proper forum was within the Workers' Compensation Act and not with the trial court. From this order, Davis appeals.

II. Davis' Appeal

In Davis' first point on appeal, he argues the trial court improperly determined it lacked subject matter jurisdiction because no facts existed which showed the court lacked jurisdiction. Although he admits an employer's defense of immunity under the Workers' Compensation Act is treated initially as a motion to dismiss for lack of subject matter jurisdiction, Tumbas v. J.L. Mason Group, Inc., 809 S.W.2d 188, 189-90 (Mo.App.E.D.1991), Davis believes such a defense does not apply because his claim is against his co-worker, Henry, and not against his employer. We disagree.

The general rule is that a supervisor who is charged with implementing a duty to provide a reasonably safe work environment has immunity from personal liability for failing to discharge that duty. State ex rel. Badami v. Gaertner, 630 S.W.2d 175 (Mo.App.1982). An injured employee's exclusive remedy for his supervisor's failure to discharge this duty lies within the Workers' Compensation Act. Id; § 287.120 RSMo.

Missouri, however, has recognized an exception to this rule. In Badami this court recognized that where an injured employee has charged "something more" than simply a failure by a supervisor to provide a safe environment, when that supervisor has the duty of providing a safe work place, the supervisor can be personally liable for employee's injuries. Id at 180. If "something more" is not alleged, then the supervisor is immune from personal liability.

In cases which have recognized the "something more" element has been met, the supervisor had personally participated in the "something more." See Hedglin v. Stahl Specialty Co., 903 S.W.2d 922 (Mo.App.W.D.1995)(supervisor, who personally arranged for employee to be dangled from the tines of a forklift over a vat of scalding water into which employee fell and died, was held personally liable for death of employee); Craft v. Scaman, 715 S.W.2d 531 (Mo.App.1986) (president of a fireworks company personally liable for employee's injuries where president personally held a board directly against spinning spool of fuse to prop it up and fuse caught fire and burned employee operating the machine); Workman v. Vader, 854 S.W.2d 560 (Mo.A...