Landers v. Energy Systems Management Co., 91-64

• Decision Date: 22 April 1991
• Docket Number: No. 91-64,91-64
• Parties: Kenneth W. LANDERS, Appellant, v. ENERGY SYSTEMS MANAGEMENT COMPANY, Appellee.
• Court: Arkansas Supreme Court

Page 33

807 S.W.2d 33

305 Ark. 267

Kenneth W. LANDERS, Appellant, v. ENERGY SYSTEMS MANAGEMENT COMPANY, Appellee.

No. 91-64.

Supreme Court of Arkansas.

April 22, 1991.

Robert L. Depper, Jr., El Dorado, for appellant.

Charles D. Davidson, Little Rock, for appellee.

GLAZE, Justice.

This appeal is from the trial court's decision barring appellant's suit for negligence against appellee Energy Systems Management Co. (Ensco), stating appellant's remedy was limited to Worker's Compensation benefits. At the time appellant sustained his injuries, his employer, PSC Laboratory Management Services, was participating in a joint venture with Ensco which involved marketing the services of packaging, collecting, transporting and disposal of lab pacs--chemicals or waste materials packaged in fifty-five gallon drums. Appellant argued below, and now on appeal, that Ensco should not be immune from tort liability because, in addition to Ensco's role as a joint venturer and employer, it occupied a second or "dual capacity" that conferred upon it obligations independent of those imposed on it as an employer.

Professor Larson recently citicized the so-called "dual capacity" doctrine, stating the doctrine has proved to be subject to misapplication and abuse and the only effective remedy is to jettison it altogether and substitute the terms "dual persona doctrine." 2A Larson, Workmen's Compensation Law § 72.81 (1987). Under this theory, an employer may become a third person, vulnerable to tort suit by an employee, if and only if, he or she possesses a second persona so completely independent from and unrelated to the status as employer that by established standards the law recognizes it as a separate legal person. Id. In an attempt to explain this dual persona doctrine, Larson states the following:

Perhaps the best way to approach a correct analysis of the dual-persona concept is to provide illustrations of exceptional situations in which the concept can legitimately be employed. These will ordinarily be situations in which the law has already clearly recognized duality of legal persons, so that it may be realistically assumed that a legislature would have intended that duality to be respected. The duality may be one firmly entrenched in common law or equity. The status of a trustee or of a guardian is a familiar example of this. No such case has appeared in the reports, but one can readily hypothesize the case of a trustee who, as trustee, is legal owner of a small business. If the question should arise whether this confers immunity on him as an individual for torts he commits upon employees of the trust business, no one would hesitate to answer in the negative.

The duality may also be created by modern statute, the obvious example being the one-man corporation. Here again, apart from exceptional circumstances justifying the "piercing the corporate veil," it is assumed without question that the corporation is a separate legal persona--because the statute makes it so.

In addition to the foregoing, Larson gives further examples of when the dual persona concept applies, but none is helpful to the appellant. Here, appellant was injured while coming to the aid of a co-worker who attempted to pour acid from a fifty-five gallon drum into smaller containers without a "barrel tilter"--an implement required by federal safety regulations. The drum fell, pulling the appellant over and into the acid that spilled. Appellant argues Ensco's tort liability lies in the fact that, (1) in addition to being a joint venturer and employer, Ensco owned the property on which the joint venture did business, (2) it was required but failed to provide a barrel tilter and (3) its employee (not an employee of the joint venture) was responsible for safety in the entire Ensco premises, including the area...