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Gunnett v. Girardier Building and Realty Co.3/19/2002
the risk of injury to that particular employee, thus creating the personal duty that is the basis for co-employee liability. It is the affirmative act directed at a particular employee that places the [co-employee's] conduct outside the scope of an employer's non-delegable duties." Gerrish v. Savard, 739 A.2d 1195, 1201 (Vt. 1999).
So then, summarizing, a co-employee cannot be held personally liable for his negligence in carrying out the employer's non-delegable duties, whether it be the employer's duty to provide its employees with a reasonably safe place to work, or any other non-delegable duty. To maintain an action against the co-employee, the injured worker must demonstrate circumstances showing a personal duty of care owed by defendant to the injured worker, separate and apart from the employer's non-delegable duties, and that breach of this personal duty proximately caused the worker's injuries. Whether a personal duty has arisen so that the co-employee may be held liable will necessarily depend on the facts and circumstances of the case, determined as a matter of law, giving due consideration to the policy factors described above. What we hold, given the cases from this state, as well as those from other jurisdictions, is that a personal duty will arise out of circumstances where the co-employee engages in an affirmative act, outside the scope of employer's non-delegable duties, directed at a worker, increasing the risk of injury . For in engaging in a direct, affirmative act, the co-employee owes a personal duty to exercise ordinary care under the circumstances and to refrain from conduct that might reasonably be foreseen to cause injury to another.
Factual Background
Turning then to this case, Gunnett, the injured worker, appeals from the trial court's judgment dismissing his negligence action against his co-employee and supervisor, defendant Sommerlad, for lack of subject-matter jurisdiction, on defendant's motion raising the exclusivity of workers' compensation law.
At the time he was injured, Gunnett was a roofer working on a construction project. Defendant was employed as foreman by the general contractor for the project. During the construction, a hole was made in the roof deck so that a skylight could eventually be installed. At some point prior to Gunnett's injury , defendant covered the hole with a piece of plywood, attaching the plywood from the underside of the roof rather than to the exterior surface. Gunnett was injured when, as he alleged, he "fell onto and through the skylight opening" and fell onto the flooring below.
Gunnett filed a negligence claim against the respondent. Defendant moved to dismiss for lack of subject-matter jurisdiction, asserting that Gunnett had failed to allege an affirmative negligent act outside the scope of employer's responsibility to provide a safe workplace, that defendant was thereby immune from tort liability pursuant to section 287.120, and that therefore, the trial court lacked subject-matter jurisdiction. The trial court sustained the motion, and this appeal followed. Gunnett argues the trial court erred in dismissing his claim because he alleged affirmative acts of negligence on the part of defendant that breached a personal duty of care defendant owed to Gunnett, and therefore, defendant does not enjoy immunity under the workers' compensation act. We affirm the judgment of the trial court.
Standard of Review
The first point of contention between the parties in this case is the appropriate standard for our review. Defendant argues for an abuse-of-discretion standard. Gunnett, relying on Workman v. Vader, 854 S.W.2d 560 (Mo.App. S.D. 1993), argues that we must determine
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