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Gunnett v. Girardier Building and Realty Co.3/19/2002
if the facts pleaded and the inferences reasonably drawn therefrom demonstrate any ground for relief, taking all facts alleged in the petition to be true, and construing all allegations liberally and favorably to the plaintiff. While there is authority for both standards when reviewing a motion to dismiss for lack of subject-matter jurisdiction on grounds of the exclusivity of workers' compensation law, we agree with defendant that the proper standard for our review is the abuse-of-discretion standard.
As defendant did in this case, a motion to dismiss for lack of subject-matter jurisdiction is the proper method to raise the exclusivity of workers' compensation law as a defense to a common-law tort action. Parmer v. Bean, 636 S.W.2d 691, 695 (Mo.App. E.D. 1982). While dismissal of the petition might, in some technical sense, be understood as a dismissal for failing to state a cause of action outside the scope of employer's duty to provide a safe workplace, the real question at issue is whether the circuit court has subject-matter jurisdiction. Section 287.120 has abrogated the original jurisdiction of the courts over all cases cognizable under the workers' compensation act. Parmer, 636 S.W.2d at 695; Kemper v. Gluck, 39 S.W.2d 330, 332 (Mo. banc 1931). Jurisdiction is vested exclusively in the workers' compensation commission. Id. When a court lacks subject-matter jurisdiction, it has no right, power or authority to act in the matter, and thus any action the court takes is null and void. Parmer, 636 S.W.2d at 695. And thus, the circuit court should dismiss an action whenever it "appears" that it lacks subject-matter jurisdiction. Rule 55.27(g)(3); Parmer, 636 S.W.2d at 694. The determination of whether a case falls within the commission's jurisdiction is a question of fact, and as such, should be left to the sound discretion of the trial judge. Kemper, 39 S.W.2d at 332; Parmer, 636 S.W.2d at 694. Thus, we review for abuse of discretion. Murry v. Mercantile Bank, N.A., 34 S.W.3d 193, 195 (Mo.App. E.D. 2000)
Analysis
In order for Gunnett to maintain his negligence claim against his supervisor, he must allege circumstances showing a personal duty of care owed by defendant to Gunnett, separate and apart from the employer's non-delegable duties. If the allegations simply show supervisor's discharge of employer's non-delegable duty, then the supervisor is afforded immunity under the workers' compensation act and the circuit court did indeed lack subject-matter jurisdiction, as jurisdiction would lie exclusively with the commission. In his petition, Gunnett alleged: (1) defendant secured the plywood in an improper manner, placing the plywood on the underside of the roofing truss rather than over the top of the roofing deck; (2) defendant failed to affix the plywood in an appropriate manner, by using the appropriate length and size, or sufficient number of fixative devices; (3) defendant knew, or by reasonable inspection should have known, that the manner of placement would not support individuals; and that (4) the improper installation of the plywood rendered the roofing deck to be in a hazardous and dangerous condition.
In conjunction with his motion to dismiss, defendant filed an affidavit in which he stated that he attached the plywood to the bottom of the skylight opening because roof flashing had yet to be installed. Additionally, he averred that the plywood was to prevent debris from falling onto people below, and was attached from the underside so as to avoid having the roofer toss the plywood off the roof when preparing to install the flashing.
As stated above, courts should look to the existence and nature of the duty in the particular situation at hand.
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