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Gunnett v. Girardier Building and Realty Co.3/19/2002
Employers have a non-delegable duty to provide a safe workplace. Placing plywood over a skylight opening in a roof falls within the ambit of this duty. Whether the employee performing a non-delegable duty of the employer does so in a negligent manner is of no moment when determining whether the court or commission has jurisdiction over the matter. Here, defendant, in placing plywood over a skylight hole in the roof was discharging the employer's duty to provide a safe workplace. Any negligence which occurred while he performed this duty is the failure of the employer, not the defendant. As the failure is that of the employer, Gunnett's remedy is under the workers' compensation act.
To hold defendant personally liable, Gunnett must allege facts and circumstances which show that a personal duty of care existed, owed by defendant to Gunnett, separate and apart from the employer's non-delegable duties. Here, having considered the facts and circumstances of this case, mindful of the policy considerations as to when a duty will be imposed, we conclude that no such duty existed. Lacking in this case is any allegation that defendant engaged in an affirmative act directed at Gunnett that increased the risk of injury . When defendant attached the plywood over the hole, there was no affirmative act directed toward Gunnett. Moreover, the defendant was not present at the time Gunnett fell onto and through the opening, nor did the defendant direct Gunnett to step onto the plywood.
Concluding then, the only duty here is the non-delegable duty of the employer, and failure to discharge this duty is that of the employer. Defendant, as the employee discharging the employer's non-delegable duty, enjoys immunity from common-law suit; recovery under workers' compensation law is Gunnett's exclusive remedy. Jurisdiction lies exclusively with the commission, not the court. The court did not abuse its discretion in dismissing Gunnett's claim. The judgment is affirmed.
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