Dunham v. Chase (94-318); 165 Vt 543; 674 A.2d 1279
[Opinion Filed 26-Feb-1996]
SUPREME COURT DOCKET NO. 94-318
MAY TERM, 1995
Richard D. Dunham } APPEALED FROM:
v. } District Court of Vermont,
} Unit No. 1, Windsor Circuit
Douglas Chase and Patrick Kelley }
} DOCKET NO. S0401-92WrC
In the above-entitled cause, the Clerk will enter:
Plaintiff Richard Dunham appeals an order granting defendant Patrick
Kelley's motion for summary judgment in an action to recover damages for
workplace injuries. We affirm.
In August 1989, plaintiff was seriously injured while working in the
service department of Kelley Chrysler, Plymouth, Dodge, Inc. (Kelley, Inc.)
when a fellow employee, Daniel Wirta, drove a customer's car with its hood
open into a service bay and hit plaintiff. This was not the first time
Wirta had driven a car in the service area while its hood was up, though
doing so violated the company's safety policy. Plaintiff received workers'
compensation benefits for his injuries. He then sued Patrick Kelley, the
principal stockholder and president of Kelley, Inc., and the dealership's
service manager, Douglas Chase, for negligent supervision. Kelley moved
for summary judgment, arguing that he was not personally liable to
plaintiff because he had not participated in the actions that caused
plaintiff's injuries. Plaintiff thereafter sought to amend his complaint
to add a claim of negligent entrustment. The court granted Kelley's
summary judgment motion, and plaintiff moved for reconsideration because
the court had not ruled on plaintiff's motion to add the negligent
entrustment claim. The court granted the motion to amend nunc pro tunc,
denied the motion to reconsider, and granted plaintiff's motion for entry
of a final judgment with respect to Kelley under V.R.C.P. 54(b).
Plaintiff argues that summary judgment was improper because a
reasonable jury could find Kelley individually liable for (1) negligently
supervising Wirta, or (2) negligently entrusting Wirta with the car he
drove into plaintiff. When reviewing summary judgment orders, we employ
the same standard as the trial court. State v. G.S. Blodgett Co., ___ Vt.
___, ___, 656 A.2d 984, 988 (1995). Summary judgment should be granted
when the materials before the court show that there is no genuine issue of
material fact and any party is entitled to judgment as a matter of law.
V.R.C.P. 56(c); see Price v. Leland, 149 Vt. 518, 521, 546 A.2d 793, 796
As a general rule, workers' compensation is the exclusive remedy for
workplace injuries. 21 V.S.A. § 622. Under the law, employees gain an
expeditious remedy without the burden of
proving fault; in exchange, employers' liability is limited. Kittell v.
Vermont Weatherboard, Inc., 138 Vt. 439, 441, 417 A.2d 926, 927 (1980) (per
curiam). There is an exception to the exclusivity rule: when a
compensable injury is caused under circumstances creating a legal liability
in a person other than the employer, an injured employee may seek recovery
from that third party. 21 V.S.A. § 624(a). Co-employees, including those
acting in a supervisory capacity, are third parties who may be sued.
Libercent v. Aldrich, 149 Vt. 76, 80, 539 A.2d 981, 983 (1987).
We recently decided that a corporate officer may be subject to
co-employee liability only for those negligent acts or omissions that
breach a personal, rather than a nondelegable corporate, duty owed to a
plaintiff employee. Garrity v. Manning, No. 94-222, slip op. at 6 (Vt.
Jan. 5, 1996). To impose liability on Kelley, plaintiff must allege
"something more" than a breach of the corporate duty to provide a safe
workplace. Id. at 5; see also Kruse v. Schieve, 240 N.W.2d 159, 161 (Wis.
1976) (injured employee had cause of action where she alleged corporate
officer personally directed removal of safety guard from machine); cf.
Holmberg v. Brent, 161 Vt. 153, 153-54, 636 A.2d 333, 334-35 (1993)
(employee could bring action for damages against fire chief who ordered
others to remove pad surrounding base of fire pole).
Plaintiff first claims that Kelley negligently hired, trained and
supervised Wirta. He asserts that Kelley was the "ultimate supervisor" and
was therefore principally responsible for training and supervising Wirta
and for enforcing the workplace safety rules. Here, plaintiff alleges
nothing more than breach of the duty to maintain the safety of the
workplace, a duty owed by the employer. See Garrity, slip op. at 5; see
also 21 V.S.A. § 223 (employers have duty under occupational safety law to
furnish workplace free from recognized hazards that could cause serious
Neglect of safety precautions by a corporation through the absence of
appropriate remedial actions by its officers is a breach of the employer's
duty. See, e.g., Bradley v. H.A. Manosh Corp., 157 Vt. 477, 481, 601 A.2d 978, 981 (1991) (employer has "duty to act reasonably to control [a]
servant's actions . . . if the [employer] has knowledge of (1) ability to
control, (2) need to control, and (3) opportunity to control that
servant"). Plaintiff has not shown that Kelley assumed any specific
responsibility for workplace safety in the service area. He merely asserts
that Kelley's position as president makes him the "ultimate supervisor" and
therefore responsible for workplace safety.
Second, plaintiff claims that Kelley negligently entrusted Wirta with
the use of the car that hit plaintiff and, therefore, is liable for
plaintiff's injuries. It is negligent for one person to permit another to
use an item if the first person knows or should know that the other person
is likely to use it in a manner that creates an unreasonable risk of harm
to others. Poplaski v. Lamphere, 152 Vt. 251, 260, 565 A.2d 1326, 1332
(1989). To avoid the exclusivity provision, however, plaintiff must show
that the duty owed by Kelley was a personal duty, not simply a corporate
duty to maintain a safe workplace. Thus, we ask whether Kelley acted as a
supervisor or a co-employee in exercising the duty plaintiff alleges was
breached. See Tauchert v. Boatmen's Nat'l Bank of St. Louis, 849 S.W.2d 573, 574 (Mo. 1993) (per curiam).
Again, we find no basis on which to distinguish the duty plaintiff
alleges was breached here from the duty to maintain a safe workplace.
Kelley did not act as a co-employee; the claim alleges failure to act in a
supervisory capacity. We recognize that a negligent entrustment claim
involves a higher level of culpability than negligent supervision because
it requires a knowing disregard of danger. Nonetheless, the exclusivity
provision bars any claim against an employer
short of intentional injury. See Kittell, 138 Vt. at 441, 417 A.2d at 927
(overwhelming weight of authority protects employers for misconduct short
of intentional injury). "Even if the alleged conduct goes beyond
aggravated negligence, and includes such elements as knowingly permitting a
hazardous work condition to exist, . . . [or] willfully failing to furnish
a safe place to work . . . this still falls short of the kind of actual
intention to injure" necessary to support a claim against the employer. 2A
A. Larson, Larson's Workmen's Compensation Law § 68.13 (1995).
BY THE COURT:
Frederic W. Allen, Chief Justice
Ernest W. Gibson III, Associate Justice
John A. Dooley, Associate Justice
James L. Morse, Associate Justice
Denise R. Johnson, Associate Justice