Dunham v. Chase

Annotate this Case
Dunham v. Chase  (94-318); 165 Vt 543; 674 A.2d 1279

[Opinion Filed 26-Feb-1996]

                               ENTRY ORDER

                      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
  physical harm).

       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).



     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