Gerrish v. Savard (98-103); 169 Vt. 468; 739 A.2d 1195
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
Ralph I. Gerrish Supreme Court
On Appeal from
v. Washington Superior Court
Paul Savard January Term, 1999
Matthew I. Katz, J.
L. Brooke Dingledine of Valsangiacomo, Detora & McQuesten, P.C.,
Barre, for Plaintiff-Appellant.
Douglas D. Le Brun and Elizabeth H. Miller of Dinse, Knapp & McAndrew,
P.C., Burlington, for Defendant-Appellee.
John L. Kellner and Kevin E. Brown of Langrock Sperry & Wool,
Middlebury, for Amicus Curiae Vermont State Labor Council, AFL-CIO.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
JOHNSON, J. This appeal arises out of a personal injury action in
which plaintiff alleged that he was injured when his employer negligently
rigged a crane, causing a cable to snap and a piece of granite to fall on
plaintiff. Plaintiff argues that it was error for the trial court to
grant summary judgment because there is a genuine issue of material fact as
to whether defendant, who was the president and owner of the granite
company at which plaintiff worked, was acting as an employer or a
co-employee when the incident occurred. Because plaintiff has not alleged
facts showing that defendant acted outside the scope of his duty as an
To warrant a grant of summary judgment, there must be no genuine
issues of material fact and the moving party must be entitled to judgment
as a matter of law. See Mello v. Cohen, ___ Vt. ___, ___, 724 A.2d 471,
473 (1998). The opposing party must be given the benefit of all
reasonable doubts and inferences in determining whether a genuine issue of
material fact exists. See Miller v. Town of West Windsor, 167 Vt. 588,
588, 704 A.2d 1170, 1171 (1997).
In the incident central to this case, a piece of granite being hoisted
by a crane fell onto plaintiff when the cable snapped or somehow gave way.
Plaintiff alleges that defendant is liable for his injuries because
defendant (1) failed to properly maintain and order the repair of a faulty
brake for the crane, but instead simply removed the brake, (2) failed to
warn plaintiff and others of the faulty brake, (3) failed to exercise
reasonable care in repairing the brake, and (4) failed to replace the
frayed cable, which had been reported to defendant shortly before the
accident. Plaintiff asserted in the amended complaint that by
"undertaking the actual repair and replacement of mechanical parts of the
crane, [defendant] established a personal duty to Plaintiff to exercise
reasonable care in his handling and maintaining [of] a dangerous
Defendant filed a motion for summary judgment, arguing that
plaintiff's exclusive remedy was through the worker's compensation
statute, see 21 V.S.A. § 622, which, in providing relief for injured
workers, bars workers from bringing common-law negligence actions against
their employers. While injured workers may bring negligence actions
against persons other than the employer, see 21 V.S.A. § 624(a), defendant
argued that he was not liable as a co-employee because plaintiff had
alleged only failure to maintain a safe work place, which is a
nondelegable duty of the employer. Defendant additionally emphasized that
he was not present in the plant
at the time of the accident.
In opposing defendant's motion, plaintiff argued that defendant was
acting as a co-employee at the time of the accident. Plaintiff pointed
out that defendant frequently worked alongside his employees and that
there was conflicting evidence as to whether defendant was present at the
time of the accident. Plaintiff further emphasized the allegations that
defendant had personally repaired and maintained the crane involved in the
accident, had personally removed the brake on the crane, and had
personally received a report just prior to the accident that the cable was
The trial court denied defendant's motion without prejudice to allow
for further discovery. Defendant renewed his motion for summary judgment,
and the trial court granted the motion, reasoning that the duty in the
instant case was similar to that in a Wisconsin case, Gerger v. Campbell,
where an employer who had modified a hydraulic press was found not subject
to co-employee liability because the decision to modify the machine was
within the employer's nondelegable duty to furnish reasonably safe tools
and equipment to an employee. See 297 N.W.2d 183, 185-86 (Wis. 1980).
This appeal followed.
The undisputed material facts of this case cannot support a conclusion
that defendant is subject to liability as a co-employee, nor is the
primary disputed fact (whether defendant was present in the immediate area
at the time of the accident) determinative of this issue.
Vermont's workers' compensation statute guarantees workers a remedy
for a work place injury, see 21 V.S.A. § 618, and injured workers carry a
reduced burden of proof, see Bishop v. Town of Barre, 140 Vt. 564, 572,
442 A.2d 50, 53 (1982) (claimant entitled to benefits upon showing that
injury was suffered by accident arising out of employment, and need not
employer's negligence). The amount of recovery is fixed, however, and the
statute provides the exclusive remedy for work place injuries:
[T]he rights and remedies granted by the provisions of this chapter
to an employee on account of a personal injury for which [he or
she] is entitled to compensation under the provisions of this chapter
shall exclude all other rights and remedies of the employee . . . at
common law or otherwise on account of such injury.
21 V.S.A. § 622. Thus, "[w]orkers' compensation law represents a public
policy compromise in which 'the employee gives up the right to sue the
employer in tort in return for which the employer assumes strict liability
and the obligation to provide a speedy and certain remedy' for
work-related injuries." Murray v. St. Michael's College, 164 Vt. 205,
209-10, 667 A.2d 294, 298 (1995) (quoting Lorrain v. Ryan, 160 Vt. 202,
214, 628 A.2d 543, 551 (1993)).
There is, however, an exception to the general rule that the workers'
compensation statute provides the exclusive remedy for work place
Where the injury for which compensation is payable under the
provisions of this chapter was caused under circumstances creating
a legal liability to pay the resulting damages in some person other
than the employer, the acceptance of compensation benefits or the
commencement of proceedings to enforce compensation benefits
shall not act as an election of remedies, but the injured employee
. . . may also proceed to enforce the liability of such third party
for damages in accordance with the provisions of this section.
21 V.S.A. § 624(a). This exception may, under certain circumstances, apply
to an employer if the employer was acting in the capacity of a co-employee
in negligently causing the accident. See Dunham v. Chase, 165 Vt. 543,
544, 674 A.2d 1279, 1281 (1996) (mem.).
Our decision in Garrity v. Manning, 164 Vt. 507, 671 A.2d 808 (1996),
provides the most recent and significant interpretation of the co-employee
exception as it applies to corporate officers. In that case, the
plaintiff, who was employed as a truck driver, was injured when he
slipped and fell on a snow- and ice-covered parking lot maintained by his
employer. See id. at 508, 671 A.2d at 808. The plaintiff alleged that
the president and majority stockholder of the corporation that employed
him was liable as a co-employee because he sometimes assisted in sanding
and clearing the parking lot. See id. We upheld the decision of the trial
court that the plaintiff's exclusive remedy was through the workers'
compensation statute, because the alleged negligence on the part of
defendant fell within the parameters of an employer's nondelegable duty to
maintain a safe work place. See id. at 514, 671 A.2d at 812.
This reasoning reflects our decision in Garrity to abandon the
"proximity rule," which looked to the immediacy of the corporate officer's
participation in the negligent activity to determine whether there was
liability as a co-employee. See Steele v. Eaton, 130 Vt. 1, 6, 285 A.2d 749, 753 (1971) (applying proximity rule). We did so because the proximity
rule had the effect of saddling small businesses and closely-held
corporations with greater liability, merely by virtue of the fact that
corporate officers in such organizations would, by necessity, be more
involved in the day-to-day operations of the business. The focus on the
immediacy of a corporate officer's participation risked "turn[ing] the
exclusive remedy provision into an illusion" for small businesses, thus
depriving small businesses of the benefit of the bargain manifested in the
workers' compensation statute. Garrity, 164 Vt. at 511, 671 A.2d at 810.
Instead, we adopted the more workable "Wisconsin rule," which examines
the nature of the duty involved to determine whether the negligent act was
committed in the capacity of an employer or a co-employee, and hence
whether there is co-employee liability. See id. (where duty is
nondelegable duty of employer common law action cannot be maintained
because action is actually against employer). The policy rationale behind
this rule is to prevent double recovery
against employers. For instance, in a case where the employer's duty to
provide a safe work place is breached, allowing an employee to recover
worker's compensation from the corporation and to sue a corporate officer
(who will often be indemnified by the corporation) as an individual will
frequently have the effect of imposing double liability on the corporation.
See id. at 512, 671 A.2d at 811.
In light of our holding in Garrity, the key question in determining
when conduct is governed exclusively by the worker's compensation statute
is whether the negligence occurred in the performance of a nondelegable
duty of the employer as opposed to arising out of an obligation owed to
the injured employee. See id. at 513, 671 A.2d at 811. To establish co-
employee liability, the plaintiff must show that there was a personal duty
owed the plaintiff apart from the nondelegable duties of the employer.
See id. at 514, 671 A.2d at 812. Plaintiff has not done so in this case.
We agree with the trial court that the instant case is similar to
Gerger v. Campbell, 297 N.W.2d 183 (Wis. 1980). (FN1) The question before
the court in that case was whether the lower court properly decided that
the president of a corporation was not acting as a co-employee when he
negligently designed and installed a modification of a hydraulic press, the
subsequent operation of which resulted in injury to the plaintiff. See
id. at 184. The Wisconsin court discusses the fact that the defendant had
retired, had left the day-to-day operation of the business to his sons,
and visited the plant only every two months. Additionally, the court noted
that the defendant was not present on the premises at the time the
accident occurred and that the
alteration to the hydraulic press preceded the accident by several months.
In concluding that the defendant was not liable as a co-employee, the
court looked not to the immediacy of his participation in the day-to-day
operations of the business, however, but instead focused on the duty
implicated by his actions. The court noted that the decision to modify
the press was a corporate decision, and that the duty to provide safe
equipment for the execution of the employment task is a nondelegable duty
of the employer. See id. at 186 (citing Wasley v. Kosmatka, 184 N.W.2d 821 (Wis. 1971). Therefore, the president was determined to be immune
from suit because his "negligence occurred in the course of the
nondelegable duties of an employer to furnish reasonably safe tools and
equipment to an employee." Id. at 185-86. The court reasoned that
"[o]nly if it can be said that by his conduct he has changed his status
from that of a supervisor to that of a co-employee will an action for
common law tort lie. . . . It did not constitute the negligence of a
co-employee, even though his affirmative acts increased the risk to a
corporate employee who subsequently used the machine." Id. at 186-87
An analogous situation exists in the instant case. An employer in
Vermont also has a nondelegable duty to provide a safe work place and safe
tools and equipment. See Landing v. Town of Fairlee, 112 Vt. 127, 129, 22 A.2d 179, 180 (1941); 21 V.S.A. § 223(a). Here, as in Gerger, defendant
allegedly made a decision that a piece of machinery could operate without a
certain safety feature. Additionally, here, as in Gerger, the modification
was made several months before the accident.(FN2) In both cases,
therefore, the corporate officer altered the working
environment and thereby increased the risk for all employees. In both
cases, whether the employer made the alteration himself does not change
the nature of the duties involved; rather, this reflects only the
realities of running a small business in which corporate officers must
frequently participate in the day-to-day operations of the business.
Defendant in this case was exercising managerial prerogatives, and not
merely taking the place of a worker. It is the exercise of managerial
prerogatives in fulfillment of the employer's nondelegable duties that
signals that the employer has not "doffed the cap of corporate officer,
and donned the cap of a co-employee." Kruse v. Schieve, 213 N.W.2d 64, 66
(Wis. 1973) (Kruse I).
The maintenance of a safe workplace, including suitable machinery
and tools, is the duty of the employer. Moreover, the employer's
duty is nondelegable in that the employer cannot escape liability
for breach either by purporting to delegate to another the duty
itself, or by delegating merely the performance of the duty. . . . To
charge the employee with the same duty as the employer would
effectively sidestep the workers' compensation law and hold the
employee liable for breach of the same duty already compensated
for through the payment of benefits.
Rounds v. Standex Int'l, 550 A.2d 98, 101-02 (N.H. 1988) (citations
Thus, for a common law negligence action to lie where a corporate
officer appears to be acting both as an employer and as a co-employee, a
plaintiff must allege circumstances that reveal a duty that is "additional
to and different from" the general, nondelegable duty of the employer.
Kruse I, 213 N.W.2d at 67. This is because the co-employee exception of 21
V.S.A. § 624(a) applies where there is liability in someone "other than
the employer." To be considered "other than the employer," the individual
must not be involved in performing a nondelegable duty of the employer and
must not be exercising managerial prerogatives - because
both of these activities indicate that the individual is acting as an
Plaintiff argues that, in the instant case, defendant has, in fact,
stepped outside his role as an employer. Plaintiff cites a number of
cases from Missouri and Wisconsin in which an employer who modified the
operation of a piece of machinery was found to have violated a personal
duty owed the injured worker and was therefore subject to liability as a
co-employee. We are not persuaded that these cases set forth a different
rule or compel a different result.
Plaintiff primarily relies on Tauchert v. Boatmen's Nat'l Bank, 849 S.W.2d 573 (Mo. 1993), in which the defendant unsuccessfully rigged an
elevator hoist, injuring the plaintiff. The Supreme Court of Missouri
held that the trial court had erred in granting summary judgment for the
defendant in that case because there was a genuine issue of material fact
regarding whether the defendant acted as an employer or co-employee in
rigging the elevator hoist. Based on the alleged facts, the court could
not rule-out the possibility that defendant, by personally rigging the
elevator hoist while working with the plaintiff, had committed an
"affirmative negligent act outside the scope of his responsibility to
provide a safe workplace for plaintiff," resulting in breach of personal
duty. Id. at 574.
Plaintiff additionally points to Craft v. Scaman, 715 S.W.2d 531 (Mo.
Ct. App. 1986), in which an employer working with his employee rigged a
machine in such a way that the resulting friction caused a fire that
engulfed the employee in flames. The court found that there was no
immunity in that case, reasoning that the employer had breached a
common-law duty to exercise reasonable care in handling a dangerous
Finally, in Kruse v. Schieve, 240 N.W.2d 159 (Wis. 1976) (Kruse II),
reviewed by the
Wisconsin Supreme Court after remanding the case to allow plaintiffs to
replead, see Kruse v. Schieve, 213 N.W.2d 64, 67 (Wis. 1973) (Kruse I),
the court concluded that there was a cause of action for co-employee
liability where a corporate officer had personally directed the employee
to remove the safety guard from a machine.
From these cases, plaintiff seeks to draw a parallel to the instant
case, where the defendant also allegedly modified a piece of machinery,
thereby creating a greater risk to plaintiff. As we established in
Garrity, however, one cannot look merely to the type of activity or the
corporate officer's participation in the activity to determine whether
there is co-employee liability. Bare similarity in the underlying factual
scenario (i.e., modification of a piece of machinery) does not establish
that defendant in the instant case was operating outside the scope of his
nondelegable duties as an employer when he rigged the crane.
The distinguishing feature of Craft and Kruse is that the employer in
those cases engaged in an affirmative act directed at the particular
employee that increased 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 employer's conduct outside the scope of an employer's
nondelegable duties. Furthermore, in Tauchert, the court - without
extensive recitation of the alleged facts (FN3) - concluded only that there
was a genuine issue of material fact as to whether the supervisor was
acting as an employer or co-employee at the time of the accident. Like
the Craft and Kruse courts, however, it also required that the plaintiff
show negligence outside the scope of the employer's duties. See Tauchert,
at 574; Craft, 715 S.W.2d at 537 ("The negligence must have been directed
toward the particular plaintiff and the tortious act must have been
outside the scope of the employer's responsibility.") (citations omitted).
This is the same rule we have applied in the instant case.
Because plaintiff in this case has not alleged facts showing that
defendant acted outside the scope of his duty as an employer, the trial
court did not err in granting defendant's motion for summary judgment.
FOR THE COURT:
FN1. Although Wisconsin no longer allowed co-employee liability at the time
the case was decided, there was co-employee liability at the time the
FN2. Defendant points to undisputed deposition testimony attached to
plaintiff's opposition to summary judgment that indicates the brake was
removed three to four months prior to the accident.
FN3. In fact, the supervisor and injured employee worked together to rig
the elevator, as a later decision in the case explains. See Tauchert v.
Ritz, 909 S.W.2d 687, 688-89 (Mo. Ct. App. 1995).