Opinion
No. 26889
May 30, 2006
Appeal from the Circuit Court of St. Clair County, Honorable William J. Roberts, Circuit Judge.
M. Courtney Koger, attorney for Appellant's.
Michael D. Holzknecht, Paul L. Redfearn, attorney for Respondent's.
Lynn M. Smith (defendant) appeals a judgment finding him liable for damages for personal injuries sustained by Eric D. Burns (plaintiff). This case was tried by the circuit court without a jury. Written findings of fact and conclusions of law were entered by the trial court. The trial court found that plaintiff could maintain this action notwithstanding that his injuries were covered under Missouri's Workers' Compensation Law. This court reverses and remands with directions to the circuit court to enter judgment for defendant.
"Appellate review of a judge-tried case is undertaken on the basis that a trial court's judgment will be affirmed unless there was no substantial evidence to support it, it was against the weight of the evidence, or the trial court erroneously declared or applied the law." In re Trust of Nitsche , 46 S.W.3d 682, 683 (Mo.App. 2001).
Plaintiff was employed as a driver by Kennon Ready-Mix, Inc. His duties included driving and cleaning a concrete delivery truck. He sustained extensive injuries April 7, 2000, when the water pressure tank on the truck he was preparing to use exploded as he was entering the cab. He explained:
As I reached for the door, or I was walking from the back of the truck to the front of the truck, as I'd come in front of the water tank and right to the door, I'm not sure if my hand was on the door or — it was pretty close to the door, or — . . . might even been touching the door. But, anyhow, as I was going to open the door, the water tank exploded and threw me, ah, to the south there about four or five foot.
The allegations in the petition by which plaintiff brought this action include:
. . .
6. That approximately one month before such injury to Plaintiff . . ., the aforesaid water pressure tank had become rusted and was leaking water and air pressure. That for some time before approximately one month before April 7, 2000, Defendant . . . was the supervisor and co-employee of Plaintiff. . . .
7. That as Plaintiff's co-employee and supervisor Defendant . . . owed a personal duty of ordinary care to Plaintiff. . . .
8. That when Defendant . . . was made aware of the water pressure tank which had become rusted to the extent that it was leaking, Defendant made the decision that rather than to replace the rusted, leaking water pressure tank Defendant would, and did, attempt to weld the leaking pressure tank in a location longitudinally along the bottom of the water pressure tank.
Plaintiff further alleged that defendant was negligent in that he failed to exercise ordinary care in committing an affirmative negligent act that created the hazardous condition that produced plaintiff's injury. Plaintiff alleged that what resulted was "a negligently repaired leaking water pressure tank, which such affirmative negligent acts were and are beyond the responsibility of Plaintiff's employer to provide a safe work place[.]" He alleged that defendant's conduct was "'something more' than simply failing to provide a safe work place and, therefore, constituted a breach of the personal duty of care owed by Defendant . . . to Plaintiff. . . ."
Defendant welded the leak in the water pressure tank to which the petition referred. Plaintiff watched the welding and expressed concern that it was dangerous to operate the truck with a welded-over, rusted water pressure tank. Defendant responded to plaintiff's stated concern by telling plaintiff to "[r]un it till it blows." Plaintiff acknowledged at trial that he understood the statement to mean for him to "use it until you can't use it no more." Plaintiff told the trial court that defendant treated most of the equipment this way; that defendant's belief was that equipment should be used until it was no longer useful.
Plaintiff expressed no further concern about the water pressure tank after the date he saw it being welded. Plaintiff continued to drive the truck with the welded water pressure tank for a month to a month-and-a-half. He had no problems with the truck until the explosion that resulted in his injury.
The trial court made findings of fact and conclusions of law, including:
By welding over rust and corrosion on the leaking water pressure tank and by directing Plaintiff to "run it till it blows", Defendant acting as both and [sic] executive officer and president of Plaintiff's employer and as Plaintiff's supervisor, acted negligently and carelessly and committed affirmative negligent acts, separate and independent from Plaintiff's employer's duty to provide a reasonably safe workplace, which such acts by Defendant caused or increased the risk of injury to Plaintiff beyond the hazards normally associated with Plaintiff's employment, ant therefore such acts constituted a breach of Defendant's personal duty of care owed to Plaintiff, and which such acts directly and proximately caused plaintiff's severe, permanent, disabling injuries and substantial damages, including but not limited to past and future medical care, past and future loss of earnings and earnings capacity and other economic losses, and past and future pain and suffering and loss of enjoyment of his life.
Defendant raises three points on appeal. The first two assert, as a matter of law, that workers' compensation was plaintiff's exclusive remedy for the injuries he sustained. Point I claims that "the affirmative acts found by the trial court do not meet the legal standard . . . that a reasonable person would recognize [those acts] as hazardous and beyond the usual requirements of employment." Point II argues that there was no substantial evidence that demonstrated "that a reasonable person would have recognized the 'affirmative acts' of welding a rusted water tank and continuing to use it were hazardous beyond the usual requirements of employment as a cement-truck driver." Defendant contends that, for those reasons, the trial court erred in entering judgment for plaintiff rather than dismissing the action. Point III complains that the trial court erred in awarding pre-judgment interest.
Plaintiff, in the argument portion of his brief that is directed to defendant's Point I, suggests that defendant's statement of facts did not comply with Rule 84.04(c) and suggests the alleged shortcoming warrants dismissal of defendant's appeal. This court declines to do so.
Section 287.120.1 and .2 provide:
References to statutes are to RSMo 2000 as of the date of claimant's injury, April 7, 2000. The 1992 and 1995 revisions of § 287.120 did not affect the substance of § 287.120.1 and .2 as they apply to this case.
1. Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person. The term " accident" as used in this section shall include, but not be limited to, injury or death of the employee caused by the unprovoked violence or assault against the employee by any person.
2. The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee, his wife, her husband, parents, personal representatives, dependents, heirs or next kin, at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter.
State ex rel. Taylor v. Wallace , 73 S.W.3d 620 (Mo. banc 2002), explains the exemption the workers' compensation law provides.
The Workers' Compensation Law provides the exclusive remedy against employers for injuries covered by its provisions. This immunity from suit extends to employees of the exempt employer, albeit in a more limited fashion. Suits against employees personally for breach of the duty to maintain a safe working environment are preempted by the worker's compensation remedy: "However, an employee may sue a fellow employee for affirmative negligent acts outside the scope of an employer's responsibility to provide a safe workplace." [Footnotes omitted.]
Id. at 621-22, quoting Kelley v. DeKalb Energy Co. , 865 S.W.2d 670, 672 (Mo. banc 1993).
Logan v. Sho-Me Power Elec. Co-op , 122 S.W.3d 670, (Mo.App. 2003), explains that a co-employee's failure to perform acts required for an employer to meet its non-delegable duty to provide a reasonably safe workplace is not actionable; that the "co-employee's failure to perform that duty does not give rise to a cause of action by another worker who is injured by that failure." Id. at 678. In order for an injured employee covered by workers' compensation to maintain an action against a co-employee, the injured employee must charge his fellow worker with "something extra" beyond a breach of general supervision and safety. Id. See also Collier v. Moore , 21 S.W.3d 858, 861 (Mo.App. 2000).
Kelley states that "[s]uits for breach of this duty are excluded by the workers' compensation law," but that "an employee may sue a fellow employee for affirmative negligent acts outside the scope of an employer's responsibility to provide a safe workplace." 865 S.W.2d at 672.
Requirement for there to be an Affirmative Negligent Act Outside Employer's Responsibility to Provide a Safe Workplace
Point I alleges that the trial court erred by not dismissing the case because, as a matter of law, the affirmative acts found by the trial court did not meet the legal standard required for an employee to maintain an action against a co-worker. Determination of whether an affirmative negligent act is outside the responsibility of providing a safe workplace is made "on a case-by-case basis with close reference to the facts in each individual case." Taylor , 73 S.W.3d at 622. The issue in Point I is whether the act of repairing the pressure water tank by welding the hole in the tank amounted to an affirmative negligent act that was outside the employer's responsibility of providing a safe workplace. This court concludes that the repair of the pressure water tank did not extend beyond plaintiff's employer's duty to provide a safe workplace.
Plaintiff's usual acts of employment involved driving and cleaning a concrete delivery truck on which a pressure water tank was located. The evidence was that on April 7, 2000, plaintiff observed that the 150-gallon pressure water tank on the truck he was operating had begun leaking. After noticing the leak, plaintiff drove the truck back to his employer's plant and reported the problem to defendant, his supervisor. Defendant repaired the leak by placing a weld on it. Defendant assumed the tank was serviceable. Defendant anticipated that the tank would continue to be used until it began leaking again.
The evidence was that repairing pressure water tanks by placing welds over holes was common practice in the industry. Defendant had previously repaired water tanks in this manner. The basic test to determine if a pressure water tank repaired in this manner could continue in service was whether the weld held when the tank was pressurized. The only previous problem plaintiff's employer had experienced with a tank repaired in this manner occurred when plaintiff did not depressurize a tank after its use. The tank was left pressurized over a weekend, contrary to the employer's policy. The only consequence was that the contents of the tank leaked out.
The facts in this case do not support the trial court's determination that the act of welding the pressure water tank that later exploded and caused personal injury to plaintiff was "something extra" so as to be an affirmative negligent act outside the employer's obligation to provide a safe workplace. The trial court erroneously applied the law in so holding. Compare Taylor, supra (no liability for driver of trash truck where co-worker riding on back of truck was injured when truck struck mailbox that caused co-worker to fall); Sexton v. Jenkins Assoc. , 41 S.W.3d 1 (Mo.App. 2000) (no liability for employees who designed and built an elevator shaft railing); Felling v. Ritter , 876 S.W.2d 2 (Mo.App. 1994) (no liability for managers who did not install a "deadman's switch" on a wire rewinding machine that would allegedly have prevented death of co-worker); and Kelley, supra (no liability for employees who allegedly misdesigned and misinstalled a dangerous "corn flamer").
"Reasonable Person" Analysis Not Required
Defendant's Points I and II suggest that the standard for determining whether "something extra" occurred that would permit recovery from a co-worker is a finding that a reasonable person would recognize that what occurred was hazardous beyond the usual requirements of employment. A "reasonable person" characterization has been used, in some cases, to review directives given by supervisors to employees that required employees to engage in dangerous activities beyond the scope of their usual duties. See, e.g. Logan , 122 S.W.3d at 678. See also Nowlin ex rel. Carter v. Nichols , 163 S.W.3d 575, 578-79 (Mo.App. 2005); Groh v. Kohler , 148 S.W.3d 11, 14 (Mo.App. 2004); Wright v. St. Louis Produce Mkt., Inc. , 43 S.W.3d 404, 415 (Mo.App. 2001); Sexton , 41 S.W.3d at 5. "Reasonable person" language is not found, however, in majority opinions of the Supreme Court that discuss actions brought against co-workers. See Tauchert v. Boatmen's Nat. Bank of St. Louis , 849 S.W.2d 573 (Mo. banc 1993); Kelley, supra , and Taylor, supra.
The evidence in this case does not reveal that plaintiff was directed to engage in any activity beyond his usual duties of driving and cleaning a concrete truck. Plaintiff's sole remedy lies within the confines of Missouri's Workers' Compensation Law. Point I is granted. Points II and III are moot. The judgment is reversed. The case is remanded with directions to enter judgment for defendant.
McGhee, Sp.J., concurs
Rahmeyer, P.J., dissents in separate opinion
DISSENTING OPINION
I respectfully dissent. Although I acknowledge that the law concerning the "something more" test in the context of co-employee liability is less than clear, if ever there was a case for the finding of an affirmative act, the trial court found, and I agree, that this is it.
Before addressing the merits of whether something more, namely affirmative acts of negligence, exists in this case, however, I agree with the majority opinion that Logan v. Sho-Me Power Elec. Co-op , 122 S.W.3d 670 (Mo.App.S.D. 2003), did not create a new element of the "something more" cause of action. In Logan , this Court observed that, "Generally, cases in which the 'something extra' element has been found are those in which supervisors personally took part in the 'affirmative act' by directing employees to engage in dangerous activity that a reasonable person would recognize as hazardous and beyond the usual requirements of the employment." Logan , 122 S.W.3d at 678. The use of the word "generally" in this context connotes that Missouri courts have extracted a similarity that exists in these types of workers' compensation cases, but the similarity is not necessarily an element of the cause of action. The word "generally" also implies that there is not absolute acceptance that to constitute "something more," there must be a finding that a reasonable person would find the dangerous activity to be hazardous and beyond the usual requirements of employment. "Something more" may be found in other situations as well. See Sexton v. Jenkins Assocs. , 152 S.W.3d 270, 275 (Mo. banc 2004) (Teitelman, J., concurring) (noting that the situation where an employee alleges that he or she was directed to engage in a dangerous activity that a reasonable person would recognize as hazardous and beyond the usual requirements of employment is only one general situation that satisfies the "something more" test).
In fact in Logan , this Court did not rely on the "reasonable person" language in analyzing the case. This Court affirmed the dismissal on grounds that the injured employee-plaintiff admitted that the usual requirements of the employment included the alleged dangerous activity. Logan , 122 S.W.3d at 678. Therefore, the defendant's conduct was not "beyond the usual requirements of the employment," and workers' compensation was the plaintiff's sole remedy. Id. at 678-79. Moreover, the Missouri Supreme Court has not used the "reasonable person" language in determining whether the evidence proved the "something more" required to remove a negligence cause of action from the exclusivity provisions of the Workers' Compensation Law. See State ex rel. Taylor v. Wallace , 73 S.W.3d 620, 622-23 (Mo. banc 2002); Tauchert v. Boatmen's Nat'l Bank of St. Louis , 849 S.W.2d 573, 574 (Mo. banc 1993); Kelley v. DeKalb Energy Co. , 865 S.W.2d 670, 671 (Mo. banc 1993). Both Taylor and Kelley held that the workers' compensation exclusivity provisions applied to their respective cases. In Tauchert , the court held that the exclusivity provisions did not apply. In none of these cases was a "reasonable person" characterization of the "something more" test adopted. Whether an injured employee has sufficiently pleaded and proven "something more" than a failure on the part of a co-employee to discharge the non-delegable duties of the employer to provide a safe workplace is to be determined on a case-by-case basis, with close reference to the facts of each case. Taylor , 73 S.W.3d at 622. On the facts of this case, the trial court correctly found that the plaintiff proved the "something more" required to remove this case from workers' compensation exclusivity.
Attention now turns to whether or not substantial evidence was presented at trial with which to find the defendant's negligence in welding the water pressure tank constituted "something more" than the mere failure to discharge the employer's non-delegable duty to provide the plaintiff with a safe work environment. Before addressing the facts of this case, however, a general review of the "something more" standard in the context of co-employee liability is appropriate.
Section 287.120.1 provides in pertinent part,
Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of the employee's employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person.
All references to statutes are to RSMo 2000, unless otherwise specified.
Section 287.120.2 provides,
The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee, his wife, her husband, parents, personal representatives, dependents, heirs or next kin, at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter.
Section 287.120.2.
Prior to 1925, an employee injured in a work-related accident was limited to the common law for redress of his or her injuries. Gunnett v. Girardier Bldg. and Realty Co. , 70 S.W.3d 632, 635 (Mo.App.E.D. 2002). The employee often was unable to recover compensation for his or her injuries, however, because standing in the way were the common law defenses of (1) assumption of risk, (2) contributory negligence, and (3) the fellow-servant doctrine. Id. (noting these defenses as the "'unholy trinity'" and the "'wicked sisters'"). The Gunnett court also noted that of the 50,000 work accidents reported in Missouri in 1921, only ten percent received any compensation. Id. ( citing Todd v. Goostree , 493 S.W.2d 411, 416 n. 2 (Mo.App. K.C.D. 1973)). In 1925, the Missouri General Assembly enacted the Workers' Compensation Law to improve the chances of an injured employee receiving compensation for his or her work-related injury. Id. This law intended to "provide employees with rapid, definite and certain compensation for workplace injuries, and to place the burden of such losses on the industry." Id. at 636. The Workers' Compensation Law created new rights and remedies for injured employees against their employers, while eliminating the employer's liability for work-related injuries at common law. Id. ; see section 287.120.2. Thus, the employee's sole legal remedy against his or her employer, for injuries arising out of and in the course of employment, is limited to that available under the Workers' Compensation Law. Section 287.120.2.
While enactment of the Workers' Compensation Law substituted an employer's liability for work-related injuries from that at common law to that under the Workers' Compensation Law, the injured employee was nevertheless entitled to bring a common law negligence action against a "third party." Zueck v. Oppenheimer Gateway Properties, Inc. , 809 S.W.2d 384, 390 (Mo. banc 1991). In Missouri, "[i]t has long been established . . . that a co-employee is regarded as a 'third party' under [the] [W]orkers' [C]ompensation [L]aw, and amenable to an action at common law." Gunnett , 70 S.W.3d at 637 ( citing Sylcox v. Nat'l Lead Co. , 38 S.W.2d 497, 502 (Mo.App. St.L.D. 1931)). A mere common law negligence action against a co-employee for failing to discharge the non-delegable duties of the employer, however, will not lie. This is because the negligence in such cases is nothing more than the negligence of the employer. Biller by Summers v. Big John Tree Transplanter Mgf. Truck Sales, Inc. , 795 S.W.2d 630, 633 (Mo.App.W.D. 1990). Thus, when an employee is injured from a work-related accident that arose out of and in the course of employment due to a co-employee's failure to discharge the employer's non-delegable duty, the injured employee's cause of action is against the employer, and workers' compensation becomes the injured employee's sole remedy. Sexton v. Jenkins Associates, Inc. , 41 S.W.3d 1, 5 (Mo.App.W.D. 2000).
In 1982, the eastern district held that a co-employee is only liable to an injured employee in common law tort if the co-employee does "something more" than the failure to discharge the non-delegable duties of the employer. The court held
[c]harging the employee chosen to implement the employer's duty to provide a reasonably safe place to work merely with the general failure to fulfill that duty charges no actionable negligence. Something more must be charged. The extent and nature of the additional charge can only be determined and sorted out on a case-by-case basis.
State ex rel. Badami v. Gaertner , 630 S.W.2d 175, 180-81 (Mo.App.E.D. 1982). This standard has since been adopted by the Missouri Supreme Court and now is the law in this state. See Taylor , 73 S.W.3d 620, 622 (Mo. banc 2002); Logan , 122 S.W.3d at 678. When the co-employee does "something more," the co-employee breaches a personal duty owed to the injured employee. Craft v. Scaman , 715 S.W.2d 531, 537 (Mo.App.E.D. 1986). The co-employee breaches his or her personal duty owed to the injured employee when the co-employee performs some "affirmative negligent acts outside of the scope of an employer's responsibility to provide a safe workplace." Taylor , 73 S.W.3d at 621-22.
In Gunnett , the eastern district held that "a personal duty will arise out of circumstances where the co-employee engages in an affirmative act, outside the scope of [the] employer's non-delegable duties, directed at a worker, increasing the risk of injury." Gunnett , 70 S.W.3d at 641. As the Missouri Supreme Court noted, however, "[t]he question of what constitutes an 'affirmative negligent act' has not proven susceptible of reliable definition, and Missouri courts have essentially applied the rule on a case-by-case basis with close reference to the facts in each individual case." Taylor , 73 S.W.3d at 622.
With this understanding of co-employee liability in the context of workers' compensation exclusivity in mind, the attention now focuses on whether or not the trial court committed error, as the majority opinion holds, in finding that the defendant committed affirmative acts of negligence in negligently welding over a rusted water pressure tank and directing the plaintiff to "run it till it blows." This determination, in essence, is a determination as to whether or not the trial court had subject matter jurisdiction because if substantial evidence does not exist, as the majority opinion contends, then only the Labor and Industrial Relations Commission has subject matter jurisdiction over this case. Gunnett , 70 S.W.3d at 642.
As this appeal follows a final judgment from a court-tried case, this Court's standard of review is derived from Rule 84.13(d). This Court will affirm the judgment of the trial court unless the judgment (1) is not supported by substantial evidence, (2) is against the weight of the evidence, (3) erroneously applies the law, or (4) erroneously declares the law. Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976). This Court is "primarily concerned with the correctness of the trial court's result, not the route taken by the trial court to reach that result." Business Men's Assur. Co. of America v. Graham , 984 S.W.2d 501, 506 (Mo. banc 1999). In determining the correctness of the result, this Court "should accept all inferences and evidence favorable to the judgment and disregard all contrary inferences." Gibson v. Adams , 946 S.W.2d 796, 800 (Mo.App.E.D. 1997). Although both parties assert that this Court is bound by uncontroverted evidence, they are incorrect because the trial court is free to disbelieve even uncontroverted evidence. Thomas v. Lloyd , 17 S.W.3d 177, 187 (Mo.App.S.D. 2000); Wood v. Wood , 2 S.W.3d 134, 138 (Mo.App.S.D. 1999); Blando v. Reid , 886 S.W.2d 60, 65 (Mo.App.W.D. 1994).
All rule references are to Missouri Court Rules (2006), unless otherwise specified.
In driver license revocation appeals, this Court does not defer to the trial court's judgment when evidence is uncontroverted. Verdoon v. Dir. of Revenue , 119 S.W.3d 543, 545 (Mo. banc 2003); Hinnah v. Dir. of Revenue , 77 S.W.3d 616, 620 (Mo. banc 2002). I have found no cases, nor have the parties cited to any, suggesting that this rule extends beyond that of driver license revocation appeals.
A judgment should be set aside as against the weight of the evidence only with caution and with the firm belief that the trial court's judgment is wrong. See Jerry Bennett Masonry, Inc. v. Crossland Constr., Co., Inc. , 171 S.W.3d 81, 88 (Mo.App.S.D. 2005). Rule 73.01(c) provides that "[a]ll fact issues on which no specific findings are made shall be considered as having been found in accordance with the result reached." Rule 73.01(c). When reviewing the evidence, this Court accords great deference to the factual findings of the trial court and they are "to be upheld if there is any evidence to support them." Jerry Bennett , 171 S.W.3d at 88 (emphasis added).
In holding that there was no substantial evidence to support a finding that the defendant committed affirmative acts of negligence, the majority opinion, in essence, finds no subject matter jurisdiction in the trial court. Gunnett , 70 S.W.3d at 643. The trial court should dismiss an action whenever it appears that it lacks subject matter jurisdiction. Owner Operator Ind. Drivers Ass'n, Inc. v. New Prime, Inc. , 133 S.W.3d 162, 165-66 (Mo.App.S.D. 2004); Gunnett , 70 S.W.3d at 642. That determination, however, is a "question of fact left to the sound discretion of the trial judge." James v. Poppa , 85 S.W.3d 8, 9 (Mo. banc 2002); Gunnett , 70 S.W.3d at 642.
Prior to the introduction of evidence, the defendant requested the trial court to include in its ultimate findings of fact and conclusions of law the specific facts of what constitutes the "'affirmative act' by directing plaintiff to engage in dangerous activities 'that a reasonable person would recognize as hazardous and beyond the usual requirements of the employment' under Logan v. Sho-Me Power Elec. Coop., 122 S.W.3d 670, 678 (Mo.App.S.D. 2003)." Those facts, as set out by the trial court in its Findings of Fact and Conclusions of Law, include the following:
1. A month or two prior to April 7, 2000, Defendant placed a weld upon a salvage water pressure tank over an area that had become corroded and rusted-through to the extent that it had developed a line of holes which were leaking pressurized water.
2. The leaking water pressure tank had been taken from a salvage concrete mixer truck which was more than twenty years old, and previously mounted upon the concrete mixer truck driven by Plaintiff for his employer Kennon Ready-Mix, Inc.
3. That when Defendant placed the weld upon the corroded, rusted-through area of the water pressure tank he did so knowing that he did not see very well, and that as a result, when he welded he had trouble defining where he was welding, and he admitted that therefore his welding of the tank was a kind of "feeling in the dark thing".
4. That at all times relevant, Plaintiff was employed by Kennon Ready-Mix, Inc. as a concrete mixer truck driver, and Defendant was Plaintiff's supervisor.
5. That upon completion of the weld, which took Defendant only a few minutes, Defendant instructed and directed Plaintiff to "Run it till it blows".
6. That on April 7, 2000, the water pressure tank violently exploded injuring Plaintiff, as Plaintiff was getting into the concrete mixer truck to back it up, empty it, and spray it down with water and pressure contained in the previously welded, rusted-out water pressure tank.
7. That the weld placed by Defendant upon the tank over the corrosion and rust caused the violent explosion of the tank, and Plaintiff's injuries.
8. That the weld placed by the Defendant upon the tank over the corrosion and rust increased the risk of the violent explosion of the tank, and Plaintiff's injuries.
9. That the water pressure tank which had been welded over an area of rust and corrosion was dangerous.
10. That when the tank exploded, the explosive force and the tank's mounting band struck Plaintiff in the right hip and leg, severely fracturing Plaintiff's right hip.
11. That the danger and risk of an exploding water pressure tank that had been welded over rust and corrosion was hazardous beyond the usual requirements of Plaintiff's employment driving a concrete mixer truck.
In applying the law to the facts of this case, the majority opinion omits two critical facts found by the trial court. First, the trial court explicitly found
[t]hat when Defendant placed the weld upon the corroded, rusted-through area of the water pressure tank he did so knowing that he did not see very well, and that as a result, when he welded he had trouble defining where he was welding, and he admitted that therefore his welding of the tank was a kind of "feeling in the dark thing."
Second, the trial court explicitly found ["t]hat upon completion of the weld, which took Defendant only a few minutes, Defendant instructed and directed Plaintiff to 'Run it till it blows[.]'"
The majority opinion attempts to elude the fact that the defendant ordered the plaintiff to run the water pressure tank, after negligently welding it, until it exploded by noting that the plaintiff believed the "run it till it blows" directive to mean "use it until you can't use it no more." However, under this Court's standard of review, the trial court was free to disbelieve the plaintiff's understanding of the order "run it till it blows." Thomas , 17 S.W.3d at 187. All reasonable inferences from the evidence are to be drawn in a light most favorable to the verdict. Gibson , 946 S.W.2d at 800. The trial court was free to believe that the defendant ordered the plaintiff to run the water pressure tank on his concrete truck until it exploded. This is supported by the fact that the plaintiff had told his wife about the defendant welding over the rusted leak, and his wife, out of concern for his safety, told him to quit his job. The plaintiff did not quit his job, however, because he could not find other employment. Additionally, the water pressure tank was rusted to the extent that holes developed in it spanning about seven inches in length. Defendant's brother, Larry Smith, agreed that one is not supposed to weld over metal that is in such a condition because it can be dangerous due to the fact that the weld will not hold.
Witness Hamilton illustrated that the defendant's weld was not uniform, had lots of splatter from having the heat set wrong in the welder, and had occlusions where parts of the metal's sharp edges had been vaporized. Witness Hamilton agreed with the defendant that it was a mistake to have attempted to weld on this tank. Mr. Hamilton testified that a crack formed along the defendant's weld and the weld's inconsistencies, and the tank exploded. He stated that these inconsistencies and occlusions in defendant's weld increased the risk of that explosion.
The defendant's expert, Joe Fischer, testified that placing a weld on a corroded, rusted water pressure tank in the area of the rust increases the risk of the weld failing which could, in turn, possibly explode. He also agreed that a weld that is placed over rust and corrosion creates a dangerous condition which would eventually fail, and that a welded corroded leaking water pressure tank could explode. Furthermore, Mr. Fischer knew even before this case that welding over a corroded and leaking water pressure tank could result in an explosion.
The defendant was fifty-four years old and not a certified welder. When shown photographs of the irregular daubs of weld he had placed (where it eventually exploded) on the rusted water pressure tank, the defendant was asked to explain why some of the daubs of weld were in a direction different than the main line of the weld. He testified that it was because he does not "see very good" and that he really needs glasses, but has never gotten prescription glasses, and instead buys two dollar reading glasses so he could read, and therefore he "has trouble when he tries to weld." He characterized his inability to see what he was welding as a "kind of a feeling in the dark thing." The defendant knew that there had been no inspection of the salvaged water pressure tank before it had been put on the truck driven by plaintiff. In addition, the defendant did not attempt to check the wall thickness of the pressure tank in the corroded-through area of his weld before attempting the weld.
While there is no requirement that the "something more" test requires the defendant to direct the plaintiff to engage in a dangerous activity that a reasonable person would recognize as hazardous and beyond the usual requirements of the employment, the facts of this case present such a situation. The defendant ordered the plaintiff to engage in the dangerous activity of driving the concrete truck until the water pressure tank exploded. While the majority opinion does not consider the order by the defendant to "run it till it blows" as a directive to engage in a dangerous activity, the trial court so found. This factual determination is reserved for the province of the trial court, not this Court. See Gillham v. LaRue , 136 S.W.3d 852, 860 (Mo.App.S.D. 2004) ("In court tried cases considerable deference is given to judgments which turn on evidentiary and factual evaluations by the trial court. . . . As the trier of fact, the trial court is in a better position to determine the credibility of witnesses, their sincerity, character, and other trial intangibles which may not be shown by the record.") (internal citations omitted). The factual evidence cited in the majority opinion does not support the judgment of the trial court, and under this Court's standard of review, that evidence is to be disregarded.
The defendant argues that Gunnett is most on point to the case at bar. Gunnett is not as persuasive as the defendant contends because in that case, there was no directive by the co-employee ordering the injured employee to engage in a dangerous activity. The negligent action of the co-employee consisted of improperly attaching plywood over a skylight opening in a roof. Gunnett , 70 S.W.3d at 643. The co-employee did not engage in any affirmative acts directed at the injured employee. Id.
In the case at bar, the trial court found that not only was the defendant negligent in welding the water pressure tank, but he also directed the plaintiff to continue using the concrete truck until the tank exploded. This is what the trial court believed the order "run it till it blows" meant, and a contrary understanding of this order must be disregarded under the standard of review.
Appellant also relies upon Logan , and like Gunnett , that case is also not on point. In Logan , the plaintiff was electrocuted. The allegations of negligence were that the supervisor directed him to work around an energized power line and authorized the line to be energized. Logan , 122 S.W.3d at 678. Clearly, the hazard to the employee, who worked on electric lines, was electrocution. Allowing the worker to do his job in the accepted work risk did not rise to the standard of an additional affirmative act.
In the case at bar, the plaintiff was a concrete truck driver. The risk of a truck explosion was one that a reasonable person would recognize as hazardous and beyond the usual requirements of the employment. What made this act hazardous was the separate, affirmative act of the defendant, who was not a certified welder, in improperly attempting to weld over rusted metal in a pressurized water tank without clearly seeing what he was doing, and then ordering the plaintiff to "run it till it blows."
In Tauchert , the plaintiff alleged that the co-employee negligently arranged a faulty hoist system for an elevator, which ultimately failed causing injury to the plaintiff. Tauchert , 849 S.W.2d at 574. The Supreme Court held that the co-employee's act of personally arranging the faulty hoist system for the elevator could constitute an affirmative negligent act outside of the scope of responsibility to provide a safe workplace. Id. The court held, "[t]he creation of a hazardous condition is not merely a breach of an employer's duty to provide a safe place to work." Id.
This case is similar to Hedglin v. Stahl Specialty Co. , 903 S.W.2d 922 (Mo.App.W.D. 1995). In Hedglin , the wife and children of a deceased worker ("the plaintiffs") filed a civil action against the deceased's supervisor after the deceased fell into a vat of scalding water at work. Id. at 924. The plaintiffs alleged that the supervisor rigged a forklift with a cable or chain and then ordered the deceased to suspend himself by the cable or chain over the scalding water. Id. at 927. The western district held that the plaintiffs' petition sufficiently pleaded something more than the failure of the supervisor to provide a safe workplace for the deceased. Id. Like the allegations in Tauchert , the plaintiffs alleged that the supervisor "personally arranged an extremely dangerous scheme" which led to the death of the decedent. Id.
The case at bar also has similarities to Groh v. Kohler , 148 S.W.3d 11 (Mo.App.W.D. 2004). The allegations in the petition in Groh stated that the plaintiff was working at her employer's place of business by operating a Bald Molding machine. Id. at 16. The defendant, the plaintiff's supervisor, was informed that the Bald Molding machine was defective. Id. Despite this warning, the defendant failed to inspect and fix the machine, and also failed to shut the machine down. Id. The defendant responded to the plaintiff's concern regarding the malfunctioning of the machine by saying, "quit whining" and "just deal with it." Id. The plaintiff continued using the machine resulting in her hand being compressed causing severe injuries. Id. at 12.
The western district held on the basis of the factual allegations, the plaintiff had charged the defendant with the "something more" required to escape the workers' compensation exclusivity provisions. The court stated that the reasonable inference was that the defendant knew the Bald Molding machine's function was to compress plastic with substantial force, yet she still expected and required the plaintiff to use the defective and dangerous machine without regard to its condition or her safety. Id. at 16. The court concluded that the plaintiff was "effectively required by her supervisor and co-employee to perform an inherently dangerous act." Id. The defendant was alleged to have directed the plaintiff to use the machine even though the defendant knew it would result in the plaintiff being injured. Id.
In the present case, the defendant negligently welded over the rusted water pressure tank in what he admitted was a "kind of feeling in the dark thing." The majority opinion notes that common industry practice in repairing water pressure tanks is to place welds over the holes. However, it is not common practice for the welder to place a weld without proper vision, or to "feel in the dark" in placing the weld, as the defendant admitted doing. The defendant created a dangerous condition in the water pressure tank by welding it so improperly. Moreover, like in Groh , the defendant in the case at bar ordered the plaintiff to engage in a dangerous activity when he directed the plaintiff to "run it till it blows." Like Hedglin , the defendant ordered the plaintiff to use a piece of equipment that the defendant rigged by welding without using proper vision. The plaintiff had no other choice but to follow the defendant's order. While he contemplated quitting his job in order to avoid the dangerous risk of harm the defendant was placing him in, he did not do so because he had no alternative place of employment.
The facts of this case prove that there was substantial evidence supporting the finding that the defendant did "something more" than the mere failure to discharge the employer's duty to provide a safe workplace. The defendant personally welded over the rusted water pressure tank in a "make-shift" manner. Cf. Kelley , 865 S.W.2d at 672 (holding that the manufacture of a corn flamer that injured the plaintiff was not designed in a make-shift or jerry-rigged manner, and therefore the co-employee's actions did not result in "something more"). The defendant committed affirmative acts of negligence by directing the plaintiff to engage in a dangerous activity that a reasonable person would recognize as being hazardous and beyond the usual requirements of the employment. In doing so, the defendant breached a personal duty of care he owed to the plaintiff, which extended beyond the duty of care of the employer to provide a safe workplace. Given this Court's standard of review, and the deference to be afforded to trial courts on factual determinations, which the question of subject matter jurisdiction turns on, the trial court was correct in awarding judgment in favor of the plaintiff.