precluding a second civil action for damages against an employer for work-related injuries because the dismissal of the first action “for want of subject matter jurisdiction was ‘without prejudice’ ... only as to [the plaintiff employee’s] right to proceed in the proper forum” — before the commission
How later courts described this case
- precluding a second civil action for damages against an employer for work-related injuries because the dismissal of the first action “for want of subject matter jurisdiction was ‘without prejudice’ ... only as to [the plaintiff employee’s] right to proceed in the proper forum” — before the commission
- “[A] dismissal without prejudice may be considered a judgment on the merits of issues, such as jurisdiction, that are actually litigated and decided.”
Written by the judges who cited it.
The opinion
RICHARD B. TEITELMAN, Judge,
concurring.
I concur with the principal opinion that issue preclusion applies to bar Sexton’s second petition in the circuit court. I write separately to emphasize that Sexton’s allegations against his co-employees in the second petition would otherwise properly invoke the subject matter jurisdiction of the circuit court.
The workers compensation law provides employers with immunity from common law liability for breaches of the duty to maintain a safe workplace. State ex rel. Hartman v. Kintz, 832 S.W.2d 9, 10 (Mo.App.1992). This immunity extends to any employee charged with carrying out the employer’s duties. State ex rel. Badami v. Gaertner, 630 S.W.2d 175, 180 (Mo.App. *275 1982). Thus, a co-employee’s failure to perform a duty delegated to him by his employer does not give rise to a cause of action by a fellow employee who is injured because of the failure. Id. at 179 . However, an injured employee may sue a co-employee in the circuit court if he or she alleges that the fellow worker did “something extra” beyond the breach of the duty to maintain a safe workplace. Badami, 680 S.W.2d at 180. The “something extra” includes any affirmative negligent acts by a co-employee that are outside the scope of an employer’s responsibility to provide a safe workplace. State ex rel. Taylor v. Wallace, 73 S.W.3d 620, 621 (Mo. banc 2002).
The issue of what constitutes an “affirmative negligent act” or “something extra” is not susceptible to precise definition. Wallace, 73 S.W.3d at 622 . Instead, the rule has been developed over the years on a case-by-case basis. Id. One general situation that satisfies the “something extra” test is where an employee alleges that he or she was directed to engage in dangerous conditions that a reasonable person would recognize as hazardous beyond the usual requirements of employment. Lyon v. McLaughlin, 960 S.W.2d 522, 525 (Mo.App.1998). Sexton’s allegations present such a situation and, therefore, satisfy the “something extra” test.
Sexton alleged that he was working on a construction project and was employed by a subcontractor of Jenkins & Associates, the main contractor on the project. Three Jenkins employees, Sloniker, Hurlburt and Lacy, removed a cover that was protecting an open elevator shaft. They then built and installed a guardrail around the elevator shaft. Sexton alleged that the Jenkins employees constructed the guardrail in violation of numerous OSHA standards. The guardrail was made with 1" x 4" boards instead of the required 2" x 4" boards. The wood was decayed. The small, decayed boards were nailed together the wrong way with nails that were too small to support a worker. Sexton alleged that shortly after the guardrail was completed, Sloniker, a supervisor, directed Sexton to commence work near the elevator shaft. Sloniker instructed Sexton to use the guardrail to lower himself into the elevator shaft and assured him that the rail was safe. Sexton followed Sloniker’s instructions. The guardrail failed. Sexton fell down the open elevator shaft and was seriously and permanently injured.
Sexton alleged that Sloniker directed him to work in dangerous conditions that a reasonable person would recognize as hazardous beyond the usual requirements of employment and that he was seriously injured as a result. Accordingly, Sexton’s second petition adequately alleged the “something extra” required to invoke circuit court jurisdiction.