Appendix — Bass v. National Super Markets, Inc.

APPENDIX A

IN THE SUPREME COURT OF MISSOURI

December 19, 1995

Mr. Leonard P. Cervantes

1007 Olive Street, 4th Floor

St. Louis, Missouri 63101

In re: Louise Bass, et al. vs. National Super Markets, Inc.

Supreme Court No. 77915

Dear Mr. Cervantes:

This is to advise that the Court this day entered the

following order in the above-entitled cause:

"Appellants’ motion for rehearing overruled."

White, J., not participating. '

Yours very truly,

THOMAS F. SIMON

BY /S/ Christina S. Vinson

Christina S. Vinson

Deputy Clerk, Court en Banc

cc: Edward J. Deghroony

Ronald C. Willenbrock

= ee

APPENDIX B

IN THE SUPREME COURT OF MISSOURI

No. 77915

E.D. No. 65169

LOUISE BASS, Surviving Spouse of

KENNETH BASS, et al.,

Plaintiffs-Appellants

vs.

NATIONAL SUPER MARKETS, INC.,

Defendant-Respondent.

PLAINTIFFS-APPELLANTS’ MOTION FOR REHEARING

COME NOW Piaintiffs-Appellants and hereby file their

Motion for Rehearing pursuant to Missouri Rule of Civil

Procedure 84.17 and hereby bring to the Court’s attention

material matters of fact or law misinterpreted or overlooked by

this Court and thereby request that this Court rehear this case,

and in support thereof, state as follows:

E. THE COURT OVERLOOKED OR

MISINTERPRETED MATERIAL MATTERS

OF LAW OR FACT, WHICH TAKEN IN

THE LIGHT MOST FAVORABLE TO

PLAINTIFFS-APPELLANTS, REQUIRE THE

COURT TO RULE THAT DECEDENT

KENNETH BASS WAS NOT PERFORMING

WORK IN THE "USUAL COURSE OF

BUSINESS" OF NATIONAL AND

THEREFORE WAS NOT DEFENDANT-

RESPONDENT’S STATUTORY EMPLOYEE,

INCLUDING:

A. THAT ON THE NIGHT OF HIS

--A-3--

DEATH, DECEDENT, KENNETH

BASS, WAS SCHEDULED TO DO

STRIPPING WORK AT THE

NATIONAL STORE AND NOT

ROUTINE CLEANING AND

B. THAT THE STRIPPING OF THE

FLOORS AT THE NATIONAL

STORE WAS NOT DONE

ROUTINELY ON A REGULAR OR

FREQUENT SCHEDULE, RATHER

IT WAS DONE ON A "REQUEST

BASIS" EVERY SIX TO NINE

MONTHS.

This Court should grant Plaintiffs-Appellants Motion for

Rehearing because the Court’s opinion overlooks material matters

of fact or law as stated in the accompanying suggestions and

memorandum in support of this motion, which is incorporated

herein by reference.

This Court in its opinion, announced the new Missouri

test to be applied by a trial court when deciding the putative

Statutory employer’s “usual business". Bass et al., v. National

Super Markets, Inc., Slip Op. 77915 (Decided November 21,

1995). According to the Court’s holding, the putative employer’s

“usual business” is defined as those activities (1) that are

routinely done (2) on a regular and frequent schedule (3)

contemplated in the agreement between the independent contractor

and the statutory employer to be repeated over a relatively short

span of time (4) the performance of which would require the

Statutory employer to hire permanent employees absent the

agreement. Bass, Slip Opinion at 9.

— ye oe

This Court stated that Defendant-Respondent National was

required to clean and sweep the floors in order to satisfy the

Department of Health’s regulations. The Court, however,

overlooked the fact that Decedent Bass was not cleaning or

sweeping the floors as may have been required by the health

code, but rather was stripping the floor in preparation for the

application of a wax coating. The health code does not require

that National apply a shiny coat to its floors. It only requires that

the floors be kept clean and free of debris. Furthermore, the

stripping procedure was not routinely done on a regular and

frequent schedule.

The stripping of National’s floor was infrequently done

and not on a regular schedule. Under the Court’s newly

announced guidelines on the definition of "usual course of

business" Kenneth Bass was not performing work within the usual

course of National’s business and, therefore, Kenneth Bass was

not the statutory employee of Defendant-Respondent.

II. THIS COURT SHOULD GIVE ITS

DECISION IN THE CASE AT BAR

PROSPECTIVE-ONLY APPLICATION TO

AVERT INJUSTICE OR HARDSHIP UNDER

THIS COURT’S THREE-FACTOR TEST

ANNOUNCED IN SUMNERS V. SUMNERS

WHICH FOLLOWED THE UNITED STATES

SUPREME COURT’S ANALYSIS IN

CHEVRON OIL CO. V. HUSON BECAUSE:

A. THE DECISION HEREIN

ESTABLISHED A NEW PRINCIPLE

OF LAW BY OVERRULING CLEAR

PAST PRECEDENT;

B. THE PURPOSE AND EFFECT OF

THE NEWLY ANNOUNCED RULE

WILL NOT BE SIGNIFICANTLY

ENHANCED OR RETARDED BY

RETROSPECTIVE OPERATION;

AND

—S

C. A BALANCING OF THE INTERESTS

AND HARDSHIPS WHICH WOULD

RESULT FROM THE IMPOSITION

OF THE COURT’S NEW RULE

WOULD RESULT IN SUBSTANTIAL

HARDSHIP TO PLAINTIFFS-

APPELLANTS.

The Court should give prospective-only effect to the

decision herein under this Court’s three-factor test announced in

Sumners v. Sumners and the United States Supreme Court’s

constitutional analysis in Chevron Oil Co. v. Huson. This

Court’s decision in Bass established a new principle of law by

overruling clear past precedent. The purpose and effect of the

newly announced rule will not be significantly enhanced or

retarded by retrospective operation. In balancing the interests and

hardships which would result from the imposition of the Court’s

new rule, substantial hardship would result to those, such as

Plaintiff's herein, who may have relied upon the older rulings.

III. ©THE COURT’S DECISION DEPRIVES PLAINTIFFS-

APPELLANTS OF THEIR CONSTITUTIONAL

RIGHT TO A JURY TRIAL IN VIOLATION THEIR

PROCEDURAL DUE PROCESS AND

SUBSTANTIVE DUE PROCESS AS GUAR.’.NTEED

BY THE FOURTEENTH AMENDMENT OF THE

UNITED STATES CONSTITUTION.

The Court’s opinion in Bass deprived Plaintifts-

Appellants of their Constitutional right to a jury trial. The

Court’s decision makes the determination of statutory employee a

matter for the trial court and removes it from the hands of the

,jury. This deprivation violates Plaintiffs-Appellants’ substantive

and procedural due process as guaranteed by the Fourteenth

Amendment of the United States Constitution.

IV. THE DESIGNATION OF A "STATUTORY

EMPLOYEE" IS AN IMPROPER CLASSIFICATION

— ope

WHICH DENIES PLAINTIFFS-APPELLANTS

EQUAL PROTECTION UNDER THE LAW AS

GUARANTEED BY THE UNITED STATES

CONSTITUTION.

The Court’s designation of a "statutory employee" creates

a Classification of individual which exempts certain parties,

including Defendant-Respondent, from tort liability and deprives

Plaintiffs-Appellants of their right to pursue their cause of action

against Defendant-Respondent in violation of the Equal Protection

Clause of the United States Constitution.

WHEREFORE, for the reasons stated above and in the

accompanying Suggestions and Memorandum in Support of

Plaintiffs-Appellants’ Motion For Rehearing, Plaintiffs-Appellants

hereby request that this Court grant their Motion for Rehearing.

CERVANTES & ASSOCIATES

By /s/ Mario G. Silva

Leonard P. Cervantes, #25043

Mario G. Silva, #39134

1007 Olive, Fourth Floor

St. Louis, MO 63101

314-621-6558

Attorneys for Plaintiff(s)

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing was

served upon Ms. Ann Marie Piana, National Supermarkets, Inc..,

P. O. Box 7123, St. Louis, MO 63177 via facsimile, and hand-

delivered to Mr. Ron Willenbrock, Amelung, Wulff &

Willenbrock, 17th Floor Executive Office Building, 515 Olive

Street, St. Louis, Missouri 63101-1839 on December 6, 1995.

By /s/ Mario G. Silva

APPENDIX C

IN THE SUPREME COURT OF MISSOURI

No. 77915

E.D. No. 65169

LOUISE BASS, ET AL.,

Plaintiffs-Appellants

VS.

NATIONAL SUPER MARKETS, INC..,

Defendant-Respondent.

PLAINTIFFS’ SUGGESTIONS AND MEMORANDUM IN

SUPPORT OF THEIR MOTION FOR REHEARING

I. THE COURT OVERLOOKED OR

MISINTERPRETED MATERIAL MATTERS OF

LAW OR FACT, WHICH TAKEN IN THE LIGHT

MOST FAVORABLE TO PLAINTIFFS-

APPELLANTS, REQUIRE THE COURT TO RULE

THAT DECEDENT KENNETH BASS WAS NOT

PERFORMING WORK IN THE "USUAL COURSE

OF BUSINESS" OF NATIONAL AND THEREFORE

WAS NOT DEFENDANT-RESPONDENT’S

STATUTORY EMPLOYEE, INCLUDING:

A. THAT ON THE NIGHT OF HIS DEATH,

DECEDENT, KENNETH BASS, WAS

SCHEDULED TO DO STRIPPING WORK AT

THE NATIONAL STORE AND NOT

ROUTINE CLEANING AND

B. THAT THE STRIPPING OF THE FLOORS

AT THE NATIONAL STORE WAS NOT

ROUTINELY DONE ON A REGULAR OR

FREQUENT SCHEDULE, RATHER IT WAS

DONE ON A "REQUEST BASIS" EVERY SIX

TO NINE MONTHS.

-~-A-8--

This Court in its opinion, announced a new Missouri test

to be applied when deciding the putative statutory employer’s

"usual business". Bass et al., v. National Super Markets, Inc..,

Slip Op. 77915 (Decided November 21, 1995). According to the

Court’s holding, the putative employer’s "usual business" is

defined as those activities (1) that are routinely done (2) on a

regular and frequent schedule (3) contemplated in the agreement

between the independent contractor and the statutory employer to

be repeated over a relatively short span of time (4) the

performance of which would require the statutory employer to

hire permanent employees absent the agreement. Bass, Slip

Opinion at 9. In the case at bar, Kenneth Bass was not

performing work routinely done on a regular and frequent

schedule repeated over a relatively short span of time.

Arthur Seise, the president of Building Butlers, stated that

stripping of the floors was done on a "request basis" every six to

nine months. (DE T. 119, L. 5-10). Based upon Mr. Seise’s

testimony, stripping work was clearly not part of the agreement

between BBI and National. Stripping was not routinely done on a

regular and frequent schedule. Stripping work was not

contemplated in the agreement between BBI and National to be

repeated over a relatively short span of time. The performance

of stripping work would not have required National to hire

permanent employees absent the agreement.

Kenneth Bass was employed by BBI to perform

specialized polishing, buffing and stripping services at the Natural

Bridge store (DE. T.122, L.21-25; T.142, L.4-19). He had been

working for BBI for approximately two weeks. He had been

performing stripping services for BBI at the Jewish Community

Center (RI. T.342, L.24-25; T.343 L.1-6). Bass had worked

approximately three nights at National. (DE. T.141, L.12-16).

He was transferred to the National store to help complete the

stripping job there. (DE. T.141, L.21-25). National

employees did not lay finish or wax the floors. (DE. T.138,

L.15-20). National employees never stripped the floors. (DE.

T.138, L.21-23). National conceded that it did not do stripping

—

work. (Summers Depo. T.102, L.9-20). Furthermore, according

to Louise Bass, her husband informed her that he would be

stripping the floor at the National store on the night of his death.

(RI T. 343, L. 25; T. 344, L. 1-3).

This Court took judicial notice of the regulations of the

Department of Health which requires that the "cleaning of floors,

walls and ceilings shall be done as often as in necessary." 19

CSR 20-1.020(23) (1992). Bass at 10. The Court then

concluded that the stripping process was part of the floor care

mandated by the Department of Health thereby making the

stripping process part of National’s usual business.

This conclusion misinterprets the duties required of

Kenneth Bass. National’s store manager, Harold Meyer, testified

that the propane buffer was used for a more specialized purpose

than merely cleaning the floor. (RO. T. 387, L. 24 - T. 388, L.

6). The buffer was not really for cleaning; it was to make the

floor look shiny. (RO. T.387, L.24-25; T.388, L.1-6).

Judge William H. Crandall in the Eastern District’s

opinion in this case, stated:

In addition, there was evidence that decedent was

stripping the floor at the store on the night of his death. The

process of stripping required special chemicals and utilized the

machinery in a particular fashion. Stripping was done only

periodically. Stripping was, therefore, a specialized job, not

routinely performed by National’s in-house employees.

Slip Opinion E.D. No. 65169 at P. 9.

The Department of Health merely requires the cleaning of

floors. It does not require that the floors be stripped or kept in

highly glossed and polished condition. The work performed by

Kenneth Bass was not required by the Department of Health and

therefore, the Court erroneously concluded that the done

performed by Kenneth Bass was within National’s usual course of

--A-10--

business.

When there is a question of fact, as there is in this case,

the Missouri Supreme Court defined the appropriate standard of

review of the statutory employee defense in Walton v. United

States Steel Corp., 362 SW2d 617, 621 (Mo. 1962) when it

stated that a court should never withdraw a question from the

jury, unless all reasonable men, in the honest exercise of a fair

and impartial judgment, would draw the same conclusion from

the facts that condition the issue.

This Court misinterpreted the facts of the case at bar.

Under the Court’s newly announced guidelines on the definition

of "usual course of business" Kenneth Bass was not performing

work within the usual course of National’s business and,

therefore, Kenneth Bass was not the statutory employee of

Defendant-Respondent. There was a question of fact for the jury

as to whether stripping was part of the usual business. This was

not a question of law.

Il. THIS COURT SHOULD GIVE ITS DECISION IN

THE CASE AT BAR PROSPECTIVE-ONLY

APPLICATION TO AVERT INJUSTICE OR

HARDSHIP UNDER THIS COURT’S THREE-

FACTOR TEST ANNOUNCED IN SUMNERS V.

SUMNERS WHICH FOLLOWED THE UNITED

STATES SUPREME COURT’S ANALYSIS IN

CHEVRON OIL CO. V. HUSON BECAUSE:

A. THE DECISION HEREIN ESTABLISHED A

NEW PRINCIPLE OF LAW BY

OVERRULING CLEAR PAST PRECEDENT;

B. THE PURPOSE AND EFFECT OF THE

NEWLY ANNOUNCED RULE WILL NOT BE

SIGNIFICANTLY ENHANCED OR

RETARDED BY RETROSPECTIVE

OPERATION; AND

C. A BALANCING OF THE INTERESTS AND

HARDSHIPS WHICH WOULD RESULT

--A-11--

FROM THE IMPOSITION OF THE

COURT’S NEW RULE WOULD RESULT IN

SUBSTANTIAL HARDSHIP TO

PLAINTIFFS-APPELLANTS.

The United States Supreme Court in Chevron Oil Co. v.

Huson, 404 U.S. 97, 92, S.Ct. 349 (1971) and the Missouri

Supreme Court in Sumners v. Sumners, 701 S.W.2d 720, 723

(Mo. banc 1985) clarified the principle that a court may

constitutionally issue prospective-only application of its decision

in order to avert injustice or hardship. A decision may be given

prospective-only application if the court’s decision establishes a

new principle of law by overruling clear past precedent and if the

purpose and effect of the newly announced rule will not be

significantly enhanced or retarded by retrospective operation.

The court must also balance the interests and hardships of the

parties who would be affected by the decision. Sumners at 724.

The first prong of the Sumners test is clearly established

because the Court’s decision overruled its decision of Wooten

Youthcraft Mfg. Co. 312 S.W.2d 1 (Mo. 1958). Wooten involved

a Plaintiff who was employed by a cleaning company that

contracted to perform janitorial services on Defendant’s premises

after the store closed for business. The Wooten case, on facts

quite similar to the facts of the instant case, held that a janitorial

employee was not performing work within the usual course of the

putative statutory employer. The janitorial work in Wooten was

performed after hours because the janitorial services would have

interfered with defendant’s usual work of manufacturing women’s

clothing. The defendant alleged that the janitorial services

provided by plaintiff were an essential part of its business because

it could not conduct its manufacturing business unless the

premises were kept clean. The Supreme Court in Wooten

addressed defendant’s contention by comparing the services

provided by janitorial firms with those provided by lighting

system firms. The court stated that defendant’s business could

not be conducted without light, yet the lighting systems

employees would not be statutory employees.

--A-12--

The second prong of the test requires the Court to

consider whether the newly announced rule will be enhanced or

retarded by retrospective operation. Realistically, it is doubtful

that there are any pending cases in which the employee will be

benefited by the Court’s ruling herein. This part of the three-part

test announced in Sumner should not be determinative of the

issue.

The balancing of the equities, as required by the third

prong of the test clearly favors Plaintiffs-Appellants. Huff v.

Union Electric, 598 S.W.2d 503 (Mo. App. 1980) properly states

the reality that in modern society, the employee is the one who is

likely to suffer hardship by the retroactive restriction of common

law liability by extension of the statutory employment designation

The Bass Plaintiffs, and other similarly situated Plaintiffs,

have relied on prior court rulings in the area of statutory

employment. The Bass Plaintiffs received a substantial verdict

against a wrongful death tortfeasor. Worker’s compensation

benefits were provided by Bass’s actual employer, BBI.

Accordingly, no benefit extends to the Bass Plaintiffs as a result

of the Court’s ruling herein. The only beneficiary is a wrongful

death tortfeasor. On the other hand, considerable hardship is

suffered by the Bass Plaintiffs not only by the denial of a

substantial verdict, but also by the obligations of substantial

litigation costs and expenses. As pointed out in Huff, the primary

beneficiaries of the Court’s new rule will be common law

tortfeasors. The Court’s decision should be applied only

prospectively as set forth by the Supreme Court in Sumners.

CERVANTES & ASSOCIATES

By /s/ Mario G. Silva

Mario G. Silva, #13834

Leonard P. Cervantes, #25043

1007 Olive, Fourth Floor

St. Louis, MO 63101

--A-13--

314-621-6558

Attorneys for Plaintiff(s)

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing was

served upon Ms. Ann Marie Piana, National Supermarkets, Inc.,

P. O. Box 7123, St. Louis, MO 63177 via facsimile, and hand-

delivered to Mr. Ron Willenbrock, Amelung, Wulff &

Willenbrock, 17th Floor Executive Office Building, 515 Olive

Street, St. Louis, Missouri 63101-1839 on December 6, 1995.

By /s/ Mario G. Silva

--A-14--

APPENDIX D

SUPREME COURT OF MISSOURI

EN BANC

No. 77915

LOUISE BASS, ET AL.,

Plaintiffs-Appellants

vs.

NATIONAL SUPER MARKETS, INC.,

Defendant-Respondent.

Appeal from the Circuit Court

Of the City of St. Louis

Honorable Timothy J. Wilson, Judge

OPINION FILED: November 21, 1995

We granted transfer to reexamine the manner in which

appellate courts of this state have made determinations of

statutory employment under section 287.040, RSMo 1994. The

specific issue in this case is whether the trial court properly

concluded as a matter of law that section 287.040, RSMo 1994,

rendered plaintiffs’ decedent, who performed floor care duties as

the empioyee of an independent contractor, a statutory employee

under The Workers’ Compensation Law (the "Act"). As more

fully explained, we hold that the performance of routine,

frequent, and regular contractual duties is within the usual

business of the employer. and falls under the coverage of the Act.

Our jurisdiction is founded on article V, section 10 of the

Missouri Constitution, The judgment of the trial court is

affirmed.

--A-15--

I.

There is no dispute as to the facts in this case, only their

meaning. We take the facts from the evidence the Bass plaintiffs

offered.

In August, 1986, Building Butlers, Inc. ("BBI") orally

contracted with National Supermarkets (’National") to furnish

personnel and provide janitorial services at National's Natural

Bridge store in St. Louis. Under the agreement, BBI personnel

swept and dust mopped the floor, scraped up gum or labels stuck

to the floor, scrubbed, spot mopped, and buffed the floor with a

propane powered buffer every night after National closed the

store. In addition to the nightly cleaning, BBI agreed to wax the

floor periodically and to strip the floor and apply fresh wax at

less frequent, but regular intervals.

BBI hired Kenneth Bass. On the night of September 4,

1987, BBI assigned Bass to perform the routine janitorial services

required by the agreement with National at the Natural Bridge

store. Between 10:00 and 11:00 p.m. that night, two men forced

their way past a security guard and into National’s store. During

the course of the robbery, these men shot and killed several

people, including Bass.

On May 4, 1988, Louise Bass, (decedent’s wife, and

Maurice and Christopher Bass, decedent’s surviving children,

filed a civil action for wrongful death against National averring

that National negligently failed to provide adequate security to

protect Bass. National filed a motion to dismiss for lack of sub-

ject matter jurisdiction on the grounds that decedent was its

statutory employee. The trial court initially overruled the motion.

The case proceeded to trial. The jury returned a

substantial verdict against National. National filed a motion for a

judgment notwithstanding the verdict, renewing its argument that

jurisdiction of the Bass’ claim was trial court in the Labor and

Industrial Relations Commission. he trial court reviewed the

--A-16--

evidence, concluded that it lacked subject matter jurisdiction to

enter am a civil action for damages in wrongful death because

Bass was a statutory employee of National subject to the

compensation provided by the Act, sustained the motion and

entered judgment accordingly (In appeal the Court Of Appeals,

Eastern District, reversed and remanded with instructions to

reinstate the verdict.

I

A

The common law prov ided an employer with several

defenses to a civil claim for damages filed by an employee.

Three of these, assumption of the risk, contributory negligence,

and the and the employer’s non-liability for acts of third parties,

effectively barred the negligent employee from recovering

damages in a common law action for work-related injuries in

most cases. The common law permitted an injured employee to

recover for work-related injuries only if he or she could prove

that the accident resulted solely from the employer’s negligence.

See generally Arthur Larson 1, The Law of Workmen’s

Compensation, Section 4.30 (1952).

Responding to the common law’s seeming inability to

fashion a remedy to provide redress for workers injured in

increasingly common industrial accidents, state legislatures

adopted workers’ compensation laws that imposed a statutory

contractual provision on the employee-employer relationship.

Oren v. Swift & Co., 51 S.W.2d 59, 61 (Mo. banc 1932). The

statutory contract provided a means of compensating the injured

worker that, with exceptions, eliminated the common law’s

concerns with negligence and fault altogether, established levels

of compensation and provided for administrative determinations

of the nature and extent of injury, subject to judicial review.

In 1925, Missouri’s legislature adopted its first

workmen’s compensation law, 1925 Mo. Laws 375, directing that

--A-17--

"[aJll of the provisions of this act shall be liberally construed with

a view to the public welfare." § 3374, RSMO 1929. Cf. §

287.800, RSMo 1994.

Appellate courts of this state have interpreted the

legislature’s admonition to construe the Act liberally to mean that

"[t}he legislative design...was to ameliorate, in the interest of the

workman and the public welfare, the losses sustained by himself

and his dependents from accidental injuries received by him in

the proper course of his work..." Maltz v. Jackoway-Katz Cap

Co., 82 S.W.2d 909, 912 (Mo. banc 1935). Further, liberal

construction of the Act requires that "where a question of

jurisdiction is in doubt, it should be held to be in favor of the

{Labor and Industrial Relations] commission." Ringeisen v.

Insulation services, Inc., 539 S.W.2d 621, 626 (Mo. App.

1976).

This Court is aware that the adoption of comparative fault

in Gustafsen v. Benda, 661 S.W.2d 119 15 (Mo. banc 1983),

makes the policy rationale underlying the Act less compelling.

The Court is further aware — as this case illustrates -- that an

injured worker often prefers that a jury decide liability and

damage issues in a civil suit rather than submit to the statutorily

imposed compensation limitations found in the Act. Nevertheless,

the legislature has not altered the scope or applicability of the Act

since Gustafsen, nor the requirement that courts liberally construe

its provisions.

B.

The dispositive issue in this case is whether Kenneth Bass

worked as a statutory employee of National under section

287.040.

s

Section 287.040.1 defines a statutory employee.

Any person who has work done under contract on

or about hit premises which is an operation of the usual

--A-18--

business he there carries on shall be deemed an employer

and shall be liable under this chapter to such contract, his

subcontractors, and their employees, when injured or

killed on or about the premises of the employer while

doing work which is in the usual course of his business.

The General Assembly adopted section 287.040 to prevent

employers from circumventing the requirements of the Act by

hiring independent contractors to perform work the employer

would otherwise perform. Walton v. U.S. Steel Corp., 362

S.W.2d 617, 622 (Mo. banc 1962).

As the statute makes clear, statutory employment exists

when three elements coexist: (1) the work is performed, pursuant

to a contract; (2) the injury occurs on or about the premises of

the alleged statutory employer; and (3) the work is in the usual

course of business of the alleged statutory employer. McGuire v.

Tenneco, Inc., 756 S.W.2d 532, 534 (Mo. banc 1988).

The first two elements are not at issue in this case. The

parties agree that National orally contracted with BBI for floor

cleaning services and that Bass’s death occurred on National’s

premises.

The third element - whether the floor cleaning services

performed by BBI and Bass were within the usual course of

National’s business -- is the focus of the case. National contends

that the care and maintenance of its floors is within the usual

course of its business. The Bass plaintiffs urge that Kenneth Bass

was not a statutory employee because National’s usual business is

to buy, sell, manufacture, process and otherwise deal in

groceries, produce, meat and general merchandise. Further, they

argue that BIB used specialized equipment and procedures to

perform the contractual duties. Under the plaintiffs’ reasoning,

National is not in the floor-cleaning business said the work

performed by BBI employees under BBI’s contract with National

lies outside National’s usual business.

--A-19--

e.

Courts have wrestled with the meaning of the phrases

“usual business" and “usual course of business’ in section

287.040.1. Although the cases do not fall neatly into rigid

categories, two basic, analytica' constructs inform the courts’

decisions. The first line of cases say that the usual business of a

company encompasses all of those activities--that are essential and

integral to the statutory employer’s business. See, e.g., Viselli v.

Missouri Theatre Building Corp., 234 S.W.2d 563, 567 (Mo.

banc 1930) (window washing is within the usual business of a

company that rented property to commercial tenants because

essential); Wooten v. Youthcraft Manufacturing Co., 312 S.W.2d

1, 3 (Mo. banc 1938) (janitorial service at a clothing

manufacturer formerly performed by employees not an essential

part of manufacturer’s trade or business when contracted to an

independent contractor);' March v. Bernardin, 78 S.W.2d 706,

708 (Mo. App. 1934) (annual repair of boiler within usual

business of coal mine because necessary to operation of business);

Kennedy v. J.D. Carson Co. 149 S.W.2d 424, 428 (Mo. App.

1941) (repair of an elevator is essential and therefore within the

usual business of a furniture company where exhibition, sales and

delivery of furniture requires use of the elevator); Heskett v.

Central Missouri State University, 743 $.W.2d 712, 713 (Mo.

App. 1987) (preparation of food is integral part of university’s

activities); Mooney v. Missouri Athletic Club, 859 S.W.2d 7729

774 (Mo. App. 1993) (furnishing security is integral part of

athletic club’s operation); Miller v. McDonnell Douglas Corp.,

896 S.W.2d 734, 737 (Mo. App. 1995) (installation and

maintenance of a telecommunications system is part of the usual

' Professor Larson describes Wooten as “{a] really remarkable decision” that

would seem “grotesquely illiberal” the holding had not emitted a damage suit to

proceed. Wooten is wrongly decided precisely because it ignores the

legislature’s mandate that the Act be liberally construed to provide coverage

under the Act. This is so without regard to whether an underlying damage suit

holds out the hope of a recovery.

--A-20--

course of business of an airplane manufacturer because necessary

to conduct business).

A second line of cases places greater focus on the routine

and frequent nature of the independent contractor’s activities to

determine whether the work is within the usual business of the

putative employer. See, e.g., Anderson v. Benson Mfg. Co., 338

S.W.2d 812, 815 (Mo. 1960) (guard services performed regularly

and continuously to protect classified material within usual

business); Shaver v. First Union Realty Management, Inc., 713

S.W.2d 297, 300 (Mo. banc 1986) (full-time maintenance of

heating and air conditioning equipment within usual business of

company engaged in managing real estate); Musielak v.

International Shoe Co., 387 S.W.2d 217 (Mo. App. 1965)

(employee of an independent contractor supplying janitorial

services to a shoe manufacturer not statutory employee when

removing paint from a floor in preparation for remodeling

because remodeling not usually and customarily done); Rouge v.

St. Charles Speedway, 733 S.W.2d 854, 856 (Mo. App. 1987)

(even though the employer used the public address system as an

integral part of its business, episodic repair of that system was

not sufficient to constitute a part of the operation of speedway"s

usual business); McGuire v. Tenneco, Inc., 756 S.W.2d 532, 535

(Mo. banc 1988) (sweeping a warehouse Boor is within the usual

business of company that operates paper recycling plant because

work is regularly performed); Taylor v. Associated Electric

Cooperative, Inc., 818 S.W.2d 669, 671 (Mo. App. 1991)

(painting water storage tanks at a coal-fired electricity generating

plant is not within the usual business of a rural electric

cooperative since only occasionally necessary).

The difficulties that attend holdings relying on the

essential/integral test are obvious from the uneven results reached

in the cases. In order to maximize profits, businesses generally

limit expenditures to those. goods and services that are necessary

to ongoing or planned activities. Thus, any activity undertaken

or service contracted for is arguably essential and integral to the

usual business of the putative employer no matter how removed

--A-21--

from the work its employees regularly perform its day-to-day

operation.

With notable exceptions, the cases employing the

essential/ integral test are older than those that use a

routine/frequent analysis. It appears that the older cases are

written more broadly to accommodate the common law’s

contributory fault system that denied recovery to any employee

whose negligence contributed to his or her injury. Absent

workers’ compensation coverage, the employee -- and ultimately

society -- bore the entire economic burden of the injury. By

extending the Act’s coverage to essential or integral business

purposes, courts permitted compensation where it would not

otherwise have existed.

The routine/frequent test is more narrow. It also has the

virtue of more closely accommodating the legislature’s intent in

adopting section 287.040.1 -- to prevent, employers from

avoiding their duties under the Act by contracting out work that

their employees would normally do. And it does so without

sweeping within its reach specialized or episodic work that is

essential to the employer but not within the employer’s usual

business as performed by its employees.

Against this precedent and understanding of the

legislature’s purpose, we define a putative employer’s "usual

business" as used in section 287.040 as those activities (1) that

are routinely done (2) on a regular and frequent schedule (3)

contemplated in the agreement between the independent contractor

and the statutory employer to be repeated over a relatively short

span of time (4) the performance of which would require the

statutory employer to hire permanent employees absent the

agreement.

D.

When an action for damages arising from employment is

filed in the circuit court, the court must decide initially whether it

--A-22--

or the Labor and Industrial Relations Commission has jurisdiction

to address the issues raised. In determining the existence of

statutory employment that would place the matter properly before

the Commission, courts must consider the agreement between the

putative employer and the independent contractor as a whole.

The manner in which the independent contractor performed its

contractual: obligations is not relevant to the section 287.040

inquiry. Where the facts are not in dispute as to the nature of the

agreement and the work required by it, the existence or absence

of statutory employment is a question of law for the courts to

decide. Only where the parties disagree as to whether the work

that caused the injury was work performed under and required by

the contract between the putative statutory employer and the

independent contractor will a factfinder be asked to render a

factual decision. Finally, until directed by the legislature to

embark on another course, courts must continue to give the Act a

liberal reading, deciding dose cases in favor of workers’

compensation coverage.

E.

In the case sub judice and based on the evidence the Bass

plaintiffs submitted, Bass worked under an oral agreement

between BBI and National for routine floor maintenance. The

agreement required nightly cleaning as well as periodic stripping

and waxing of National’s floors. This work was routinely done

on a regular and frequent schedule and repeated over a relatively

short span of time. Absent its contract with BBI, Nationa! would

have had either to assign floor care duties to its staff or to hire a

staff specifically to maintain its floors. This is because -

regulations of the Department of Health, of which we take

judicial notice and under which National operates, require that the

"[c]leaning of floors, walls and ceilings shall be done as often as

necessary." 19 CSR 20-1.020(23) (1992). We conclude,

therefore, that at the time of his death Bass was performing work

within the usual course of National’s business. The trial court

properly found Bass a statutory employee of National as a matter

of law.

--A-23-

Il.

The judgment of the trial court is affirmed.

EDWARD D. ROBERTSON, JR. Judge

Holstein, C.J., Benton, Price, Limbaugh,

Covington, JJ., and Edwards, Sr.J., concur.

White, ., not participating because not a

member of the Court when case was submitted.

--A-24--

APPENDIX E

IN THE MISSOURI COURT OF APPEALS

EASTERN DISTRICT

DIVISION THREE

No. 65169

LOUISE BASS, surviving spouse of KENNETH BASS,

and MAURICE BASS and CHRISTOPHER BASS,

Surviving Children of KENNETH BASS, Deceased

Plaintiffs/Respondents

v.

NATIONAL SUPER MARKETS, INC.

Defendant/Appellant.

Appeal from the Circuit Court

of the City of St. Louis

Honorable Timothy J. Wilson

OPINION FILED: March 7, 1995

Plaintiffs, Louise Bass, Maurice Bass, and Christopher

Bass, brought an action against defendant, National Super

Markets, Inc., for the wrongful death of Kenneth Bass. Plaintiffs

appeal from the trial court’s grant of defendant’s motion for

judgment notwithstanding the verdict, following a jury verdict in

favor of plaintiffs in the amount of $3,000,000.00. The trial court

entered judgment n.o.v. on the basis that Kenneth Bass was a

statutory employee of National Super Markets, Inc. (National) at

--A-25--

the time of his death.' We reverse and remand.

In determining whether plaintiffs made a submissible

case, the evidence is viewed the light most favorable to the

plaintiffs, giving them the benefit of all reasonable inferences

drawn from the evidence in support of their cause of action.

Bizzle v. Enterprise Leasing, 741 S.W.2d 84, 85 (Mo-App.

1987). Sustaining a motion for judgment n.o.v. should be done

only when all of the evidence and the reasonable inferences

therefrom are so strongly against the plaintiffs’ case that there is

no room for reasonable minds to differ. Id.

The evidence, viewed in this light, established that on

September 4, 1987, Kenneth Bass (decedent) was employed by

Building Butlers, Inc. (BBI), a company which provided janitorial

services to residential, commercial, and retail customers. He was

working at a National super market located at 4331 Natural

Bridge in St. Louis, Missouri (store), when he was killed during

a robbery.

BBI contracted with National to provide floor cleaning

services at the store. One BBI employee scrubbed and buffed the

floor nightly, using a method known as the Pioneer Eclipse

Program (PEP), a program which utilized specific products and

steps. The nightly routine included sweeping the floor; dust

mopping the floor, scraping up gum or labels stuck to the floor;

scrubbing the floor with an automatic scrubber; spot mopping the

floor; and finally using a propane-powered buffer to shine the

floor.

In conjunction with the trial court’s grant of defendant’s motion for

judgment n.o.v., the court dismissed plaintiffs’ action without prejudice for lack

of subject matter jurisdiction. See, e.g., Mays v. Penzel Construction Company,

838 S.W.2d. 1 (Mo. in App. E.D. 1992). Given that the trial court granted

judgment n.o.v. on the ground that Kenneth Bass was defendant’s statutory

employee, the dismissal of plaintiffs’ action necessarily followed. The salient

issue, however, is the submissibility of plaintiffs’ case. The parties on appeal

have properly focused on the court’s grant of judgment n.o.v., which we

address in this opinion.

--A-26--

National supplied all of the mops and brooms, as well as

the PEP cleaning products. BBI furnished the propane buffer, the

buffer pad$, and the propane fuel for the buffer. BBI was

responsible for maintaining the buffer. Although the buffer was

kept at the store, it was used exclusively by BBI employees. The

nightly process of cleaning the floor took about seven hours and

was performed after closing hours when no customers were in the

store. National did not want the buffers interfering with

customers while they shopped.

In addition to the nightly floor cleaning, BBI employees

waxed the floor, in some areas of the store every five to eight

days and in other areas every other week. About every six to

nine months, BBI employees stripped and waxed the floor.

National employees did not strip, wax, or polish the floor.

BBI controlied its employees and determined which

employees worked at the store. Although National informed BBI

employees of specific areas of the store which required cleaning,

it was within the exclusive province of BBI to hire its employees,

to train them, and to fire them.

During the day; National employed about three porters to

sweep the floor and mop up spills. National did not hire or train

anyone to scrub and buff the floor, either during normal working

hours or after the store closed. In addition to keeping the floor

clean during the daytime hours of operation, the two day porters

did general cleaning.

At the time of the incident, decedent had worked at the

store for about three days. Prior to coming to the store, he had

stripped floors for another BBI customer. Although he originally

worked with the stripping crew at the store, on the night in

question he was assigned to the job of scrubbing and buffing the

floor.

Between 10:00 and 11:00 p.m. that night, two men

forced their way past a security guard and into the store. During

--A-27--

the course of a robbery, they shot and killed several people,

including decedent.

Louise Bass, decedent’s surviving spouse, and Maurice

Bass and Christopher Bass, decedent’s surviving children,

brought this wrongful death action against National. They

alleged that National was negligent in failing to provide adequate

security. National raised the affirmative defense of statutory

employee as a bar to plaintiffs’ common law negligence action.

National argued that decedent’s scrubbing, buffing, and stripping

the floor constituted its usual and customary business, because it

was required to keep the store clean.

After a trial, the jury returned a verdict in favor of

plaintiffs in the amount of $3,000,000.00. The trial court later

granted National’s motion for judgment n.o.v. on the basis that

decedent was a statutory employee.

On appeal, plaintiffs challenge the trial court’s granting

judgment n.o.v. in favor of National. The issue is whether the

trial court erred in finding that decedent was National’s statutory

employee at the time of his death, thereby limiting his recovery

to Workers’ Compensation Law. Section 287.040-1., RSMO

(1994) defines a statutory employee as follows:

Any person who has work done under contract on

or about his premises which is an operation of the usual

business which he there carries on shall be deemed an

employer and shall be liable under this chapter to such

contractor, his subcontractors, and their employees, when

injured or killed on or about the premises of the employer

while doing work which is in the usual course of his

business.

The statute establishes a constructive employment relationship. in

order to extend workers’ compensation coverage to employees of

employers who have work done pursuant to a contract. Tumbas

v. J. L. Mason Group, Inc., 809 S.W.2d 188, 190 (Mo. App.

--A-28--

1991). Its purpose is to prevent an employer from evading

workers’ compensation liability by hiring independent contractors

to perform the usual work his employees would otherwise

perform. Id. To categorize an employee as a statutory employee,

it is necessary that three elements-exist: (1) the work was

performed pursuant to a contract; (2) the injury occurred on or

about the premises of the statutory employer; and (3) the work

was in the usual course of business of the statutory employer. Id.

When attempting to determine the application of § 287.040.1,

each case must be determined on its own facts and the court must

recognize the real roles and relationships of the parties as they

relate to the purpose of the statute. Id.

The first two elements required to establish that decedent

was a statutory employee of National are not at issue in the

present case. National owned the premises on which decedent

was killed; and decedent’s employer, BBI, contracted with

National to provide floor cleaning service at the store. The

salient issue focuses on the third requirement; namely, whether

the floor service performed by decedent was in the usual course

of National’s business.

National claims that at the time of his death decedent was

performing tasks which were within the usual course of its

business. It alleges that cleaning the floor was an integral. and

essential part of the store’s operation and relies on the following

facts to buttress its position: both state and federal health

regulations required it to keep the floor clean; its employees

performed the same work during the day; it provided all the

equipment and cleaning products for use in the store, except for

the equipment used in conjunction with the PEP system; and a

clean store was essential to remaining competitive with other

grocery stores in the community.

In McGuire v. Tenneco, Inc., 756 S§.W.2d 532, 533

(Mo.banc 1988), McGuire was employed by a temporary

employment agency. Tenneco, which operated a paper recycling

plant, requested laborers from the agency "for the following day

ee .

--A-29--

in anticipation of a large volume of paper products and a need for

additional “sorters.’" Id. When he reported for work, McGuire

was assigned to sweep paper off the warehouse floor, a job which

was usually a sorter’s duty. Id. McGuire was sweeping the floor

when he was injured. Id. The Supreme Court of Missouri held

that McGuire was a statutory employee of Tenneco because

"[s]weeping the warehouse floor constitutes work which is within

the usual course of Tenneco’s business Id. at 536.

In Musielak v. International Shoe Co., 387 S.W.2d 217,

218 (Mo. App. 1965), Musielak worked for a janitorial service

which contracted with International Shoe to provide general

janitorial services. An International Shoe foreman directed

Musielak to clean anc mop the floor of the cafeteria with a

solution furnished by International Shoe. /d. The purpose of the

work. was to remove old spots of paint from the floor, in

preparation for a new tile floor as part of a remodeling project.

Id. at 219. Musielak suffered injury when his feet came in

contact with the caustic cleaning solution. /d. In finding that

Musielak was not a statutory employee, this court reasoned:

There is no evidence that [International Shoe] usually or

customarily used such a solution to clean its floors or that

it usually or customarily did the work this floor cleaning

was an integral part of; i. e., laying a new floor and

remodeling the cafeteria...In the instant case the tran-

script ...shows this work to have been incidental,

auxiliary and ancillary to [International Shoe’s] usual

business.

Id. at 222 (citations omitted).

In Wooten v. Youthcraft Mfg. Co., 312 S.W.2d 1, 2 (Mo.

1958), Youthcraft contracted with a janitorial service to provide

janitorial work for its clothing manufacturing business after

working hours. Youthcraft had discontinued janitorial work

during working hours, because it interfered with the work of its

employees. Jd. Wooten worked with a crew that cleaned

--A-30--

Youthcraft’s premises as well as others’. /d. The Supreme Court

held that Wooten was not a statutory employee of Youthcraft

because the janitorial work he did was not an essential part of

Youthcraft’s business. /d. at 3. It pointed to the fact that “the

janitorial work was done after closing time because if done during

working hours, it interfered with the proper operation of

[Y outhcraft’s] business." Jd.

In reaching its holding, the Wooten court cited to Viselli

v. Missouri Theatre Bldg. Corp. , 234 S.W.2d 563 (MO. 1950).

In Viselli, the Supreme Court of Missouri held that Viselli, who

was washing windows when he was injured, was a statutory

employee of the owner of a commercial building because window

washing was essential to maintaining the building in good

condition. Jd. at 567. The court pointed out that cleaning

windows was part of the building owner’s business, because the

owner provided it to its tenants as a service along with electricity,

heat, air conditioning, and janitor service. Jd. The court thus

held window washing was a customary and essential part of the

building owner’s business. Jd. The Wooten court distinguished

Viselli, finding that in contrast to the building owner’s

responsibility to its tenants to provide window cleaning, it was

not an integral part of Youthcraft’s business to furnish janitorial

service. Wooten, 312 S.W.2d at 3.

We look to the particular facts of the case before us to

determine whether there was substantial evidence from which the

jury could reasonably conclude that the activity performed by

decedent was outside the scope of National’s usual business.

Unless there is no room for a reasonable difference in judgment,

the question of “usual business" is one for the jury. Dunn v.

General Motors Corp., 466 S.W.2d 700, 705 (Mo. 1971).

Here, there was substantial evidence that decedent

performed the specialized work of scrubbing and buffing the

floor, and of stripping and waxing it. When he scrubbed and

buffed the floor, he used a propane-powered buffer owned, not

by National, but by BBI. National employees at the store did not

Fs

SEE A TER he. oO aaa it

--A-31--

use, any were not trained to use, the buffer. Decedent did not

work in conjunction with National’s own employees when he

scrubbed and buffed the floor; and National employees did not

perform these same functions. Compare McGuire, 756 S.W.2d

at 533 (temporary worker hired as "sorter" was a statutory

employee where other "sorters" worked at the plant and

performed the identical task of sweeping the floor as one of their

duties). Decedent worked during the night when the store was

closed to the public, so that his work would not interfere with the

day-to-day operation of the store. See Wooten, 312 S.W.2d at 3. |

He did not perform routine, general cleaning, the type of cleaning

performed by National employees during the day. His job

specifically included scrubbing and buffing the floor, utilizing

a@particular program of floor care with several defined steps. It

is inconclusive that at the time he was killed he may have been

merely sweeping the floor, because that was a requisite step in

the PEP program of floor care.

In addition, there was evidence that decedent was

stripping the floor at the store on the night of his death. The

process of stripping required special chemicals and utilized the

machinery in a particular fashion. Stripping was done only

periodically. Stripping was therefore a specialized job, not

routinely performed by National’s in-house employees.

From these facts and the inferences therefrom, a jury

reasonably could conclude that the nature of decedent’s duties did

not warrant his characterization as a statutory employee. The

trial court improperly granted judgment n.o.v. in favor of

National. Plaintiffs’ point on appeal is granted.

National raises several claims of error relative to the trial

court’s failure to grant its motion for new trial. See Rule

72.01(b). Its post-trial motion requested judgment notwithstanding

the verdict or, in the alternative, a new trial.

National first charges error in the trial court’s submission

of plaintiffs’ verdict directing instruction to the jury over its

--A-32--

objection. Plaintiffs’ verdict director was patterned on MAI

22.02 [1991 Revision) and read as follows:

INSTRUCTION NO. 7

Your verdict must be for plaintiffs if you believe:

First, there was a danger that a worker would be

attacked in the defendant’s supermarket, and as a result,

the supermarket was not reasonably safe, and

Second, Defendant knew or by using ordinary

care should have known of this condition, and

Third, Defendant failed to use ordinary care to

make the supermarket reasonably safe, and

Fourth, such failure directly caused or directly

contributed co cause the death of Kenneth Bass.

National initially contends that the word "danger" in the

instruction should be defined, because it is technical and

susceptible to various interpretations. A trial court must define

for the jury legal or technical terms occurring in the instructions.

Kline v. Bourbon Woods, Inc., 684 S.W.2d 938, 940 (Mo. App.

1985).

MAI does not require a definition of "danger." To

provide such a definition would constitute a deviation from the

approved instructions. In addition, National voiced an objection

to the instruction at the conference, but did not request or offer a

more specific instruction. Having failed to do so, it cannot now

complain on appeal. See Kline, 684 S.W.2d at 941.

National also challenges plaintiffs, modification of the

verdict directing instructica pursuant to MAI 19-01 [1986

Revision] for multiple causes of damage. Plaintiffs employed the

first alternate of MAI 19-01 in drafting Paragraph 4 of their

--A-33--

verdict director, because plaintiffs considered the company which

provided security to the store and the robbers who killed decedent

to be other tortfeasors.

The Notes on Use (1995 Revision) state that "[t}]hese

modifications may be used whether or not another causing

damage is a party." The Committee Comment (1995 New) states

that the modification reflects the principles that a defendant is

liable, although his negligence was not the sole negligence or the

sole proximate cause, and although his negligence, without such

other independent, intervening cause, would not have produced

the injury. See Gaines v. Property Servicing Co., 276 S.W.2d

169, 173-174 (Mo. 1955). In addition, it is proper to apply the

MAI 19.01 modifications to a verdict director in a wrongful death

action. Honey v. Barnes Hosp., 708 S.W.2d 686, 693-694 (Mo.

App. 1986). There was no error in plaintiffs, using the MAI 19-

01 modifier on their verdict directing instruction. National’s first

point is denied.

National’s second claim of error is that the trial court

erred in admitting a photograph of decedent holding his one year

old son, Christopher, who was dressed in a Santa Claus suit.

National claims that the photograph was not instructive on any

issue and only served to inflame the jury.

Admission of demonstrative evidence, such as

photographs, is within the sound discretion of the trial court and

will not be disturbed on appeal absent an abuse of discretion.

Biller by Summers v. Big John Tree Transplanter Mfg. and Truck

Sales, Inc., 795 S.W.2d 630, 635 (Mo. App. 1990). To be

admissible, evidence must be relevant or have a tendency to

prove an issue on which it is offered; and whether evidence is

relevant is largely committed to the discretion of the trial court.

Id.

In the instant action, the challenged photograph was

relevant to establish plaintiff-mother’s claim that as a result of

decedent's death, her plaintiffs-sons, Christopher and Maurice,

--A-34--

were deprived of the opportunity to be raised by their father and

to experience his companionship. Photographs depicting the

relationship between the decedent and his son were relevant to

demonstrate the impact of decedent’s death upon his young child.

See Biller, 795 S.W.2d at 635 (admission of videotape of

deceased worker and son playing was relevant to show their close

relationship). The triai court did not abuse its discretion in

admitting the photograph. National’s second point is denied.

Finally, National asserts error in the trial court’s

permitting plaintiffs’ counsel to comment during closing argument

about a “technicality in the law" regarding whether decedent was

National’s statutory employee. National did not object to the

statements of plaintiffs’ counsel at the time they were made.

Generally, failure to object to an argument or statement at

the time it is made to a jury results in a waiver of any right to

complain about the statement on appeal. Glasscock v. Miller, 720

S.W.2d 771, 777 (Mo. App. 1986). If no objection is made, the

trial court does not have an opportunity to take corrective action.

Id. Although plain error review is available under Rule 84.13(c),

the plain error rule should be invoked only in circumstances

which demonstrate manifest injustice or a miscarriage of justice.

Id.

An examination of plaintiffs, entire closing argument

indicates that counsel’s statements did not work any manifest

injustice to National. Further, it is difficult to find any prejudice

to National when National’s counsel himself in closing argument

referred to the "legal technicality of a statutory employee/

employer relationship." National’s third point is denied.

The judgment of the trial court is reversed and the cause

remanded with instructions to enter judgment in favor of plaintiffs

in accordance with the jury verdict.

/s/ William J. Crandall, Jr., Judge

William H . Crandall, Jr., Judge

--A-35-

Kathianne Knaup Crane, P.J. and Robert G. Dowd, Jr.. J.:

Concurs

--A-36--

APPENDIX F

MISSOURI CIRCUIT COURT

TWENTY-SECOND JUDICIAL CIRCUIT

(St. Louis City)

No. 882-01425

Division No. 10

LOUISE BASS, surviving spouse of KENNETH BASS,

and MAURICE BASS and CHRISTOPHER BASS,

Surviving Children of KENNETH BASS, Deceased

Plaintiffs,

V.

NATIONAL SUPER MARKETS, INC.

Defendant.

MEMORANDUM ORDER

This cause comes on before the Court on Defendant’s

Motion for Judgment Notwithstanding the Verdict or, in the

alternative, Motion for a New Trial. The Court, having

considered the premises, arguments of counsel, and memoranda

filed, hereby enters the following Order.

The Court concludes that Defendant’s first ground for

judgment notwithstanding the verdict is dispositive. § 287.040. 1

RSMO establishes three criteria which must be met for statutory

employment: 1) the work must be done pursuant to a contract; 2)

that the work be performed on or about the premises of the

alleged statutory employer’s business; and 3) that the injury occur

while work is being performed in the usual course of the statutory

employer’s business. See, too, McGuire v. Tenneco, Inc., 756

———— LLL

--A-37--

S.W.2d 532, 534 (Mo.banc 1988); and McDonald v. Bi-State

Development Agency, 786 S.W.2d 201 (Mo.App.E.D. 1990). It

is the third element at issue, and the Court will limit its analysis

to that element.

Defendant was required, by federal, state and local

authorities, to maintain the cleanliness of its stores. As was the

situation in Shaver v. First Union Realty Management, Inc., 713

S.W.2d 297 (Mo.App.S.D. 1986), the Court finds and concludes

that the tasks which Mr. Bass performed would have been done

by Defendant Is own employees if not. done by Mr. Bass (or

someone else sent by his immediate employer) . Janitorial

services, such as those performed by Plaintiffs’ decedent, were

part of the usual business of Defendant. Therefore, the (court

believes it is compelled to conclude as a matter of law, under

current authority, that Mr. Bass was a statutory employee of

National Super Markets.

The Court further notes that in Shaver, the court of

appeals held that the appropriate vehicle for asserting the

exclusivity of remedy under the Workers’ Compensation Act is

through a motion to dismiss for lack of subject matter

jurisdiction. In addition, the court noted that such a dismissal is

without prejudice, as the trial court was without jurisdiction to

address the merits. See Shaver, 713 S.W.2d at 300. It is on this

basis that the Court herein grants Defendant’s motion.

The Court has fully considered all other grounds raised in

Defendant’s Motions. The Court finds and concludes that the

other assertions of error are without merit, and further states that

they are not well-taken. Both parties received an eminently fair

trial. The Court specifically notes that Defendant was not limited

in any way from presenting its case and theories to the jury, and

the Court believes that each of those theories was fully and fairly

presented to the jury for its determination. The jury considered

all the circumstances, and rendered its verdict. The verdict was

more than amply supported by the evidence, and but for the

Court’s belief that it is constrained to conclude as a matter of law

--A-38--

that Mr. Bass was a statutory employee and the Court therefore

was without subject matter jurisdiction, the Court would not

disturb the jury’s findings and the verdict would be permitted to

stand.

WHEREFORE the Court ORDERS, ADJUDGES and

DECREES that Defendant’s Motion for Judgment

Notwithstanding the Verdict be and is hereby GRANTED on the

basis that Plaintiff's exclusive remedy, as a statutory employee of

Defendant, was through the Workers’ Compensation Act, as a

matter of law. The action is therefore DISMISSED WITHOUT

PREJUDICE for lack of subject matter jurisdiction. Defendant’s

motion is hereby DENIED on all other grounds, as they are

without merit.

The Court has considered all grounds alleged in

Defendant’s Motion for New Trial. . That motion is hereby

DENIED in all respects.

SO ORDERED:

/s/ Timothy J. Wilson

TIMOTHY J. WILSON, Judge

Dated: November 24, 1993

cc: Counsel of Record