by James R. Keller
This article appeared in St. Louis Construction News & Review, p. 9, January-February, 2004.
The parents of an electrocuted worker cannot bring a wrongful death lawsuit against the owner of the construction site, nor the worker's supervisor, nor the owner's engineer, the Southern District Court of Appeals decided recently in Logan v. Sho-Me Power Electric Cooperative, Irby Construction Company, Gary Gorman and Ron Marlin, No. 25318 (Mo. App.), decided November 25, 2003.
The appeals court held open, however, a possible lawsuit against the employer should Missouri's Labor and Industrial Relations Commission determine in a separate proceeding that the death was due to an intentional act of the employer rather than an accident.
John Logan, an apprentice lineman, was fatally electrocuted while working for Irby Construction Company. Irby was under contract with Sho-Me Power Electric Cooperative to install 63 miles of fiber-optic cable near existing power lines and to perform structure reinforcement on existing energized lines owned by Sho-Me Power. At the time of his death, Logan was working near one of the energized lines.
Logan's parents filed a claim with the Division of Workers Compensation, alleging that Irby intentionally exposed Logan to the hazard of electrocution. They asked the Division to allow them to proceed with a lawsuit directly against the employer in state court. Missouri law requires that the Division find the death was due to the employer's intentional conduct rather than merely an accident before the parents can bring a separate lawsuit in state court.
The parents also filed a lawsuit in state court against Irby, Sho-Me Power, the supervisor employed by Irby and the owner's engineer. The parents sought damages for their son's death. The trial court dismissed all counts against all defendants, finding that the parents did not have enough facts to support any of their claims.
The parents alleged that Sho-Me, as the owner of the property, was liable to their son because Sho-Me had a duty of reasonable care which could not be shifted to Irby, the independent contractor, since Sho-Me retained substantial control over the construction site and the work that Irby performed. The appellate court noted that Missouri does recognize such a lawsuit, provided the parents could show that Sho-Me actually controlled the physical activities of Irby's employees or the details of how the workers performed their work.
Certain provisions in the contract between Sho-Me and Irby, the parents argued, supported their claim. For example, workers like Logan could not work on energized lines unless otherwise specified in the notice and instructions to bidders. The contract required Irby to contact Sho-Me each morning to check the status of a line and whether it was energized or de-energized. Irby had to use and follow Sho-Me's detailed parts lists, specifications and construction drawings.
The appellate court concluded that other provisions in the contract, however, clearly showed that Sho-Me did not have sufficient control over the jobsite. The court focused on two provisions commonly found in construction contracts; namely, Irby had to "take all precautions for the safety of the employees" and Irby had to "comply with all applicable provisions of Federal [and] State" safety laws and codes.
The court found that Sho-Me's control over sending power to the lines was not control over the physical activities of Irby's employees or the manner in which they performed their work. The contract was clear enough on this point, the court decided, that trial was unnecessary as no jury could "fairly or reasonably find or infer" that Sho-Me had substantial control.
As for the claim against the supervisor, a co-worker of Logan, Missouri's Workers' Compensation Act generally prevents lawsuits against the employer and co-workers who were implementing the employer's duty to provide a reasonably safe workplace. To recover against the supervisor, Logan's parents had to show "something extra" beyond the breach of general supervision and safety.
This "something extra" is difficult to define and depends on the facts in each case. It has to be, however, some act of the supervisor that breaches a personal duty of care the supervisor owes to a fellow employee.
There are several Missouri cases supporting this action where the supervisor directed the employee to engage in a dangerous activity that a reasonable person would recognize is hazardous and beyond the usual requirements of the job. One example is where a supervisor had an employee hang over a vat of scalding water.
Despite these cases, the appellate court noted that the trend has "shifted considerably" in favor of co-worker immunity from lawsuit. The parents could only allege that the supervisor failed to provide a reasonably safe workplace. This was not enough.
The claim against the owner's engineer, the court found, was deficient because Irby had control over the job site, not the owner or the owner's engineer. The court rejected the parents' contention that the engineer should be liable because he played a key role in ensuring that the lines were de-energized where Irby employees were working. The court decided that public policy favors shifting liability from the owner and its employees, including its engineer, to the employer.
The appellate court did order the trial court to reinstate the parents' action against Irby and then to stay this action until the Commission has ruled whether the accident was intentional or accidental. If intentional, then the parents may be able to proceed against Irby.
James R. Keller is a partner at Herzog, Crebs & McGhee, LLP, St. Louis, Mo, where he concentrates on complex business litigation, construction law and ADR. He also is an arbitrator with the American Arbitration Association and a mediator.