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Risher v. Golden11/15/2005
Opinion Vote: AFFIRMED.
Norton, C.J., and Crane, J., concurs.
Opinion:
Claude Risher and Brenda Risher ("plaintiffs") appeal from the judgment of the trial court dismissing their third amended petition for lack of subject matter jurisdiction. Plaintiffs contend that the trial court erred by abusing its discretion in granting Tom Golden's ("supervisor") motion to dismiss because the evidence and reasonable inferences show that there was "something more" that could establish co-employee liability for negligence, which would not be subject to the workers' compensation statutes as the exclusive remedy. Finding no error, we affirm.
On the morning of August 17, 2000, John Risher ("decedent"), a new employee of Townsend Tree Service Company ("employer"), was working with supervisor spraying herbicide on property owned by Citizens Electric to eliminate brush growing on the property. Supervisor and decedent were using a vehicle called a "doodlebug" to spray the herbicide. This particular doodlebug was one of several in the possession of employer, and supervisor had been using it without apparent problems for several weeks prior to the accident. Before using the doodlebug that morning, supervisor checked it over, which included checking the brake fluid. The brush on the property by the right-of-way was high and obscured vision. Supervisor directed employee to act as a spotter, but rather than have employee stand in the brush, he instructed employee to get in the work-basket on the back of the doodlebug to spot for him while he backed the vehicle down an incline. Supervisor asked employee to tell him when the doodlebug reached a spot where the incline started getting real steep, so the supervisor could stop. When they reached the spot where the incline started getting real steep, supervisor applied the brakes at decedent's direction, but the brakes failed, the doodlebug rolled backwards and flipped over, coming to rest on its top and pinning decedent beneath it and killing him.
Employer's mechanics examined the brakes on that particular doodlebug and determined that the brakes did not work because of a lack of fluid, though the emergency brake was working properly. The mechanics examined each part of the brake system as they replaced it and noted that the brake cylinder and brake disc showed normal wear, but that the rear brake line had a slight leak, and stated that the master cylinder was replaced due to a leak in the seal. They also replaced the rear brake line. This review of the brake system culminated in a brief report ("brake report") from employer's equipment division.
Plaintiffs filed a petition against supervisor, Citizens Electric Cooperative, Farmers Insurance Company, Inc., and unknown parties. Plaintiffs subsequently amended their petition twice, filing a third amended petition on September 16, 2004. However, the trial court permitted the third amended petition to be filed against supervisor only. Supervisor filed a motion to dismiss for lack of subject matter jurisdiction and a supplemental memorandum of law, which asserted that supervisor was no more than a co-employee of decedent, that plaintiffs failed to allege "something more" that would create a personal liability on the part of supervisor, and that the exclusive remedy was through the Workers' Compensation Law and the Industrial and Labor Relations Commission ("Commission").
Plaintiffs filed two separate supplemental memoranda and exhibits in opposition to supervisor's motion to dismiss. Included in these materials were portions of the deposition of supervisor, memoranda from the employer, OSHA reports, and an affidavit from a consulting engineer, Francis Oldham
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