Workers Comp. Act bars action against supervisor exercising managerial prerogative.

Garger v. Desroches, 2009 VT 37 (mem.)

Plaintiff Michael Garger appeals from the superior court’s order dismissing his complaint against his former co-employee and supervisor. Plaintiff filed an action for damages, alleging that defendant negligently ordered him to surmount a steep incline while driving an all-terrain vehicle, which resulted in an accident that caused him severe injury. The court dismissed the complaint as barred by the Workers’ Compensation Act . On appeal, plaintiff argues that his cause of action is not barred because it is not against his employer. We affirm.

For someone to be “other than the employer” and not per se immune from suit, the person must not be acting as the employer—that is, he must not be performing a nondelegable duty of the employer and must not be exercising “managerial prerogatives.” We conclude that defendant can be acting as the employer even though he is not an owner or officer of the employer corporation. The order was given as a managerial duty in that, as plaintiff alleges, defendant was acting as his supervisor at the time.

A failure to ensure that the equipment is appropriate for the job is part of an employer’s nondelegable duty to provide a safe workplace. Any negligence was in failing to assure that the equipment and the operator were safe and appropriate for the task of driving up the steep slope. Whether the alleged negligence is characterized as arising from an affirmative act or from an omission, the fact remains that defendant may not be sued because any breach was of the duty to provide a safe work environment. Thus, defendant’s act is not excepted from § 624(a)’s exclusivity clause.

The exclusivity provision bars any claim against an employer short of intentional injury. Since defendant was exercising a nondelegable duty of the employer and was thus acting as the employer, defendant must have either had a specific intent to injure or have known with substantial certainty that injury would result, for the exclusivity provision not to bar plaintiff’s claim. Plaintiff has not alleged such facts.