¶1concurring. The complaint of Gary Barnes against Rothchild Wallace tells us that Wallace positioned the pickup truck beside the disabled tractor trailer rig of Virco, on which the two men were working. The only allegation of negligence is that Wallace “failed to exercise ordinary care in the manner in which he positioned the pickup truck.”
¶2Several crucial factors are undisputed: Barnes and Wallace are co-employees of Virco; Wallace is Barnes’s supervisor; Barnes’s injuries occurred while the two men were regularly engaged in their duties to Virco; Wallace’s conduct was not intentional; Barnes’s injuries are covered under the Arkansas Workers’ Compensation Act.
¶3Barnes does not challenge any of those factors, he simply asks us to draw a distinction based on his contention that Wallace “failed to prove that his breach of duty was not a personal duty, as opposed to a duty imposed by his employment.”
¶4As the majority opinion notes, in a number of cases we have recognized immunity from tort liability by supervisory employees: Fore v. Circuit Court of Izard Co., 292 Ark. 13, 727 S.W.2d 840 (1987); Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987); Lewis v. Industrial Heating & Plumbing, 290 Ark. 291, 718 S.W.2d 941 (1986); and Simmons First Nat’l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985). Were we to adopt the position proposed by the appellant we would, I believe, be effectively overruling those cases (which appellant implicitly disavows he is asking us to do) or, at the very least, be creating a precedent that would not be easily reconciled with those cases. Moreover, we would be further distancing ourselves from a pronounced majority of other jurisdictions. According to Professor Larson, only eleven states allow suits against co-employees. “The great majority of states and the Longshoreman Act now exclude co-employees from the category of third persons.” 2A Larson, Workmen’s Compensation Law § 72.21. “A strong tide toward co-employee immunity has been running for some years.” Id. § 72.11 p. 14-55.
¶5I do not propose that we depart from the position taken by this court in King v. Cardin, 229 Ark. 929, 319 S.W.2d 214 (1959), but neither would I favor moving against Larson’s “strong tide,” absent a clear and informed petition to do so.
¶6dissenting. The court’s opinion correctly states that a supervisor cannot be held individually liable to an employee whose injury is covered by workers’ compensation for breach of the general duty to provide a safe workplace. The point raised by appellant Barnes is, however, that the general duty of operators of vehicles to obey the rules of the road is separate from the duty to provide a safe workplace. Contrary to the majority of the members of the court, I find support for the appellant’s position in logic and in law.
Like corporate officers, and with even stronger reason, supervisors and foremen enjoy no general immunity from suits by coemployees, under such outmoded concepts as the vice-principal doctrine. Some states have held, however, that a supervisor, like a corporate officer, cannot be held liable by a coemployee for breach of a corporate duty, such as that to provide a safe place to work, but can be held only for breach of a personal duty. Others have taken the position that a supervisor can be held personally liable for his own failure to fulfill the employer’s duty of providing a safe place to work. [2A Larson, Workmen’s Compensation Law, § 72.14 (1987), footnotes omitted.]
¶7Barnes’s reference to the “rules of the road” seems to me to be a reference to the “personal duty” to which Professor Larson’s book refers.
¶8In Kingv. Cardin, 229 Ark. 929,319 S.W.2d214 (1959), we held that a coemployee was a “third person” and could thus be sued for his negligence in backing a truck over the decedent even though it was done in the scope of employment and was covered by workers’ compensation. There was no need in that case to discuss the liability the defendant would have had had he been the decedent’s supervisor. What if that had been the case? Would we have held that a supervisor who negligently backed a truck over an employee was immune because he could not be held liable for failure to provide a safe workplace? I think not. Our point in that case was that the coemployee could be liable because there was evidence he was backing the truck too fast, that is, violating the “rules of the road” applicable in the circumstances of that case. In this case, Barnes suggests Wallace violated the rules of the road by improperly parking the employers’ truck in such a way as to cause the accident; anpther violation of the “rules of the road.” Should he be excused from liability because he is a supervisor? I think not because his improper parking of the truck was not an act done in supervision of Barnes and it had nothing to do with keeping a safe workplace in the sense that “workplace” has been used in the other cases cited by the court’s opinion.
¶9In State ex rel. Badami v. Gaertner, 630 S.W.2d 175 (Mo. App. 1982), an employee who had lost three fingers in a shredding machine accident at American Fiber Company attempted to assert personal liability of the president and the production manager of the company for failure to provide a safe place to work because the shredding machine which injured him lacked certain safety devices. In Simmons First Nat’l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985), employees sought to sue supervisory personnel for injuries they received when two chemicals were allowed to flow together at the International Paper Company plant, creating a poison gas. In Lewis v. Industrial Heating & Plumbing of St. Joseph, Missouri, 290 Ark. 291, 718 S.W.2d 941 (1986), the injured employee attempted to sue a supervisor for breach of his duty to keep a safe work place at a construction site in negligently giving instructions about disposition of a flammable substance. In Fore v. Circuit Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987), a supervisor was sued for improperly keying a microphone and causing dynamite to go off at a construction site. We wrote “the undisputed facts ... are that the petitioner was acting within the scope of his supervisory duties . . . .” In Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987), supervisors were accused of allowing bare wiring to go uncorrected at Planters’ Cotton Mill.
¶10None of these cases involved the possibility that a separate duty, one which would have existed regardless of the employment relationship, was violated. In all of them the alleged negligence had to do with the supervisory duties of the defendants to keep safe workplaces. All of them involved fixed plant settings with the exception of the construction site case which, I submit, qualifies more readily as a workplace in the sense of the other cases than a roadside repair where rules other than those governing the traditional duties of a supervisor are in effect.
¶11Justice Hays’s concurring opinion in this case suggests that our decision in King v. Cardin, supra, is out of step with the majority of jurisdictions as reported by Professor Larson. I agree with that assessment. Perhaps we should overrule the case. We should not, however, pretend it is distinguishable on the basis that the defendant here happened to be a supervisor absent some showing that he was in violation of his supervisory duty to keep a safe workplace rather than acting as a mere co-employee and parking a truck in such a negligent manner as to cause injury through an automobile accident.
¶12I respectfully dissent.