Dennis Dunn v. Jordan Concrete

Employee's duties also included acquiring materials, hauling materials and tools to job sites, supervising employees, and building and pouring foundations at work sites; however, cutting spacers and affixing spacers to foundation forms was not part of employee's normal job. On one prior occasion, employee had performed the task of cutting spacers but it was performed under the supervision of his employer, Mr. Andy Jordan, and was performed on the premises of Mr. Jordan's workshop, i.e., Mr. Jordan's garage.

Sometimes employee was required to work more than 40 hours per week. As foreman, employee made sure that materials and tools were provided all employees at the job site in order for the work to begin promptly, which occasionally necessitated starting early and ending late. Employee was given the use of a company truck to facilitate this aspect of the employment. To the extent that employee's hours included overtime employee was required to explain the overtime hours worked to Mr. Jordan and such explanations had to be consistent with work done on specific job sites. Employee reported to Mr. Jordan for receiving all job and or work instructions.

Mr. Andy Jordan, owner of the business, and employee, Dennis Dunn, were personal friends for many years. Mr. Dunn and Mr. Jordan also were neighbors, as they lived across the street from one another.

On Friday, March 19, 1999, employee and Mr. Jordan had each worked full workdays from 7:00 a.m. to approximately 3:30 p.m., each supervising two separate crews. They both returned to their respective homes at approximately 4:00 p.m. When employee was returning home at approximately 4:00 p.m., Mr. Andy Jordan "caught him" in Mr. Jordan's driveway. Mr. Jordan had a pile of wood in his driveway, which needed to be cut into spacers.

Employee backed into Mr. Jordan's driveway and discussed with Mr. Jordan employee's intention of cutting the boards into spacers. Employee discussed performing this additional work that evening. Employer indicated to employee that he, Mr. Jordan, would assist him after he returned from attending his son's basketball game. Mr. Jordan was present while employee loaded the boards in his truck and drove across the street into employee's driveway ostensibly to cut the boards into spacers.

Employee testified that the following people witnessed their conversation: Mr. Jordan's son and the daughter of employee.

Subsequently, that Friday evening, employee, while using a table saw to cut the wood into spacers, cut his left hand. This injury to the left hand is the subject matter of the instant claim.

After cutting his left hand, employee and his daughter, Alicia, contacted the wife of Mr. Jordan, Mrs. Beth Jordan, to inform her that he had cut his hand on a table saw, and needed assistance. Mrs. Jordan conveyed employee and his daughter and son to the emergency room at Barnes Jewish Hospital in St. Peters so that employee could receive emergent medical care and treatment. Employee never indicated or reported a work related injury to Mrs. Beth Jordan. Upon his arrival to the emergency room at Barnes Jewish Hospital in St. Peters, employee indicated to the in-take admissions personnel that he had recently cut his hand on a table saw and it was not a workers' compensation injury.

On cross-examination employee admitted that cutting spacers was not normally a job assigned to him; but on one prior occasion he had performed this particular task in the presence of the owner, Mr. Jordan; and on further cross-examination employee admitted that he did tell Mrs. Jordan that the injury was not a workers' compensation injury.

As of the date of the accident, March 19, 1999, employee admitted that he was on probation for criminally assaulting his wife; and subsequently, in 2001, employee assaulted his daughter, Alicia, striking her in the face resulting in her being injured, i.e., a bloody nose resulting in a guilty plea eventually for assault in the third degree.

As of the date of the injury, March 19, 1999, Ms. Alicia Dunn was eleven; Ms. Dunn testified that she was present during the conversation between her father and the owner, Mr. Jordan; the gist of her testimony on direct was that Mr. Jordan agreed that her father could begin cutting the spacers and Mr. Jordan intended to assist her father

when he returned from his son's basketball game; and, consequently, her father began loading the wood in his truck in the presence of her and Mr. Jordan.

In the intervening five years between the injury and the trial, Alicia admitted that she had heard her father and mother discuss the injury and the case on several occasions; she admitted that her father did inappropriate acts upon the consumption of alcohol; she admitted that in 2001, her father assaulted her by striking her in the face which resulted in a bloodied nose; although, Alicia thought that it was partly her fault that her father had committed the assault. Alicia further stated that "I'm the reason why" her father assaulted her mother in 1999.

On cross-examination when Alicia was asked if she could recall anything else concerning the conversation between her father and Mr. Jordan on that Friday afternoon, March 19, 1999, five years prior to trial, her answer was "No. That was a long time ago."

Mr. Jordan testified that employee was a carpenter foreman who ran a foundation crew for his business; Mr. Jordan and employee worked separate crews; and that he and employee had been personal friends since approximately 1978.

Mr. Jordan began his company in 1998; Mr. Jordan was sensitive to costs and ran the company from his house; his wife, Beth Jordan, was employed on a part-time basis to manage the billing and payroll; and Mr. Jordan solely was responsible for obtaining business for his company.

Ninety-nine percent of the company's work occurred at job sites; and employees did not perform work at home. There was no reason for an employee to perform any work at home. Affixing spacers to concrete forms normally occurred during regular business hours. According to Mr. Jordan another reason for not allowing employees to work at home was the loss of control by him as it would be impossible to know what type of work an employee was doing at home and the hours involved. Mr. Jordan had specifically explained to employee why he, as an employer, could not and would not pay for an employee working at home.

Any work not completed at the job site, such as making spacers would be performed at Jordan Concrete Construction Inc.'s workshop, i.e., Mr. Jordan's garage at his house. Mr. Jordan limited work away from the job site to this location as he would supervise the work being performed. Mr. Jordan never delegated the job of cutting spacers for concrete forms to anyone else, unless he, Mr. Jordan, was present.

At approximately 4:00 p.m., March 19, 1999, employee approached Mr. Jordan about cutting the wood into spacers that was in Mr. Jordan's driveway. Mr. Jordan instructed employee not to cut the forms or spacers; Mr. Jordan told employee that he, Mr. Jordan, would in fact cut the spacers that weekend; he specifically told employee he didn't need to do anything; Mr. Jordan would take care of it; don't worry about it; Mr. Jordan said he had all weekend to cut them; he testified he specifically told him not to do them; he testified he specifically told him not to do anything, he would take care of it; and the employee's subsequent action in cutting the spacers that Friday evening was contrary to his specific instructions to not cut the forms.

Mr. Jordan further testified that employee did not load the wood in the employee's truck in his presence; when Mr. Jordan left with his son to attend his son's basketball game, the wood was still laying beside Mr. Jordan's truck; and the time submitted by employee for March 19, 1999, was eight hours; 7:00 a.m. thru 3:30 p.m. Mr. Jordan also testified there were no witnesses to his conversation with the employee on Friday afternoon, March 19, 1999. Mr. Jordan denied indicating to the employee that he would help him cut the spacers when he returned from his son's basketball game; Mr. Jordan denied that the spacers were necessary for Saturday or Sunday; and Mr. Jordan denied what Alicia, employee's daughter, testified about his conversation with her father.

Mrs. Jordan was the wife of the employer, Mr. Andy Jordan; on a part-time basis, she did the billing and payroll for her husband's business and she also handled the reporting of workers' compensation injuries.

Mrs. Jordan was acquainted with Mr. Dunn and testified to receiving the emergent call from employee's daughter after 7:00 p.m. on March 19, 1