The claimant failed to allocate what disability, for purposes of second injury fund liability, existed at the time of the primary accident and what disability flowed from post-accident worsening. The Commission modified the award, appealed by the Fund, and reduced the award by about 3 weeks. Faerber v Schwan's Food Industries, DOLIR 4-17-2013.
ALJ Landolt
Atty: Weigley
Experts: Musich
The claimant established that he sustained "some" psychiatric and cervical injuries when a trench collapsed, but his medical evidence did not support an award for those conditions due to the failure to allocate disability. Schmidtt v City of St. Louis, DOLIR 3-26-2013.
ALJ: Ottenad
Atty: Morgan, Tanner
Experts: Sky, Magrowski, Meyers, Musich, Bassett, Kostman
The Commission reduced an award of 22 1/2% to 6% for a knee injury when claimant's expert failed to allocate disability between two knee injuries. Dye v Lafayette County, 2012 Mo WCLR Lexis 199 (Nov. 21, 2012). The Commission noted the ALJ had not provided analysis and findings on this particular issue as only one case was before the court.
ALJ Mieners
Expert: Stuckmeyer
Treater: Wise
Claimant is a 50-year old poultry plant employee who alleges she injured her back in 2003 when she fell backwards while putting on a booty and hurt her back again in 2005. She returned to the plant following her October 2006 back surgery until the plant closed in 2008, and then claimed she was unemployable due to chronic back and leg pain. ALJ Holden awarded 15% disability based on a rating from her expert, Dr. Bennoch, for a head injury but noted claimant's expert failed to apportion whether the 2003 or 2005 accident caused her back disability. Dr. Bennoch indicated that "some" disability flowed from both accidents, and originally attributed all the disability to the first accident. Claimant reported after the first accident she was essentially pain free. Dr. Woodward identified 12% for the "work-related condition." Crank v Willow Brook Foods, DOLIR 1-21-10.
In Moll v Martin Marietta Materials, DOLIR 3-17-11, the Commision found that claimant's expert allocated 0% disability pre-existing to the back based on claimant's denial of symptoms, and reversed a finding that claimant had failed to allocate prior and current disability to the back. The Commission award 22 1/2% of the back for claimant's alleged injury to 2 disc bulges with nonradicular lumbar syndrome, following an incident when claimant stated she was driving a truck and she hit a ditch in the road and bumped her head. Claimant had undergone a two level cervical fusion following the incident, resulting in an award of 27 1/2% BAW.
ALJ Robbins
Atty: Rice, Dietrich
Experts: Volarich, Chabot
Treater: Gibbs
In Shelton v Missouri Department of Public Safety, 2013 MO WCLR Lexis 11 (January 23, 2013) the Commission affirmed a denial of benefits. Claimant alleged he hurt his back in 2009 lifting a patient but his expert was unable to allocate disability between two separate accidents and was found to lack credibility when he changed his opinion during testimony. The commission chided: "It appears the question [of disability] is beyond his expertise or ability" and found no disability in the case based on the opinion of the defense expert.
ALJ Denigan
Experts: Musich, Randolph
A registered nurse bumped her knee, developed an acute lateral meniscus tear, and underwent a total knee replacement but failed to prove she had any disability flowing from her accident, according to the recent Commission decision, Tillotson v St. Joseph Medical Center, 2010 Mo WCLR Lexis 138. Claimant failed in her proof of disability, even though she established both accident and an acute change in pathology.
Claimant's specific failure of proof arose from lack of expert opinion allocating disability between new and old knee pathology. Claimant's expert related the TKR to the accident. The administrative law judge found claimant's TKR flowed from prior arthritis and not from her acute meniscus tear, and that the TKR would not have occurred but for the prior arthritis. Neither claimant's expert nor any other expert specifically addressed what amount of disability related solely to the new lateral meniscus tear. The administrative law judge acknowledged any allocation of permanent disability for a meniscus tear was "very difficult" to assess, as the entire meniscus was subsequently removed as part of the total knee replacement.
ALJ: Mueller
atty: Gorden, Christiansen
experts: Koprivica
treater: Berghe
By comparison, Florida has an apportionment statute, 440.15(5)(b), that allows the employer to pay only the portion of disability and future medical care associated with the injury, but it requires the employer to show pre-existing conditions flowed from non-industrial conditions. Staffmark v Merrell, 43 So.3d 792 (Fla. 1st DCA 2010).
Tuesday, August 31, 2010
Tuesday, August 3, 2010
Tort cases against co-workers and supervisors
BACKGROUND
Leading up to the 2005 amendments, Badami v Gaertner, 630 S.W.2d 175 (Mo. App. 1982), allowed immunity for co-workers without proof of "something more" beyond negligence. Suits against co-employees failed based on 287.120 unless a co-employee purposefully and dangerously caused or increased a risk of injury.
Robinson v Hooker, 323 S.W.3d 418 (Mo App. 2010) reversed an order to dismiss a negligence claim filed after a plaintiff settled a worker’s compensation claim for permanent partial disability for loss of vision. A street cleaner lost control of a high pressure hose and struck the plaintiff, causing blindness in the right eye. The court of appeals reversed and remanded the order, and rejected defenses to the tort claim based on worker’s compensation immunity and res judicata.
Hooker concluded that the 2005 requirements to apply strict construction required a re-evaluation of the defense created by Badami. Section 287.120 extends immunity only to employers, and a co-worker did not meet the definition of "employer" under §287.030.1. There is no immunity unless a co-worker "squarely" falls within the definition of employer. Robinson v. Hooker asserts this interpretation was being "mindful" to "effectuate legislative intent" as reflected in the "plain and ordinary language of the statute" and pursue a long-standing principle to preserve common law rights.
On August 28, 2012 HB 1540 became effective to put tighter limits on co-employee liability and amended 287.120.1 to allow immunity unless the worker engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.
Numerous tort cases continue to arise during the "gap" before the 2012 fix.
RECENT SUPREME COURT CASES
In Parr v Breeden , 2016 MO Lexis 188 (June 7, 2016) the Missouri Supreme Court found that surviving children failed to state a cause of action against co-workers when their father died in a work-related auto accident.
The plaintiff worked for Breeden Transportation. The worker was involved in multiple accidents in 2006, and two accidents in 2008, the last resulting in a fatality when his vehicle left the road.
The petition alleged that the driver had multiple health conditions including severe heart disease, apnea and it was the employer should have known his health condition posed risks to his capacity to drive safely.
The suit named the company owner, a company dispatcher and the company director of safety.
"The plaintiffs raise two points: (1) the circuit court erred in granting summary judgment because [ genuine disputes of material fact exist as to the defendants' negligence in that the defendants admitted they had a duty to ensure all of Breeden Transportation's drivers were safe to operate a commercial motor vehicle, the defendants knew or should have known Mr. Parr could not safely operate a commercial motor vehicle, the defendants caused Mr. Parr's death by placing him on the road the night of the fatal accident, and the plaintiffs suffered damage as a result of Mr. Parr's death; and (2) the circuit court erred in entering summary judgment because there was a genuine dispute of material fact as to whether the defendants breached their duties, separate and apart from the employer's nondelegable duties, that arose from federal regulations."
The element at issue in this case is the existence of a duty owed by the defendants to Mr. Parr.
The plaintiff relied upon deposition testimony that employer witnesses acknowledged a duty that their drivers operated safety.
"Here, the plaintiffs' evidence fails to establish that defendants owed Mr. Parr a duty separate and distinct from the employer's nondelegable duty to provide a safe workplace. Accordingly, the plaintiffs cannot establish that the defendants owed Mr. Parr a duty as a matter of law; therefore, the circuit court did not err in entering summary judgment in favor of the defendants."
The court rejected the argument that a breach of a federal rule is sufficient proof of the existence of an independent, personal duty in a negligence action. The plaintiffs mistakenly construed a federal rule to create an independent duty by the motor carrier to independently investigate the cause of accidents.
The case arose during a former legislative "gap" in Missouri that permitted co-employee suits based on common law standards.
The court of appeals affirmed a summary judgment in favor of defendant co-employees and concluded that claimant failed to establish a breach of any duty under either common law or the 'something more' doctrine.
The case involves a fatality of a truck-driver in a 2008 accident and a wrongful death claim brought against three supervisory employees. The circuit court found there was no genuine issue of material fact that the co-employees owed any duty to the claimant. The claim alleged negligence and directing claimant to drive a vehicle when reasonably knowing he had a medical condition that might increase the risk of an accident.
The case does not identify that there was a medical condition, but asserts that the co-employees had a duty to inquire if there was a medical condition because the driver had been involved in an accident less than 3 weeks earlier. At the time of the fatal accident he was performing his regular job duties and had been remained certified as medically fit to drive.
The majority considered an existence of a duty is a question of law. The court indicated that the "something more" doctrine did not apply at the time of the accident, and the only duty arising under common law when the co-employee's workplace injury is in no way attributable to the employer's breach of its non-delegable duties. The non-delegable duty to use reasonable care falls within five general categories of 1) the provide a safe workplace 2) to provide safe equipment in the workplace, 3) to warn employees about the existence of dangers of which the employees could not reasonably be expected to be aware 4) to provide a sufficient number to competent fellow employees and 5) to promulgate and enforce rules governing employee conduct for the purpose of enhancing safety.
There was no common law duty for co-employees to protect claimant from himself to determine if he was a danger to himself based on his own health history. There was no co-employee liability when any breach of duties arose from non-delegable tasks such as providing a safe work place, enforcing its safety rules or providing competent drivers.
A dissent argued that summary judgment was premature and the case should transfer to the Supreme Court. It argued the survivors should be provided an opportunity to win or lose their case and the issue of breach of a non-delegable duty was a disputed issue of material fact not a matter of law and that Leeper required pleadings to be read most favorably to the survivors. It suggested alternate theories of liability such as negligent hiring, negligent entrustment or respondeat superior.
The dissent concluded that the "something more" test and common law provided different liabilities and rejected application of the post-reform use of "something more" during the 2005-2012 gap. It specifically refused to follow Eastern District cases which applied a "refined" something more test: Amesquita v Gilster-Mary Lee Corp., 408 S.W.3d 293 (Mo. App. 2013).
Both the plaintiffs in Parr and Leeper asserted causes of action under the "something more" doctrine, but both courts indicated the proper claim was a breach of a common law duty. The majority in Parr still makes the additional finding that claimant did not make a submissible case under the "something more" doctrine either. Presumably claimant could have made a submissible comp case, although no one would know from this opinion
It is not clear what relevant medical conditions Parr actually had or how they might have been a contributing factor to any of the accidents.
The argument seems to be the employer might have learned something rather than the employer already knew something. That is what makes the case distinguishable from the classic negligent entrustment claim of sending someone out in a company truck or vehicle with a clearly recognizable impairment. Many employers would likely not make any inquiry about general medical conditions simply because their ADA attorneys have told them it is none of their business.
In Peters v Wady Indus., 2016 Mo Lexis 189 (June 7, 2016) addressed an issue of liability in a "gap" case between 2005 reform and the 2012 fix. Ultimately, the court affirmed a motion to dismiss from the circuit court and court of appeals that the plaintiff failed to state a claim. The case involved a stack of construction material (dowel baskets) falling off of a flatbed truck resulting in catastrophic injuries to the plaintiff. The plaintiff alleged the items were negligently stacked, among other claims.
Peters filed suit against his supervisor and his employer. When the court dismissed the suit against the supervisor, the plaintiffs voluntarily dismissed their claim against the employer. The court of appeals affirmed the dismissal, with one dissent.
The standard of review in a motion to dismiss assumes all allegations to be true and tests the adequacy of the petition to state a claim. Applicability of worker's compensation is an affirmative defense and not a limitation on the court's jurisdiction.
This case is important as the court redefines the burden of proof for common law cases (arising before 2012) and the requirement of courts to show "something more" in those cases mistakenly required proof of affirmative acts, which it now concludes was contrary to common law. The effect, is that an appropriately pled case likely avoids the procedural defense of a motion to dismiss. As a practical matter, the number of cases before 2012 that have not been filed yet may be a small number and the new statutory test (applying essentially the pre-reform standard) will apply.
Two justices disagreed with departure from the "something more" test that required proof of affirmative action to proceed in tort outside of comp. The majority noted two cases (an exploding cement truck and a malfunction causing a runaway elevator) to demonstrate liability under the less stringent standard.
One dissenting justice felt claimant's case should proceed in tort.
At the court of appeals, 489 S.W.3d 784 (Mo App. 2014) the court affirmed a dismissal of a negligence claim against the supervisor by the worker and his spouse. In 2008 a stack of baskets fell on him at a construction site. The petition alleged the supervisor had been warned about the unsafely stacked baskets yet he allowed unsafe conditions by stacking them too high, failing to secure them, not providing a proper unloading area among other acts.
As a matter of law the pleadings failed to state a claim because they did not establish an independent duty. The court noted a statutory gap between 2005 and 2012 which allowed co-employees to maintain suit. The court noted no cause of action lies unless there is a duty owed independent of the general duty of the employer to provide a safe work place. In addition, the eastern district requires liability to be based on something more or an affirmative purposeful and dangerous act. In this case the worker may have shown the supervisor knew of the danger and didn't protect the plaintiff from it but that was inseparable from the non-delegable duty to provide a safe work place.
As claimant failed to establish the first prong of the case (a breach of a non-delegable duty) any appeal is not necessary to evaluate the extent of any breach (affirmative v negligent) and how the western and southern districts have found what extent of a breach states a cause of action.
The pleadings allege the worker sustained catastrophic injuries. In addition the spouse asserted a claim for loss of consortium.
A dissent transferred the case to the Supreme Court due to conflict in what breach is actionable and concluded the determination whether there was a breach was a question of fact and that dismissal for failure to state a claim was improper. It was still the plaintiff's burden to show the employer performed its duties safely and the accident would not have happened but for the supervisor's negligent act or omission.
DRIVING CASES
In Evans v Ron Wilson and Monte Barrett, No. SD 33209 (Mo. App. 2016) (Sept. 19, 2016), 2016 MO App. Lexis 923, the court of appeals affirmed a summary judgment in favor of a co-worker defendant. The claim alleged negligence when a co-employee drove a forklift and ran over the foot of the plaintiff. The case is one of multiple recent decisions which addresses when an injured worker in Missouri can sue a co-worker in common law.
Missouri law now bars co-employee liability unless there is proof of affirmative negligent act that purposefully and dangerously caused or increased the risk of injury, as a result of legislative changes in 2012. For many years co-employees and employers were protected from such suits without proof of “something more” than mere negligence. Badami v Gaertner, 630 S.W.2d 175 (Mo. App. 1982). Robinson v Hooker, 323 S.W.3d 418 (Mo App. 2010) recognized such claims were allowed after 2005 because of statutory reform which adopted strict construction and did not expressly preserve the defense. The legislature “fixed” the fix in 2012, but by that point such delays had created a window to allow tort suits. Numerous appellate decisions this year address accidents caused by co-employees arising in the 2005-2012 gap.
Evans affirmed a summary judgment and noted the allegations failed to establish something more than an alleged failure to fulfill the employer's non-delegable duty to provide a safe workplace. The court concluded that a simple allegation of negligent driving is not something more because safe driving is an extension of the duty to provide a safe work environment. The Western district notes that its opinion conflicts with two recent opinions from the Eastern District that allegations of negligent driving was a sufficient basis to reverse a summary judgment: Abbott v Bolton, ED 100773 (Mo App. 2016) (Aug 2 2016), 2016 MO App. Lexis 756 (a co-employee drove over another employee’s foot) and Fowler v Phillips, ED 100801 (Mo. App. 2016), 2016 MO App Lexis 826 (a co-employee hit someone after pulling out of a car wash). Whether the Supreme Court may ultimately resolve these issues remains to be seen.
SUPERVISOR
McComb v Gregory Norfus, WD 77761 (Mo App. 2016) 2016 Mo App. Lexis 882 (9/6/2016) involved a wrongful death suit against an employee's supervisor when her spouse worked as a hospital courier and drove off of an icy road in a single car accident.
The court of appeals reversed summary judgment in favor of the defendants and found there was a material issue of facts in dispute whether the supervisor breached a duty of care beyond the non-delegable duty to maintain a safe workplace.
The accident occurred in 2009 when the issue of co-employee liability was in a state of flux from 2005-2012 caused by statutory reform. The decision distinguished itself as an issue regarding the scope of a duty and not whether a duty existed to distinguish Parr v Breeden, 489 S.W.3d 774 (Mo. Banc. 2016). The court noted there was a foreseeable risk to send couriers into bad weather. The court noted there were issues of fact such the existence of such a policy, whether the defendants followed the policy, and whether actions of the supervisors violated such a policy.
One issue whether summary judgment was appropriate was whether a policy even existed. The court noted the job description identified some issues related to weather which could suggest the existence of a policy. The fact that the plaintiff admitted there was no policy was not binding on the issue as the comment occurred during oral argument. and the statement was not dispositive but just added to the weight of the evidence.
**
CO-WORKERS
In Williams v Roberts and Holloway, 2017 MO APP. LEXIS 321 (Mo. App. 2017) (4/20/2017)
the court reversed a summary judgment for the defendants.
Claimant was a journeyman mechanic who was injured in January 2012 and his duties involved clearing a "drop zone" where co-employees lowered items by crane. A 51 pound piece of channel iron came loose and struck him and he asserted the item was not properly secured. The accident resulted in multiple fractures. Defendants argued that claimant was negligent walking into the drop zone. The issues framed were whether the employees properly secured the load, whether they warned the plaintiff they were getting ready to lower the load, and whether they followed proper policies of the employer. Plaintiff argues it was erroneous to conclude that the defendants did not breach a person duty of care.
The court noted the record was insufficient to show as a matter of law that the injuries did not arise from a breach of carrying out the details of the work separate and distinct from the employer's duty to provide a safe work place. It found open-ended disputes if the load was properly secured, whether a tag line was used, whether any warning was appropriate and actions after the line became snagged and compliance with the employer's rules.
At common law:
" the employer has certain nondelegable duties for which it remains liable, regardless of whether the employer has assigned these duties to an employee. These duties are: (1) the duty to provide a safe workplace; (2) the duty to provide safe appliances, tools, and equipment; (3) the duty to give warning of dangers of which the employee might reasonably be expected to remain in ignorance; (4) the duty to provide a sufficient number of suitable co-employees; and (5) the duty to promulgate and enforce rules for the conduct of employees to ensure the safety of the workplace. "
The court noted both parties did not comply with Rule 74.04 and over-relied upon argument rather than affirmative admissions or denials in the statement of facts.
In Evans v Ron Wilson and Monte Barrett, 2016 MO APP. LEXIS 510 (Mo. App. 2016) (Sept. 19, 2016) the court of appeals affirmed a summary judgment in favor of a co-worker defendant who allegedly negligently drove a forklift over a rock, causing the load to shift, and ultimately ran over the foot of the plaintiff. He alleged, among other things, that the co-worker was negligent in operating the forklift. He did not appeal summary judgment against the supervisor and company president.
The court affirmed summary judgment or three reasons. the allegations failed to establish something more than an alleged failure to fulfill the employer's nondelegable duty to provide a safe workplace. A simple allegation of negligent driving is not something more because safe driving is an extension of the duty to provide a safe work environment.
The court noted in a footnote that Fowler v. Phillips, 504 S.W.3d 107 (Mo. App. 2016) and Abbott v Bolton, 500 S.W.3d 288 (MO. App. 2016), do not appear to follow State ex rel Taylor v Wallace, 73 S.W.3d 620 (Mo banc 2002) or Carmen v Wieland, 406 S.W.3d 70 (Mo. App 2013).
Fowler v Phillips, 504 S.W.3d 107 (Mo App. 2016) the Eastern District reversed a summary judgment in favor of the defendant. The case involved an Avis employee driving out of a car wash and striking another employee and allegedly ran a stop sign and failed to yield. The defendant contested the alleged negligent acts and agreed the action arose out of and in the course of employment.
The court reviewed summary judgment for both claims of negligence and of reckless conduct. The court found the scope of non-delegable duty limited to those acts specifically directed by the employer or arising from malfunction of employer provided equipment. The court found the allegations of failing to stop at a stop sign, failing to honk while exiting, making a prohibited left turn without signaling or looking left were actions outside the employer's non-delegable duties.
**
In Abbott v Bolton, 500 S.W.3d 288 (Mo App. 2016) (Aug 2 2016) the court of appeals reversed a summary judgment on behalf of the defendant.
The defendant argued two issues: there were material issues of fact in dispute which made summary judgment improper and there was as a matter of law an independent duty owed by the co-employee to support a claim for negligence.
Both parties worked for the county Dept of Highways and Traffic of the same crew. In 2010 the plaintiff was standing at a work site when the co-worker was returning to work from lunch and drove over his foot when he misjudged the space between the truck and Abbott's foot.
Both parties denied the act was in the course and scope of employment or that the accident arose from reckless or intentional conduct. The defendant argued that thee was no personal duty of care owed outside the employer's non-delegable duty to provide a safe workplace.
The court denied the plaintiff's first argument that there was a material dispute of fact if they were co-employees or not. The court found the defendant's denial that he was in the course and scope of employment did not create a dispute of a material fact on that issue. The court did not consider the material issue of facts in dispute regarding any comparative fault.
The court agreed with the plaintiff's second argument that there existed a separate independent duty of care separate from the non-delegable duty of the employer to provide a safe work place. The court found that statutory changes caused by strict construction created a gap for accidents arising between 2005 and 2012 allowed claims for independent breath of care. The co-employee's liability may arise when negligence falls outside traditional duties owed by the employer such as the duty to provide a safe work place, the duty to provide safe appliances, tools, and equipment, the duty to give warning of the dangers of which the employee might reasonably be expected to remain in ignorance, the duty to provide a sufficient number of suitable co employees and the duty to promulgate and enforce rules for the conduct of employees to ensure the safety of the workplace.
The court, in an opinion by Judge Gaertner, concluded the pleadings alleged a violation of a duty to drive in a careful and prudent manner which was not a breach within the delineated duties of safety owned by an employer and employee. The issue is whether Bolton owed Abbott an independent duty of care or whether any duty of care was subsumed within St. Louis County's general duties toward its employees."
The court later notes whether an independent duty exists is "purely a question of law," citing Peters and remands the case for further proceedings consistent with Peters.
Other cases have found negligent driving by a co-employee insufficient to show a breach of a duty to maintain a safe work environment. State ex rel Taylor v Wallace, 73 S.W.3d 620 (Mo banc 2002) and Carman v Wieland, 406 S.W.3d 70 (M. App. 2013).
*
In Leeper v Asmus 440 S.W.3d 478 (MO. App. 2014), a 500-pound pipe crushed Leeper's arm. Asmus operated a drilling rig guiding the pipe. Leeper alleges Asmus was negligent when he did not check the line was tight before operating the rig resulting in the injuries. The amended petition alleged there was a specific duty of the operator's job and created a unique hazard which was something more than just creating a safe work environment.
The court found that as a matter of law the 2005 amendments (until 2012) restored the law to the common law and that an action could proceed if the injuries arose solely from the defendant's negligence. The court noted Leeper could proceed even though the petition did not allege a breach of a common law duty but alleged a "something more" standard, a standard rejected by the court itself.
The court concluded that injuries after 2005 accident did not require the co-employee conduct to be outrageous, intentional or reckless which imposed too high of a burden on an injured worker inconsistent with common law, and refuses to follow the "something more" standard adopted by the Eastern District. The court concludes the rationale to require something more arose in liberal construction to assure a remedy through worker's comp.
The court concluded assuming if that the defendant failed to perform his job as instructed then dismissal was premature because the injury flowed from negligence. "Construed favorably the Leeper, these allegations support a conclusion that a safe drilling rig, safe methods of operation of the drilling rig, and a sufficiently trained operator of the drilling rig, were only made unsafe because Asmus failed to follow specific directions...." Leeper in many ways is a primer about pleading. Hansen v Ritter, 375 S.W.3d 201 (Mo App. 2012) failed based on pleadings that did not identify a separate duty owed by the defendants independent of the employer.
The court noted there was an easier burden to survive a motion to dismiss rather than prevailing on the merits that required proof that the defendant's negligence was the sole cause of the injuries. The court adopts a balancing test of policy considerations which included foreseeability, the relationship of the parties, and an obligation to control the activity which presents the danger of the injury, the burden of protecting against it and the consequences of placing the burden on the defendant.
*
In Hansen v Ritter, 375 S.W.3d 271 (Mo. App. 2012) a corporate safety manager and operations manager were sued for negligence after an employee fell into a wire-stranding machine resulting in the employee’s death. The court concluded in a narrow ruling that the plaintiffs as a matter of law in this case did not establish a breach of any duty, and affirmed a dismissal on the petition for failure to state a cause of action.
“We need not determine, therefore, the precise contours of the common-law duty co-employees owe to one another.” The court noted it “is unnecessary in deciding the matter before us to definitely determine the precise parameters of a co-employee’s personal duties to a fellow employee sufficient to support an actionable claim of negligence.”
The court noted before Robinson a plaintiff failed to state a cause of action without demonstrating something more, or purposeful, affirmatively dangerous conduct. The court noted that Robinson did not vitiate case law indicating such allegations established a breach of duty. By implication, pleading purposeful affirmative conduct would survive a motion to dismiss based on a de novo standard of review assuming all pleadings to be true. The court suggests there may be a breach of a duty without reaching all of these allegations. The alleged breach not to detect, correct or prevent work practices (causing a guard to give away) simply did not meet the standard in this case. Plaintiff conceded that the duties were not independent of the master-servant relationship and the tasks assumed the safety manager and operations manager were mere “going to work.” The plaintiff failed to establish a recognized duty as a matter of law in a cause of action for negligence.
The court did not disturb the wrongful death count against the machine manufacturer.
The case is important from a pleading issue what to do to survive a motion to dismiss.
PREMISES LIABILITY AND NEGLIGENCE
The court of appeals reversed a summary judgment on a negligence claim for a worker who fell in a hospital's stair case when the lights were out, the hand rail was removed, and he impaled himself on an exposed hand rail. Woodall v Christian Hospital Northeast, 473 S.W.3d 689 (Mo. App. 2015) (July 21, 2015). He settled the case in worker's comp against the employer and then went after the landowner. This opinion was rendered moot by the court on 8/25/2015.
The case involves a worker for an asbestos abatement company. CH was preparing the building for demolition and frequently removed and reinstalled the hand rail dozens of times to remove items from the boiler room. Appellant went into the basement to figure out why the power went out and then fell. The court noted it "may be in dispute" whether it was "appropriate" to send the appellant into a dark boiler room to investigate the outage.
Appellant filed a claim under theories of premises liability and general negligence. The court affirmed the summary judgment claim on the theory of premises liability and noted that the landowner owned no duty to an invitee because it shifted control of the property to the contractor, even though its employees remained on the premises and performed activities unrelated to abatement.
In the negligence claim, claimant asserted
"general negligence in the handling of a stairway bracket, the presence of an inadequate electrical supply, and the failure to warn Appellant for possible hazards." The court found these issues created disputes of material fact that did not support summary judgment.
J. Clayton
Atty: Muchnik, Makepeace
EQUITABLE GARNISHMENT
In Southerly v United Fire & Casualty Co. 448 S.W.3d 336 the plaintiff did not prevail in an attempt of equitable garnishment of insurer United Fire for a $4,000,000 judgment involving a suit against several co-workers in a work-place injury.
The insurer defended the claim and stated since the plaintiff was an employee he could not collect both under worker's compensation and under the CGL policy. Southerly claimed he was an employee in a worker's compensation claim and obtained a $150,000 settlement. A concurring judge noted that claimant was improperly attempting to "double dip" against multiple policies and estoppel prevented him from arguing inconsistent positions after collecting a prior judgment.
Claimant contended that he was not excluded by the policy definitions of employee and asserts that he wasn't hired in the open labor market but "furnished" by the recommendation of a co-worker. The court rejected this argument that he was subsequently rehired under different circumstances in which he was not just merely furnished by a referral. The claimant also unsuccessfully argued that he was an executive officer in his capacity as a manager. Although he served as a manager he was not a corporate director to fall within the policy exclusion.
AFFILIATED CORPORATION
The court of appeals reversed a dismissal of a common law negligence claim against ASC and found the pleadings sufficient to support a duty owed to the plaintiff. Berliner v Milwaukee Electric Tool, etal, 501 S.W.3D 59 (Mo. App. 2016).
The case involves a death on the job when a worker fell from a 85-foot high platform in Labadie, Missouri. The plaintiff, the surviving husband, filed a wrongful death suit. Plaintiff sued Milwaukee, Ameren Service Company (ASC), The court granted a motion to dismiss against individual employees.
The court noted that despite corporate ties between ASC and Union Electric immunity under worker's compensation law applies only to the immediate employer and not to affiliated parent, subsidiary or sibling corporation. The plaintiff worked for Union Electric.
"It is totally incongruous and patently unjust to permit the parent to hide behind the shield of separate corporate identity when advantageous, but to disavow such separateness when it is not." The court noted that ASC was a separate corporation and misconstrued the nondelegable obligation to provide a safe work place by the employer insulated third parties from liability. The co-employee defense, similarly, did not extent to third parties such as ASC which was reportedly hired to oversee safety at Ameren's plant.
The pleadings were sufficient as alleged to state a cause of action for negligence:
"ASC was responsible for and oversaw the safety at Union Electric’s plant. Its responsibilities included, but were not limited to, inspecting, refurbishing, and maintaining the hammer drill used by Decedent when she fell from Union Electric’s 85-foot-high platform. It was also alleged that the platform itself was subject to maintenance and inspection by ASC, which was tasked with ensuring "that all railings on the platform were safe, free from dangerous conditions, unbent or undamaged, and free from dangerous gaps between such railings."
Leading up to the 2005 amendments, Badami v Gaertner, 630 S.W.2d 175 (Mo. App. 1982), allowed immunity for co-workers without proof of "something more" beyond negligence. Suits against co-employees failed based on 287.120 unless a co-employee purposefully and dangerously caused or increased a risk of injury.
Robinson v Hooker, 323 S.W.3d 418 (Mo App. 2010) reversed an order to dismiss a negligence claim filed after a plaintiff settled a worker’s compensation claim for permanent partial disability for loss of vision. A street cleaner lost control of a high pressure hose and struck the plaintiff, causing blindness in the right eye. The court of appeals reversed and remanded the order, and rejected defenses to the tort claim based on worker’s compensation immunity and res judicata.
Hooker concluded that the 2005 requirements to apply strict construction required a re-evaluation of the defense created by Badami. Section 287.120 extends immunity only to employers, and a co-worker did not meet the definition of "employer" under §287.030.1. There is no immunity unless a co-worker "squarely" falls within the definition of employer. Robinson v. Hooker asserts this interpretation was being "mindful" to "effectuate legislative intent" as reflected in the "plain and ordinary language of the statute" and pursue a long-standing principle to preserve common law rights.
On August 28, 2012 HB 1540 became effective to put tighter limits on co-employee liability and amended 287.120.1 to allow immunity unless the worker engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.
Numerous tort cases continue to arise during the "gap" before the 2012 fix.
RECENT SUPREME COURT CASES
In Parr v Breeden , 2016 MO Lexis 188 (June 7, 2016) the Missouri Supreme Court found that surviving children failed to state a cause of action against co-workers when their father died in a work-related auto accident.
The plaintiff worked for Breeden Transportation. The worker was involved in multiple accidents in 2006, and two accidents in 2008, the last resulting in a fatality when his vehicle left the road.
The petition alleged that the driver had multiple health conditions including severe heart disease, apnea and it was the employer should have known his health condition posed risks to his capacity to drive safely.
The suit named the company owner, a company dispatcher and the company director of safety.
"The plaintiffs raise two points: (1) the circuit court erred in granting summary judgment because [ genuine disputes of material fact exist as to the defendants' negligence in that the defendants admitted they had a duty to ensure all of Breeden Transportation's drivers were safe to operate a commercial motor vehicle, the defendants knew or should have known Mr. Parr could not safely operate a commercial motor vehicle, the defendants caused Mr. Parr's death by placing him on the road the night of the fatal accident, and the plaintiffs suffered damage as a result of Mr. Parr's death; and (2) the circuit court erred in entering summary judgment because there was a genuine dispute of material fact as to whether the defendants breached their duties, separate and apart from the employer's nondelegable duties, that arose from federal regulations."
The element at issue in this case is the existence of a duty owed by the defendants to Mr. Parr.
The plaintiff relied upon deposition testimony that employer witnesses acknowledged a duty that their drivers operated safety.
"Here, the plaintiffs' evidence fails to establish that defendants owed Mr. Parr a duty separate and distinct from the employer's nondelegable duty to provide a safe workplace. Accordingly, the plaintiffs cannot establish that the defendants owed Mr. Parr a duty as a matter of law; therefore, the circuit court did not err in entering summary judgment in favor of the defendants."
The court rejected the argument that a breach of a federal rule is sufficient proof of the existence of an independent, personal duty in a negligence action. The plaintiffs mistakenly construed a federal rule to create an independent duty by the motor carrier to independently investigate the cause of accidents.
The case arose during a former legislative "gap" in Missouri that permitted co-employee suits based on common law standards.
The court of appeals affirmed a summary judgment in favor of defendant co-employees and concluded that claimant failed to establish a breach of any duty under either common law or the 'something more' doctrine.
The case involves a fatality of a truck-driver in a 2008 accident and a wrongful death claim brought against three supervisory employees. The circuit court found there was no genuine issue of material fact that the co-employees owed any duty to the claimant. The claim alleged negligence and directing claimant to drive a vehicle when reasonably knowing he had a medical condition that might increase the risk of an accident.
The case does not identify that there was a medical condition, but asserts that the co-employees had a duty to inquire if there was a medical condition because the driver had been involved in an accident less than 3 weeks earlier. At the time of the fatal accident he was performing his regular job duties and had been remained certified as medically fit to drive.
The majority considered an existence of a duty is a question of law. The court indicated that the "something more" doctrine did not apply at the time of the accident, and the only duty arising under common law when the co-employee's workplace injury is in no way attributable to the employer's breach of its non-delegable duties. The non-delegable duty to use reasonable care falls within five general categories of 1) the provide a safe workplace 2) to provide safe equipment in the workplace, 3) to warn employees about the existence of dangers of which the employees could not reasonably be expected to be aware 4) to provide a sufficient number to competent fellow employees and 5) to promulgate and enforce rules governing employee conduct for the purpose of enhancing safety.
There was no common law duty for co-employees to protect claimant from himself to determine if he was a danger to himself based on his own health history. There was no co-employee liability when any breach of duties arose from non-delegable tasks such as providing a safe work place, enforcing its safety rules or providing competent drivers.
A dissent argued that summary judgment was premature and the case should transfer to the Supreme Court. It argued the survivors should be provided an opportunity to win or lose their case and the issue of breach of a non-delegable duty was a disputed issue of material fact not a matter of law and that Leeper required pleadings to be read most favorably to the survivors. It suggested alternate theories of liability such as negligent hiring, negligent entrustment or respondeat superior.
The dissent concluded that the "something more" test and common law provided different liabilities and rejected application of the post-reform use of "something more" during the 2005-2012 gap. It specifically refused to follow Eastern District cases which applied a "refined" something more test: Amesquita v Gilster-Mary Lee Corp., 408 S.W.3d 293 (Mo. App. 2013).
Both the plaintiffs in Parr and Leeper asserted causes of action under the "something more" doctrine, but both courts indicated the proper claim was a breach of a common law duty. The majority in Parr still makes the additional finding that claimant did not make a submissible case under the "something more" doctrine either. Presumably claimant could have made a submissible comp case, although no one would know from this opinion
It is not clear what relevant medical conditions Parr actually had or how they might have been a contributing factor to any of the accidents.
The argument seems to be the employer might have learned something rather than the employer already knew something. That is what makes the case distinguishable from the classic negligent entrustment claim of sending someone out in a company truck or vehicle with a clearly recognizable impairment. Many employers would likely not make any inquiry about general medical conditions simply because their ADA attorneys have told them it is none of their business.
In Peters v Wady Indus., 2016 Mo Lexis 189 (June 7, 2016) addressed an issue of liability in a "gap" case between 2005 reform and the 2012 fix. Ultimately, the court affirmed a motion to dismiss from the circuit court and court of appeals that the plaintiff failed to state a claim. The case involved a stack of construction material (dowel baskets) falling off of a flatbed truck resulting in catastrophic injuries to the plaintiff. The plaintiff alleged the items were negligently stacked, among other claims.
Peters filed suit against his supervisor and his employer. When the court dismissed the suit against the supervisor, the plaintiffs voluntarily dismissed their claim against the employer. The court of appeals affirmed the dismissal, with one dissent.
The standard of review in a motion to dismiss assumes all allegations to be true and tests the adequacy of the petition to state a claim. Applicability of worker's compensation is an affirmative defense and not a limitation on the court's jurisdiction.
This case is important as the court redefines the burden of proof for common law cases (arising before 2012) and the requirement of courts to show "something more" in those cases mistakenly required proof of affirmative acts, which it now concludes was contrary to common law. The effect, is that an appropriately pled case likely avoids the procedural defense of a motion to dismiss. As a practical matter, the number of cases before 2012 that have not been filed yet may be a small number and the new statutory test (applying essentially the pre-reform standard) will apply.
Two justices disagreed with departure from the "something more" test that required proof of affirmative action to proceed in tort outside of comp. The majority noted two cases (an exploding cement truck and a malfunction causing a runaway elevator) to demonstrate liability under the less stringent standard.
One dissenting justice felt claimant's case should proceed in tort.
At the court of appeals, 489 S.W.3d 784 (Mo App. 2014) the court affirmed a dismissal of a negligence claim against the supervisor by the worker and his spouse. In 2008 a stack of baskets fell on him at a construction site. The petition alleged the supervisor had been warned about the unsafely stacked baskets yet he allowed unsafe conditions by stacking them too high, failing to secure them, not providing a proper unloading area among other acts.
As a matter of law the pleadings failed to state a claim because they did not establish an independent duty. The court noted a statutory gap between 2005 and 2012 which allowed co-employees to maintain suit. The court noted no cause of action lies unless there is a duty owed independent of the general duty of the employer to provide a safe work place. In addition, the eastern district requires liability to be based on something more or an affirmative purposeful and dangerous act. In this case the worker may have shown the supervisor knew of the danger and didn't protect the plaintiff from it but that was inseparable from the non-delegable duty to provide a safe work place.
As claimant failed to establish the first prong of the case (a breach of a non-delegable duty) any appeal is not necessary to evaluate the extent of any breach (affirmative v negligent) and how the western and southern districts have found what extent of a breach states a cause of action.
The pleadings allege the worker sustained catastrophic injuries. In addition the spouse asserted a claim for loss of consortium.
A dissent transferred the case to the Supreme Court due to conflict in what breach is actionable and concluded the determination whether there was a breach was a question of fact and that dismissal for failure to state a claim was improper. It was still the plaintiff's burden to show the employer performed its duties safely and the accident would not have happened but for the supervisor's negligent act or omission.
DRIVING CASES
In Evans v Ron Wilson and Monte Barrett, No. SD 33209 (Mo. App. 2016) (Sept. 19, 2016), 2016 MO App. Lexis 923, the court of appeals affirmed a summary judgment in favor of a co-worker defendant. The claim alleged negligence when a co-employee drove a forklift and ran over the foot of the plaintiff. The case is one of multiple recent decisions which addresses when an injured worker in Missouri can sue a co-worker in common law.
The issue at summary judgment is whether the pleadings identify a duty separate and distinct from the employer's non-delegable duty to provide a safe workplace.
The Supreme Court addressed the issue in two opinions on June 7, 2016. In Parr v Breeden, 2016 MO Lexis 188 the Missouri Supreme Court found that surviving children failed to state a cause of action against co-workers when their father died in a work-related auto accident. In Peters v Wady Indus., 2016 Mo Lexis 189 a stack of dowel baskets fell off of a flatbed truck resulting in catastrophic injuries to the plaintiff. The plaintiff alleged the items were negligently stacked, among other claims.
Evans affirmed a summary judgment and noted the allegations failed to establish something more than an alleged failure to fulfill the employer's non-delegable duty to provide a safe workplace. The court concluded that a simple allegation of negligent driving is not something more because safe driving is an extension of the duty to provide a safe work environment. The Western district notes that its opinion conflicts with two recent opinions from the Eastern District that allegations of negligent driving was a sufficient basis to reverse a summary judgment: Abbott v Bolton, ED 100773 (Mo App. 2016) (Aug 2 2016), 2016 MO App. Lexis 756 (a co-employee drove over another employee’s foot) and Fowler v Phillips, ED 100801 (Mo. App. 2016), 2016 MO App Lexis 826 (a co-employee hit someone after pulling out of a car wash). Whether the Supreme Court may ultimately resolve these issues remains to be seen.
SUPERVISOR
McComb v Gregory Norfus, WD 77761 (Mo App. 2016) 2016 Mo App. Lexis 882 (9/6/2016) involved a wrongful death suit against an employee's supervisor when her spouse worked as a hospital courier and drove off of an icy road in a single car accident.
The court of appeals reversed summary judgment in favor of the defendants and found there was a material issue of facts in dispute whether the supervisor breached a duty of care beyond the non-delegable duty to maintain a safe workplace.
The accident occurred in 2009 when the issue of co-employee liability was in a state of flux from 2005-2012 caused by statutory reform. The decision distinguished itself as an issue regarding the scope of a duty and not whether a duty existed to distinguish Parr v Breeden, 489 S.W.3d 774 (Mo. Banc. 2016). The court noted there was a foreseeable risk to send couriers into bad weather. The court noted there were issues of fact such the existence of such a policy, whether the defendants followed the policy, and whether actions of the supervisors violated such a policy.
One issue whether summary judgment was appropriate was whether a policy even existed. The court noted the job description identified some issues related to weather which could suggest the existence of a policy. The fact that the plaintiff admitted there was no policy was not binding on the issue as the comment occurred during oral argument. and the statement was not dispositive but just added to the weight of the evidence.
**
CO-WORKERS
In Williams v Roberts and Holloway, 2017 MO APP. LEXIS 321 (Mo. App. 2017) (4/20/2017)
the court reversed a summary judgment for the defendants.
Claimant was a journeyman mechanic who was injured in January 2012 and his duties involved clearing a "drop zone" where co-employees lowered items by crane. A 51 pound piece of channel iron came loose and struck him and he asserted the item was not properly secured. The accident resulted in multiple fractures. Defendants argued that claimant was negligent walking into the drop zone. The issues framed were whether the employees properly secured the load, whether they warned the plaintiff they were getting ready to lower the load, and whether they followed proper policies of the employer. Plaintiff argues it was erroneous to conclude that the defendants did not breach a person duty of care.
The court noted the record was insufficient to show as a matter of law that the injuries did not arise from a breach of carrying out the details of the work separate and distinct from the employer's duty to provide a safe work place. It found open-ended disputes if the load was properly secured, whether a tag line was used, whether any warning was appropriate and actions after the line became snagged and compliance with the employer's rules.
At common law:
" the employer has certain nondelegable duties for which it remains liable, regardless of whether the employer has assigned these duties to an employee. These duties are: (1) the duty to provide a safe workplace; (2) the duty to provide safe appliances, tools, and equipment; (3) the duty to give warning of dangers of which the employee might reasonably be expected to remain in ignorance; (4) the duty to provide a sufficient number of suitable co-employees; and (5) the duty to promulgate and enforce rules for the conduct of employees to ensure the safety of the workplace. "
The court noted both parties did not comply with Rule 74.04 and over-relied upon argument rather than affirmative admissions or denials in the statement of facts.
In Evans v Ron Wilson and Monte Barrett, 2016 MO APP. LEXIS 510 (Mo. App. 2016) (Sept. 19, 2016) the court of appeals affirmed a summary judgment in favor of a co-worker defendant who allegedly negligently drove a forklift over a rock, causing the load to shift, and ultimately ran over the foot of the plaintiff. He alleged, among other things, that the co-worker was negligent in operating the forklift. He did not appeal summary judgment against the supervisor and company president.
The court affirmed summary judgment or three reasons. the allegations failed to establish something more than an alleged failure to fulfill the employer's nondelegable duty to provide a safe workplace. A simple allegation of negligent driving is not something more because safe driving is an extension of the duty to provide a safe work environment.
The court noted in a footnote that Fowler v. Phillips, 504 S.W.3d 107 (Mo. App. 2016) and Abbott v Bolton, 500 S.W.3d 288 (MO. App. 2016), do not appear to follow State ex rel Taylor v Wallace, 73 S.W.3d 620 (Mo banc 2002) or Carmen v Wieland, 406 S.W.3d 70 (Mo. App 2013).
Fowler v Phillips, 504 S.W.3d 107 (Mo App. 2016) the Eastern District reversed a summary judgment in favor of the defendant. The case involved an Avis employee driving out of a car wash and striking another employee and allegedly ran a stop sign and failed to yield. The defendant contested the alleged negligent acts and agreed the action arose out of and in the course of employment.
The court reviewed summary judgment for both claims of negligence and of reckless conduct. The court found the scope of non-delegable duty limited to those acts specifically directed by the employer or arising from malfunction of employer provided equipment. The court found the allegations of failing to stop at a stop sign, failing to honk while exiting, making a prohibited left turn without signaling or looking left were actions outside the employer's non-delegable duties.
**
In Abbott v Bolton, 500 S.W.3d 288 (Mo App. 2016) (Aug 2 2016) the court of appeals reversed a summary judgment on behalf of the defendant.
The defendant argued two issues: there were material issues of fact in dispute which made summary judgment improper and there was as a matter of law an independent duty owed by the co-employee to support a claim for negligence.
Both parties worked for the county Dept of Highways and Traffic of the same crew. In 2010 the plaintiff was standing at a work site when the co-worker was returning to work from lunch and drove over his foot when he misjudged the space between the truck and Abbott's foot.
Both parties denied the act was in the course and scope of employment or that the accident arose from reckless or intentional conduct. The defendant argued that thee was no personal duty of care owed outside the employer's non-delegable duty to provide a safe workplace.
The court denied the plaintiff's first argument that there was a material dispute of fact if they were co-employees or not. The court found the defendant's denial that he was in the course and scope of employment did not create a dispute of a material fact on that issue. The court did not consider the material issue of facts in dispute regarding any comparative fault.
The court agreed with the plaintiff's second argument that there existed a separate independent duty of care separate from the non-delegable duty of the employer to provide a safe work place. The court found that statutory changes caused by strict construction created a gap for accidents arising between 2005 and 2012 allowed claims for independent breath of care. The co-employee's liability may arise when negligence falls outside traditional duties owed by the employer such as the duty to provide a safe work place, the duty to provide safe appliances, tools, and equipment, the duty to give warning of the dangers of which the employee might reasonably be expected to remain in ignorance, the duty to provide a sufficient number of suitable co employees and the duty to promulgate and enforce rules for the conduct of employees to ensure the safety of the workplace.
The court, in an opinion by Judge Gaertner, concluded the pleadings alleged a violation of a duty to drive in a careful and prudent manner which was not a breach within the delineated duties of safety owned by an employer and employee. The issue is whether Bolton owed Abbott an independent duty of care or whether any duty of care was subsumed within St. Louis County's general duties toward its employees."
The court later notes whether an independent duty exists is "purely a question of law," citing Peters and remands the case for further proceedings consistent with Peters.
Other cases have found negligent driving by a co-employee insufficient to show a breach of a duty to maintain a safe work environment. State ex rel Taylor v Wallace, 73 S.W.3d 620 (Mo banc 2002) and Carman v Wieland, 406 S.W.3d 70 (M. App. 2013).
*
In Leeper v Asmus 440 S.W.3d 478 (MO. App. 2014), a 500-pound pipe crushed Leeper's arm. Asmus operated a drilling rig guiding the pipe. Leeper alleges Asmus was negligent when he did not check the line was tight before operating the rig resulting in the injuries. The amended petition alleged there was a specific duty of the operator's job and created a unique hazard which was something more than just creating a safe work environment.
The court found that as a matter of law the 2005 amendments (until 2012) restored the law to the common law and that an action could proceed if the injuries arose solely from the defendant's negligence. The court noted Leeper could proceed even though the petition did not allege a breach of a common law duty but alleged a "something more" standard, a standard rejected by the court itself.
The court concluded that injuries after 2005 accident did not require the co-employee conduct to be outrageous, intentional or reckless which imposed too high of a burden on an injured worker inconsistent with common law, and refuses to follow the "something more" standard adopted by the Eastern District. The court concludes the rationale to require something more arose in liberal construction to assure a remedy through worker's comp.
The court concluded assuming if that the defendant failed to perform his job as instructed then dismissal was premature because the injury flowed from negligence. "Construed favorably the Leeper, these allegations support a conclusion that a safe drilling rig, safe methods of operation of the drilling rig, and a sufficiently trained operator of the drilling rig, were only made unsafe because Asmus failed to follow specific directions...." Leeper in many ways is a primer about pleading. Hansen v Ritter, 375 S.W.3d 201 (Mo App. 2012) failed based on pleadings that did not identify a separate duty owed by the defendants independent of the employer.
The court noted there was an easier burden to survive a motion to dismiss rather than prevailing on the merits that required proof that the defendant's negligence was the sole cause of the injuries. The court adopts a balancing test of policy considerations which included foreseeability, the relationship of the parties, and an obligation to control the activity which presents the danger of the injury, the burden of protecting against it and the consequences of placing the burden on the defendant.
*
In Hansen v Ritter, 375 S.W.3d 271 (Mo. App. 2012) a corporate safety manager and operations manager were sued for negligence after an employee fell into a wire-stranding machine resulting in the employee’s death. The court concluded in a narrow ruling that the plaintiffs as a matter of law in this case did not establish a breach of any duty, and affirmed a dismissal on the petition for failure to state a cause of action.
“We need not determine, therefore, the precise contours of the common-law duty co-employees owe to one another.” The court noted it “is unnecessary in deciding the matter before us to definitely determine the precise parameters of a co-employee’s personal duties to a fellow employee sufficient to support an actionable claim of negligence.”
The court noted before Robinson a plaintiff failed to state a cause of action without demonstrating something more, or purposeful, affirmatively dangerous conduct. The court noted that Robinson did not vitiate case law indicating such allegations established a breach of duty. By implication, pleading purposeful affirmative conduct would survive a motion to dismiss based on a de novo standard of review assuming all pleadings to be true. The court suggests there may be a breach of a duty without reaching all of these allegations. The alleged breach not to detect, correct or prevent work practices (causing a guard to give away) simply did not meet the standard in this case. Plaintiff conceded that the duties were not independent of the master-servant relationship and the tasks assumed the safety manager and operations manager were mere “going to work.” The plaintiff failed to establish a recognized duty as a matter of law in a cause of action for negligence.
The court did not disturb the wrongful death count against the machine manufacturer.
The case is important from a pleading issue what to do to survive a motion to dismiss.
PREMISES LIABILITY AND NEGLIGENCE
The court of appeals reversed a summary judgment on a negligence claim for a worker who fell in a hospital's stair case when the lights were out, the hand rail was removed, and he impaled himself on an exposed hand rail. Woodall v Christian Hospital Northeast, 473 S.W.3d 689 (Mo. App. 2015) (July 21, 2015). He settled the case in worker's comp against the employer and then went after the landowner. This opinion was rendered moot by the court on 8/25/2015.
The case involves a worker for an asbestos abatement company. CH was preparing the building for demolition and frequently removed and reinstalled the hand rail dozens of times to remove items from the boiler room. Appellant went into the basement to figure out why the power went out and then fell. The court noted it "may be in dispute" whether it was "appropriate" to send the appellant into a dark boiler room to investigate the outage.
Appellant filed a claim under theories of premises liability and general negligence. The court affirmed the summary judgment claim on the theory of premises liability and noted that the landowner owned no duty to an invitee because it shifted control of the property to the contractor, even though its employees remained on the premises and performed activities unrelated to abatement.
In the negligence claim, claimant asserted
"general negligence in the handling of a stairway bracket, the presence of an inadequate electrical supply, and the failure to warn Appellant for possible hazards." The court found these issues created disputes of material fact that did not support summary judgment.
J. Clayton
Atty: Muchnik, Makepeace
EQUITABLE GARNISHMENT
In Southerly v United Fire & Casualty Co. 448 S.W.3d 336 the plaintiff did not prevail in an attempt of equitable garnishment of insurer United Fire for a $4,000,000 judgment involving a suit against several co-workers in a work-place injury.
The insurer defended the claim and stated since the plaintiff was an employee he could not collect both under worker's compensation and under the CGL policy. Southerly claimed he was an employee in a worker's compensation claim and obtained a $150,000 settlement. A concurring judge noted that claimant was improperly attempting to "double dip" against multiple policies and estoppel prevented him from arguing inconsistent positions after collecting a prior judgment.
Claimant contended that he was not excluded by the policy definitions of employee and asserts that he wasn't hired in the open labor market but "furnished" by the recommendation of a co-worker. The court rejected this argument that he was subsequently rehired under different circumstances in which he was not just merely furnished by a referral. The claimant also unsuccessfully argued that he was an executive officer in his capacity as a manager. Although he served as a manager he was not a corporate director to fall within the policy exclusion.
AFFILIATED CORPORATION
The court of appeals reversed a dismissal of a common law negligence claim against ASC and found the pleadings sufficient to support a duty owed to the plaintiff. Berliner v Milwaukee Electric Tool, etal, 501 S.W.3D 59 (Mo. App. 2016).
The case involves a death on the job when a worker fell from a 85-foot high platform in Labadie, Missouri. The plaintiff, the surviving husband, filed a wrongful death suit. Plaintiff sued Milwaukee, Ameren Service Company (ASC), The court granted a motion to dismiss against individual employees.
The court noted that despite corporate ties between ASC and Union Electric immunity under worker's compensation law applies only to the immediate employer and not to affiliated parent, subsidiary or sibling corporation. The plaintiff worked for Union Electric.
"It is totally incongruous and patently unjust to permit the parent to hide behind the shield of separate corporate identity when advantageous, but to disavow such separateness when it is not." The court noted that ASC was a separate corporation and misconstrued the nondelegable obligation to provide a safe work place by the employer insulated third parties from liability. The co-employee defense, similarly, did not extent to third parties such as ASC which was reportedly hired to oversee safety at Ameren's plant.
The pleadings were sufficient as alleged to state a cause of action for negligence:
"ASC was responsible for and oversaw the safety at Union Electric’s plant. Its responsibilities included, but were not limited to, inspecting, refurbishing, and maintaining the hammer drill used by Decedent when she fell from Union Electric’s 85-foot-high platform. It was also alleged that the platform itself was subject to maintenance and inspection by ASC, which was tasked with ensuring "that all railings on the platform were safe, free from dangerous conditions, unbent or undamaged, and free from dangerous gaps between such railings."
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