paige-parr-a-minor-by-and-through-her-conservator-janett-waid-jerimy ( 2014 )

PAIGE PARR, a minor, by and through )
her Conservator, JANETT WAID, )
JERIMY MOREHEAD, and CHARLES )
PARR, )
)
Plaintiffs-Appellants, )
)
vs. ) No. SD32602
) Filed: August 6, 2014
CHARLES BREEDEN, WENDY )
COGDILL, and MELANIE BUTTRY, )
)
Defendants-Respondents. )
APPEAL FROM THE CIRCUIT COURT OF NEW MADRID COUNTY
Honorable Fred W. Copeland, Circuit Judge
AFFIRMED
On April 28, 2008, Kevin Parr (“Parr”) was killed when the commercial motor
vehicle he was driving for his employer, Breeden Transportation, Inc., left the road in a
single vehicle accident. His two children and father (“Plaintiffs”) appeal from the trial
court’s grant of summary judgment to three of Parr’s supervisory co-employees on
Plaintiffs’ claim for Parr’s wrongful death based on alleged workplace negligence.
Plaintiffs raise two points on appeal. At its core, each point claims that the trial court
1
erred in granting summary judgment because the record shows a genuine issue of
material fact that if true would establish that the co-employee defendants owed Parr a
legal duty sufficient to support a cause of action for workplace negligence. In view of the
fact the points raise a common issue, we combine the points and consider them as a
single point. We conclude that the co-employee defendants as a matter of law owed no
legal duty to Parr under the common law, and that the Federal Motor Carrier Safety
Administration regulations did not impose a separate legal duty on the co-employee
defendants independent of the common law. The trial court’s grant of summary
judgment to the co-employee defendants is affirmed.
Facts and Procedural History
A little less than two years after the single-car accident that killed Parr, his two
children and father filed a suit for wrongful death against three of Parr’s co-employees –
Charles Breeden, President of Breeden Transportation, Wendy Cogdill (now Wendy
Knupp), Director of Safety, and Melany Buttry,1 an employee with the responsibility of
“making sure drivers complied with health and safety regulations” (“Defendant Co-
Employees”).2 In their Second Amended Petition, Plaintiffs alleged that Defendant Co-
Employees “had a duty to provide a safe working environment to Kevin Parr, to monitor
the physical condition of Kevin Parr to determine whether he was fit to drive a tractor-
trailer, and to determine whether Kevin Parr was in compliance with Federal Motor
Carrier Safety Administration Regulations.” Based on this duty allegedly owed by
Defendant Co-Employees to Plaintiffs’ decedent, Plaintiffs asserted two causes of action
1
The parties spell Ms. Buttry’s first name as “Melanie.” In an affidavit in the record, Ms. Buttry spelled
her first name “Melany,” and we use that spelling in our opinion.
2
Wendy Cogdill denies she was Director of Safety or supervisor, and there is conflicting testimony about
whether or not Melany Buttry was dispatcher; however, neither matters for purposes of this appeal.
2
against Defendant Co-Employees: (1) “[g]eneral [n]egligence,” and (2) “despite
knowing, or reasonably knowing, of Kevin Parr’s [medical conditions], directed Kevin
Parr to drive a tractor-trailer owned and/or operated by Breeden Transportation, Inc. on
April 28, 2008, which direction was dangerous and reasonably recognizable to be
hazardous and beyond the usual requirements of employment.”
Defendant Co-Employees filed a motion for summary judgment. One ground for
summary judgment asserted in the motion was that “plaintiffs are unable to offer any
proof that defendants breached a duty owed to decedent.” Viewing the record in the light
most favorable to Plaintiffs as we must do under our standard of review, the
uncontroverted facts and reasonable inferences from the record included the following:
(1) “Kevin Parr was employed by Breeden Transportation, Inc. and[, on April 28, 2008,
was] driving northbound on Interstate 55 hauling gas when he was involved in a fatal
vehicle accident;” (2) “Defendants were employees of Breeden Transportation, Inc. at all
times material to this lawsuit” with the responsibilities described above; (3) A medical
examiner certified in a November 2, 2007 medical examination report that Parr was
“physically fit to operate a commercial motor vehicle” and “qualifies for 2 year
certificate;” (4) The November 2, 2007 report indicated that Parr “[s]mokes” and was
“[o]verweight” but did not “reveal” any disqualifying medical condition; and (5) Breeden
Transportation, Inc., did not investigate December 2006 and April 11, 2008 commercial
motor vehicle accidents in which Parr was involved other than asking Parr how the
accident occurred, did not require that Parr receive education or training after either of
the accidents, and did not require that Parr be recertified as physically fit to operate a
commercial motor vehicle by a medical examiner after the April 11, 2008 accident.
3
In Plaintiffs’ memorandum in opposition to summary judgment, Plaintiffs argued
that Defendant Co-Employees breached the duty they owed Plaintiffs’ decedent:
by failing to remove Mr. Parr from the road, pending a medical evaluation
and/or treatment, at minimum following the accident of April 11, 2008.
Further exacerbating the breach, Defendants utterly failed to inquire into
whether Mr. Parr had any sort of health condition that may have
contributed to either of his prior single vehicle accidents.
Plaintiffs further argued that they:
have also presented evidence of Defendants’ affirmative acts which
injured Mr. Parr. Defendants clearly placed Mr. Parr back on the road
when they were aware, or should have been aware, that he was not safe to
operate a motor vehicle. This affirmative placing of Mr. Parr back on the
road, without even bothering to ask him about his health following two
previous single vehicle accidents, the most recent of which was only 17
days before the fatal accident is more than enough to create a genuine
issue of material fact as to whether Defendants breached the “Something
More” doctrine.
After the court entered a docket entry granting summary judgment, Plaintiffs filed
a motion to “alter” judgment and argued for the first time that the Federal Motor Carrier
Safety Administration regulations imposed on Defendant Co-Employees a legal duty to
Parr that was independent of Missouri common law. The motion to “alter” the judgment
was denied.
Standard of Review
Under Rule 74.04(c),3 a moving party is entitled to summary judgment if the
summary judgment record shows “that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.” Rule 74.04(c));
ITT Commercial Finance Corporation v. Mid-America Marine Supply Corporation,
854 S.W.2d 371, 380-82 (Mo. banc 1993). A “genuine issue”:
3
All references to rules are to Missouri Court Rules (2014).
4
exists where the record contains competent materials that evidence two
plausible, but contradictory, accounts of the essential facts. A “genuine
issue” is a dispute that is real, not merely argumentative, imaginary or
frivolous. Where the “genuine issues” raised by the non-movant are
merely argumentative, imaginary or frivolous, summary judgment is
proper.
ITT Commercial, 854 S.W.2d at 382. Further:
Where a “defending party” will not bear the burden of persuasion at trial,
that party need not controvert each element of the non-movant's claim in
order to establish a right to summary judgment. Rather, a “defending
party” may establish a right to judgment by showing (1) facts that negate
any one of the claimant's elements facts, (2) that the non-movant, after an
adequate period of discovery, has not been able to produce, and will not be
able to produce, evidence sufficient to allow the trier of fact to find the
existence of any one of the claimant's elements, or (3) that there is no
genuine dispute as to the existence of each of the facts necessary to
support the movant's properly-pleaded affirmative defense. Regardless of
which of these three means is employed by the “defending party,” each
establishes a right to judgment as a matter of law.
Id. at 381.
In reviewing whether the trial court properly granted summary judgment, we:
review the record in the light most favorable to the party against whom
judgment was entered. Zafft v. Eli Lilly, 676 S.W.2d 241, 244 (Mo. banc
1984); Cooper v. Finke, 376 S.W.2d 225, 228 (Mo.1964). Facts set forth
by affidavit or otherwise in support of a party's motion are taken as true
unless contradicted by the non-moving party's response to the summary
judgment motion. Cherry v. City of Hayti Heights, 563 S.W.2d 72, 75
(Mo. banc 1978); Dietrich v. Pulitzer Publishing Company, 422 S.W.2d
330, 333 (Mo.1986). We accord the non-movant the benefit of all
reasonable inferences from the record. Martin v. City of Washington, 848
S.W.2d 487, 489 (Mo. banc 1993); Madden v. C & K Barbecue Carryout,
Inc., 758 S.W.2d 59, 61 (Mo. banc 1988).
Our review is essentially de novo. The criteria on appeal for
testing the propriety of summary judgment are no different from those
which should be employed by the trial court to determine the propriety of
sustaining the motion initially. E.O. Dorsch Electric Co. v. Plaza Const.
Co., 413 S.W.2d 167, 169 (Mo.1967). The propriety of summary
judgment is purely an issue of law. As the trial court's judgment is
founded on the record submitted and the law, an appellate court need not
defer to the trial court's order granting summary judgment. Elliott v.
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Harris, 423 S.W.2d 831, 834 (Mo. banc 1968); Swink v. Swink, 367
S.W.2d 575, 578 (Mo.1963).
Id. at 376.
Analysis
As mentioned previously, each of Plaintiffs’ two points relied on at its core claims
that the trial court erred in granting summary judgment because the record shows a
genuine issue of material fact that if true would establish that Defendant Co-Employees
owed fellow employee Parr a legal duty sufficient to support a cause of action for
workplace negligence.4 Plaintiffs contend that their claims fall squarely within the
“something more” doctrine of State ex rel. Badami v. Gaertner, 630 S.W.2d 175 (Mo.
App. E.D. 1982) (en banc), or the common law as set forth in Hansen v. Ritter, 375
S.W.3d 201, 208 (Mo. App. W.D. 2012).
An employee’s common-law cause of action against a co-employee for workplace
negligence has the same elements as all claims of negligence – (1) “existence of a duty,”
(2) breach of that duty, and (3) injury proximately caused by the breach. Hansen, 375
S.W.3d at 208. “‘[T]he threshold matter is to establish the existence of a duty owed by
the co-employee.’” Id. (internal citation omitted); see also Id. at 213. Unlike the other
elements of a negligence cause of action, the existence of a duty is a question of law for
the court. Id. at 208; see also Leeper v. Asmus, No. WD76772, ___ S.W.3d ___, 2014
WL 2190966, at *3 (Mo. App. W.D. May 27, 2014) (“existence of duty is a question of
law to be decided by the court” (internal citation omitted)).
4
Our analysis is confined to the period between the amendment of the Workers’ Compensation Law in
2005 and 2012 when an employee retained a common-law cause of action against a co-employee for
workplace negligence that occurred in that period. Leeper v. Asmus, No. WD76772, ___ S.W.3d ___,
2014 WL 2190966, at *1 (Mo. App. W.D. May 27, 2014).
6
At common law, an employer has a general, non-delegable duty to use reasonable
care, and this general duty gives rise to five, specific, non-delegable duties relevant to
safety:
(1) to 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 of competent fellow employees; and (5) to
promulgate and enforce rules governing employee conduct for the purpose
of enhancing safety.
Hansen, 375 S.W.3d at 208 (internal citations omitted); see also Leeper, 2014 WL
2190966, at *5-6. An employer’s non-delegable duties are continuing in nature. Leeper,
2014 WL 2190966, at *6.
Further, at common law:
a co-employee who has violated an independent duty to an injured
employee will be “answerable to such person for the consequences of his
negligence, and he may not escape liability on the supposed differences in
nonfeasance, misfeasance and malfeasance.” Giles v. Moundridge Milling
Co., 351 Mo. 568, 173 S.W.2d 745, 751 (1943) (citing Devine, 349 Mo.
621, 162 S.W.2d 813; Lambert, 339 Mo. 677, 98 S.W.2d 752) (other
internal citations omitted). However, a co-employee’s independent duties
owed to fellow employees do not include the duty to perform the
employer’s non-delegable duties, as those duties necessarily derive from,
and are not independent of, the master-servant relationship.
Hansen, 375 S.W.3d at 213-14, 217; see also Leeper, 2014 WL 2190966, at *4 (“a co-
employee’s personal duties to fellow employees do not encompass a legal duty to
perform the employer’s nondelegable duties” (internal citation omitted)).
The “something more” standard is not part of the common law, and a co-
employee may owe an independent duty to another co-employee under the common law
only when the co-employee’s “workplace injury is in no way attributable to the
employer's breach of its non-delegable duties.” Leeper, 2014 WL 2190966, at *1-2, *13,
7
*17 & n.16. Plaintiffs argue that Leeper controls the resolution of this summary
judgment. Leeper is not controlling.
Plaintiffs’ claim is that Defendant Co-Employees owed Parr a duty (1) to provide
a safe working environment to Parr, (2) to monitor the physical condition of Parr to
determine if he was fit to drive a tractor trailer, and (3) to determine whether Parr was in
compliance with the Federal Motor Carrier Safety Administration Regulations. The first
allegation was clearly the non-delegable duty of the employer under the common law and
workers’ compensation statutes. The second is a contention that co-employees have a
legal duty to protect Parr from his own decision to work as a driver and his own conduct
with respect to his health and employment as a driver of a commercial motor vehicle. To
be clear, we are not talking about a duty to the general public. We are not talking about
an action that increased Parr’s risk of harm to others. Plaintiffs have not referred us to
any authority that supports the existence of such a duty on the part of co-employees to
their co-employee, and we are not aware of any authority that supports Plaintiffs’ claim.
Likewise, we find no authority that the Federal Motor Carrier Safety Administration
Regulations created an independent duty of co-employees to determine whether Parr was
a danger to himself based on his own health history.
As importantly, the only affirmative act by Defendant Co-Employees alleged and
supported by reasonable inferences from the record was that Defendant Co-Employees
assigned Parr to deliver goods by driving a commercial motor vehicle. Assigning Parr
this type of work was a normal job duty necessarily attendant to performing the
employer’s business as directed by the employer. He had received a clean bill of health
five months prior to the accident in question. Further, if Parr’s death was attributable to
8
the breach of any duty or duties, it was attributable at least in part to breach of the
employer’s non-delegable duties to enforce safety rules (including the Federal Motor
Carrier Safety Administration regulations), to provide competent employees (i.e., drivers
that were medically able to operate commercial motor vehicles safely), and to provide a
safe workplace. As a result, Defendant Co-Employees owed Plaintiffs’ decedent no legal
duty as a matter of law under either the “something more” standard or the common law.
Plaintiffs’ points are denied, and the trial court’s grant of summary judgment to
Defendant Co-Employees is affirmed.
Nancy Steffen Rahmeyer, P.J. – Opinion Author
Daniel E. Scott, J. – Concurs
William W. Francis, Jr., C.J. – Dissents In Separate Opinion
9
PAIGE PARR, a minor, by and through )
her Conservator, JANETT WAID, )
JERIMY MOREHEAD and CHARLES PARR, )
)
Plaintiffs-Appellants, )
)
vs. ) No. SD32602
)
CHARLES BREEDEN, WENDY COGDILL, )
and MELANIE BUTTRY, )
)
Defendants-Respondents. )
DISSENTING OPINION
I respectfully dissent. In my opinion, the majority opinion mischaracterizes the points
relied on by Kevin Parr’s survivors (“Survivors”), which leads to not only an incorrect analysis,
but an incorrect result.
Survivors’ first point states as follows:
The trial court erred in entering summary judgment in favor of Respondents
Charles Breeden, Wendy Cogdill, and Melanie Buttry because a genuine issue of
material fact exists as to whether Respondents knew or should have known Kevin
Parr was not safe to operate a commercial motor vehicle in that Respondents
admitted that they have a duty to ensure that every driver who drove for Breeden
Transportation was safe to operate a commercial motor vehicle, that Respondents
knew or should have been aware of Kevin Parr’s inability to safely operate a
commercial motor vehicle due to his health condition and two previous single
vehicle accidents within the eighteen months preceding his fatal accident, and that
Respondents failed to take steps to address Kevin Parr’s condition, thus causing
or contributing to cause the fatal accident of April 28, 2008.
Survivors’ second point states as follows:
The trial court erred in entering summary judgment in favor of Respondents
because there was at minimum a genuine issue of material fact as to whether
Respondents breached their individual duties, separate and apart from the
nondelegable duties of an employer, which arose from federal regulations in that
Respondents failed to take the steps to either remove Kevin Parr from the road,
have him medically recertified, or provide him with additional training following
his multiple accidents, thus causing or contributing to cause the accident resulting
in Kevin Parr’s death on April 28, 2008.
By combining the points into one, for purposes of analysis, the majority opinion
concludes the points raise a common issue. They do not.
Point I speaks to a genuine issue of material fact as to whether Co-Employee
Respondents knew or should have known that Parr was not safe to operate a commercial motor
vehicle, and goes on to contend that Co-Employee Respondents admitted they had a duty to
ensure that every driver who drives for Breeden Transportation was safe to operate a commercial
motor vehicle. If Survivors were able to present their evidence to a jury, raised by this point,
they would have the opportunity to prove Parr was unable to safely operate a commercial motor
vehicle because of his health condition and the two previous single motor vehicle accidents he
had within 18 months, of which caused or contributed to cause his fatal accident. Survivors
alleged these facts, but the majority opinion precludes them from ever having an opportunity to
prove these facts to a jury.
Point II speaks to different issues. Point II speaks to a genuine issue of material fact as to
whether Co-Employee Respondents breached their individual duties to Parr, separate and apart
from the nondelegable duties of an employer, to provide a safe place to work. Those duties arise
from federal regulations, which if followed, would have resulted in requesting medical
recertification for Parr or providing him with additional training. These failures caused or
contributed to cause his death thus creating the cause of action in Survivors—a statutorily
2
created cause of action permitted by section 537.080,1 which was first codified by our General
Assembly in 1939. In other words, “but for” the failure of Co-Employee Respondents, as alleged
in this case, it certainly can be argued that Survivors would not have a need to file this litigation.
Since the majority opinion deprives Survivors of the ability to attempt to prove their case before
a jury, this is another question to which we will never know the answer.
Unfortunately, by combining these points, Survivors are deprived of their day in court.
In my opinion, Survivors will never know whether Co-Employee Respondents did or did not
fulfill their duties to Parr.
It is also my opinion that the majority opinion incorrectly concludes the issue of a legal
duty raised by this appeal and the analysis that leads to that conclusion.
The majority opinion concludes that Co-Employee Respondents, as a matter of law, did
not owe a legal duty to Parr, which duty is now raised by Survivors. By characterizing this
appeal as presenting nothing more than an interpretation of the law as to the legal duty owed by
Co-Employee Respondents to Survivors, the majority opinion overlooks or ignores precedent in
our state.
The majority opinion concludes that Co-Employee Respondents owed no legal duty under
the common law to Parr, and as asserted by Survivors here, to Survivors themselves. That is
incorrect. In Leeper v. Asmus, --- S.W.3d ---- 2014 WL 2190966 (Mo.App. W.D. May 27,
2014) reh’g and/or transfer denied June 24, 2014, the Western District outlined in great detail
how and why co-employees are responsible to one another between the legislature’s amendments
in 2005 and 2012.
In Leeper, an employee injured while working on a drilling rig brought a negligence action
against a co-employee, alleging breach of co-employee’s common law duty of care in failing to
1
All references to statutes are to RSMo 2000, unless otherwise indicated.
3
perform his job duties as he had been directed, thereby causing employee’s injuries. Id. at *1.
The Western District held that the dismissal was predicated on an incorrect statement of Missouri
law, warranting reversal and remand. Id. at *17. Specifically, the Court held that there was a
common law duty owed by co-employee to employee independent of employer’s non-delegable
duties. Id.
In Leeper, the Western District explained:
Leeper raises a single point on appeal. . . . In effect, Leeper argues that the
common law duty owed by a co-employee in negligence does not align with the
“something more” test. We agree.
The Legislature’s 2005 Amendment to Section 287.800 Restored the Common
Law of Co–Employee Negligence
The 2005 amendment to section 287.800 required the [Workers’
Compensation] Act to be strictly construed. In Robinson [v. Hooker, 323 S.W.3d
418 (Mo.App.W.D.2010)] we held that strict construction no longer permitted us
to construe the Act to immunize co-employees by sweeping their conduct into the
statutory definition of “employer.” [Id.] at 423–25. The effect of strict
construction of the Act was to remove co-employees, in most circumstances, from
the protective reach of the Act’s exclusivity provision. Id. at 425.
Many misread Robinson as creating a carte blanche right to pursue claims of co-
employee negligence for all workplace injuries. Hansen [v. Ritter, 375 S.W.3d
201 (Mo.App.W.D.2012)] clarified that Robinson did not create an otherwise non-
existent remedy against co-employees. [Id.] at 207. Instead, Robinson held that
the 2005 amendment of the Act restored the remedy against co-employees as it
existed at common law. Id. Hansen addressed the common law remedy against
co-employees and determined that:
[A]t common law, a co-employee who has violated an independent
duty to an injured employee will be “answerable to such person for
the consequences of his negligence.” ... However, a co-employee’s
independent duties owed to fellow employees do not include the
duty to perform the employer’s nondelegable duties, as those
duties necessarily derive from, and are not independent of, the
master-servant relationship.
Id. at 213–14 (citation omitted) (emphasis in original). Thus, for workplace
injuries subject to the 2005 amendment of the Act, injured employees could
separately pursue a cause of action against negligent co-employees so long as the
4
co-employee owed the injured employee a duty of care at common law. “[U]nder
the common law, a co-employee’s personal duties to fellow employees do not
encompass a legal duty to perform the employer’s nondelegable duties.” Carman
v. Wieland, 406 S.W.3d 70, 77 (Mo.App.E.D.2013) (citing Hansen, 375 S.W.3d
at 217).
Hansen did not “definitively determine the precise parameters of a co-
employee’s personal duties to a fellow employee sufficient to support an
actionable claim of negligence.” Hansen, 375 S.W.3d at 217. The plaintiff in
Hansen did not allege independent duties owed by a co-employee, but instead
pled that the co-employee was “assigned the duty to provide a safe workplace,”
and thus the duty to perform the employer’s nondelegable duties. Id. at 206.
Here, in stark contrast, Leeper has attempted in his amended petition to
differentiate between a personal duty owed by Asmus and the employer’s
nondelegable duties. We must determine whether Leeper’s allegations are
sufficient to establish that Asmus owed an independent duty of care. “Unless a
petition asserts a personal duty owed by a co-employee that exists independent of
the employer’s nondelegable duties, and thus a duty that would exist independent
of the master-servant relationship, the petition will not survive a motion to
dismiss for failure to state a cause of action for negligence.” Hansen, 375 S.W.3d
at 217.
At Common Law, it Must First be Determined Whether a Workplace Injury is
Attributable to a Breach of The Employer's Nondelegable Duties, a Question of
Fact
At common law, employers could be sued in negligence for workplace injuries.
Employers owed employees the general duty to exercise ordinary care to protect
employees from the foreseeable risks and perils of employment. Kelso v. W.A.
Ross Constr. Co., 337 Mo. 202, 85 S.W.2d 527, 534 (1935) (observing that the
employer’s specific nondelegable duties arise from the general duty of an
employer to use “the reasonable care of the average prudent person under similar
circumstances”); Moles v. Kansas City Stock Yards Co. of Maine, 434 S.W.2d
752, 754 (Mo.App.1968) (holding that at common law, “[a] duty rests upon the
[employer] not to expose the [employee], in the discharge of his duty, to perils
and dangers against which the master may guard by the exercise of reasonable
care”) (citation omitted). The employer’s general duty of care was nondelegable,
and manifested itself in several specific nondelegable duties:
1. The duty to provide a safe place to work.
2. The duty to provide safe appliances, tools and equipment for the
work.
3. The duty to give warning of dangers of which the employee
might reasonably be expected to remain ignorant.
5
4. The duty to provide a sufficient number of suitable fellow
employees.
5. The duty to promulgate and enforce rules for the conduct of
employees which would make the work safe.
W. Prosser, LAW OF TORTS, section 80, p. 526 (4th ed.1971); see also Hansen,
375 S.W.3d at 208–09; Carman, 406 S.W.3d at 76–77. Because the employer’s
general and specific duties of care are nondelegable, “the employer cannot escape
its dut[ies] by delegating the task to another. When an employee fails to perform
[one of] the employer’s nondelegable duty, the failure rests with the employer, not
the employee.” Carman, 406 S.W.3d at 76–77. Thus, at common law, co-
employees were not chargeable in negligence for injuries attributable to the
employer’s breach of a nondelegable duty. Kelso, 85 S.W.2d at 534. The
underpinning for this rule recognized that employees have no meaningful ability
to control whether an employer’s nondelegable duties will be performed. Id.
(holding that the employer’s nondelegable duties “often concern matters beyond
the control of individual employees”); see also, Stitt by Stitt v. Raytown Sports
Ass’n, Inc., 961 S.W.2d 927, 930 (Mo.App.W.D.1998) (holding that duty requires
alleged tortfeasor to have “some right or obligation to control the activity which
presents the danger of injury”).
The employer’s nondelegable duties are continuing in nature. Bender v.
Kroger Grocery & Baking Co., 310 Mo. 488, 276 S.W. 405, 408 (1925). Thus,
“[t]he [employer] [is] liable for the negligent performance of any act directed by it
to be performed by any employee, whether of high or the most lowly degree,
which affect[s] the safety of th[e] [work]place. The duty of exercising ordinary
care to keep such [work]place reasonably safe [is] a continuing and nondelegable
duty.” Id. (emphasis added). Risks that are attendant to performing the
employer’s work as directed are thus necessarily subsumed within the employer’s
nondelegable duties, and cannot support an independent personal duty owed by a
co-employee. Kelso, 85 S.W.2d at 534.
Though the employer’s nondelegable duties are expansive and continuing in
nature, they are not unlimited. At common law, “[e]mployers are not insurers of
the safety of employees.” Graczak v. City of St. Louis, 356 Mo. 536, 202 S.W.2d
775, 777 (1947). See also Moles, 434 S.W.2d at 754 (“[A] master is not an
insurer against injuries which a servant may incur in the discharge of his duties.”).
It follows that some workplace injuries at common law could not be attributed to
a breach of the employer’s nondelegable duties, and were instead attributable to
the fault of the injured employee or of a co-employee. To assign responsibility
for a workplace injury at common law, the necessary starting point was to first
determine whether the injury was caused by a breach of the employer’s
nondelegable duties.
6
In Gimmarro v. Kansas City, 342 Mo. 428, 116 S.W.2d 11 (1937), our Supreme
Court held that the employer breached its nondelegable duty to provide a
reasonably safe place to work. 116 S.W.2d at 12–13. The employer should have
known of the danger of requiring employees to work in trenches below excavated
rock without the presence of barricades. Id. at 13. In other words, the employer
negligently permitted a hazardous condition and an unsafe place to work. Id.
Because the employer breached its nondelegable duties, the employer was liable
in negligence when a foreman ordered the plaintiff to work in the dangerous
location. Id.
In Bender, an employee ordered an employee to detach and move a tractor from
the trailer it had been hauling, but failed to warn a third employee inside the
trailer. 276 S.W. at 405–06. The employee who disconnected and moved the
tractor failed to put down the trailer leg, causing the employee inside the trailer to
be injured when the trailer tipped forward. Id. at 406. The court concluded that
the order to detach and move the tractor from the trailer was attendant to
performing the employer’s work as directed, and that the resulting injury was thus
attributable to the employer’s nondelegable duty to see that its work as directed
was not negligently performed. Id. at 407–08. The employer was liable in
negligence, but the negligent employee was not.
The outcomes in Gimmarro and Bender are illustrative of the broad
expanse of the employer’s nondelegable duties. An employer must create a safe
work environment, and must take precautions to protect against foreseeable risks
and perils in the work environment, as in Gimmarro. And because the
nondelegable duties are continuing, tasks necessarily attendant to the employer’s
work and performed at the employer’s direction are normally chargeable to the
employer’s nondelegable duties if negligently performed, as in Bender.
However, because employers are not insurers against workplace injuries at
common law, some workplace injuries cannot be attributed to a breach of the
employer’s nondelegable duties. In Marshall v. Kansas City, 296 S.W.2d 1, 2
(Mo.1956), the Supreme Court set aside a verdict in favor of an employee
premised on the theory that the employer negligently failed to furnish safe tools
and a safe place to work. Plaintiff was injured when a co-employee, who had
been directed to get and connect a hose to a compressor by a foreman, began
shaking and pulling on the hose to remove kinks. Id. In the process, the plaintiff
became entangled in the hose, and was tripped by the jerking movements of the
hose. Id. The Supreme Court explained the difference between an employer’s
nondelegable duties and duties owed independently by a co-employee. The
lengthy discussion is instructive:
7
The employer, here the city, owes to its employees the
nondelegable duty to furnish safe tools and appliances and a
reasonably safe place to work and failing in these respects is
subject to liability for injury resulting to its employees. There
were kinks in the hose and it was necessary to get them out before
attaching the hose to the jackhammer, but there is no evidence or
claim by the appellant that the hose was defective; [Plaintiff’s]
injury came about by reason of [co-employee’s] negligent use of
the hose and not because it was defective. Likewise the place of
work was not unsafe and the hazard was not brought about by the
manner in which the work was being done; the danger came about
by reason of the manner in which [co-employee] handled the
hose.... [Co-employee’s] suddenly and unexpectedly jerking the
hose and tripping [Plaintiff] was not, of course, the exercise of
due care on his part, but it does not support the inference or
demonstrate negligence on the part of the city with respect to
either the tools furnished, place of work or the manner in which
the work was being done. In the particular circumstances it can
only be said ... that [Plaintiff’s] injuries resulted from the
negligent act of his fellow employee and not be reason of the
breach of any nondelegable duty owed by the city.
Id. at 3 (internal citations and quotations omitted) (emphasis added). The court
contrasted its holdings in other cases, including Gimmarro, noting particularly
that Gimmarro “is a typical illustration of injury and liability resulting from a
hazardous condition and an unsafe place to work due to the method or manner in
which work was being done.” Id.
Marshall’s emphasis on the fact that its holding was dependent upon the
“particular circumstances” before it is significant. Id. Had the facts in Marshall
supported the inference that the employer knew or should have known of its
employee’s careless conduct and failed to take measures to remediate the risk or
peril, then a fact finder could have concluded that the workplace injury was the
result of a breach of the employer’s nondelegable duties. Or, had the co-
employee in Marshall been directed by a supervisor to shake the hose to remove
kinks, the workplace injury would have been attributable to the employer’s non-
delegable duties as the co-employee would have been performing his work as
directed, albeit negligently. The salient point is that at common law, before
assessing whether a co-employee owed an independent duty of care, it was first
required to determine whether the workplace injury was attributable to a breach of
the employer’s nondelegable duties, a question of fact.
8
The Supreme Court clearly articulated this point in Kelso:
Since negligence in a master and servant case depends upon the
existence of a duty on the part of the master, the ultimate question
to be first determined in every case is whether the master is guilty
of a breach of duty to the servant who brings the action.
85 S.W.2d at 534 (internal citations and quotations omitted) (emphasis added). In
Kelso, an employee was injured by a truck while working on crushed rock piles.
Id. at 533–34. The employer contended that it owed no duty to the employee, and
that the employee’s injuries were a result of his own negligence or the negligence
of the co-employee truck driver for whom the employer was not liable. Id. at 534.
The employee contended that his claims against the employer were based on the
employer’s “nondelegable duties with reference to the safety of the place and the
method in which the work was done there.” Id. The Supreme Court concluded
that it was a proper question for the jury in that case whether “the system of work
adopted by the [employer] was an improper one” and thus unsafe. Id. at 536
(emphasis added). In other words, it was for the jury to first determine whether
the workplace injury could be attributed to the employer’s breach of nondelegable
duties, as resolution of that issue would control whether the co-employee could be
liable in negligence.
The determination of an employer’s breach of its non-delegable duties is a
question of fact. See Luallen v. Reid, 58 S.W.3d 50, 53 (Mo.App.W.D.2001)
(holding that “where reasonable minds could infer negligence, determinations of
breach of duty are questions of fact for the finder of fact, not questions of law for
this court”). The facts and circumstances unique to each workplace injury will
thus bear on whether the workplace injury can be attributed to breach of the
employer’s nondelegable duties. On this point, our Supreme Court’s decision in
Kelso is again instructive:
The general standard of care, by which the duty of an
employer is determined, is that required of every one in all
relations with others; namely the reasonable care of the average
prudent person under similar circumstances. The more specific
duties which arise from the general duty of an employer to use
reasonable care are: To see that the place of work is reasonably
safe; to see that suitable instrumentalities are provided; and to see
that those instrumentalities are safely used. These nondelegable
duties are duties of the employer to his employees and not of
fellow servants to each other. These duties are all closely related,
and often concern matters beyond the control of individual
employees.... [T]he place in which the work is done cannot always
be separated from the instrumentalities with which the work is
done and it is often difficult, if not impossible, to say with
confidence which of these two conceptions is appropriate to the
9
facts in evidence. For example, a locomotive, which is clearly a
piece of machinery so far as the engineer and fireman are
concerned, is just as clearly something which makes the place of
work unsafe as regards a trackman who is run down by it. Thus,
the manner in which instrumentalities are used may make a place
safe or unsafe as a place of work, and, therefore, the duty to see
that instrumentalities are safely used may become the most
important element in the safety of a workman in his place of
work.... A safe method of doing the work is something that the
employer can provide to safeguard his employees from some risks
of the shifting and changing of physical surroundings of the place
of work, and the use of the required instrumentalities therein; and
when it is necessary for their protection, in the exercise of
reasonable care, it should be held to be a part of his duty to them
and his failure to perform it is negligence. In other words, the
employer’s duty is not merely safety of the place of work of his
employee, but also his safety in his place of work; in short, a safe
environment as well as a safe place.
This duty is performed by providing a safe method of work, and it
properly arises from circumstances where an employee cannot
safely look out for himself because of the complexity of the
operations under way. One who employs servants in complex and
dangerous business ought to prescribe rules sufficient for its
orderly and safe management. The chief circumstance on which
the duty to do this depends is that the business is an intricate and
complex one in which different workmen or groups of workmen
have distinct tasks, and one group in the performance of its tasks is
liable to endanger the safety of some other groups engaged in
different tasks.
The distinctive characteristic elements of the duty to see that
instrumentalities are safely used are obviously: (1) General orders
issued for the guidance of servants; (2) particular orders with
reference to the details of the work during its progress. As regards
general orders, the master may be conceived to be subject to three
obligations: (1) To frame suitable rules and regulations (2) To
bring those rules and regulations to the knowledge of the servants
for whose benefit they are framed (3) To carry out those rules and
regulations in such a manner that the objects for which they are
framed may be attained.... Except in cases in which the master is
himself directing the work in hand, his obligation to protect his
servants does not extend to protecting them from the transitory
risks which are created by the negligence of the servants
themselves in carrying out the details of that work. In other
words, the rule that the master is bound to see that the
10
environment in which a servant performs his duties is kept in a
reasonably safe condition is not applicable where that
environment becomes unsafe solely through the default of that
servant himself, or of his fellow employees....
However, an obligation of the employer to warn employees
of certain transitory dangers, under some circumstances does arise
out of his duty to conduct the business on a safe system.... A
master’s duty does not end with prescribing rules calculated to
secure the safety of employees. It is equally binding on him
honestly and faithfully to require their observance.
Id. at 534–36 (internal citations omitted) (emphasis added). See also, Gunnett v.
Girardier Building and Realty Co., 70 S.W.3d 632, 639 (Mo.App.E.D.2002)
(“Once the facts and circumstances are known, whether this personal duty exists
in any particular situation is a question of law, to be determined by the court.”).
Thus, before a court can determine whether a co-employee owes a duty in
negligence at common law (a question of law), it must first be determined
whether the workplace injury is attributable to the employer’s breach of a
nondelegable duty, a question of fact unique to the workplace, and influenced by,
among other things: the nature of the employer’s work; the risks and perils
attendant to doing the employer’s work as directed; whether the instrumentalities
of the work are safe; whether a co-employee causing injury was acting as directed
by the employer; whether the methods for performing the work are safe; the
competency of the employees hired to perform the work; the training of
employees; the rules and regulations of the workplace adopted by the employer to
protect workers from the risks and perils of the work about which the employer
should have known; the communication and enforcement of these rules and
regulations; and other facts or circumstances which might tend to establish the
existence of a risk or peril that, through the exercise of ordinary care, the
employer could reasonably have acted to prevent. If, after considering all relevant
facts and circumstances, an employee’s workplace injury can be attributed to the
employer’s breach of a nondelegable duty, then a negligent co-employee owes no
duty in negligence to the injured employee as a matter of law. Conversely, if an
employee’s workplace injury is not attributable to the employer’s breach of a
nondelegable duty, then a negligent co-employee may owe a legal duty to the
injured employee. In other words, the co-employee’s negligent act or omission is
independent of the master-servant relationship. Hansen, 375 S.W.3d at 213.
Plainly, the starting point is to first determine whether a workplace injury is
attributable to a breach of the employer’s nondelegable duties, a question of fact.
11
The “Something More” Test Determines whether a Co–Employee owes an
Actionable Duty of Care in Negligence Based on the Nature and Attributes of
the Co–Employee’s Conduct
The Act became effective in 1927. See Bethel v. Sunlight Janitor Service, 551
S.W.2d 616, 618 (Mo. banc 1977). For years, employers or employees were
permitted to opt out of the Act, allowing employers under some circumstances to
defend workplace injury claims by asserting the affirmative defenses of
contributory negligence, assumption of the risk, or the fellow servant doctrine.
Section 287.080 (RSMo 1949); see W. Prosser, LAW OF TORTS, section 80, pp.
526–27 (4th ed.1971). Section 287.080 was repealed in 1978, negating for all
intents and purposes the relevance of the employer’s affirmative defenses.
Hansen, 375 S.W.3d at 209 n. 11. The effect was to create “a no-fault system of
compensation for the employee” from an employer which rendered the subject of
an employer’s common law liability in negligence moot. Gunnett, 70 S.W.3d at
636.
However, the Act did not prohibit injured employees from pursuing
common-law actions against negligent third-parties, including co-employees.
Schumacher v. Leslie, 360 Mo. 1238, 232 S.W.2d 913, 916 (1950) (holding Act
does not negate right to pursue claims against negligent third parties, including
co-employees, for injuries in the workplace); Sylcox v. National Lead Co., 225
Mo.App. 543, 38 S.W.2d 497, 502 (1931) (holding that a co-employee is a “third
party” under the Act amendable to actions at common law). The retained right to
pursue third party claims intensified attention on the prospect of recovery from a
negligent co-employee in addition to no-fault recovery from the employer under
the Act.
It was in this environment that the “something more” test was announced in [State
ex rel.] Badami [v. Gaertner], 630 S.W.2d [175,] 179–80 [(Mo.App.E.D.1982)
(en banc)]. Badami held that “for an injured employee to charge a co-employee
with actionable negligence, ‘something more’ than breach of one of the
employer’s [nondelegable] duties must be pled.” Hansen, 375 S.W.3d at 214
(citing Badami, 630 S.W.2d at 180). In effect, Badami construed the Act to
immunize all co-employee conduct except conduct beyond the scope of the
employer’s non-delegable duties. Thus, the “something more” test as originally
announced in Badami was indistinguishable from the common law—with one
exception. Badami’s characterization of a co-employee’s actionable negligence
as “something more” focused attention on the nature and attributes of the co-
employee’s conduct, noting that “[t]he extent and nature of the additional charge
can only be determined and sorted out on a case-by-case basis.” Badami, 630
S.W.2d at 180–81 (emphasis added). In contrast, the common law focused
attention on the employer’s conduct, first requiring it to be determined whether a
workplace injury was attributable to a breach of the employer’s nondelegable
duties. Post-Badami refinements of the “something more” test attached legal
significance to this difference in focus.
12
For example, in Craft v. Scaman, 715 S.W.2d 531, 537 (Mo.App.E.D.1986), the
Eastern District observed that the “something more” test required an affirmative
act outside the scope of the employers responsibility before a co-employee could
owe a personal duty of care to a fellow employee. (Emphasis added.) In
Tauchert v. Boatmen’s Nat. Bank of St. Louis, 849 S.W.2d 573, 574 (Mo. banc
1993), the Supreme Court observed that the “creation of a hazardous condition is
not merely a breach of an employer’s duty to provide a safe place to work” but an
“affirmative negligent act outside the scope of ... responsibility to provide a safe
workplace.” (Emphasis added.) See also, Kelley v. DeKalb Energy Co., 865
S.W.2d 670, 672 (Mo. banc 1993), (holding that “an employee may sue a fellow
employee for affirmative negligent acts outside the scope of an employer’s
responsibility to provide a safe workplace”) (emphasis added); Gunnett, 70
S.W.3d at 641, (holding that a “personal duty will arise out of circumstances
where the co-employee engages in an affirmative act, outside the scope of
employer’s nondelegable duties, directed at a worker, increasing the risk of
injury.”) (emphasis added).
In State ex rel. Taylor v. Wallace, 73 S.W.3d 620, 622 (Mo. banc 2002),
the Supreme Court heightened the “something more” standard, requiring
“purposeful, affirmatively dangerous conduct” to move a fellow employee
outside the scope of an employer’s responsibility to provide a safe workplace.
(Emphasis added.) In Garza v. Valley Crest Landscape Maintenance, Inc., 224
S.W.3d 61, 63 (Mo.App.E.D.2007), the Eastern District observed that Taylor
superseded all earlier “something more” cases by holding that “mere allegations
of negligence” are insufficient to establish “something more.” (citing Taylor, 73
S.W.3d at 621–22). In Nowlin ex rel. Carter v. Nichols, 163 S.W.3d 575, 580
(Mo.App.W.D.2005) (abrogated on other grounds by Burns v. Smith, 214 S.W.3d
335, 338–39 (Mo. banc 2007)), we held that a co-employee’s conduct was not
“something more” because he acted within the scope of his employment and “did
not engage in inherently dangerous conduct purposefully directed at” his fellow
employee. (Emphasis added.) In Burns, 214 S.W.3d at 338 the Supreme Court
held that “the notion of an affirmatively negligent act—the ‘something more’—
can best be described as an affirmative act that creates additional danger beyond
that normally faced in the job-specific environment.” (Emphasis added.)
The post-Badami refinements of the “something more” test operated to immunize
co-employees from liability for ordinary negligence by narrowing recovery
outside the exclusivity of the Act to outrageous or reckless conduct directed at a
particular employee. See, e.g., Burns, 214 S.W.3d at 338 (“[T]he notion of an
‘affirmative negligent act’ certainly includes the commission of an intentional
tort....”); Nowlin, 163 S.W.3d at 580 (holding that “[a]n affirmative negligent act
is not synonymous with any negligent act, as the law requires a purposeful act
‘directed’ at a co-employee”) (emphasis added). Post-Badami courts strived to
define “bright lines” within which recovery from a co-employee for negligence
would be precluded as a matter of law based solely on the nature and attributes of
13
the co-employee’s conduct. Though not precisely stated in such terms, the
“something more” test gravitated toward immunization of co-employees if their
conduct loosely fell within the scope and course of their job duties. See, e.g.,
Nowlin, 163 S.W.3d at 579 (holding that act of leaving bulldozer running was not
“something more” because “use of the bulldozer was within the usual scope of
[co-employee’s] employment”).
The post-Badami refinements of the “something more” test were fashioned at a
time when section 287.800 required our courts to liberally construe the Act “with
a view to the public welfare.” Given this legislative directive, it is understandable
that the “something more” test evolved to reduce the circumstances where both
the employer and a co-employee could face liability for a workplace injury.
However, as noted, section 287.800 was amended in 2005 to require “strict” in
lieu of “liberal” construction of the Act. The judicial construct of “something
more,” which evolved over time to sweep most co-employee conduct into the
exclusivity of the Act, was abrogated, restoring co-employee negligence claims as
existed at common law. Robinson, 323 S.W.3d at 424–25.
The Refined “Something More” Test does not Align with the Common Law of
Co–Employee Negligence
We observed in Hansen that because the “something more” test as
originally announced in Badami “did nothing more than restate the common law”
of co-employee liability, the test was not necessarily rendered obsolete by the
2005 amendment of the Act. 375 S.W.3d at 215. Though technically accurate,
our observation did not resolve whether the post-Badami refinements to the
“something more” test continued to align with the common law. Our discussion
herein plainly reveals they do not.
The “something more” requirement that a co-employee only and always owes an
actionable duty in negligence if the co-employee commits a “purposeful,
affirmative act directed at a fellow employee” has no common law origin. In fact,
Taylor held as much, as it held “mere allegations of negligence” are insufficient to
establish “something more.” 73 S.W.3d at 621–22. Moreover, the “something
more” requirement of an “affirmative” act is inconsistent with the common law
and harkens back to efforts to distinguish between misfeasance and nonfeasance
(acts and omissions)—an unwieldy lens for establishing whether a duty is owed
that was abandoned by our Supreme Court for common law negligence claims.
Lambert v. Jones, 339 Mo. 677, 98 S.W.2d 752, 757 (1936) (holding that
determining whether a duty is owed based on whether a co-employee’s conduct
constitutes misfeasance or nonfeasance is “a fictitious distinction, which can only
result in confusion,” as acts of omission or commission can fall into either
category). In short, the “something more” test’s focus on the nature and attributes
of a co-employee’s conduct without first determining whether a workplace injury
is attributable to a breach of an employer’s nondelegable duties can impose an
independent duty on a co-employee when the common law would not, and may
14
fail to impose an independent duty on a co-employee when the common law
would. We offer several examples.
In Gimmarro, the foreman purposefully and affirmatively directed an employee to
work in an area that was not protected by barriers from falling rock. 116 S.W.2d
at 12–13. Yet our Supreme Court found only the employer to be responsible in
negligence because the employer failed to insure that the workplace and work
methods were safe. Id. The foreman’s purposeful, affirmative order directing an
employee to work in a dangerous area was attributable to the employer’s breach
of its nondelegable duties, and did not give rise to a personal duty of care owed by
the foreman. In Marshall, a co-employee carelessly shook a compressor hose to
remove kinks, unwittingly causing a fellow employee to trip over the hose. 296
S.W.2d at 2. Though the co-employee’s acts were affirmative in nature, there was
no indication that the acts were purposefully directed at the injured fellow
employee. Yet, the employee was held to have breached a personal duty of care
independent of the employer’s nondelegable duties. Both of these cases, decided
at common law, would likely have been decided differently under the “something
more” test.
In Logsdon v. Duncan, 293 S.W.2d 944, 949–50 (Mo.1956), our Supreme
Court held that a co-employee who threw a brick off of a house in connection
with construction activities without regard for, or warning to, co-workers below
owed a common law duty of care, an outcome that necessarily presupposed that
the workplace injury was not chargeable to a breach of the employer’s
nondelegable duties. In contrast, and under nearly identical facts, the Eastern
District in Quinn v. Clayton Construction Co., Inc., 111 S.W.3d 428, 433–34
(Mo.App.E.D.2003) affirmed the dismissal of a petition alleging co-employee
negligence where a co-employee carelessly threw a piece of iron from the roof of
a construction site without regard for, or warning to, co-employees below because
the conduct was “not an allegation of ‘something more,’” as there was no
allegation of “an affirmative act directed at [injured employee] that increased the
risk of injury.”
In Graczak, 202 S.W.2d at 776, an employee was injured when his hand was
smashed by a hydraulic hammer being operated by a fellow employee. Under the
facts and circumstances before it, the court concluded that:
[T]he competency and method of work by [co-employee] is not
questioned.... The steam hammer was in proper condition.
Plaintiff’s injury was not the result of any fault of plan, or
construction, or defect, or lack of repair, or want of safety in
defendant’s place of work or the machinery used therefor, or in the
manner ordinarily used. Plaintiff’s injury is attributable to ... the
negligence of a competent fellow employee in an operative detail
of the work they were engaged in at the time.
15
Id. at 780. As such, the employer’s nondelegable duties were not breached, and
any actionable duty was owed by the co-employee, notwithstanding that the co-
employee was merely negligent.
In Groh v. Kohler, 148 S.W.3d 11, 16 (Mo.App.W.D.2004) (abrogated on other
grounds by Burns, 214 S.W.3d at 338–39), we applied the “something more” test
and held that a petition asserting co-employee negligence should not have been
dismissed when a supervisor directed an employee to use a machine “regardless
of the machine’s known dangerous spontaneous operation.” We characterized the
co-employee’s conduct as “something more.” Id. Yet, the machine in question
was “defective,” and “inherently dangerous.” Id. Charging a co-employee with
the personal duty to protect a fellow employee from the risk of operating a
dangerous instrumentality of work violates a core maxim by ascribing to the
employee the responsibility of performing the employer’s nondelegable duties.
Barring facts that might have indicated, for example, that the employer had taken
all reasonable steps to remove the equipment from service or to order the
equipment not to be used, the outcome in Groh is difficult to reconcile with the
common law. Kelso, 85 S.W.2d at 534–36.
Our courts have acknowledged that the common law and the refined “something
more” test are not aligned. In Workman v. Vader, 854 S.W.2d 560, 561
(Mo.App.S.D.1993), a co-employee carelessly discarded cardboard and packing
material behind a counter, and a fellow employee later slipped and fell on the
cardboard. The Southern District concluded that the act of throwing the
cardboard on the floor did “not involve a general nondelegable duty of the
employer,” but instead the co-employee’s common law duty to exercise
reasonable care. Id. at 564. In Gunnett, 70 S.W.3d at 638–640, the Eastern
District explored several “something more” cases, and acknowledged that the
imposition of a common law duty in Workman could not be reconciled with the
“something more” test because the co-employee’s conduct in Workman was not
purposeful, affirmative conduct directed at another employee. Id. at 640, n. 9.
We need not ascertain whether the outcomes reached in every “something
more” case would be different had the common law been applied. For our
purposes, it only matters that a different result can be, and in some cases has been,
reached. The refined “something more” test can impose on a co-employee a duty
in negligence when no duty would have been imposed at common law, and can
fail to impose a duty when a duty would have been imposed at common law.
We are thus required to conclude that for workplace injuries occurring
between the effective dates of the 2005 and 2012 amendments of the Act, the
common law, and not the refined “something more” test, must be applied to
determine whether a co-employee owes a duty of care in negligence. For
workplace injuries within that time frame, it must first be determined whether a
workplace injury is attributable to a breach of the employer’s nondelegable duties.
If yes, then a co-employee’s negligent act or omission will not support a personal
16
duty of care in negligence as a matter of law, regardless whether the act or
omission can be characterized as “something more.” If no, then a co-employee’s
negligent act or omission may support an actionable duty of care in negligence,
regardless whether the act or omission can be characterized as “something more.”
Determining whether a workplace injury is attributable to a breach of the
employer’s nondelegable duties is a question of fact. Kelso, 85 S.W.2d at 534–
36; Luallen, 58 S.W.3d at 53.
In light of this conclusion, we decline to follow two Eastern District decisions
which addressed workplace injuries subject to the 2005 amendment of the Act.
Both cases relied on the refined “something more” test to determine whether a co-
employee owed a duty in negligence. In Amesquita v. Gilster–Mary Lee Corp.,
408 S.W.3d 293, 303 (Mo.App.E.D.2013), the Eastern District affirmed the grant
of a motion to dismiss a petition asserting a claim of co-employee negligence.
The court held that “[i]n order for an employee to become personally liable to a
co-employee for injuries suffered in the scope and course of employment, the
employee must have done ‘something more’ beyond performing or failing to
perform normal job duties[.]” (emphasis added). The principle that the
performance or failure to perform a job duty will never support a duty of care
independent of the employer’s nondelegable duties has no support at common
law. Nearly every co-employee negligence case will involve the co-employee’s
performance, or failure to perform, a job duty. Applied literally, Amesquita will
abrogate co-employee negligence at common law by requiring a co-employee to
act outrageously, recklessly, or intentionally—and thus in a manner that is
effectively outside the scope and course of his duties. The inquiry in Amesquita
should have been whether the co-employee’s performance of, or failure to
perform, a job duty was attributable to the employer’s failure to perform one or
more of its nondelegable duties. See Kelso, 85 S.W.2d at 534–36. This would
have required an assessment of whether the manner in which the employee
performed or failed to perform his job duty was an ordinary risk or peril of the
employer’s work as to which the employer had the continuing duty to exercise
ordinary care to prevent. Kelso, 85 S.W.2d at 534–35. Had the common law
standard been applied, the same result may ultimately have been reached in
Amesquita. We decline to follow Amesquita, however, not because we can
discern that it reached the wrong result, but because it reached the result it did by
employing an erroneous standard.
Similarly, we decline to follow Carman, where the Eastern District held
that the trial court erred in failing to grant summary judgment in favor of a co-
employee in a co-employee negligence case. 406 S.W.3d at 79. The court held as
a matter of law that:
17
[A] co-employee owes to a fellow employee no common-law duty
to exercise ordinary care and safety requiring the co-employee to
refrain from operating a vehicle in a negligent manner when
driving in the course of his work. As a matter of law, that
responsibility is subsumed within an employer’s nondelegable
duty to provide a safe working environment.
Id. (emphasis added). The absolute nature of this holding abrogates co-employee
negligence in all motor vehicle cases, (and arguably in all cases involving the
operation of any instrumentality of the employer's work). At common law, it is
possible that a co-employee’s operation of a motor vehicle (or other
instrumentality of the work) will support a personal duty of care independent of
the employer’s nondelegable duties. See, e.g., Marshall, 296 S.W.2d at 2. The
existence of an independent co-employee duty depends on whether the co-
employee’s negligent operation is somehow attributable to a breach of the
employer’s nondelegable duties, a question of fact. Kelso, 85 S.W.2d at 534–36.
The question is whether “the [employer] ... expose[d] the [employee], in the
discharge of his duty, to perils and dangers against which the master [could have]
guard[ed] by the exercise of reasonable care.” Moles, 434 S.W.2d at 754. See
also, Kelso, 85 S.W.2d at 536 (requiring determination of whether “the system of
work adopted by the [employer] was an improper one” and thus unsafe). As
discussed, supra, this assessment requires consideration of numerous relevant
facts and circumstances unique to each case. Though the ultimate result in
Carman might have been the same had the proper lens for determining co-
employee duty been employed, our declination to follow Carman is not a function
of its result, but is instead a function of the standard used to determine co-
employee duty.
The Sufficiency of the Allegations in Leeper’s Amended Petition at Common
Law
Applying the common law, we turn to Leeper’s amended petition. Leeper alleges
that it was Asmus’s job duty to “ensure that the cable is tight as the 500–pound
pipe is lifted, otherwise the 500–pound pipe will become unsecure and fail.”
Leeper alleges that Asmus was “personally negligent in operating the drilling rig
in that he violated his job duty ... by lifting the 500–pound pipe without ensuring
that the cable was tight.” Leeper alleges that Asmus “was independently
negligent ... in that he violated his job duty in operating the drilling rig winch by
lifting the 500–pound pipe without ensuring that the cable was tight.” Leeper
alleges that “[a] 500–pound pipe falling from a Schramm drilling rig is not a
normal risk of operating and working on a Schramm drilling rig and as a result,
[Leeper] was subjected to a risk which was something more than the normal risk
of operating and working on a Schramm drilling rig.”
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These facts, taken as true, establish a duty owed by Asmus to Leeper independent
of the employer’s nondelegable duties. The amended petition alleges that Asmus
failed to perform his job as he had been instructed, and that as a result he made
what was otherwise a safe workplace and safe instrumentality of work unsafe.
Construed favorably to Leeper, these allegations support a conclusion that a safe
drilling rig, safe methods for operation of the drilling rig, and a sufficiently
trained operator of the drilling rig, were only made unsafe because Asmus failed
to follow specific instructions imposed to insure safe operation of the drilling rig.
It will remain Leeper’s obligation to prove that the employer performed all of its
nondelegable duties such that a reasonably safe workplace, a safe instrumentality
of work, and safe methods of work, became unsafe solely through the fault of
Asmus, a determination that depends on the facts and circumstances of the
workplace injury. Though it may be difficult in most cases to establish that a
workplace injury is not attributable to breach of an employer’s nondelegable
duties, given the inherently factual nature of that determination, dismissal of a
petition for failure to state a claim will be premature if the petition alleges facts
which would support that conclusion.
Leeper’s amended petition alleges sufficient facts to establish an independent duty
of care owed by a co-employee at common law. . . .
Leeper, at *4-*17 (footnotes omitted).
At page 3, the majority opinion correctly recites how the record must be viewed in the
light most favorable to Survivors. Given that standard of review, and the legal analysis in
Leeper, reversal is required.
Unfortunately, without so much as a citation from page 8 through the end of the opinion,
the majority opinion offers zero authority as to why Leeper is not controlling here.
Furthermore, the majority opinion is incorrect in its analysis of the duty that was owed to
Parr by Co-Employee Respondents, with respect to their breach of federal regulations.
In McHaffie v. Bunch, 891 S.W.2d 822 (Mo. banc 1995), our Supreme Court noted that
the driver of a tractor-trailer operated by Donald R. Farmer, owned by Bruce Transport and
Leasing, and operated by Rumble Transport as the operator/lessee of the truck, had a duty which
arose out of a breach of federal regulations. Our Supreme Court held:
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The evidence here, viewed in a light most favorable to the plaintiff,
indicates that Farmer had driven more than the time permitted by the [federal]
Department of Transportation on the date of the collision. As a result, he may
have been fatigued. The jury might infer that the fatigue affected Farmer’s
attention and reactions.
Id. at 878. This principle of law from the original opinion of our Supreme Court in 1995, has
never been overruled. The principle of law recognized is that a breach of federal Department of
Transportation regulations may, under an appropriate record and with appropriate evidence,
result in a duty owed to persons injured by that breach.
In McHaffie, our Supreme Court further held that an employer, in this case Breeden
Transportation, is liable under a theory of respondeat superior for damages attributable to the
misconduct of an employee or agent acting within the course and scope of the employment or
agency. Id. at 875. The Supreme Court also described a second theory under which an employer
may be held liable and that is “negligent entrustment.” That theory requires proof that the
entrustee (in this case Parr) is incompetent; the entrustor (Breeden Transportation) knew or had
reason to know of Parr’s incompetence; there was an entrustment of a chattel (in this case an 18-
wheeled truck); and the negligence of the entrustor concurred with the negligence of the
entrustee to harm the plaintiff, in this case Survivors. This theory permits imputation of
negligence without requiring a finding that the employee was acting in the course or scope of
employment. Id.
Finally, in the original McHaffie decision, our Supreme Court held that Missouri has
recognized a cause of action for negligent hiring. Our Supreme Court held:
One element of negligent hiring is some form of misconduct by the employee that
caused damages to the plaintiff. Like respondeat superior or negligent
entrustment, this is a form of imputed liability because the employer’s duty is
dependent on and derivative of the employee’s misconduct.
Id. at 826 (italics in original).
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Without belaboring the point further, the evidence in McHaffie went further and
described all the breaches of federal Department of Transportation regulations that may have
been committed by defendants, thus creating the clear impression and conclusion that in
Missouri, the violation of a federal Department of Transportation regulation creates a duty and
breach of that duty, may create a cause of action. In this case, the duty is in existence in the
period from 2005 to the 2012, and Survivors seek to utilize that duty as an appropriate remedy
here. Cogdill and Buttry each had duties to provide a safe working environment for Parr;
monitor his physical condition to determine if he was fit to drive a tractor-trailer; and to
determine if Parr was in compliance with federal regulations.
Finally, as to Co-Employee Respondent Breeden, as admitted, he was president of
Breeden Transportation. Breeden, as president of Breeden Transportation, was responsible for
the acts of employees and agents, Cogdill and Buttry, in the course and scope of their
employment or agency. McHaffie, 891 S.W.2d at 825. Breeden was responsible for hiring
competent and capable employees to enforce regulations.
McHaffie, is still good law in our state. It has spawned a great deal of commentary, but
has not been overruled. Our Supreme Court most recently observed the difficult issues presented
by McHaffie in terms of instructing a jury, but given the opportunity to overrule McHaffie
entirely, it chose not to do so. See Coomer v. Kansas City Royals Baseball Corp., Nos.
WD73984, WD74040, 2013 WL 150838, (Mo.App. W.D. Jan. 15, 2013).
The majority opinion couches the allegations against Co-Employee Respondents as to
whether or not Co-Employee Respondents owed Parr a duty to protect him from his own
decisions and conduct with respect to his health and employment as a driver of a commercial
vehicle. However, that is not the record before us here. Parr is not filing the lawsuit seeking to
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protect himself from his own decisions and conduct; Survivors are the plaintiffs in this litigation
and they have, in fact, alleged sufficient pleadings and responses in the motion for summary
judgment to not only create a material issue of fact, but to establish the legal duty and/or duties
owed by Co-Employee Respondents to Survivors. As the majority opinion notes:
In their Second Amended Petition, Plaintiffs’ alleged that Defendant Co-
Employees ‘had a duty to provide a safe working environment to Kevin Parr, to
monitor the physical condition of Kevin Parr to determine whether he was fit to
drive a tractor-trailer, and to determine whether Kevin Parr was in compliance
with Federal Motor Carrier Safety Administration Regulations.’
(Emphasis added).
Litigants in our courts every day describe or present evidence where persons who need to
support their family, pursue jobs in order to complete that support; unfortunately, these very
same people also encounter persons who do not take their job duties seriously and/or have no
quarrel with overlooking the duties imposed upon them by law. Based upon the majority
decision here, we will never know if that was the case.
If proven, Parr’s death was caused or contributed to be caused by the failure of the Co-
Employee Respondents to provide competent employees to evaluate and determine whether or
not drivers of Breeden Transportation were medically able to operate commercial motor vehicles
safely.
Due to this dissent, and my opinion that the majority opinion incorrectly declines to
follow the opinion of the Western District in Leeper, I certify that this opinion is contrary to a
previous decision of an appellate court of this state and pursuant to authority of Rule 83.03,2
transfer this case to the Supreme Court of Missouri.
WILLIAM W. FRANCIS, JR., C.J., P.J. - Dissenting Opinion Author
2
All rule references are to Missouri Court Rules (2014).
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