Randy W. Berliner v. Milwaukee Electric Tool Corp., Ameren Corporation, Gary Krupey, Thomas C. See, G. George Haberberger, James Robert Dean, Timothy Carrico and Randy Shell, and Ameren Services Corporation , 501 S.W.3d 59 ( 2016 )

In the Missouri Court of Appeals
Eastern District
DIVISION ONE
RANDY W. BERLINER, ) No. ED103507
)
Plaintiff/Appellant, ) Appeal from the Circuit Court
) of Franklin County
vs. ) 14AB-CC00083
)
MILWAUKEE ELECTRIC TOOL CORP., ) Honorable Gael D. Wood
AMEREN CORPORATION, GARY )
KRUPEY, THOMAS C. SEE, G. GEORGE )
HABERBERGER, JAMES ROBERT )
DEAN, TIMOTHY CARRICO AND )
RANDY SHELL, )
)
Defendants, )
)
And, )
)
AMEREN SERVICES CORPORATION, )
)
Respondent. ) FILED: June 30, 2016
OPINION
In December 2011, while employed by Ameren Corporation (d/b/a Union Electric
Company, “Union Electric”) at its power plant in Labadie, Missouri, Catherine Berliner
(“Decedent”) was using a hammer drill manufactured by Milwaukee Electric Tool Corporation
(“Milwaukee”) on an 85-foot-high platform. Decedent fell from the platform and died from the
resulting injuries. Her husband, Randy Berliner (“Plaintiff”), filed a wrongful death suit. After two
amendments to the pleadings, Plaintiff asserted claims against Milwaukee, against six individual
defendants, and against Ameren Services Company (“ASC”). Based on a motion to dismiss for
inadequate pleadings, the trial court dismissed three of the ten counts in Plaintiff’s Second
Amended Petition, including the sole count against ASC.
Now Plaintiff appeals the dismissal of his claim against ASC. Because Plaintiff stated a
cause of action against ASC, we reverse the judgment in favor of ASC and remand for further
proceedings.
Factual and Procedural Background
Plaintiff filed the instant suit against Milwaukee and Union Electric on April 25, 2014. In
October 2014, the trial court granted Union Electric’s motion to dismiss, which it had filed four
months prior. On November 3, 2014, Plaintiff moved for leave to file an amended petition that
included claims against Milwaukee, ASC, and six individual defendants, all of whom were
employed by Union Electric. The same day, the case was removed to federal district court, which
remanded it back to state court about two weeks later.
After remand, Plaintiff’s motion to file an amended petition was granted and Plaintiff filed
the First Amended Petition. ASC and the Union Electric employees jointly moved to dismiss the
claims against them, and in February 2015, after another hearing, the trial court granted their
motion. Thereafter, Plaintiff moved for reconsideration of that dismissal, which the trial court
granted. Plaintiff filed his Second Amended Petition, which is the subject of this appeal.
The Second Amended Petition comprised five counts against Milwaukee, two counts
against the six Union Electric employees (including foreperson Gary Krupey), two counts against
2
Krupey alone, and one count against ASC. Plaintiff levelled his allegations against ASC in two
preliminary paragraphs and in Count VI, as follows: 1
COUNT VI
(NEGLIGENCE–AMEREN SERVICES COMPANY)
5. Ameren Corporation, is now, and was at all times herein mentioned, a duly
organized and existing corporation, incorporated in the State of Missouri with its
principal place of business within the State of Missouri. 2
6. Ameren Services [Company], is now, and was at all times herein mentioned, a
duly organized and existing corporation, incorporated in the State of Missouri with
its principal place of business within the State of Missouri. 3
54. Ameren Services, by and through its agents, officers, and/or employees was
responsible for and oversaw the safety at the Ameren plant including: 1) the training
of individuals at the Ameren Plant, 2) issuing, implementing, enforcing and
advising as to safety policies, procedures and guidelines, and 3) platform and tools,
and as follows:
a. Further, upon information and belief, and as testified to by Ameren’s
Manager of Corporate Safety and Health, Ameren Services provides
regulatory compliance, safety compliance, guidance and support to
Ameren Missouri Generation plants, including the Subject Ameren Plant,
regarding safety applicable to workers in order to prevent serious injury or
death, including from the risk of fall; and
b. Ameren Services provides such regulatory compliance, safety
compliance, guidance and support based on the American National
Standards Institute, peer and utility information, legal regulations, and
umbrella safety policies and procedures, including those issued by
Ameren Corporation. This also includes, but is not limited to the
following: 1) Ameren’s Safety and Health Policy wherein Ameren agrees
to comply with applicable safety and health procedures, law and
regulations, and to provide training to perform jobs in a safe and
responsible manner, and provide the necessary resources to support safety
and health, and 2) Ameren’s Safety Rules to Live By requiring the use of
fall protection where there is a risk of fall that is greater than 6 feet.
1
We include only the factual allegations from the paragraphs of the Second Amended Petition
relevant to this appeal. We do not reproduce the case citations that Plaintiff included in those
paragraphs.
2
Ameren Corporation is referred to throughout Plaintiff’s pleadings as “Ameren” or as “Union
Electric.”
3
Ameren Services Company is referred to throughout Plaintiff’s pleadings as “Ameren Services.”
3
55. Ameren Services, by and through its agents, officers, and/or employees, had and
undertook a separate and independent duty owed to Decedent to repair, inspect,
refurbish, and maintain properly the Hammer-Drill and its component parts located
at the Ameren plant in a proper, professional and workmanlike manner.
56. Ameren Services, by and through its agents, officers, and/or employees, had and
undertook a separate and independent duty to assure a safe platform, including the
safe use of the Hammer-Drill on the platform in a proper, professional and
workmanlike manner, and the safe and appropriate use of the Hammer-Drill for the
application as applied to the lance soot blower.
57. Ameren Services, by and through its agents, officers, and/or employees, had and
undertook a separate and independent duty to assure a safe platform at the Ameren
plant, including assuring that all railings on the platform were safe, free from
dangerous conditions, unbent or undamaged, and free from dangerous gaps between
such railings.
58. Ameren Services, by and through its agents, officers, and/or employees, had and
undertook a separate and independent duty to inspect, maintain, repair the platform
properly, including all railings, in a proper, professional and workmanlike manner.
59. Ameren Services, by and through its agents, officers, and/or employees, had and
undertook a separate and independent duty to assure that proper safety methods,
training, policies and procedures were in place at the Ameren plant, including the
proper and safe use of a safety harness/straps on such platforms.
60. Ameren Services, by and through its agents, officers, and/or employees, had and
undertook a separate and independent duty to warn of dangers of the Hammer-Drill
and the unsafe and dangerous condition of the platform at the Ameren plant.
61. Ameren Services, by and through its agents, officers, and/or employees, was
negligent, grossly negligent, reckless, careless, unskillful, and/or malicious and
breached its separate and independent duty of care as set forth above in the
following manners:
a. Ameren Services failed to repair, inspect, refurbish, and maintain
properly and safely the Hammer-Drill and its component parts located
at the Ameren plant;
b. Ameren Services failed to assure a safe platform, including the safe
use of the Hammer-Drill on the platform in a proper, professional and
workmanlike manner, and approved the use of the Hammer-Drill for
the application as applied to the lance soot blower when such
application was in appropriate [sic].
4
c. Ameren Services failed to assure a safe platform, including assuring
that all railings on the platform were safe, free from dangerous
conditions, unbent or undamaged, and free from dangerous gaps
between such railings;
d. Ameren Services failed to inspect, maintain, repair the platform,
including all railings, in a professional and workmanlike manner;
e. Ameren Services failed to assure that proper safety methods, policies,
procedures, training and guidelines as set forth in Paragraph 67 [sic]
were issued, implemented, and enforced at the Ameren Plant,
including the proper and safe use of a safety harness/straps on such
platforms, and the safe use of the Hammer-Drill;
f. Ameren Services failed to advise regarding proper safety methods,
policies, procedures, and guidelines for the Ameren Plant as set forth
in Paragraph 67, including the proper and safe use of a safety
harness/straps on such platforms, and the safe use of the Hammer-
Drill; and
g. Ameren Services failed to warn of the dangers of the Hammer-Drill,
and the unsafe and dangerous condition of the platform at the Ameren
plant.
62. As a direct and proximate result of the negligent, grossly negligent, reckless,
carelessness, unskillfulness, and/or malicious acts and behavior of Ameren
Services, the Decedent sustained serious injury, pain, suffering and death; and, as a
result, [Plaintiff] has suffered and will suffer in the future a loss of services,
economic support, companionship, care, comfort, instruction, guidance, and counsel
of his spouse.
63. Ameren Services knew or had information from which Ameren Services, in the
exercise of ordinary care, should have known that such conduct created a high
degree of probability of injury and death.
64. The conduct of Ameren Services, as set forth above, showed complete
indifference to or conscious disregard for the safety of the Decedent, and others,
justifying an award of punitive damages and/or damages for aggravating
circumstances in such sum which will serve to punish Ameren and deter Ameren
and others from like conduct.
The individual defendants and ASC, arguing that Plaintiff did not articulate that they owed a legal
duty to Decedent, moved a third time to dismiss Plaintiff’s pleadings. The trial court granted
5
dismissal with prejudice, except as to the two counts against Defendant Krupey. Proceedings
against Krupey and against Milwaukee have since been stayed in the trial court.
Thereafter, Plaintiff moved the trial court to reconsider its ruling as to ASC, and in the
event the trial court denied its motion, to expressly determine that “there is no just reason for
delay” under Missouri Rule of Procedure 74.01(b). That rule acts as an exception to the general
proposition that, without a final judgment disposing of all parties and issues, we do not have
authority to hear an appeal. Bellinger v. Lindsey, 480 S.W.3d 345, 347–48 (Mo. App. E.D. 2015).
The trial court denied Plaintiff’s motion to reconsider, but did certify that there is no just reason for
delay of an appeal of the judgment dismissing Plaintiff’s case against ASC.
This timely appeal followed. Plaintiff asserts that the trial court should not have granted
dismissal in favor of ASC because it properly pled that ASC had a duty to Decedent. For the
reasons explained below, we reverse the trial court’s judgment regarding the dismissal of ASC,
and remand for further proceedings.
Standard of Review
We review the trial court’s grant of a motion to dismiss de novo. Lynch v. Lynch, 260
S.W.3d 834, 836 (Mo. banc 2008). A motion to dismiss for failure to state a cause of action is
solely a test of the adequacy of the plaintiff’s petition. State ex rel. Henley v. Bickel, 285 S.W.3d
327, 329 (Mo. banc 2009). To state a claim, a petition must invoke substantive principles of law
entitling the plaintiff to relief and allege ultimate facts informing the defendant of what the
plaintiff will attempt to establish at trial. McIlvoy v. Sharp, 485 S.W.3d 367, 372 (Mo. App. W.D.
2016).
6
Analysis
Plaintiff makes a claim of common law negligence against ASC. All negligence actions
have three elements in common: 1) that a duty existed on the part of the defendant to protect the
plaintiff from injury; 2) that the defendant failed to perform the duty; and 3) that the defendant’s
failure proximately caused the plaintiff’s injury. Carman v. Wieland, 406 S.W.3d 70, 76 (Mo. App.
E.D. 2013). The trial court dismissed Plaintiff’s case against ASC after finding ASC owed no duty
to Decedent.
The existence of duty is a threshold matter, id., and is purely a question of law, Hoffman v.
Union Elec. Co., 176 S.W.3d 706, 708 (Mo. banc 2005). In deciding whether ASC owed a duty to
Decedent, we address several of ASC’s arguments against liability based on immunities rooted in
workers’ compensation law and also consider the application of common law negligence
principles.
1. No Immunity Under Workers’ Compensation or at Common Law
We note that before the enactment of Missouri’s workmen’s compensation law in 1925, an
injured employee could sue her employer in a common law negligence action. Peters v. Wady
Indus., Ind., --- S.W.3d ----, 2016 WL 3180586, at *4 (Mo. banc 2016). But the enactment of the
workmen’s compensation law altered that landscape by creating a “no-fault system of
compensation for the employee,” under which an employer was liable irrespective of negligence,
in exchange for immunity against common law negligence actions. Id. (citing Gunnett v. Girardier
Bldg. & Realty Co., 70 S.W.3d 632, 636 (Mo. App. E.D. 2002)). As it concerned an employee’s
work-related injuries, the scheme was intended to replace common law actions against employers
for an employee’s work-related injuries. Bass v. Nat’l Super Markets, Inc., 911 S.W.2d 616, 619
(Mo. banc 1995). The Supreme Court of Missouri has described workers’ compensation law as
7
the product of a trade-off: the employer forfeits his common law defenses to suits
against him for the employee’s injuries and assumes automatic liability; the
employee forfeits his right to a potentially lucrative common law judgment in return
for assured compensation.
Zueck v. Oppenheimer Gateway Props., 809 S.W.2d 384, 388 (Mo. banc 1991).
First, we acknowledge that any corporate ties between ASC and Union Electric do not
protect ASC from suit. The Second Amended Petition alleges that Ameren Corporation/Union
Electric and Ameren Services Company (ASC) are separate corporations, duly organized and
incorporated in the State of Missouri, each with its principal place of business within the State of
Missouri. In Boswell v. May Centers, we addressed whether workers’ compensation law bars a
common law claim against a related corporate entity. Boswell, 669 S.W.2d 585 (Mo. App. E.D.
1984). Looking to other jurisdictions for guidance, we found that the majority of jurisdictions hold
“that the immunity from common law liability is applicable only to the immediate employer and
does not extend to the affiliated parent, subsidiary, or sibling corporation.” Id. at 586 (emphasis
here). We summarized the rationale underlying this conclusion to be
found in the basic concept of separateness and individuality of distinct corporate
entities. The purposes for which a corporation determines to conduct its operations
through subsidiaries rather than divisions are myriad, including tax considerations,
financing, labor relations and managerial organization with clearly defined channels
of authority and responsibility. Perhaps the most common purpose is to shield the
parent from the financial, contractual, and tort liabilities of the subsidiary. 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.
Id.
We found that rationale persuasive, in conformity with Missouri’s corporate law and with
our state’s policy that common law rights and remedies should not be taken from an employee
unless they are abolished by clear and unambiguous terms. Id. at 587. Though we acknowledge
that the relationship between two companies can in some circumstances affect whether immunity
8
under workers’ compensation applies, 4 we find no reason to depart from Boswell’s logic in the
circumstances presented here.
Next, we note that the parties agree ASC was not Decedent’s employer. ASC is therefore a
third party and not entitled to an employer’s immunity from a negligence action. Though the scope
of a third party’s duty vis-à-vis a workplace injury has not been litigated with great frequency,
longstanding precedent permits an employee who was injured on the job to sue a third party in tort.
See Schumacher v. Leslie, 232 S.W.2d 913, 916 (Mo. banc 1950) (“The Compensation Act does
not take away the employee’s common-law right against an offending third person.”). The
workmen’s compensation statute implicitly acknowledges that such third-party claims are
permissible: “Where a third person is liable to the employee or to the dependents, for the injury or
death, the employer shall be subrogated to the right of the employee…” Section 287.150, RSMo
Supp.2012; James v. Poppa, 85 S.W.3d 8, 10 (Mo. banc 2002).
Relatedly, we dispense with the notion that “[o]nly Union Electric Company, [Decedent’s]
employer, owed” a safety-related duty to Union Electric employees. It is true that an employer
owes certain duties to its employees with respect to safety, and that those duties are frequently
called “nondelegable.” Peters, 2016 WL 3180586, at *8 (citing Edge v. Sw. Missouri Elec. Ry.
Co., 104 S.W. 90, 97 (Mo. 1907)). Those duties are continuing in nature and include a duty to
provide a safe place to work; to provide safe appliances, tools and equipment; and to see that
instrumentalities of the workplace are used safely. Id.
But ASC misrepresents what “nondelegable” means in this context. A nondelegable duty is
not one for which no other party can be liable; it is one for which the employer cannot escape
liability. The duties of employee safety “cannot be delegated to a fellow servant so as to relieve the
4
In certain circumstances, the Workers’ Compensation statute deems a contractor to be the
employer (i.e., a “statutory employer”) of its subcontractors’ employees. See § 287.040; Shaw v.
Mega Indus. Corp., 406 S.W.3d 466, 468–69 (Mo. App. W.D. 2013).
9
master from liability for the negligent performance by such servant of an act constituting part of
such duty of the master.” Hansen v. Ritter, 375 S.W.3d 201, 209 (Mo. App. W.D. 2012) (quoting
Bender v. Kroger Grocery & Baking Co., 276 S.W. 405, 406 n. 2 (Mo. 1925)) (emphasis here). As
the Restatement of Agency clarifies,
The words ‘non-delegable duty’ do not imply that there are duties which cannot be
discharged by appointing others to perform them. They describe duties the
performance of which can properly be delegated to another person, but subject to
the condition that liability follows if the person to whom the performance is
delegated acts improperly with respect to it.
RESTATEMENT (SECOND) OF AGENCY, Title C, Introductory Note to Title C: Non-Delegable Duties
of Master, at 435 (AM. LAW INST. 1957) (emphasis here). Following ASC’s logic would effectively
endorse a rule whereby an injured employee can never maintain a claim in tort against a third party
for job-related injuries stemming from an unsafe work environment. As noted above, such third-
party claims are cognizable in Missouri.
Finally, we find ASC’s reliance on so-called “co-employee cases” to be misplaced. ASC
asserts that, because it was a third party carrying out Union Electric’s nondelegable duties, the
common law rule against co-employee negligence liability precludes Plaintiff’s claim. ASC’s
position is flawed: that rule only protects a plaintiff’s co-employees, not all third parties. At
common law, a co-employee is liable to his co-workers only for breaching a legal duty owed
independently of any master-servant relationship. Peters, 2016 WL 3180586, at *7 (citing Hansen,
375 S.W.3d at 213). If a plaintiff’s co-employees are assigned to perform an employer’s safety-
related duties, “it is solely by virtue of the master-servant relationship.” Peters, 2016 WL 3180586,
at *7–8. Absent the master-servant relationship, a co-employee would have no duty to perform
those nondelegable duties. Id. at *7. In other words, the rule excusing a co-employee from liability
10
is wholly dependent on the master-servant relationship between employer and a plaintiff’s co-
employee.
Here, according to the pleadings, ASC was a corporation enlisted to provide safety
services. It would defy logic for us to conclude that a corporate entity was the co-employee of
Decedent, much less that ASC or its employees were subject to Union Electric’s control via a
master-servant relationship at this stage of the case. ASC cannot, therefore, benefit from the
common law co-employee negligence exception to liability.
Having concluded that a common law negligence claim against a third-party corporation
for an employee’s on-the-job injuries is permissible under our precedent, we examine whether,
under Missouri’s pleading rules, the Second Amended Petition properly alleged that ASC owed a
duty to Decedent.
2. Sufficient Allegations to Conclude ASC had Legal Duty to Decedent
A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of
the plaintiff’s petition. Bickel, 285 S.W.3d at 329. To state a claim, a petition must invoke
substantive principles of law entitling the plaintiff to relief and allege ultimate facts informing the
defendant of what the plaintiff will attempt to establish at trial. McIlvoy, 485 S.W.3d at 372.
Missouri courts apply a “fact pleading” standard: the role of pleadings in Missouri is to identify
facts upon which the plaintiff’s claim rests. Charron v. Holden, 111 S.W.3d 553, 555 (Mo. App.
W.D. 2003). While conclusory allegations are not considered, see id., we take Plaintiff’s averments
as true, and construe all reasonable inferences therefrom liberally in Plaintiff’s favor, Bickel, 285
S.W.3d at 329.
Missouri courts have recognized that a duty toward a third person may be assumed or
undertaken, and when so assumed, a defendant must exercise reasonable care in carrying out the
11
duty. Kraus v. Hy-Vee, Inc., 147 S.W.3d 907, 924 (Mo. App. W.D. 2004) (internal citation
omitted). We look to the three-section disjunctive test in section 324A of the Restatement (Second)
of Torts as the touchstone for whether a defendant has assumed a duty toward a third person. See
Brown v. Michigan Millers Mut. Ins. Co., Inc., 665 S.W.2d 630 (Mo. App. W.D. 1983)
(§ 324A(a)); Plank v. Union Elec. Co., 899 S.W.2d 129, 131–32 (Mo. App. E.D. 1995)
(§ 324A(b) 5); Kraus, 147 S.W.3d at 924–25 (§ 324A(c)). The section, titled “Liability to Third
Person for Negligent Performance of Undertaking,” provides:
One who undertakes, gratuitously or for consideration, to render services to another
which he should recognize as necessary for the protection of a third person or his
things, is subject to liability to the third person for physical harm resulting from his
failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the
undertaking.
RESTATEMENT (SECOND) OF TORTS § 324A (AM. LAW INST. 1977).
In Kraus, a case cited by Plaintiff, a Western District panel reversed the grant of judgment
on the pleadings 6 to a company that provided to the Missouri Highways and Transportation
Commission (“MHTC”) a study about traffic at the site of a fatal accident. Kraus v. Hy-Vee, Inc.,
147 S.W.3d at 910–12. It was not alleged that the company had ultimate control of the intersection,
but rather that it conducted a study, that the study was vague and incorrect, that the company failed
5
ASC relies on Plank and its holding that more than a showing of intent to “assist or supplement”
the service provided by another is necessary to show liability. Plank, 899 S.W.2d at 132. But Plank
only addresses subsection (b) of § 324A, and as discussed herein Plaintiff has pled sufficient facts
to support the theory that ASC had a separate, independent duty to Decedent under subsection (c).
6
The position of a party moving to dismiss, as ASC has done here, is similar to that of a party
moving for judgment on the pleadings, i.e., assuming the facts pleaded by the opposite party to be
true, those facts are nevertheless insufficient as a matter of law. Anderson v. Crawford, 309
S.W.3d 863, 866 (Mo. App. W.D. 2010).
12
to make appropriate recommendations to make the roadway safer, and that the MHTC relied on the
study to the detriment of the decedent and her family. Id. at 924. Our colleagues, noting that
Missouri courts have applied Section 324A in other cases, concluded that the plaintiffs had stated a
claim for relief against the company under the principles embodied in Section 324A(c). Id. at 925.
Other authorities discuss the contours of duty owed a third party as described in § 324A(c).
An illustration from the Restatement offers the following hypothetical scenario:
A Company employs B Company to inspect the elevator in its office building. B
Company sends a workman, who makes a negligent inspection and reports that the
elevator is in good condition. Due to defects in the elevator, which a proper
inspection would have disclosed, the elevator falls and injures C, a workman
employed by A Company. B Company is subject to liability to C.
RESTATEMENT (SECOND) OF TORTS § 324A cmt. e, illus. 4 (AM. LAW INST. 1977). 7 Though the
Reporter’s Notes indicate that Illustration 4 is based on Van Winkle v. Am. Steam Boiler, 19 A.
472 (N.J. Sup. Ct. 1890), our research reveals that its facts are drawn from three other cases:
Westinghouse Elec. Elevator Co. v. Hatcher, 133 F.2d 109 (5th Cir. 1943); Bollin v. Elevator
Const. & Repair Co., 63 A.2d 19 (Pa. 1949); and Jones v. Otis Elevator Co., 56 S.E.2d 684 (N.C.
1949). 8 We note that Westinghouse, Bollin, and Jones are still good law. Those cases also teach
that the third party to whom one company owes a duty can be an employee of the company with
which it has contracted for safety or inspection purposes. See Westinghouse, 133 F.2d at 109
7
Although neither party has argued that we should look to 2012’s Restatement (Third) of Torts for
guidance, we note that subsection (c) to the new Restatement’s § 43, which replaces § 324A,
includes broader language than the older version. Compare RESTATEMENT (SECOND) OF TORTS
§ 324A(c) (duty where “the harm is suffered because of reliance of the other or the third person
upon the undertaking”), with RESTATEMENT (THIRD) OF TORTS § 43(c) (duty where “the person to
whom the services are rendered, the third party, or another relies on the actor’s exercising
reasonable care in the undertaking.”)
8
The facts of Van Winkle are nevertheless instructive: there, a company hired to inspect a steam
boiler had a duty to third persons injured when the boiler exploded. See Van Winkle, 19 A. at 472–
73.
13
(employee sued insurer who had contracted to furnish elevator inspection services); Bollin, 63
A.2d at 19–20 (employee sued elevator servicing company that had contracted with employer).
In a case where an employee sued an insurance company that had inspected an injury-
causing air hose at his workplace, the Supreme Court of Georgia interpreted § 324A(c) and held:
[U]se by a third person of a defective instrumentality, whether it be a vehicle, an
elevator, a machine or an air hose, in the manner in which such instrumentality is
customarily used, where the fact of inspection is known to the third person but the
defect is unknown, demonstrates reliance by the third person upon the defendant’s
safety inspection of the instrumentality.
Smith v. Universal Underwriters Ins. Co., 752 F.2d 1535, 1537 (11th Cir. 1985). 9 “[W]here
liability is based on negligent safety inspections, reliance typically will be demonstrated by
continuation of business as usual in the belief that any necessary precautions would be taken or
called to the user’s attention.” Id.
Here, according to the Second Amended Petition as alleged in Paragraphs 61(a)–(g), 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.” Whether Plaintiff can eventually adduce
evidence sufficient to support these allegations is a matter left for a later stage in the proceedings,
but the allegations themselves support a theory that ASC owed a duty to Decedent.
ASC’s responsibilities regarding plant and instrumentality safety at the Union Electric plant
make its position analogous to the following: an elevator servicing company where the elevator’s
9
The Supreme Court of Georgia addressed the issue when the U.S. Court of Appeals for the
Eleventh Circuit certified the question for clarification.
14
failure injured an employee; the inspector of a steam boiler where the boiler explosion injured a
third party; an insurance company that had negligently inspected a high pressure air hose that
exploded and injured an employee; or the conductor of a negligently performed traffic study,
reliance upon which led to a third-party’s injury. As in Smith, we can infer that Decedent relied
upon ASC’s inspection and maintenance of the defective drill and/or defective platform simply by
the fact that she was using the hammer-drill on the platform: “business as usual in the belief that
any necessary precautions would be taken or called to [her] attention.” Smith, 752 F.2d at 1537.
Conclusion
We find Plaintiff’s pleadings contain facts that, when construed in Plaintiff’s favor, are
sufficient to support the premise that ASC had a duty to Decedent under common law negligence
and § 324A(c). Dismissal of the case against ASC was therefore improper and we reverse the
judgment in favor of ASC and remand for further proceedings.
____________________________
Mary K. Hoff, Judge
Robert G. Dowd, Jr., Presiding Judge and Roy L. Richter, Judge, concur.
15