Augur v. Norfolk Southern Ry. Co.

Decision Date08 February 2005
Docket NumberNo. WD 63302.,WD 63302.
Citation154 S.W.3d 510
PartiesMark AUGUR, Appellant, v. NORFOLK SOUTHERN RAILWAY COMPANY, Respondent.
CourtMissouri Court of Appeals

John G. O'Connor, Kansas City, KS, for appellant.

Cary W. Miller, Kansas City, MO, for respondent.

Before BRECKENRIDGE, P.J., SMART and HOWARD, JJ.

PATRICIA BRECKENRIDGE, Judge.

Mark Augur appeals the trial court's grant of summary judgment in favor of Norfolk Southern Railroad Company on his claim for negligence. Mr. Augur's claim arose from injuries he sustained while descending a ladder on a railcar owned by Norfolk. At the time of Mr. Augur's injuries, he was employed by Freight Consolidation Services, Inc. (FCS). On appeal, Mr. Augur claims that the trial court erred in finding that Norfolk relinquished possession of the job-site and control over FCS employees to FCS and, therefore, in granting summary judgment in favor of Norfolk. Mr. Augur also argues that the trial court erred in finding, as a matter of law, that Norfolk did not have a duty to FCS employees as the supplier of a defective instrumentality. Finally, Mr. Augur contends that the trial court erred in finding that Norfolk did not have actual or constructive knowledge of the condition alleged to have caused Mr. Augur's injuries. Because the trial court lacked jurisdiction over Mr. Augur's claim, the judgment is reversed and the case is remanded with instructions to dismiss Mr. Augur's petition.

Factual and Procedural Background

Norfolk Southern Railroad Company owns and operates an inbound automotive distribution facility in Kansas City, known as the Voltz ramp.1 Norfolk contracted with FCS to load and unload vehicles shipped by rail to the Voltz ramp and place the vehicles in a storage area. Before FCS employees unload the railcars, Norfolk employees transport the railcars to the Voltz ramp and brake the railcars at appropriate intervals. Norfolk employees perform this task in the morning before FCS employees arrive. FCS employees load and unload vehicles from Norfolk railcars on a daily basis, five days a week, eight hours a day. The contract between FCS and Norfolk designated FCS as an independent contractor and provides that it is solely responsible for supervising its employees. The contract also requires FCS to pay all expenses and charges involved or incurred in the performance of its obligations under the contract, including the payment of workers' compensation insurance.

Mr. Augur is an employee of FCS. On October 17, 1994, while Mr. Augur was unloading vehicles at the Voltz ramp, he was climbing down a ladder when his foot got tangled in a lantern that was inappropriately hung from the ladder. Consequently, Mr. Augur lost his balance and fell. Mr. Augur sustained injuries to his left shoulder and lumbar spine. On or about August 24, 1995, Mr. Augur filed a workers' compensation claim for his injuries. Liberty Mutual Insurance Company, FCS's insurance carrier, provided coverage for Mr. Augur's injuries.

On October 15, 1999, Mr. Augur filed a "Petition for Damages" against Norfolk. The petition alleged that Norfolk was negligent in (1) placing the lantern on the ladder; (2) failing to inspect the ladder; (3) failing to remove the lantern from the ladder; and (4) failing to warn Mr. Augur of the presence of the lantern. Thereafter, Norfolk filed a motion for summary judgment, or in the alternative, motion to dismiss. In its motion, Norfolk claimed that because Mr. Augur's immediate employer, FCS, carried workers' compensation insurance that covered Mr. Augur's injuries, under section 287.040.4, RSMo 2000,2 Mr. Augur could not bring suit against a remote employer for the same injuries. Alternatively, Norfolk argued that the court lacked subject matter jurisdiction over Mr. Augur's claim because the workers' compensation act provides the exclusive remedy for Mr. Augur's injuries. Specifically, Norfolk alleged that under section 287.040.1, it was a statutory employer of Mr. Augur and, therefore, jurisdiction over Mr. Augur's claim rests solely with the Labor and Industrial Relations Commission.

In response to Norfolk's motion for summary judgment, Mr. Augur argued that the protection from liability afforded remote employers by the workers' compensation act is inapplicable in this case because Norfolk does not operate subject to Missouri workers' compensation law based on federal preemption. In particular, Mr. Augur claimed that Missouri workers' compensation claims for injuries to railroad employees are preempted by the Federal Employers' Liability Act (FELA), 45 U.S.C. sections 51 et seq. In addition, Mr. Augur maintained that Norfolk is not the statutory employer of Mr. Augur because Norfolk failed to prove that loading and unloading vehicles from railcars was part of its "usual business." The trial court denied Norfolk's motion for summary judgment without comment.

Norfolk then filed a second motion for summary judgment, or in the alternative, motion to dismiss. Norfolk argued that Mr. Augur, as an employee of an independent contractor covered by workers' compensation insurance, has no cause of action against Norfolk, as the owner of the premises, because Norfolk neither substantially controlled the details of Mr. Augur's activities nor controlled the premises on which he was performing his work. Norfolk also claimed that Mr. Augur failed to state a claim because he was unable to establish that Norfolk had actual or constructive notice of the alleged defective condition, that is, a lantern hanging from a railcar ladder.

Thereafter, Mr. Augur filed a "First Amended Petition for Damages" allegedly covering all of the elements of a claim against Norfolk based on Norfolk's duty as the owner and occupier of land, or alternatively, on Norfolk's status as the supplier of a dangerous instrumentality. Ten days later, Mr. Augur filed his response to Norfolk's second motion for summary judgment. In his response, Mr. Augur claimed that a genuine dispute existed regarding whether Norfolk retained possession and control of the Voltz ramp and whether Norfolk retained the right to control the physical activities of FCS employees. Mr. Augur also argued that Norfolk had a duty to him, not only as a landowner, but also as a supplier of an instrumentality, i.e., the railcar. Specifically, Mr. Augur claimed that Norfolk was required to exercise ordinary care to determine whether the instrumentality was safe and, if the instrumentality was not safe, to repair or warn of the danger. Finally, Mr. Augur argued that circumstantial evidence established that the lantern was likely on the railcar when Norfolk braked the railcar at the Voltz ramp, which was before Mr. Augur was injured.

On August 5, 2003, the trial court granted Norfolk's second motion for summary judgment, finding no genuine issue as to any material fact. In particular, the trial court found that Norfolk did not have substantial control over Mr. Augur's physical activities or the details of his work; Norfolk had relinquished to FCS possession and control of that portion of the premises necessary for Mr. Augur to perform his duties; and Norfolk did not have actual or constructive knowledge of the condition alleged to have caused Mr. Augur's injuries. Mr. Augur filed this appeal.

Points On Appeal

Mr. Augur raises three claims of error on appeal. In his first point, Mr. Augur argues that the trial court erred in granting summary judgment in favor of Norfolk because a genuine issue of fact exists as to whether Norfolk relinquished to FCS possession and control of the Voltz ramp. In his second point, Mr. Augur claims that even if Norfolk did not retain substantial control over FCS employees, the trial court, nevertheless, erred in granting summary judgment in favor of Norfolk because Norfolk owed a duty to FCS employees as the supplier of a defective instrumentality, that being a railcar with a lantern on its ladder. Finally, Mr. Augur contends that the trial court erred in granting summary judgment in favor of Norfolk because it failed to view the evidence in the light most favorable to Mr. Augur in determining that Norfolk did not have actual or constructive knowledge of the condition that caused Mr. Augur's injuries. While Norfolk disagrees with each of Mr. Augur's points on appeal, Norfolk alternatively asks this court to affirm the trial court's judgment on the basis that the trial court lacked subject matter jurisdiction over Mr. Augur's common law claim. Before reaching the merits of Mr. Augur's claims, because this court is compelled to determine its jurisdiction, this issue will be addressed first. Stotts v. Progressive Classic Ins. Co., 118 S.W.3d 655, 660 (Mo.App.2003).

Trial Court Lacked Jurisdiction Over Mr. Augur's Claim

This court's jurisdiction to review the merits of Mr. Augur's claim "is predicated on the trial court's having jurisdiction to enter the judgment appealed." Brock v. Blackwood, 143 S.W.3d 47, 55 (Mo.App.2004). "[I]f the trial court lacked jurisdiction over this action, then any judgment entered thereon would be void, depriving [this court] of jurisdiction except to reverse the judgment and remand the cause for dismissal by the trial court." Gov't e-Management Solutions, Inc. v. Am. Arbitration Ass'n, 142 S.W.3d 857, 860 (Mo.App.2004). Missouri workers' compensation law provides for the exclusive remedy for injured workers. Section 287.120. If "it appears, by a preponderance of the evidence, that the trial court lacks subject matter jurisdiction because of workers' compensation exclusivity," then the motion to dismiss should be granted. Murry v. Mercantile Bank, 34 S.W.3d 193, 195 (Mo.App.2000). Norfolk, as the party raising the defense of exclusivity, must demonstrate, by a preponderance of the evidence, that the trial court lacked subject matter jurisdiction. Id.

Norfolk asserts that the trial court lacked subject matter jurisdiction over Mr. Augur's claim because Mr. Augur is a...

To continue reading

Request your trial
9 cases
  • Fisher v. Bauer Corp.
    • United States
    • Missouri Court of Appeals
    • December 4, 2007
    ...at the time of his injury was in Adzick's usual course of business. See MSX Intern., 38 S.W.3d at 430; Augur v. Norfolk Southern Ry. Co., 154 S.W.3d 510, 517 (Mo.App.2005); Anders, 972 S.W.2d at 613-14; Jones, 875 S.W.2d at 158; Tumbas v. J.L. Mason Group, Inc., 809 S.W.2d 188, 190-91 (Mo.A......
  • Richter v. Union Pacific R. Co.
    • United States
    • Missouri Court of Appeals
    • July 15, 2008
    ...and (3) the work is in the usual course of the business of the alleged statutory employer. § 287.040.1; Augur v. Norfolk S. Ry. Co., 154 S.W.3d 510, 515-16 (Mo.App. W.D.2005) (citing Bass v. Nat'l Super Mkts., Inc., 911 S.W.2d 617, 619-20 (Mo. banc 1995)). A movant must show each of these e......
  • Martinez v. Nationwide Paper
    • United States
    • Missouri Court of Appeals
    • August 14, 2006
    ...to deliver the vendor's paper products to Nationwide and to unload those products onto Nationwide's dock. Cf. Augur v. Norfolk Southern Ry. Co., 154 S.W.3d 510, 516 (Mo.App.2005) (holding that the first element of statutory employment was met because Norfolk, the putative statutory employer......
  • Blanton v. Kan. City S. Ry. Co.
    • United States
    • U.S. District Court — Western District of Missouri
    • May 19, 2021
    ...v. Garvey , 328 F.3d 411, 413 (8th Cir. 2003). And, the Court finds the Missouri Court of Appeals' decision in Augur v. Norfolk S. Ry. Co. , 154 S.W.3d 510 (Mo. Ct. App. 2005), to be persuasive.6 In that case the plaintiff was employed by Freight Consolidation Services, Inc., ("FCS"), and w......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT