Berga v. Archway Kitchen and Bath, Inc., 68584

• Decision Date: 18 June 1996
• Docket Number: No. 68584,68584
• Citation: 926 S.W.2d 476
• Parties: Mike and Madalyn BERGA, Appellants, v. ARCHWAY KITCHEN AND BATH, INC., Respondent.
• Court: Missouri Court of Appeals

Page 476

926 S.W.2d 476

Mike and Madalyn BERGA, Appellants, v. ARCHWAY KITCHEN AND BATH, INC., Respondent.

No. 68584.

Missouri Court of Appeals,

Eastern District,

Division Four.

June 18, 1996.

Motion for Transfer to

Supreme Court Denied Aug. 1, 1996.

James E. Hullverson, Jr., Hullverson Law Firm, St. Louis, for appellant.

Eugene K. Buckley, Evans & Dixon, St. Louis, for respondent.

SIMON, Judge.

Mike and Madalyn Berga, plaintiffs, appeal the granting of a motion to dismiss for failure to state a claim in favor of Archway Kitchen and Bath, Inc. (Archway), in an action for the wrongful death of their son, Mark, pursuant to § 537.080 RSMo. Supp.1992 (all further references shall be to RSMo. Supp.1992 unless otherwise noted).

Plaintiffs contend the trial court erred in granting Archway's motion to dismiss because: (1) Archway had a legal duty to the general public to use reasonable care to avoid creating an unreasonable risk of harm by discharging from work employees who were overexposed to toxic fumes throughout the day at work, and who therefore were at risk for incapacitating illness endangering themselves and others; and (2) a factual dispute exists as to whether Archway satisfied or breached that legal duty. We affirm.

Mark Berga died as a result of injuries sustained when Chris Dowling lost consciousness while driving, and his vehicle crossed the median of a divided highway and struck Mark's vehicle head-on. Dowling was returning home after working throughout the day at Archway. Plaintiffs brought an action in the Circuit Court of the City of St. Louis against Dowling; Archway, his employer; and an unknown chemical manufacturing company, an Archway supplier.

In response to the petition, Archway filed a motion to dismiss or for summary judgment. It also filed a motion to transfer the case to St. Louis County, Missouri, which was granted. Plaintiffs filed an amended three count petition alleging that: 1) Dowling was negligent in operating his vehicle (Count I); 2) Archway was negligent, based alternatively on vicarious liability, negligence, and negligence per se (Count II); and 3) the manufacturer of the chemicals involved was negligent in designing and manufacturing the chemicals that Dowling worked with (Count III). Count I was settled by plaintiffs and Dowling, and service of process was not obtained on the manufacturer in Count III.

Responding to Count II, Archway filed a motion to dismiss the amended petition or for summary judgment supported by a memorandum. As to the vicarious liability allegation, Archway claimed there was no genuine issue of material fact as to whether Dowling was working in the course and scope of employment. Archway attached Dowling's timesheet and an affidavit from Dowling's superior stating Dowling had clocked out twenty-four minutes before the accident took place and was not on duty or engaged in the performance of any duties for Archway at the time of the accident. As to the negligence allegation, Archway claimed that the petition failed to state a claim upon which relief can be granted, in that Archway owes no duty to members of the public with respect to the working conditions at the plant and its duties run only to its employees, and its employees' exclusive remedy for violation of such duties is under the Workers' Compensation Act. The trial court granted Archway's motion.

At oral argument on Archway's motion, plaintiffs conceded Dowling was outside the ordinary course and scope of employment at the time of the collision. Subsequently, plaintiffs submitted this concession in writing, which effectively removed the vicarious liability claim from the case. McHaffie v. Bunch, 891 S.W.2d 822, 825 (Mo.banc 1995).

In plaintiffs' point on appeal, they contend the trial court erred when it granted Archway's motion because it had a legal duty to the general public, to Mark, and to plaintiffs, Mark's parents, to use reasonable care to avoid creating an unreasonable risk of harm by discharging from work employees who were overexposed to toxic fumes throughout the day at work, and who therefore were at risk for incapacitating illness endangering themselves and others.

The content of Archway's motion clearly indicates that the motion to dismiss for failure to state a claim was directed to plaintiffs' negligence claim of Count II. Further, the trial court did not consider any matters outside the pleadings in ruling on the negligence claim. Therefore, we review Archway's motion as a motion to dismiss the negligence claim. Since the trial court sustained Archway's motion without specifying the grounds upon which it based it's ruling, we presume the dismissal was on the grounds alleged in Archway's motion. Housing Authority of St. Louis County v. Lovejoy, 731 S.W.2d 510 (Mo.App.1987).

When reviewing the grant of a motion to dismiss, we treat the facts averred in the petition as true and construe the averments liberally and favorably to the plaintiff. A petition is not to be dismissed for failure to state a claim if any set of facts is asserted which, if proved, would entitle the plaintiff to relief. Martin v. City of Washington, 848 S.W.2d 487, 489 [1,2] (Mo.banc 1993). While we accept pleaded facts as true, "the conclusions of the pleader are not to be considered in determining whether plaintiffs have stated a cause of action because the averment of a legal conclusion is not a statement of an issuable fact and is to be treated as no statement at all." Goodson v. City of Ferguson, 339 S.W.2d 841, 845-846 [5,6] (Mo.1960).

In an action for negligence, the plaintiff must establish the existence of a duty on the part of the defendant to protect plaintiff from injury, failure of the defendant to perform that duty, and that plaintiff's injury was proximately caused by defendant's failure. Krause v. U.S. Truck Co., Inc., 787 S.W.2d 708, 710 [2,3] (Mo.banc 1990).

Plaintiffs' amended petition sets forth both allegations of fact and conclusions of law. Count II essentially incorporated by reference the following pertinent allegations from Count I:

a) On September 26, 1994, Mark was driving a car on Highway 44, when he was involved in a collision with a vehicle driven by Chris Dowling.

b) As a result of the collision and the injuries he sustained in the collision, Mark died the same day.

c) Dowling was negligent in causing the collision because he failed to keep a careful lookout, drove at excessive speed, failed to yield the right of way, crossed over a divided highway, and went on the wrong side of the road.

d) In the moments leading up to the time he crossed over the median of the divided interstate highway into a head-on-crash with Mark, Dowling became unconscious because of the dangerous fumes to which he had been overexposed at work, and which he had been required to work with and around throughout work that day.

In Count II, plaintiffs also plead a combination of facts and legal conclusions, essentially pleading:

a) Archway operated a business that required its workers to use chemicals which produce byproduct fumes that are dangerous to workers.

b) Archway overexposed Dowling to dangerous chemical fumes, particularly HP13; failed to consult experts about the deleterious effects of the fumes; failed to provide safe transportation for him after his overexposure; and allowed him to drive home after his overexposure.

c) Archway experienced a ventilation malfunction in its plant and required its workers to proceed despite the malfunction.

Additionally, the amended petition asserted legal conclusions:

a) This fume hazard at Archway created a reasonably foreseeable unreasonable risk of harm for both the individual worker and those around him, as well as the general public, particularly in so far as the fumes diminish the capacity of the worker to remain conscious and drive with the highest degree of care at the end of the normal work day.

b) At all times (Archway) was under a legal duty, visa-vis Dowling and members of the general traveling public, particularly Mr. Berga, as expressed in the Restatement (Second) of Torts, § 317 as follows:

To use reasonable care so to control its servant (Dowling) while acting outside the scope of his employment as to prevent him (Dowling) from intentionally harming others, or from so conducting himself as to create an unreasonable risk of bodily harm to them, if

(a) the servant (Dowling)

(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or

(ii) is using a chattel (solvents and liquids creating noxious fumes) of the master, and

(b) the master

(i) knows or has reason to know that he has the ability to control his servant, and

(ii) knows or should know of the necessity and opportunity for exercising such control.

The amended petition quoted the section of the Restatement almost verbatim but substituted the terms "use" for "exercise," "its" for "his," added terms in brackets, and bolded and italicized terms for emphasis.

Further, the amended petition essentially asserted other legal conclusions:

a) Section 317 announces the rule, which has been applied to hold employers directly liable for creating a foreseeable unreasonable risk of harm due to the incapacity and illness of workers as they leave the premises.

b) Widlowski v. Durkee Foods [190 Ill.App.3d 381, 137 Ill.Dec. 825, 826], 546 N.E.2d 770, 771 (Ill.App.3d 1989) and Osment v. Pitcairn , 159 S.W.2d 666, 667 (Mo.1941) also support imposing a duty upon Archway to control Dowling's conduct while acting after and outside the course and scope of employment.

c) Archway breached the above duties by overexposing Dowling to dangerous chemical fumes, particularly HP13; failing to consult experts about the deleterious effects of the fumes; failing to provide safe transportation for Dowling; and allowing him to drive after he had been overexposed.

d) Archway knew or in the exercise of reasonable care should have known of the...