Berliner v. Milwaukee Elec. Tool Corp.

• Citation: 501 S.W.3d 59
• Decision Date: 30 June 2016
• Docket Number: No. ED 103507,ED 103507
• Parties: Randy W. Berliner, Plaintiff/Appellant, v. Milwaukee Electric Tool Corp., Ameren Corporation, Gary Krupey, Thomas C. See, G. George Haberberger, James Robert Dean, Timothy Carrico and Randy Shell, Defendants, and Ameren Services Corporation, Respondent.
• Court: Missouri Court of Appeals

501 S.W.3d 59

Randy W. Berliner, Plaintiff/Appellant,

v.Milwaukee Electric Tool Corp., Ameren Corporation, Gary Krupey, Thomas C. See, G. George Haberberger, James Robert Dean, Timothy Carrico and Randy Shell, Defendants,andAmeren Services Corporation, Respondent.

No. ED 103507

Missouri Court of Appeals, Eastern District, DIVISION ONE.

FILED: June 30, 2016

Motion for Rehearing and/or Transfer to Supreme Court Denied August 15, 2016

Application for Transfer Denied Nov. 1, 2016

Attorney for Appellant Randy W. Berliner: Corey Lee Kraushaar, Christopher John Seibold, Co–Counsel 800 Market Street, Suite 1100, St. Louis, MO 63101, BROWN & JAMES, P.C., Mark Justin Gaertner, Co–Counsel, Thomas Edward Schwartz, Co–Counsel, and Justin Daniel Guerra, Co–Counsel: 2000 South 8^thStreet, St. Louis, MO 63104, Holloran, Schwartz & Gaertner, LLP.

Attorney for Respondent Ameren Services, Co.: Karen Alice Baudenistel, Jeffery Thomas McPherson, Co–Counsel, 7700 Forsyth Blvd., 18^thFloor, Clayton, MO 63105, Armstrong, Teasdale, LLP.

Attorney for Defendant Gary Krupey: Karen Alice Baudenistel, 7700 Forsyth Blvd., 18^thFloor, Clayton, MO 63105, Armstrong, Teasdale, LLP

Attorney for Defendant Milwaukee Electric Tool Corp.: Kevin Lee Fritz, 714 Locust Street, St. Louis, MO 63101, Lashly & Baer.

OPINION

Mary K. Hoff, Judge

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 Krupey alone, and one count against ASC. Plaintiff levelled his allegations against ASC in two preliminary paragraphs and in Count VI, as follows:¹

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.

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].

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

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