Brock v. Dunne

• Decision Date: 09 November 2021
• Docket Number: No. SC 97542,SC 97542
• Parties: Danny BROCK, Respondent, v. Peter DUNNE, in his Capacity as Defendant Ad Litem for Mark Edwards, Deceased, Appellant.
• Court: Missouri Supreme Court

637 S.W.3d 22

Danny BROCK, Respondent,

v.Peter DUNNE, in his Capacity as Defendant Ad Litem for Mark Edwards, Deceased, Appellant.

No. SC 97542

Supreme Court of Missouri, en banc.

Opinion issued November 9, 2021

Rehearing Denied February 8, 2022

Dunne was represented by Brian R. Shank of Evans & Dixon LLC in St. Louis, (314) 621-7755.

Brock was represented by Patrick K. Bader and Jacob C. Murov of Bader & Murov LLC in St. Louis, (314) 833-5063.

W. Brent Powell, Judge

Peter Dunne, defendant ad litem for Mark Edwards, appeals a judgment in favor of Danny Brock on his negligence claim against Edwards. Dunne claims the circuit court erred in overruling his motions for directed verdict and judgment notwithstanding the verdict ("JNOV") because Brock failed to make a submissible case of common law negligence and Edwards is immune from liability under section 287.120.1¹ of the workers’ compensation law. The Court finds the circuit court erred in overruling Dunne's motions for directed verdict and JNOV. The circuit court's judgment, therefore, is reversed.

Factual and Procedural History

Brock worked at JMC Manufacturing on its lamination line with Edwards, a supervisor at JMC. In its laminating operations, JMC utilizes a high-pressure laminating machine manufactured by Black Bros. Co. Edwards and the employees under his supervision fed sheets of particle board, gypsum, or medium-density fiberboard into one end of the machine. The machine then applied a layer of glue to a sheet as a pair of rollers sitting above it, and second pair of rollers sitting below the sheet, propelled the sheet through the machine. A safety guard comprised of a hinged metal grate rested over the bottom pair of rollers and guarded the pinch point created where the bottom rollers meet each other. The safety guard could be removed from its position over the pinch point while the machine was running to provide access to the bottom rollers.

On April 30, 2013, Edwards, Brock, and two other employees used the machine to laminate particle board. Edwards fed sheets of particle board into the machine and then moved to the output side of the machine. As glue-covered sheets began to emerge from the machine, Brock and another employee caught the front end, and Edwards and a different employee caught the back end. Together, the four employees carried the sheet to a set of rollers where two of the employees applied the laminate to the glue-covered side of the sheet. The four of them caught a sheet as it was fed out of the machine when Edwards noticed glue was applied too heavily, causing it to drip onto the machine's bottom rollers.

Because leaving glue on the bottom rollers would result in applying unwanted glue to the bottom of the next sheet they fed into the machine, Edwards instructed Brock to clean the glue off the rollers. Notwithstanding his awareness of JMC's safety rules² and the machine's warnings,³ Edwards removed the safety guard that shielded the pinch point created by the bottom rollers while the machine was still running. Using a method of cleaning the rollers that Edwards had previously instructed him to use, Brock then squeezed water from a wet rag onto the rollers and held a brush to the bottom rollers as they turned. Because Edwards pulled the safety guard out of position, exposing the pinch point, the wet rag caught in the rollers and pulled Brock's thumb into the pinch point, crushing it. Brock underwent three surgeries to repair his thumb, but his surgeon testified the damage was permanent and he would be subject to permanent pain, hand-use limitations and a lifelong restriction from heavy labor.

Brock applied for and received workers’ compensation benefits for his injury. He also filed a petition asserting product liability and negligence claims against Black Bros. Co.⁴ and a negligence claim against Edwards. Brock alleged Edwards negligently caused his injury when Edwards:

a. removed a safety device from the machine;

b. ordered the machine to be cleaned while it was in operation and after the safety guard was removed;

c. failed to instruct or warn of the exposed immediate dangers, despite being aware of the hazards of the machine and the hazard of removing the safety guard; and

d. disregarded complaints as to the unsafe condition of the machine and instructed Brock to clean it without the safety guard.

Edwards died before trial, and Dunne was substituted as defendant ad litem pursuant to Rule 52.13(a).

At trial, Dunne filed a motion for a directed verdict, claiming: (1) Brock failed to make a submissible case of negligence under the common law; (2) section 287.120 released Edwards from liability because Edwards’ conduct did not constitute an "affirmative negligent act that purposefully and dangerously caused or increased the risk of injury"; (3) Edwards’ acts were within the scope of JMC's nondelegable duties; and (4) Edwards did not proximately cause Brock's injury. The circuit court overruled Dunne's motion, and the jury returned a $1.05 million verdict in Brock's favor. On the same grounds as his motion for a directed verdict, Dunne then filed a motion for JNOV, which the circuit court also overruled. The circuit court reduced the jury's verdict by Brock's $80,000 settlement with Black Bros. Co. and then by the 10-percent fault the jury assigned to Brock. It entered judgment in Brock's favor for $873,000, plus prejudgment interest and costs. Dunne appealed, and this Court granted transfer after an opinion by the court of appeals. Mo. Const. art. V, sec. 10.

Standard of Review

The standards of review for a circuit court's overruling of a motion for directed verdict and JNOV are essentially the same. City of Harrisonville v. McCall Serv. Stations , 495 S.W.3d 738, 748 (Mo. banc 2016). "This Court must determine whether the plaintiff presented a submissible case by offering evidence to support every element necessary for liability." Robinson v. Langenbach , 599 S.W.3d 167, 176 (Mo. banc 2020) (internal quotation omitted). "A case is submissible when each element essential to liability is supported by legal and substantial evidence." Johnson v. Auto Handling Corp. , 523 S.W.3d 452, 459-60 (Mo. banc 2017). Substantial evidence is evidence that "has probative force upon the issues, and from which the trier of fact can reasonably decide the case." Kenney v. Wal-Mart Stores, Inc. , 100 S.W.3d 809, 814 (Mo. banc 2003).

"Whether the plaintiff made a submissible case is a question of law that this Court reviews de novo. " Newsome v. Kan. City, Mo. Sch. Dist. , 520 S.W.3d 769, 775 (Mo. banc 2017) (internal quotation omitted). When conducting this review, the "Court views the evidence in the light most favorable to" Brock and disregards evidence that is unfavorable to the verdict. Johnson , 523 S.W.3d at 460 (internal quotation omitted). However, the Court will not "supply missing evidence or give [Brock] the benefit of unreasonable, speculative or forced inferences." State v. Lehman , 617 S.W.3d 843, 847 (Mo. banc 2021) (internal quotation omitted).

Analysis

Co-Employee Immunity

In 2012, the legislature amended section 287.120.1 of the workers’ compensation statute providing immunity for employees from liability to fellow employees arising out of injuries occurring in the workplace. Prior to 2012, the workers’ compensation statute provided employers with immunity from common law negligence actions, but the statute "was silent as to co-employees. " Peters v. Wady Indus., Inc. , 489 S.W.3d 784, 790 (Mo. banc 2016) (emphasis in original). Before the amendment, co-employees had no immunity and could be held liable under common law for accidents occurring in the workplace. But the various common law doctrines governing the employer-employee relationship complicated the legal analysis of the duty employees owed to other employees in the workplace. Over the years, appellate case law applying these competing common law doctrines developed and evolved, attempting to delineate the basis for the common law liability for co-employees. Unfortunately, this jurisprudence shifted and swung like a pendulum, causing confusion for litigants, employees, and employers.⁵ The 2005 legislative amendment requiring strict construction of workers’ compensation statutes only added to the confusion, and courts after the 2005 amendment generally held workers’ compensation statutes provided no immunity to co-employees, unlike their employers. See Peters , 489 S.W.3d at 790 (finding co-employee liability under the post-2005 strict construction amendment and the pre-2012 statute); Robinson v. Hooker , 323 S.W.3d 418, 423–25 (Mo. App. 2010) (finding the strict application of the definition of "employer" meant co-employees were not entitled to invoke employer immunity under workers’ compensation statutes).

The legislature settled this confusion in 2012 by amending section 287.120.1 to provide co-employees immunity from common law liability for accidents occurring in the workplace. For cases alleging co-employee liability arising after this amendment, the analysis must turn its focus from the common law to section 287.120.1 to determine whether the statute bars the suit from proceeding. The relevant portion of the statute states:

Any employee of such employer shall not be liable for any injury ... and ... shall be released from all other liability whatsoever ... except that an employee shall not be released from liability for injury or death if the employee engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.

§ 287.120.1.

This new statutory language provides co-employees with immunity from suit when they would otherwise be liable at common law unless the exception set forth in the statute is satisfied. The new statute, however, does not create or extend liability to employees as Brock contends. Brock maintains section 287.120.1 preempts co-employee liability under common law and creates a new statutory cause of action for such claims,...