Cluck v. Union Pac. R.R. Co.

• Court: Missouri Supreme Court
• Writing for the Court: MARY R. RUSSELL
• Citation: Cluck v. Union Pac. R.R. Co., 367 S.W.3d 25, 33 IER Cases 1632 (Mo. 2012)
• Decision Date: 03 July 2012
• Docket Number: No. SC 91617.,SC 91617.
• Parties: Eddie CLUCK, Appellant, v. UNION PACIFIC RAILROAD COMPANY, Respondent.

367 S.W.3d 25

33 IER Cases 1632

Eddie CLUCK, Appellant,

v.UNION PACIFIC RAILROAD COMPANY, Respondent.

No. SC 91617.

Supreme Court of Missouri, En Banc.

May 1, 2012.

Rehearing Denied July 3, 2012.

Stephen H. Ringkamp, Hulverson Law Firm, St. Louis, Charles W. Armbruster III, Michael T. Blotevogel, Roy C. Dripps, Armbruster, Dripps, Winterscheidt & Blotevogel LLC, Alton, IL, Jose Bautista, Bautista Allen, Kansas City, for Cluck.

Craig M. Leff, James M. Yeretsky, Gregory F. Maher, Christopher Confer, Spencer Throssell, Yeretsky & Maher LLC, Kansas City, for Union Pacific.

Steven L. Groves, Holland, Groves, Schneller & Stolze LLC, Stephen H. Ringkamp, Hulverson Law Firm, St. Louis, for Missouri Association of Trial Attorneys, which submitted a brief as a friend of the Court.

MARY R. RUSSELL, Judge.

The issues presented in this case arise from a vicarious liability claim under the Federal Employer's Liability Act (FELA), 45 U.S.C. section 51, against a railroad for the injury of an employee caused by a co-employee. A railroad employee was injured when his co-employee's personal pistol accidentally discharged. The pistol was packed in the co-employee's luggage and discharged while the employee unloaded the luggage from a railroad crew van. It is undisputed that the incident occurred while the men were within their hours of employment, but each of the employee's proposed jury instructions failed to submit the issue of whether the co-employee was carrying the pistol in furtherance of the interests of the employer.

This Court finds that because the employee's proposed instructions did not instruct the jury to find whether the injury-causing conduct of the co-employee—the carrying of the pistol in his luggage—was done in furtherance of the interests of the employer's business, the employee failed to present a submissible case of imputed liability under FELA. While the employee had a right to submit on his theory of the case, the trial court did not err in refusing his incorrect proposed verdict directors where the employee repeatedly failed to prepare a verdict director that correctly submitted the respondeat superior issue. Further, the trial court did not err in failing to create its own verdict director properly submitting respondeat superior in place of the employee's erroneous proposed instructions. The judgment of the trial court is affirmed.

I. Facts

Eddie Cluck (“Plaintiff”), Larry Clark, and other members of their train crew, all Union Pacific employees, were transported by the railroad in a crew van to Coffeyville, Kansas, where they were to spend the night at a hotel in order to board and crew a train next day. Before the trip, Clark packed a loaded pistol with the safety disengaged in his luggage because he planned to sell it to a friend before the Coffeyville trip. Clark explained that because he did not sell the pistol, he still had it in his luggage in Coffeyville. No one but Clark was aware that he was carrying a pistol in his luggage.

When the Union Pacific employees arrived in Coffeyville, Plaintiff helped unload the crew's luggage, including Clark's luggage containing the pistol. While Plaintiff was carrying the bag, the pistol accidentally discharged, and the bullet struck Plaintiff's right knee.

Plaintiff filed a Petition for damages against Union Pacific, alleging that Union Pacific was liable for his injuries under FELA. At the close of evidence at trial, Plaintiff and Union Pacific both filed motions for directed verdict. The trial court denied the motions.

During the jury instruction conference, Plaintiff sought to submit a verdict-directing instruction under the imputed liability theory of MAI 24.01(A). After allowing Plaintiff numerous opportunities to propose a correct verdict director, the trial court refused each of Plaintiff's various proposed verdict directors because the trial judge believed each one misstated the law in that it improperly addressed or wholly ignored—depending on the instruction—the element of respondeat superior.¹ Plaintiff's failure to submit an instruction that accurately instructed the jury as to the law regarding respondeat superior liability after six attempts resulted in the trial court's refusal to submit Plaintiff's theory of imputed liability to the jury. The trial court, however, submitted Plaintiff's alternatively pleaded theory of Union Pacific's direct liability to the jury under MAI 24.01(B), despite objections from both parties.² The jury entered a verdict in favor of Union Pacific. Plaintiff appeals,³ alleging that the trial court erred in refusing to submit his proposed verdict directing instructions—7D, 7J, 7E, or 7H—to the jury.⁴

II. Analysis

A. FELA and Respondeat Superior

At the heart of this case is the interrelation of the doctrine of respondeat superior and FELA. Plaintiff contends that respondeat superior is not applicable in FELA actions. He contends that his only obligation is to prove that he and Clark were acting on behalf of their employer at the time the pistol discharged, while the railroad argues that Plaintiff also must show that the negligent conduct that caused Plaintiff's injuries was in furtherance of the employer's interests and, therefore, within the course and scope of Clark's employment.

To analyze the parties' arguments, this Court first must determine what role respondeat superior plays in FELA cases.

Plaintiff argues that FELA relaxes the traditional respondeat superior “course and scope of employment” standard in favor of a more liberal standard of vicarious liability. Essentially, Plaintiff argues that FELA imposes co-employee vicarious liability if an employee's injury merely occurs while both are within the temporal bounds of their employment. He argues that because it is conceded that both Plaintiff and Clark were acting as employees of the railroad when traveling to and entering the hotel in Coffeyville in preparation for boarding the train the next day, the employer is liable for any injury that Clark caused Plaintiff without the need to prove that the Clark was acting in furtherance of Union Pacific's business in causing Plaintiff's injury.

Traditional respondeat superior principles, however, require that the injury-causing conduct of an employee be within the course and scope of employment before the employer can be held vicariously liable. Stanley v. City of Independence, 995 S.W.2d 485, 487 (Mo. banc 1999). The course and scope of employment is not, as Plaintiff suggests, a measure of whether the injury-causing conduct of the employee occurred during work hours or work duties. It is well-settled that the course and scope of employment test is, instead, a test of whether the conduct of that employee was performed in furtherance of the employer's business. “Whether an act was committed within the scope and course of employment is not measured by the time or motive of the conduct, but whether it was done by virtue of the employment and in furtherance of the business or interest of the employer.” Daugherty v. Allee's Sports Bar & Grill, 260 S.W.3d 869, 873 (Mo.App.2008) (emphasis removed); see also Southers v. City of Farmington, 263 S.W.3d 603, 619 n. 22 (Mo. banc 2008); Ewing–Cage v. Quality Prods., Inc., 18 S.W.3d 147, 150 (Mo.App.2000).

In its assessment of the role of respondeat superior in FELA cases, Lavender v. Illinois Central Railroad Co., 358 Mo. 1160, 219 S.W.2d 353 (1949), is directly on point. In Lavender, a railroad dining car employee negligently discharged a firearm, killing another dining car employee. Id. at 355. The estate of the decedent brought an action against the employer-railroad under FELA. Id. at 354. In analyzing the decedent's claim, this Court reasoned that, under FELA, for an employer to be liable to an employee for a co-employee's conduct, it is not enough that the injury occur during the hours of both employees' employment. Id. at 357. Rather, the co-employee's actions must have been within the scope of the employment, in furtherance of the employer's business. As Lavender stated the issue:

If the shooting was not in the course of the discharge of [the injury-causing employees'] duties and had no tendency to further the work of defendant's business the case is much simplified. Under the Federal Act and the Missouri law unless the shooting can be said to be within the scope of the employment and in furtherance of the railroad's business, the railroad is not liable.

Id. at 357. In Lavender, the gun was not carried for any purpose of the railroad and it discharged while the employees were playing around with it. Id. at 358. This Court explained that the acts causing the negligent discharge of the gun, therefore, were outside the course and scope of the co-employee's employment because they were not done in furtherance of the employer's business; so, the railroad was not liable for the acts under FELA. Id. at 358–59.

Plaintiff argues that this application of respondeat superior principles is unfair, for an employer will seldom have ordered the employee to perform the negligent act, and, therefore, the negligent act will almost never be found to be in furtherance of the employer's interests. This argument misconstrues the standard. As Lavender explained:

In order for the master to be liable, it is, of course, not necessary that the servant or servants at fault have the authority of the master to do the particular thing which was done. Under certain circumstances the master may be liable if the act of the servant was contrary to the master's express orders. But to hold the master liable the act must always have been done in furtherance of the master's business.

Id. at 357–58.

Baker v. Chicago, Burlington & Quincy Railroad Co., 327 Mo. 986, 39 S.W.2d 535 (1931), provides a good example of this distinction. In that case, a railroad foreman was displeased with the manner in which the plaintiff, a railroad employee, had placed railroad ties on a pile. Id. at 541. The foreman...