Flowers v. City of Campbell

• Decision Date: 31 August 2012
• Docket Number: No. SD 31440.,SD 31440.
• Citation: 384 S.W.3d 305
• Parties: William Joseph FLOWERS and Carolyn Jeannine Waddell Flowers, Plaintiffs–Appellants, v. CITY OF CAMPBELL, Missouri and William “Buck” Riley, Defendants, and Dolgencorp, Inc., d/b/a Dollar General Stores, and Billie Gage, Defendants–Respondents.
• Court: Missouri Court of Appeals

384 S.W.3d 305

William Joseph FLOWERS and Carolyn Jeannine Waddell Flowers, Plaintiffs–Appellants,

v.CITY OF CAMPBELL, Missouri and William “Buck” Riley, Defendants,andDolgencorp, Inc., d/b/a Dollar General Stores, and Billie Gage, Defendants–Respondents.

No. SD 31440.

Missouri Court of Appeals,

Southern District,

Division Two.

Aug. 31, 2012.

W. Thomas Norrid, Springfield, MO, for Appellants.

Jeffrey A. Mullins, Lenexa, KS, for Respondent.

JEFFREY W. BATES, J.

William and Carolyn Flowers (Plaintiffs) brought a wrongful death action against Dolgencorp, Inc. d/b/a Dollar General Stores (Dollar General), Billie Gage (Gage) and other defendants to recover damages for the death of Plaintiffs' daughter, Kasi Flowers (Kasi). An affirmative defense in Dollar General's answer asserted that Plaintiffs' exclusive remedy against Dollar General was a worker's compensation claim. See § 287.120.2.¹ Gage's answer alleged that Plaintiffs' amended petition failed to state a cause of action against Gage because she owed no legal duty to Kasi. Gage and Dollar General later filed motions for summary judgment, which the trial court sustained.

On appeal, Plaintiffs contend: (1) the trial court erred in granting Dollar General's motion for summary judgment because the material facts contained in its motion failed to establish the exclusive remedy defense; (2) the trial court abused its discretion in denying Plaintiffs' request for an extension of time to file a response to Dollar General's motion for summary judgment; and (3) the trial court abused its discretion in denying Plaintiffs' request for an extension of time to file a response to Gage's motion for summary judgment. We reverse the judgment in favor of Dollar General and remand that portion of the case for further proceedings consistent with this opinion. The judgment in Gage's favor is affirmed.

Plaintiffs' wrongful death claim arose out of the following undisputed facts.² Plaintiffs were the parents of 18–year–old Kasi. In August 2006, Kasi was employed at the Dollar General store in Campbell, Missouri. She had been working at that store as a cashier for several months. She had a boyfriend named Billy Meadows (Meadows).

On August 12th, Kasi arrived at work at approximately 11:30 a.m. The assistant store manager, Rose Payne (Payne), observed that Kasi was crying and upset, and she had a black eye. Kasi said that she had been physically assaulted by her boyfriend, Meadows, during the evening of August 11th. He ripped Kasi's shirt and slapped her around. Payne told Kasi to go to the store's office to calm down. At 1:22 p.m., Meadows entered the Dollar General store. Kasi, who was still in the office, locked the door when she saw Meadows enter. Meadows beat and kicked on the office door until he knocked it open. He was screaming at Kasi and trying to push the office door open to get to her. Payne intervened and convinced Meadows to leave the store. He was upset when he left.

Payne called the Campbell Police Department and reported the incident. Payne also telephoned Gage, a manager at a Dollar General Store in Kennett, Missouri, and informed her of the incident. Around 2:30 p.m., Payne left the store and went to the Campbell police station. She filled out an “Affidavit of Complaint” describing the incident between Kasi and Meadows.

Later that afternoon, Campbell Police Officer William Riley (Officer Riley) arrived at the store and interviewed Kasi about the incident. Through another source, Officer Riley had learned that Meadows also had physically assaulted Kasi on the evening of August 11th. Officer Riley found Meadows and took him into custody.

For reasons not explained by this record, Meadows was no longer in custody at 6:45 p.m. on August 12th. Kasi was still at work when Meadows entered the store with a rifle. He shot Kasi, mortally wounding her. Meadows then killed himself.

In May 2008, Plaintiffs filed a wrongful death action against Dollar General, the City of Campbell and Officer Riley. In August 2009, Plaintiffs filed a first amended petition adding Gage as an additional defendant. Plaintiffs asserted a wrongful death claim against Dollar General and Gage in Counts V and VI, respectively, of the first amended petition. In Dollar General's answer, it asserted the affirmative defense that Plaintiffs' wrongful death claim against Dollar General was barred by the exclusive remedy provision in § 287.120.2. Gage's answer alleged that Plaintiffs' amended petition failed to state a cause of action against Gage because she owed no legal duty to Kasi.

In March 2011, Dollar General and Gage filed separate motions for summary judgment. In May 2011, the trial court entered orders that granted the motions. The court's June 2011 judgment in favor of Dollar General and Gage expressly determined, pursuant to Rule 74.01(b), that there was no just reason for delaying the finality of those adjudications. This appeal by Plaintiffs followed. Additional facts will be disclosed as necessary to address Plaintiffs' three points on appeal.

Point I

Plaintiffs' first point challenges the trial court's decision to grant Dollar General's motion for summary judgment. A summary judgment can only be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 74.04(c)(6); Hitchcock v. New Prime, Inc., 202 S.W.3d 697, 699 (Mo.App.2006); Lindsay v. Mazzio's Corp., 136 S.W.3d 915, 919 (Mo.App.2004). Appellate review is de novo. Wilson v. Rhodes, 258 S.W.3d 873, 875 (Mo.App.2008). We use the same criteria the trial court should have used in initially deciding whether to grant defendants' motion. Harris v. Smith, 250 S.W.3d 804, 806 (Mo.App.2008). An appellate court exercises great caution in affirming a summary judgment because it is an extreme and drastic remedy that denies the opposing party his day in court. ITT Commercial Finance Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 377 (Mo. banc 1993). “The key to summary judgment is the undisputed right to judgment as a matter of law; not simply the absence of a fact question.” Id. at 380.

As our Supreme Court explained in ITT, Rule 74.04 distinguishes between a motion for summary judgment filed by a “claimant” and by a “defending party.” ITT, 854 S.W.2d at 380. Here, Dollar General was a defending party.

[A] “defending party” may establish a right to judgment by showing (1) facts that negate any one of the claimant's elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense.

Id. at 381 (italics in original).

Dollar General's motion for summary judgment was based upon its affirmative defense that Plaintiffs' wrongful death claim was barred by the exclusive remedy provision found in § 287.120.2. Contrary to the requirements of Rule 74.04(c)(1), Dollar General's motion contained no statement of uncontroverted materialfacts.³ There was, however, a section of the supporting memorandum called “ FACTS ” which listed the following six statements that were supported by citations to the record:

1. On or about August 5, 2009, [Plaintiffs] filed their First Amended Petition alleging in Count V Wrongful Death/Negligence against [Dollar General].

2. [Plaintiffs] allege the wrongful death of their daughter, Kasi LeaAnne Flowers, which occurred August 12, 2006.

3. Plaintiffs' First Amended Petition for Damages specifically states in Paragraph 11 “On or about August 12, 2006, Kasi LeaAnne Flowers was employed by defendant Dollar General.”

4. Plaintiffs' First Amended Petition for Damages states specifically in Paragraph 18 “At approximately 6:45 pm, Billy Meadows re-entered the Dollar General store with a rifle and murdered Kasi LeaAnne Flowers. He then committed suicide.”

5. At the time of the incident, Kasi LeaAnne Flowers was working in the course and scope of her employment for Separate Defendant Dollar General.

6. Separate Defendant Dollar General filed a First Report of Injury with the Missouri Department of Labor and Industrial Relations, Division of Workers' Compensation.

As noted above, Dollar General's motion for summary judgment was based upon § 287.120. In relevant part, that statute states:

1. Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of the employee's employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person. The term “accident” as used in this section shall include, but not be limited to, injury or death of the employee caused by the unprovoked violence or assault against the employee by any person.

2. The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee, his wife, her husband, parents, personal representatives, dependents, heirs or next kin, at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter.

§ 287.120.1–2 (italics added). Dollar General was not entitled to summary judgment unless it established, via undisputed facts, that Plaintiffs' wrongful death claim against Dollar General was based on an accident arising out of and in the course of Kasi's employment. See Treaster v. Betts, 324 S.W.3d 487, 490 (Mo.App.2010); Fortenberry v. Buck, 307 S.W.3d 676, 679 (Mo.App.2010).

In Point I, Plaintiffs contend their wrongful death claim against Dollar General is not barred by the exclusive remedy provision in §...