Hansen v. Ritter

Decision Date31 July 2012
Docket NumberNo. WD 74115.,WD 74115.
Citation375 S.W.3d 201
PartiesPatricia HANSEN, Appellant, v. Randy RITTER and Randy Snyder, Respondents.
CourtMissouri Court of Appeals

375 S.W.3d 201

Patricia HANSEN, Appellant,
v.
Randy RITTER and Randy Snyder, Respondents.

No. WD 74115.

Missouri Court of Appeals,
Western District.

June 29, 2012.
Motion for Rehearing and/or Transfer to
Supreme Court Denied July 31, 2012.



Application for Transfer Denied Sept. 25, 2012.

[375 S.W.3d 203]




John E. Turner and Christopher P. Sweeny, Kansas City, MO and J. Kirk Rahm, Warrensburg, MO, for appellant.

Kelly A. Campbell and Lindsay Todd Perkins, Kansas City, MO and Stanley B. Cox, Sedalia, MO, for respondents.


Before Division Four: LISA WHITE HARDWICK, Chief Judge, Presiding, CYNTHIA L. MARTIN, Judge and KENNETH GARRETT, Special Judge.

CYNTHIA L. MARTIN, Judge.

This appeal follows the trial court's dismissal of a wrongful death petition which asserted a common law claim of negligence against two co-employees of a man tragically killed in a workplace accident. The issue on appeal is whether co-employees owe one another a personal duty of care to provide a safe workplace. The trial court concluded that co-employees do not owe a personal duty of care to provide a safe workplace and cannot, therefore, be sued for negligence in acting or failing to act in breach of such a duty. We agree and affirm.

Factual and Procedural History

The petition dismissed by the trial court alleged 1 that Robert Hursman (“Hursman”) was killed on January 22, 2008 in a workplace accident. Hursman was working for Wire Rope Corporation of America, now known as Wire Co World Group, Inc. (“Employer”). Hursman died when a guard gave way as he was leaning over a wire-stranding machine, causing him to become entangled in the moving parts of the machine.

Hursman's mother, Patricia Hansen (“Hansen”), filed a wrongful death action on November 18, 2010, and amended her petition on January 21, 2011 (“Amended

[375 S.W.3d 204]

Petition”). Hansen named Wire Machinery Corporation of America, the manufacturer of the wire-stranding machine, as a defendant. Hansen also named Randy Snyder (“Snyder”) and Randy Ritter (“Ritter”) as defendants. Snyder was Employer's corporate safety manager. Ritter was Employer's operations manager.

The Amended Petition alleged that Snyder and Ritter each owed the following duties to Hursman: 2

(a) Each “had a duty and/or undertook to provide [Employer's] employees with a safe working environment, which included making hazardous conditions safe and warning employees of unsafe or hazardous conditions present in [Employer's] facilities.” (Count II, paragraph 7; Count III, paragraph 7)

(b) Each “had a duty to detect, correct and prevent work practices and working conditions which would render the plant not reasonably safe for its employees.” (Count II, paragraph 7; Count III, paragraph 7)

(c) Each “was an agent of [Employer] who undertook to act for [Employer] under such circumstances that [each] had a duty to take some action for the protection of the person or tangible things of [Employer's] employees and other individuals present in [Employer's] manufacturing facilities.” (Count II, paragraph 9; Count III, paragraph 9)

(d) Each “had a duty and/or undertook a duty to work in conjunction with and direct [the other], and other employees of the plant whose duties included the implementation of safety provisions and performance of plant maintenance, to detect and correct dangerous conditions at the plant and to warn plant employees of such dangerous and hazardous conditions.” (Count II, paragraph 10; Count III, paragraph 10)

The Petition alleged that Snyder and Ritter were negligent and failed to use reasonable care in breach of these duties in several particulars, each of which involved either a failure to recognize, address, protect Hursman from, or warn Hursman about, alleged deficiencies in the design, use, and/or maintenance of the wire-stranding machine.

Snyder and Ritter filed a motion to dismiss and for judgment on the pleadings seeking dismissal of Counts II and III of the Amended Petition for failure to state a cause of action. Snyder and Ritter alleged that the Amended Petition did not state “facts showing that [Snyder and Ritter] owed [Hursman] a personal duty of care.” Alternatively, the motion alleged that Hursman's claims were “barred by the exclusivity provision of the Workers' Compensation Act,” challenging the holding in Robinson v. Hooker, 323 S.W.3d 418 (Mo.App. W.D.2010), that co-employees are not within the scope of the exclusivity provision of the Act.

On June 7, 2011, the trial court entered an amended judgment (“Judgment”) granting the motion to dismiss. The trial court held that “[e]ach duty [Hansen] alleges [Snyder and Ritter] breached [is a] part of the employer's non-delegable duty to make the workplace safe,” 3 and that employees do not owe fellow employees the duty to perform an employer's non-

[375 S.W.3d 205]

delegable duties. The trial court thus concluded that the Amended Petition failed to allege that Snyder and Ritter owed Hursman a recognized duty as a matter of law and therefore failed to state a cause of action for negligence against Snyder and Ritter. The Judgment dismissed Counts II and III of the Amended Petition without prejudice.

The trial court did not dismiss the Amended Petition based on the alternative argument that, notwithstanding Robinson, Hansen's wrongful death claim was barred by the exclusivity provision of the Workers' Compensation Act (“Act”).

The Judgment resolved all claims and issues in dispute as to Snyder and Ritter. The trial court acknowledged that the Judgment disposed of less than all claims as to all parties but expressly found that there was no just reason for delay.4

Hansen timely filed this appeal.

Standard of Review

We review a trial court's grant of a motion to dismiss a petition for failure to state a claim de novo.5Robinson, 323 S.W.3d at 421. “In reviewing the dismissal of a petition, the sole issue to be decided is whether, after allowing the pleading its broadest intendment, treating all facts alleged as true and construing all allegations favorably to the plaintiff, the plaintiff is entitled to relief.” Stabler v. Stabler, 326 S.W.3d 561, 564 (Mo.App. E.D.2010) (internal quotation marks omitted). “ ‘If the petition sets forth any set of facts that, if proven, would entitle the plaintiff to relief, then the petition states a claim.’ ” Id. (quoting Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008)).

No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or a cause that might be adopted in that case.
State ex rel. Henley v. Bickel, 285 S.W.3d 327, 329 (Mo. banc 2009) (internal quotation marks omitted). “[A]lthough we treat all of the factual allegations in a petition as true, ... ‘conclusory allegations of fact and legal conclusions are not considered in determining whether a petition states a claim upon which relief can be granted.’ ” Hendricks v. Curators of the Univ. of Mo., 308 S.W.3d 740, 747 (Mo.App. W.D.2010) (quoting Willamette Indus., Inc. v. Clean Water Comm'n, 34 S.W.3d 197, 200 (Mo.App.W.D.2000)).

Analysis

Hansen raises a single point on appeal. Hansen argues that the trial court erred in granting Snyder and Ritter's motion to dismiss because they “owe a duty to their co-employees to perform their work in a non-negligent manner, and they are not entitled to immunity under the Workers' Compensation Act.” (Emphasis added.)

[375 S.W.3d 206]

The first part of Hansen's Point Relied On mischaracterizes the trial court's Judgment. The trial court did not broadly conclude that co-employees never owe a duty to fellow employees to perform their work in a non-negligent manner. Instead, the trial court narrowly ruled that co-employees do not owe a personal duty to fellow employees to perform the employer's non-delegable duty to provide a safe workplace. We thus limit our de novo review on appeal to whether this narrow legal ruling was erroneous.

The second part of Hansen's Point Relied On erroneously raises a second subject in violation of Rule 84.04(d). “A statement of a point relied on ... violates Rule 84.04 when it groups together multiple contentions not related to a single issue.” Biever v. Williams, 755 S.W.2d 291, 293 (Mo.App. W.D.1988) (citing Thummel v. King, 570 S.W.2d 679, 688 (Mo. banc 1978)). We elect to disregard Hansen's violation of Rule 84.04(d), as our analysis in this Opinion need not address the inappropriate second subject of Hansen's Point Relied On.6

The Motion to Dismiss

Snyder and Ritter argued in their motion to dismiss that the Amended Petition did not state facts establishing that Snyder and Ritter owed a personal duty to protect Hursman from injury. In her suggestions in opposition to the motion to dismiss, Hansen acknowledged that an employer has a “non-delegable duty to make the work place [sic] safe” but argued that once Snyder and Ritter undertook their employment, they also undertook to provide a safe workplace. When the motion to dismiss was argued, the trial court inquired of Hansen's counsel: “Duty. What duty does this employee have?” In response, Hansen's counsel summarized the duties alleged in the Amended Petition (and set forth in detail supra ) as follows: “Both employees were assigned the duty to provide a safe workplace.... [T]hey were given that duty by their employer. And then ... they assumed the duty by going to work to provide those things, to provide a safe workplace.” (Emphasis added.)

Hansen acknowledged, therefore, that the only duties ascribed to Snyder and Ritter in the Amended Petition are part and parcel of the employer's non-delegable duty to provide a safe workplace. Hansen's characterization is supported by even a cursory review of the duties alleged in the Amended Petition. The trial court thus concluded in its Judgment that “[e]ach duty [Hansen] alleges [Snyder and Ritter] breached [is a] part of the...

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