Leeper v. Asmus

• Decision Date: 27 May 2014
• Docket Number: No. WD 76772.,WD 76772.
• Court: Missouri Court of Appeals
• Parties: Skyler LEEPER, Appellant, v. Andy ASMUS, Respondent.

440 S.W.3d 478

Skyler LEEPER, Appellant

v.Andy ASMUS, Respondent.

No. WD 76772.

Missouri Court of Appeals, Western District.

May 27, 2014.

Motion for Rehearing and/or Transfer to Supreme Court Denied June 24, 2014.

Application for Transfer Denied Sept. 30, 2014.

Paul L. Redfearn III and Michael D. Wallis, Independence, MO, for appellant.

Byron A. Bowles, Jr. and Gregory T. Cook, St. Louis, MO, for respondent.

Before Division One: CYNTHIA L. MARTIN, Presiding Judge, MARK D. PFEIFFER, Judge and KAREN KING MITCHELL, Judge.

Opinion

CYNTHIA L. MARTIN, Judge.

This case involves a claim of co-employee liability for a workplace injury which occurred between the 2005 and 2012 amendments of the Workers' Compensation Act (“Act”). Skyler Leeper (“Leeper”) appeals from the trial court's dismissal of his amended petition for failure to state a claim. Leeper's amended petition alleged that co-employee Andy Asmus (“Asmus”) breached a personal duty of care owed to Leeper when Asmus failed to perform his job duties in the safe manner in which he had been directed, causing Leeper's injuries. Leeper argues that his amended petition sufficiently pled a cause of action for co-employee negligence at common law.

In Hansen v. Ritter, 375 S.W.3d 201, 213 (Mo.App.W.D.2012), we addressed the subject of co-employee negligence. Our discussion was necessitated by the 2005 amendment to section 287.800 which required the Act to be strictly construed, and by our decision in Robinson v. Hooker, 323 S.W.3d 418, 423–25 (Mo.App.W.D.2010), where we held that strict construction no longer permitted us to construe the Act to immunize co-employees by sweeping their conduct into the statutory definition of “employer.” We held that for workplace injuries subject to the 2005 amendment of the Act, injured employees could separately pursue a cause of action against negligent co-employees so long as the co-employee owed the injured employee a duty of care at common law. Hansen, 375 S.W.3d at 213–14.

In response to Robinson, the legislature amended section 287.120.1 of the Act in 2012 to expressly extend the Act's exclusivity protection to co-employees unless an employee is injured as a result of the co-employee's “affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.” Shaw v. Mega Indus., Corp., 406 S.W.3d 466, 474 n. 5 (Mo.App.W.D.2013) (recognizing that “[t]he legislature responded to the Robinson decision by enacting amendments to section 287.120.1 in 2012”). The 2012 amendment to the Act will limit the practical relevance of Robinson, Hansen and this Opinion to workplace injuries that occur between the effective dates of the 2005 and 2012 amendments of the Act. However, because Leeper's workplace injury occurred between the 2005 and 2012 amendments to the Act, we must determine whether Leeper's amended petition states a claim for co-employee negligence at common law.

In Hansen, we held that at common law, a co-employee who has violated a personal duty of care owed to a fellow employee is answerable for the consequences of his negligence. 375 S.W.3d at 213. However, a co-employee owes no personal duty of care to perform the employer's nondelegable duties. Id. We were not required in Hansen to definitively determine whether a co-employee's common law duty of care is the functional equivalent of “something more,” a test announced in State ex rel. Badami v. Gaertner, 630 S.W.2d 175, 180 (Mo.App.E.D.1982), and later refined to afford co-employees workers' compensation exclusivity protection unless they engage in purposeful, affirmative acts directed at another employee. Hansen, 375 S.W.3d at 217. This case requires us to resolve that question.

We conclude that the refined “something more” test does not align with the common law of co-employee negligence. At common law, a co-employee violates a personal duty of care when the employer has performed its continuing nondelegable duties, and an otherwise safe work place, work instrumentality, or work method, is rendered unsafe due solely to the co-employee's negligent act or omission, a determination that does not equate with purposeful, affirmative acts directed at another employee.

Because Leeper's amended petition sufficiently alleges facts to support the existence of a personal duty of care at common law, the trial court's judgment dismissing Leeper's action with prejudice is reversed and this cause is remanded for further proceedings consistent with this opinion.

Factual and Procedural History

Leeper filed a petition asserting a claim of negligence against Asmus, a co-employee. The petition alleged that on August 12, 2011, Leeper was injured while working with Asmus; that Asmus was operating a Schramm drilling rig while Leeper was guiding a 500–pound pipe into the tower of the drilling rig; and that when Asmus began lifting the pipe with the drilling rig winch, the cable was loose which resulted in the pipe breaking free and crushing Leeper's arm. Leeper asserted that Asmus failed to exercise ordinary care and was negligent because Asmus failed to operate the drilling rig in a safe manner and failed to ensure the cable was tight before lifting the pipe.

Asmus filed a motion to dismiss the petition for failing to state a claim. Asmus argued that he did not owe Leeper a personal duty of care to perform his job duties independent of the employer's nondelegable duty to provide a safe workplace. The trial court sustained the motion to dismiss and gave Leeper thirty days to file an amended petition.

On April 29, 2013, Leeper filed an amended petition which alleged the following, pertinent to this case:

8. In the process of attaching the cable to the 500–pound pipe, the job duty of the operator of the drilling rig's w[i]nch is to ensure that the cable is tight as the 500–pound pipe is lifted, otherwise the 500–pound pipe will become unsecure and fall resulting in catastrophic injury to any fellow co-employees in the path of the falling 500–pound pipe.

9. At the above time and place, Defendant was responsible for and had the job of operating the drilling rig w[i]nch.

10. At the above time and place, Defendant started to lift the 500–pound pipe with a loose cable while Plaintiff guided the 500–pound pipe into the tower of the drilling rig.

11. At the above time and place, Defendant operated the drilling rig while the cable was loose causing the 500–pound pipe to break free and crush Plaintiff's left arm.

12. At the above time and place, Defendant was personally negligent in operating the drilling rig in that he violated his job duty in operating the drilling rig [winch] by lifting the 500–pound pipe without ensuring that the cable was tight.

13. At the above time and place, Defendant was independently negligent in operating the drilling rig in that he violated his job duty in operating the drilling rig winch by lifting the 500–pound pipe without ensuring that the cable was tight.

14. In lifting the 500–pound pipe with a loose cable, Defendant created a dangerous and hazardous condition in that he lifted the 500–pound pipe without ensuring that the cable was tight.

15. A 500–pound pipe falling from a Schramm drilling rig is not a normal risk of operating and working on a Schramm drilling rig and as a result, the Plaintiff was subjected to a risk which was something more than the normal risk of operating and working on a Schramm drilling rig.

16. At the above time and place, Defendant failed to use that degree of care, skill and knowledge customarily used by a drilling rig operator and in doing so violated his job duties and responsibilities as set forth above and subjected the Plaintiff to a risk that was something more than the normal risk associated with the work of the Plaintiff.

17. At the above time and place, Defendant failed to exercise ordinary care and was thereby negligent in, including but not limited to, one or more of the following respects:

a. Defendant failed to operate the drilling rig in a safe manner.

b. Defendant failed to check to ensure the cable was tight before lifting the 500–pound pipe.

c. Defendant lifted the 500–pound pipe with a loose cable.

18. The acts of Defendant were affirmative negligent acts and were something more than simply failing to provide a safe work place and therefore constituted a breach of personal duty of care [owed] to Plaintiff.

19. The affirmative negligent acts of Defendant violated a duty more than just providing a safe work place and increased the risk of harm to Plaintiff.

(Emphasis added.)

Asmus filed a motion to dismiss the amended petition. Asmus again argued that he did not owe Leeper a personal duty of care to perform his job duties independent of the employer's nondelegable duty to provide a safe workplace. Specifically, Asmus argued that the amended petition failed to satisfy the “something more” test because it did not allege a purposeful, affirmative act directed at Leeper. The trial court dismissed the amended petition and gave Leeper thirty days in which to further plead. No further amendment was filed. The trial court entered its judgment dismissing Leeper's suit with prejudice.

Leeper appeals.¹

Standard of Review

The trial court did not specify its reason for dismissing Leeper's amended petition. “When the circuit court does not provide reasons for dismissing a petition, we must presume the decision was based on the grounds stated in the motion to dismiss.” Robinson, 323 S.W.3d at 421 (Mo.App.W.D.2010). Asmus's motion to dismiss argued that the amended petition did not establish the first essential element of a claim of negligence—the existence of a duty—because Leeper did not allege that Asmus committed a purposeful, affirmative act directed at Leeper. “Duty is unique among the elements of negligence because the existence of duty is a question of law to be decided by the court.” Hansen, 375 S.W.3d at 208 (citation omitted).

We review the trial court's grant of Asmus's motion to dismiss de novo. Id. at 205 “ ‘In reviewing the dismissal of...