McComb v. Norfus

• Decision Date: 06 March 2018
• Docket Number: No. SC 96042,SC 96042
• Citation: McComb v. Norfus, 541 S.W.3d 550 (Mo. 2018)
• Parties: Felecia Y. MCCOMB, Appellant, v. Gregory NORFUS and David Cheese, Respondents.
• Court: Missouri Supreme Court

541 S.W.3d 550

Felecia Y. MCCOMB, Appellant,

v.Gregory NORFUS and David Cheese, Respondents.

No. SC 96042

Supreme Court of Missouri, en banc.

Opinion issued March 6, 2018

McComb was represented by David M. Zevan, Rachel Lynn Roman and Kevin J. Davidson of Zevan Davidson Roman LLC in St. Louis, (314) 588-7200.

Tommie A. Harsley III of The Harsley Law Firm in St. Louis, (314) 872-3900.

Norfus and Cheese were represented by Ronald C. Willenbrock and Mary Anne Lindsey of Evans & Dixon LLC in St. Louis, (314) 552-4120.

Mary R. Russell, Judge

Edward R. McComb died while driving a delivery vehicle for his employer. His widow brought a wrongful death action against her husband's supervisory co-employees, Gregory Norfus and David Cheese (collectively, "Co-employees"). The trial court agreed with Co-employees that the suit was barred by the exclusivity provision in Missouri's workers' compensation statutes, section 287.120,¹ and granted summary judgment. Felecia Y. McComb ("Appellant")² appeals the trial court's judgment.

At issue in this case is the application of two recent opinions from this Court concerning common law liability for co-employees: Peters v. Wady Industries, Inc. , 489 S.W.3d 784 (Mo. banc 2016), and Parr v. Breeden , 489 S.W.3d 774 (Mo. banc 2016). Because Appellant failed to establish Co-employees owed McComb a duty separate and distinct from his employer's nondelegable duty to provide a safe workplace, this Court affirms the trial court's judgment.

Background

Edward R. McComb worked as a courier for a hospital and was tasked with delivering medical supplies and other materials to clinics. He was scheduled to work on a day when a severe winter storm moved through Missouri, causing the governor to declare a state of emergency.

Before McComb's shift began, his immediate supervisor, Gregory Norfus, was informed by other employees that a severe winter storm was approaching the area. Norfus called David Cheese, who supervised both Norfus and McComb, and asked if Cheese wanted McComb to drive his route. Cheese instructed Norfus to tell McComb to go on his route, but to drive slowly and carefully. Cheese did not consult with anyone or check the weather forecast before making the decision.

During McComb's shift, Norfus called him to check on his status. McComb told Norfus the windshield of his vehicle was freezing. Norfus again contacted Cheese to ask if they should pull McComb from his route, but Cheese instructed Norfus that McComb, who was not delivering any vital organs or "STAT" items that needed immediate delivery, should continue as scheduled. Before the end of his shift, McComb's vehicle slid off the road, flipping several times down an embankment. He died as a result of the accident.

Appellant sued Co-employees for wrongful death, arguing they were negligent in sending McComb on his route and declining to pull him off his route despite the weather conditions. Co-employees moved for summary judgment and claimed the suit was barred by the exclusivity provision in Missouri's workers' compensation statutes. See sec. 287.120. The trial court granted summary judgment. Appellant appeals.³

Standard of Review

This Court reviews a trial court's grant of summary judgment de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is appropriate when the moving party has demonstrated there is no genuine dispute about material facts and the moving party is entitled to judgment as a matter of law. Rule 74.04(c)(6); ITT Commercial , 854 S.W.2d at 380.

Analysis

Appellant argues the trial court erred in granting summary judgment because there is a genuine issue of material fact. According to Appellant, whether McComb's death was attributable to his employer's nondelegable duty to provide a safe workplace is a question of fact for a jury to decide.

The workers' compensation statute applicable at the time of McComb's death provided the following exclusivity provision:

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....

2. The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee ... 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.

Sec. 287.120.

Pursuant to section 287.120.1, an employer was subject to liability under workers' compensation law for accidents arising out of and in the course of an employment, but employers were released from all other liability for the accident. As explained in Peters , the definition of "employer" in the statute does not include a co-employee. 489 S.W.3d at 790. Because a co-employee is not an employer under the workers' compensation law, a co-employee is not covered in the exclusivity provision. Id. As a result, section 287.120.1 does not release a co-employee from any common law liability resulting from the work-related accident. Id. Appellant is permitted to pursue common law remedies against Co-employees because the version of section 287.120.1 in effect at the time of McComb's death did not release Co-employees from common law liability.⁴ See Peters , 489 S.W.3d at 790.

To establish a cause of action for common law negligence, "the plaintiff must establish that (1) the defendant had a duty to the plaintiff; (2) the defendant failed to perform that duty; and (3) the defendant's breach was the proximate cause of the plaintiff's injury." Id. at 793 (quoting Martin v. City of Washington, 848 S.W.2d 487, 493 (Mo. banc 1993) ). As this Court has repeatedly affirmed, the question of whether a duty existed between the plaintiff and defendant is purely a question of law. Peters , 489 S.W.3d at 793-94 ; Parr , 489 S.W.3d at 782.

The legal duty owed by a co-employee to a third person is separate and distinct from an employer's nondelegable duties. Peters , 489 S.W.3d at 795. If an employer's nondelegable duties owed to its employees with respect to safety are breached, an employer remains liable even though an employer assigns the performance of those duties to an employee. Id. Those nondelegable duties include the following:

1. The duty to provide a safe place to work.

2. The duty to provide safe appliances, tools, and equipment for work.

3. The duty to give warning of dangers of which the employee might reasonably be expected to remain in ignorance.

4. The duty to provide a sufficient number of suitable fellow servants.

5. The duty to promulgate and enforce rules for the conduct of employees which would make the work safe.

W. Keeton, Prosser and Keeton on the Law of Torts , sec. 80 at 569 (5th ed. 1984) (footnotes omitted); Peters , 489 S.W.3d at 784 ; Parr , 489 S.W.3d at 779.

If a co-employee has been assigned to perform nondelegable duties of the employer, such assignment exists because of the master-servant relationship and, absent the master-servant relationship, the co-employee would have no independent duty. Peters , 489 S.W.3d at 795 ; Hansen v. Ritter , 375 S.W.3d 201, 213 (Mo. App. W.D. 2012). Accordingly, an injured employee is barred from bringing common law negligence actions against a co-employee when the co-employee was performing a nondelegable duty owed by the employer. Peters , 489 S.W.3d at 796 ; Parr , 489 S.W.3d at 778. An injured employee, however, may bring a common law action for negligence against a co-employee if the injured employee can establish the co-employee owed a duty separate and distinct from the employer's nondelegable duties. Peters , 489 S.W.3d at 796 ; Parr , 489 S.W.3d at 778.

Appellant contends the trial court erred by granting summary judgment in favor of Co-employees because there are facts in controversy as to whether McComb's death was attributable to his employer's nondelegable duties. She argues this issue is a question of fact for a jury to decide. According to Appellant, Co-employees negligently performed their work and breached a separate and distinct duty from the employer's nondelegable duty if a factfinder determines they acted in contravention of the employer's inclement weather policy.⁵ This misplaced argument, however, it contrary to this Court's holdings.⁶

The determination of the scope of an employer's duty is indistinguishable from the determination of the existence of a duty, which is clearly a question of law. See Peters , 489 S.W.3d at 793-94 ; Parr , 489 S.W.3d at 782 ; Hoffman v. Union Elec. Co. , 176 S.W.3d 706, 708 (Mo. 2005) ; Kibbons v. Union Elec. Co. , 823 S.W.2d 485, 489 (Mo. 1992) ; Aaron v. Havens , 758 S.W.2d 446, 447 (Mo. 1988). "The scope of the employer's duty to provide a safe workplace ... is dependent on several factors, including the nature of the employer's work and the risks associated with the work." Peters , 489 S.W.3d at 795.

The duty allegedly breached in this case is similar to the one allegedly breached in Parr . In Parr , a truck driver was involved in a fatal single-vehicle accident. 489 S.W.3d at 777. His family claimed his medical condition—including his smoking habits, obesity, severe coronary artery disease, diabetes, and probable sleep apnea —made it unsafe for him to operate as a truck driver. Id. at 777. They brought a wrongful death action against three of the driver's supervisory co-employees, claiming they had a duty to provide a safe working environment by monitoring the driver's physical condition to determine whether he was fit to drive. Id. This Court concluded as a matter of law the duties allegedly breached by the supervisory co-employees "[fell] squarely within the [employer's] duty to provide a safe workplace." Id. at 779. The trial court's grant...