McComb v. Norfus

• Decision Date: 06 September 2016
• Docket Number: WD77761
• Parties: NADINE McCOMB, Appellant, v. GREGORY NORFUS and DAVID CHEESE, Respondents.
• Court: Missouri Court of Appeals

NADINE McCOMB, Appellant, v. GREGORY NORFUS and DAVID CHEESE, Respondents.

WD77761

MISSOURI COURT OF APPEALS WESTERN DISTRICT

September 6, 2016

Appeal from the Circuit Court of Cole County, Missouri

The Honorable Jon E. Beetem, Judge

Before Division Two: Anthony Rex Gabbert, Presiding Judge, Karen King Mitchell, Judge, and Joseph M. Ellis, Senior Judge¹

Nadine McComb (Wife) appeals the grant of summary judgment in favor of Respondents, Gregory Norfus and David Cheese, in her action for wrongful death of her husband, Edward McComb (Husband). Husband died as the result of a single-car accident after his vehicle slid off an icy road while he was driving as part of his job duties as a courier for St. Mary's Health Center. Respondents were Husband's supervisors at the time of his death. Wife argues that summary judgment was improper because there exists a genuine dispute of material fact as to whether Respondents were simply carrying out their employer's non-delegable duty to maintain a safe work environment, or whether they breached a personal duty of care owed to Husband, when they directed him to drive his route in bad weather conditions. We agree with Wife, reverse the grant of summary judgment, and remand the case to the trial court for further proceedings consistent with this opinion.

Factual Background²

On January 26, 2009, Husband worked as a courier for St. Mary's Health Center in Jefferson City. Norfus was his immediate supervisor, and Cheese supervised both Husband and Norfus. On that day, Husband was scheduled to work from 3:30 p.m. until 11:30 p.m., delivering medical supplies and other materials to various clinics around the mid-Missouri area. That same day, a dangerous winter storm, which created hazardous driving conditions and prompted the governor to declare a state of emergency, moved into the area.

Before Husband's scheduled shift, Norfus contacted Cheese to see if Husband should drive his route despite the conditions. Cheese directed Norfus to have Husband drive the route, but indicated that Husband should do so slowly and carefully. Cheese did not inform himself of the impending weather conditions before making the decision that Husband should drive his route. Sometime in the middle of Husband's shift, Norfus called to check in with Husband. At that time, Husband reported that his windshield was freezing. Norfus again contacted Cheese to see if they should pull Husband from his route due to the weather conditions. Cheese determined that Husband should continue. At the time, Husband was not carrying any vital organs or "STAT" materials (ones needed immediately by a facility).

Near the end of Husband's shift, he slid off the road, flipping his vehicle several times, leading to his death. Wife subsequently sued Respondents, arguing that they were negligent in sending Husband out on his courier route despite the hazardous road conditions. Respondents sought summary judgment, arguing that Wife's suit was barred by the workers' compensation statute's exclusivity provision. Respondents argued that Wife could not demonstrate that Respondents owed any personal duty of care to Husband beyond their employer's non-delegable duty to maintain a safe work environment. The court agreed and granted Respondents' motion for summary judgment. Wife appeals.

Standard of Review

"When considering appeals from summary judgments, [an appellate c]ourt will review the record in the light most favorable to the party against whom judgment was entered." ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). "Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion." Id. "We accord the non-movant the benefit of all reasonable inferences from the record." Id. Our review is de novo because "[t]he criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially." Id. Thus, "[t]he propriety of summary judgment is purely an issue of law." Id. "As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment." Id.

Analysis

Wife raises a single point on appeal. She argues that summary judgment was improper because there exists a genuine issue of material fact regarding whether Respondents' actions constituted a breach of their employer's non-delegable duty to maintain a safe work environment, or a breach of their own personal duty of care owed to Husband, when they directed Husband to drive his courier route in hazardous driving conditions. We agree.

A. Co-employee liability and workers' compensation exclusivity

The current version of the Workers' Compensation Act's exclusivity provision states:

Any employee of [an] employer [subject to the Act] shall not be liable for any injury or death for which compensation is recoverable under this chapter and every employer and employees of such employer shall be released from all other liability whatsoever, whether to the employee or any other person, except that an employee shall not be released from liability for injury or death if the employee engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.

§ 287.120.1.³ Husband's death, however, occurred in 2009, when the law regarding co-employee liability was in a state of flux.

In 2009, before the current version, the Act's exclusivity provision referred to only employers and not co-employees. See Robinson v. Hooker, 323 S.W.3d 418, 423 (Mo. App. W.D. 2010). Until 2005, the statute was required to "be liberally construed with a view to the public welfare." § 287.800, RSMo Cum. Supp. 2004. The liberal-construction mandate led courts to broadly construe the term "employers" in the exclusivity provision to also exempt co-employees from liability, except where the co-employee engaged in "something more" than a breach of the employer's non-delegable duty to provide a safe workplace. See Robinson, 323 S.W.3d at 422-23.

In 2005, however, the law was amended to require strict, rather than liberal, construction. § 287.800, RSMo Cum. Supp. 2005. "Strict application of the definition [of 'employer'] require[d] us to . . . conclude that co-employees [we]re not entitled to invoke the employer immunity under Section 287.120." Robinson, 323 S.W.3d at 424.⁴ Thus, we held in Robinson that "[t]he employee retains a common law right of action against co-employees who do not fall squarely within the definition of 'employer.'" Id. at 425; see also Peters v. Wady Indus., Inc., 489 S.W.3d 784, 790 (Mo. banc 2016) ("[T]he plain language of the exclusivity provisions did not preclude [employees] from pursuing a common law negligence claim against . . . co-employee[s].").

This Court later clarified the holding in Robinson, noting that "Robinson neither created nor defined the rights or remedies of an injured person against co-employees but merely acknowledged that whatever rights and remedies were available 'at common law or otherwise' were not barred by the exclusivity provision of the Act." Hansen v. Ritter, 375 S.W.3d 201, 207 (Mo. App. W.D. 2012); accord Peters, 489 S.W.3d at 791. After discussing the fact that employers have five non-delegable duties related to safety,⁵ we noted that, "at common law, the negligence of an employee in performing an employer's non-delegable duties did not affect an injured employee's right to seek recovery from the employer." Id. at 208-09. We recognized that "[t]he practical rationale for refusing to impose on co-employees a legal duty to fellow employees to perform an employer's non-delegable duties was grounded in the recognition that said duties 'often concern matters beyond the control of individual employees.'" Id. at 210 (quoting Kelso v. W.A. Ross Constr. Co., 85 S.W.2d 527, 534 (Mo. 1935)). Thus, "[c]o-employees do not independently owe a duty to fellow employees to perform the employer's non-delegable duties." Id. at 213. Consequently, at common law, it is only when "a co-employee . . . has violated an independent duty to an injured employee [that the co-employee] will be 'answerable to such person for the consequences of his negligence.'" Id. (quoting Giles v. Moundridge Milling Co., 173 S.W.2d 745, 751 (Mo. 1943)).

In Leeper v. Asmus, 440 S.W.3d 478 (Mo. App. W.D. 2014), we recognized that Hansen left unanswered questions. Specifically, "Hansen did not 'definitively determine the precise parameters of a co-employee's personal duties to a fellow employee sufficient to support an actionable claim of negligence.'" Id. at 483 (quoting Hansen, 375 S.W.3d at 217). After noting that "some workplace injuries at common law could not be attributed to a breach of the employer's nondelegable duties, and were instead attributable to the fault of the injured employee or of a co-employee," we recognized that, "[t]o assign responsibility for a workplace injury at common law, the necessary starting point was to first determine whether the injury was caused by a breach of the employer's nondelegable duties."⁶ Id. at 485 (emphasis added). Thus, we held that, "for workplace injuries occurring between the effective dates of the 2005 and 2012 amendments of the Act, the common law . . . must be applied to determine whether a co-employee owes a duty of care in negligence." Id. at 493-94 (emphasis added).

In Peters, the Missouri Supreme Court overruled our decision in Leeper, but only "to the extent that it holds that the existence of a duty is not purely a question of law." Peters, 489 S.W.3d at 794 n.8. All other parts of our Leeper decision remain good law, including our holdings that "the starting point is to first determine whether a workplace injury is attributable to a breach of the employer's...