Mems v. Labruyere
| Decision Date | 21 May 2019 |
| Docket Number | No. ED106319,ED106319 |
| Parties | CHARLES MEMS and ELAINE MEMS, Appellants, v. DWAYNE A. LABRUYERE, Respondent. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis
1622-CC00206
Honorable Robert H. Dierker, Jr.
Introduction
A jobsite incident that caused Charles Mems serious personal injuries gave rise to this case and its resolution centers on the complicated and long-running effort by Missouri's legislative and judicial branches to define the right of one employee to sue another for tortious conduct occurring on the job.
Dwayne LaBruyere and Charles Mems were employed by C. Rallo (Employer), a contractor hired to carry out certain renovations at the St. Louis Convention Center. LaBruyere and Mems were tasked with removing a heavy overhead roller door from a mechanical assembly above a concession stand window. During this process, LaBruyere caused the roller door to suddenly detach and fall onto Mems, striking his chest and neck, knocking him to the floor, and impaling his leg with a hook that was attached to the door. Mems pursued a workers' compensation claim against Employer. Then, together with his wife, Elaine Mems, he filed the civil lawsuit before us against his co-employee LaBruyere for negligence and loss of consortium.
The suit alleged that LaBruyere negligently caused the roller door to fall onto Mems while he was standing below it, causing Mems serious injuries. LaBruyere moved for summary judgment contending that under the 2012 amendment to § 287.120.11—which is applicable to this case since Mems's injuries occurred on June 27, 2013—he is immune from liability because the amendment provides that an employee "shall not be liable for any injury or death for which [worker's] compensation is recoverable" and "shall be released from all other liability whatsoever" except where the employee has "engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury." LaBruyere argued that it was undisputed that LaBruyere's actions failed to satisfy this statutory language.
The motion court found that there was evidence in the record from which a jury could conclude (1) that LaBruyere instructed Charles Mems to stand beneath the roller-door assembly while LaBruyere removed the bolts connecting the door to the wall and pried the door away from the wall causing the door to fall; (2) that LaBruyere did so knowing Mems was standing underneath and knowing that his actions would start the process of the door falling; and (3) that LaBruyere's actions in fact caused the door to detach from the wall and fall onto Mems injuring him.
Nevertheless, the court entered summary judgment in favor of LaBruyere, finding specifically that Appellants failed to establish as a genuinely disputed fact that LaBruyere had engaged in "purposeful, inherently dangerous conduct." The Memses now appeal asserting that they established as genuinely disputed factual matters that LaBruyere engaged in an affirmativenegligent act that purposefully and dangerously caused or increased the risk of injury to Charles Mems. The Memses also contend that the court misapplied § 287.120.1 by requiring them to prove that LaBruyere committed inherently dangerous conduct, since the statute has no such requirement. Because we find that the motion court misapplied the law in this regard and because we further find to be matters of disputed fact whether LaBruyere's actions satisfied the language of § 287.120.1—"affirmative negligent act that purposefully and dangerously caused or increased the risk of injury" to Charles Mems—we reverse and remand for a trial on the merits.
Standard of Review
Summary judgment is proper only when the parties are not genuinely disputing material factual issues and when the moving party is entitled to judgment as a matter of law. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 380 (Mo.banc 1993). Therefore, we review de novo whether the motion court properly granted summary judgment. Higgenbotham v. Pit Stop Bar & Grill, LLC, 548 S.W.3d 323, 328 (Mo.App.E.D. 2018) (citing Rice v. Hodapp, 919 S.W.2d 240, 243 (Mo.banc 1996)).
Summary judgment is an extreme and drastic remedy and great care should be exercised in utilizing it. ITT Commercial, 854 S.W.2d at 377 (citing Cooper v. Finke, 376 S.W.2d 225, 229 (Mo.banc 1964)). Summary judgment borders on the denial of due process in that it denies the opposing party their day in court. Id. (citing Olson v. Auto Owners Ins. Co., 700 S.W.2d 882, 884 (Mo.App.E.D. 1985). Although it is useful and beneficial in many situations, it cannot replace a conventional trial of factual issues unless the prevailing party is shown to be entitled thereto, as a matter of law, by proof flowing from facts about which there is no genuine dispute. Id. at 377-78.
In light of these principles, we view the record in the light most favorable to the party against whom judgment was entered, according that party all reasonable inferences drawn fromthe record. ITT Commercial, 854 S.W.2d at 376. A defendant is entitled to summary judgment only if the defendant has shown at least one of the following; (1) facts negating any one of the plaintiff's elements necessary for judgment; (2) that the plaintiff, after an adequate period of discovery, has not been able to produce evidence sufficient to allow the trier of fact to find the existence of all of the plaintiff's elements; or (3) facts necessary to support the defendant's properly-pleaded affirmative defense. Roberts v. BJC Health Sys., 391 S.W.3d 433, 437 (Mo.banc 2013) (citing ITT Commercial, 854 S.W.2d at 381).
Finally, we review all questions of law de novo. Pierce v. BSC, Inc., 207 S.W.3d 619, 621 (Mo.banc 2006). Statutory interpretation is a question of law reviewed de novo. Nelson v. Crane, 187 S.W.3d 868, 869 (Mo.banc 2006). So is the application of the statute, at least on review of a grant of summary judgment. Hudson v. O'Brien, 449 S.W.3d 87, 91 (Mo.App.W.D. 2014). Moreover, in the context of a claim of co-employee negligence, the determination whether the co-employee had a duty to the plaintiff is a question of law, as is the inextricably-linked question of the scope of the employer's duty. McComb v. Norfus, 541 S.W.3d 550, 554-55 (Mo.banc 2018); see also Peters v. Wady Indus., Inc., 489 S.W.3d 784, 793-95 (Mo.banc 2016) ( that the question whether a duty existed between the plaintiff and the defendant is purely a question of law, and that it is also a legal question whether a co-employee owes no duty because he was merely carrying out a non-delegable duty of his employer).
Discussion
The viability of the Memses' civil claim for damages against LaBruyere stands or falls based on whether the Memses brought forth sufficient evidence to the summary judgment record below that would allow a jury to find that LaBruyere is not immune from liability because he "engaged in an affirmative negligent act that purposefully and dangerously caused or increased therisk of injury" to Charles Mems. Thus, resolution of this appeal centers almost exclusively on the meaning the legislature intended for the five operative words italicized above. And since those words have lurked in one form or another during the over century-long jurisprudential and legislative struggle to resolve the co-employee liability question, we begin our analysis by examining the historical struggle to resolve this question which will assist our understanding of the legislature's intent with respect to the foregoing provision.2
I. Civil liability among co-employees in Missouri arising from workplace injuries.
Prior to the enactment in 1926 of Missouri's workers' compensation law (the "Act"), one employee could be held civilly liable for personal injury to another employee, though only for misfeasance, where the employee negligently performed—not merely failed to perform—a task assigned by his employer. State ex rel. Badami v. Gaertner, 630 S.W.2d 175, 177 (Mo.App.E.D. 1982) (en banc) (citing Jewell v. Kansas City Bolt & Nut Co., 132 S.W. 703, 711 (Mo.banc 1910); McGinnis v. Chicago, R.I. & P. Ry. Co., 98 S.W. 590, 592 (Mo.banc 1906)).
Then the 1926 Act granted employers immunity from civil liability for employees' on-the-job personal injuries since compensation from employers was made available under the Act.3 Id.at 178-79. But employees could still be civilly liable to each other for misfeasance based on common-law principles. Id. Then in Sylcox v. Nat'l Lead Co., 38 S.W.2d 497 (Mo.App. 1931), this Court found that since an employee who caused injury to a co-employee had no immunity under the Act, he was treated no differently than the common law treated a third person who caused injury to the co-employee, reasoning that "at common law one servant is liable to another for his own misfeasance, and there is nothing in the Act which destroys such liability, or in any way disturbs the common law relationship existing between co-employees." Badami, 630 S.W.2d at 178 (quoting Sylcox, 38 S.W.2d at 502) (internal quotation marks omitted). Thus, it became accepted that an employee, as a "third person" within the meaning of the Act, could be sued by an injured co-worker for his negligence. See also Lamar v. Ford Motor Co., 409 S.W.2d 100 (Mo.banc 1966); Schumacher v. Leslie, 232 S.W.2d 913 (Mo.banc 1950); Gardner v. Stout, 119 S.W.2d 790 (Mo.banc 1938).
Five years later, our Supreme Court decided Lambert v. Jones, 98 S.W.2d 752 (Mo.banc 1936). There, a woman was injured when she fell down a stairway due to a loose step. Id. at 753. Lambert's claim against Jones, as the corporate building owner's president and agent, set the stage for the Court's pronouncements which are relevant to the case at bar. Id.
The Court first looked at the misfeasance/nonfeasance dichotomy and Jones's specific argument that he could not be liable to...
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