Parr v. Breeden

• Decision Date: 06 August 2014
• Docket Number: No. SD32602,SD32602
• Parties: PAIGE PARR, a minor, by and through her Conservator, JANETT WAID, JERIMY MOREHEAD, and CHARLES PARR, Plaintiffs-Appellants, v. CHARLES BREEDEN, WENDY COGDILL, and MELANIE BUTTRY, Defendants-Respondents.
• Court: Missouri Court of Appeals

PAIGE PARR, a minor, by and through her Conservator, JANETT WAID, JERIMY MOREHEAD,and CHARLES PARR, Plaintiffs-Appellants, v. CHARLES BREEDEN, WENDY COGDILL,and MELANIE BUTTRY, Defendants-Respondents.

No. SD32602

Missouri Court of Appeals Southern District Division One

August 6, 2014

APPEAL FROM THE CIRCUIT COURT OF NEW MADRID COUNTY

Honorable Fred W. Copeland, Circuit Judge

AFFIRMED

On April 28, 2008, Kevin Parr ("Parr") was killed when the commercial motor vehicle he was driving for his employer, Breeden Transportation, Inc., left the road in a single vehicle accident. His two children and father ("Plaintiffs") appeal from the trial court's grant of summary judgment to three of Parr's supervisory co-employees on Plaintiffs' claim for Parr's wrongful death based on alleged workplace negligence. Plaintiffs raise two points on appeal. At its core, each point claims that the trial courterred in granting summary judgment because the record shows a genuine issue of material fact that if true would establish that the co-employee defendants owed Parr a legal duty sufficient to support a cause of action for workplace negligence. In view of the fact the points raise a common issue, we combine the points and consider them as a single point. We conclude that the co-employee defendants as a matter of law owed no legal duty to Parr under the common law, and that the Federal Motor Carrier Safety Administration regulations did not impose a separate legal duty on the co-employee defendants independent of the common law. The trial court's grant of summary judgment to the co-employee defendants is affirmed.

Facts and Procedural History

A little less than two years after the single-car accident that killed Parr, his two children and father filed a suit for wrongful death against three of Parr's co-employees - Charles Breeden, President of Breeden Transportation, Wendy Cogdill (now Wendy Knupp), Director of Safety, and Melany Buttry,¹ an employee with the responsibility of "making sure drivers complied with health and safety regulations" ("Defendant Co-Employees").² In their Second Amended Petition, Plaintiffs alleged that Defendant Co-Employees "had a duty to provide a safe working environment to Kevin Parr, to monitor the physical condition of Kevin Parr to determine whether he was fit to drive a tractor-trailer, and to determine whether Kevin Parr was in compliance with Federal Motor Carrier Safety Administration Regulations." Based on this duty allegedly owed by Defendant Co-Employees to Plaintiffs' decedent, Plaintiffs asserted two causes of actionagainst Defendant Co-Employees: (1) "[g]eneral [n]egligence," and (2) "despite knowing, or reasonably knowing, of Kevin Parr's [medical conditions], directed Kevin Parr to drive a tractor-trailer owned and/or operated by Breeden Transportation, Inc. on April 28, 2008, which direction was dangerous and reasonably recognizable to be hazardous and beyond the usual requirements of employment."

Defendant Co-Employees filed a motion for summary judgment. One ground for summary judgment asserted in the motion was that "plaintiffs are unable to offer any proof that defendants breached a duty owed to decedent." Viewing the record in the light most favorable to Plaintiffs as we must do under our standard of review, the uncontroverted facts and reasonable inferences from the record included the following: (1) "Kevin Parr was employed by Breeden Transportation, Inc. and[, on April 28, 2008, was] driving northbound on Interstate 55 hauling gas when he was involved in a fatal vehicle accident;" (2) "Defendants were employees of Breeden Transportation, Inc. at all times material to this lawsuit" with the responsibilities described above; (3) A medical examiner certified in a November 2, 2007 medical examination report that Parr was "physically fit to operate a commercial motor vehicle" and "qualifies for 2 year certificate;" (4) The November 2, 2007 report indicated that Parr "[s]mokes" and was "[o]verweight" but did not "reveal" any disqualifying medical condition; and (5) Breeden Transportation, Inc., did not investigate December 2006 and April 11, 2008 commercial motor vehicle accidents in which Parr was involved other than asking Parr how the accident occurred, did not require that Parr receive education or training after either of the accidents, and did not require that Parr be recertified as physically fit to operate a commercial motor vehicle by a medical examiner after the April 11, 2008 accident.

In Plaintiffs' memorandum in opposition to summary judgment, Plaintiffs argued that Defendant Co-Employees breached the duty they owed Plaintiffs' decedent:

by failing to remove Mr. Parr from the road, pending a medical evaluation and/or treatment, at minimum following the accident of April 11, 2008. Further exacerbating the breach, Defendants utterly failed to inquire into whether Mr. Parr had any sort of health condition that may have contributed to either of his prior single vehicle accidents.

Plaintiffs further argued that they:

have also presented evidence of Defendants' affirmative acts which injured Mr. Parr. Defendants clearly placed Mr. Parr back on the road when they were aware, or should have been aware, that he was not safe to operate a motor vehicle. This affirmative placing of Mr. Parr back on the road, without even bothering to ask him about his health following two previous single vehicle accidents, the most recent of which was only 17 days before the fatal accident is more than enough to create a genuine issue of material fact as to whether Defendants breached the "Something More" doctrine.

After the court entered a docket entry granting summary judgment, Plaintiffs filed a motion to "alter" judgment and argued for the first time that the Federal Motor Carrier Safety Administration regulations imposed on Defendant Co-Employees a legal duty to Parr that was independent of Missouri common law. The motion to "alter" the judgment was denied.

Standard of Review

Under Rule 74.04(c),³ a moving party is entitled to summary judgment if the summary judgment record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 74.04(c)); ITT Commercial Finance Corporation v. Mid-America Marine Supply Corporation, 854 S.W.2d 371, 380-82 (Mo. banc 1993). A "genuine issue":

exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts. A "genuine issue" is a dispute that is real, not merely argumentative, imaginary or frivolous. Where the "genuine issues" raised by the non-movant are merely argumentative, imaginary or frivolous, summary judgment is proper.

ITT Commercial, 854 S.W.2d at 382. Further:

Where a "defending party" will not bear the burden of persuasion at trial, that party need not controvert each element of the non-movant's claim in order to establish a right to summary judgment. Rather, a "defending party" may establish a right to judgment by showing (1) facts that negate any one of the claimant's elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense. Regardless of which of these three means is employed by the "defending party," each establishes a right to judgment as a matter of law.

Id. at 381.

In reviewing whether the trial court properly granted summary judgment, we:

review the record in the light most favorable to the party against whom judgment was entered. Zafft v. Eli Lilly, 676 S.W.2d 241, 244 (Mo. banc 1984); Cooper v. Finke, 376 S.W.2d 225, 228 (Mo.1964). 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. Cherry v. City of Hayti Heights, 563 S.W.2d 72, 75 (Mo. banc 1978); Dietrich v. Pulitzer Publishing Company, 422 S.W.2d 330, 333 (Mo.1986). We accord the non-movant the benefit of all reasonable inferences from the record. Martin v. City of Washington, 848 S.W.2d 487, 489 (Mo. banc 1993); Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 61 (Mo. banc 1988).

Our review is essentially de novo. The 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. E.O. Dorsch Electric Co. v. Plaza Const. Co., 413 S.W.2d 167, 169 (Mo.1967). The propriety of summary judgment is purely an issue of law. 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. Elliott v.Harris, 423 S.W.2d 831, 834 (Mo. banc 1968); Swink v. Swink, 367 S.W.2d 575, 578 (Mo.1963).

Id. at 376.

Analysis

As mentioned previously, each of Plaintiffs' two points relied on at its core claims that the trial court erred in granting summary judgment because the record shows a genuine issue of material fact that if true would establish that Defendant Co-Employees owed fellow employee Parr a legal duty sufficient to support a cause of action for workplace negligence.⁴ Plaintiffs contend that their claims fall squarely within the "something more" doctrine of State ex rel. Badami v. Gaertner, 630 S.W.2d 175 (Mo. App. E.D. 1982) (en banc), or the common law as set forth in Hansen v. Ritter, 375 S.W.3d 201, 208 (Mo. App. W.D. 2012).

An employee's common-law cause of action against a co-employee for workplace negligence has the same elements as all claims of negligence - (1) "existence of a duty," (2) breach of that duty, and (3) injury proximately caused by the...