Parr v. Breeden

• Decision Date: 07 June 2016
• Docket Number: No. SC 94393,SC 94393
• Citation: 489 S.W.3d 774
• Parties: Paige Parr, a minor, by and through her Conservator, Janett Waid, Jerimy Morehead, and Charles Parr, Appellants, v. Charles Breeden, Wendy Cogdill, and Melanie Buttry, Respondents.
• Court: Missouri Supreme Court

489 S.W.3d 774

Paige Parr, a minor, by and through her Conservator, Janett Waid, Jerimy Morehead, and Charles Parr, Appellants,

v.Charles Breeden, Wendy Cogdill, and Melanie Buttry, Respondents.

No. SC 94393

Supreme Court of Missouri, en banc .

Opinion issued June 7, 2016

The Parr family members were represented by Shaun D. Hanschen and Rachel R. Harris of Blanton, Rice, Nickell, Cozean & Collins LLC in Sikeston, (573) 471–1000.

The co-employees were represented by Michael S. Hamlin and Robyn Greifzu Fox of Pitzer Snodgrass PC in St. Louis, (314) 421–5545, and Ted L. Perryman, John Schaberg and Josh S. Owings of Roberts Perryman PC of St. Louis, (314) 421–1850.

Patricia Breckenridge

, Judge

While driving a commercial motor vehicle for his employer, Kevin Parr was killed when his truck was involved in a single-vehicle accident. Mr. Parr's two children and father (plaintiffs) brought a wrongful death action against three of Mr. Parr's supervisory co-employees—Charles Breeden, Wendy Cogdill, and Melany Buttry (defendants).¹ The circuit court entered judgment on the defendants' motion for summary judgment. On appeal, the plaintiffs assert that the circuit court erred in granting judgment in favor of the defendants because there exists a genuine dispute of material fact as to the defendants' negligence as well as to whether the defendants breached duties that arose from federal regulations that are separate and distinct from the employer's nondelegable duty to provide a safe workplace for all employees. This Court finds that the duties the plaintiffs allege the defendants owed to Mr. Parr were part of their employer's nondelegable duty to provide a safe workplace. Further, federal regulations do not prove the existence of a personal duty separate and distinct from the employer's nondelegable duty to provide a safe workplace. Because the plaintiffs failed to establish that defendants owed Mr. Parr a duty separate and distinct from the employer's nondelegable duty to provide a safe workplace, this Court affirms the circuit court's grant of summary judgment.

Factual and Procedural Background

From June 2006 to his death, Mr. Parr was employed by Breeden Transportation, Inc., as a truck driver. During his employment, Mr. Parr was involved in three single-vehicle accidents. The first accident occurred in December 2006. On November 2, 2007, a medical examiner certified Mr. Parr as physically fit to operate a commercial motor vehicle, and Mr. Parr was given a two-year certification. Six months later, on April 11, 2008, Mr. Parr was involved in his second single-vehicle accident. Then, on April 28, 2008, Mr. Parr was involved in a fatal single-vehicle accident when the commercial motor vehicle he was driving left the road.

On April 16, 2010, the plaintiffs filed a suit for wrongful death against Mr. Breeden, president of Breeden Transportation, Ms. Cogdill, and Ms. Buttry.² In their second amended petition, the plaintiffs allege that the defendants “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.”

The defendants filed a motion for summary judgment, asserting that the uncontroverted facts show they did not breach their duty to provide a safe working environment and, alternatively, that the plaintiffs' petition fails to state a cause of action for negligence because it does not allege that the defendants committed an affirmative act outside the scope of an employer's nondelegable duty to provide a safe workplace. In response, the plaintiffs asserted that the defendants breached their duty to Mr. Parr by: (1) keeping Mr. Parr on the road without a medical evaluation following his April 11, 2008 accident; (2) failing to inquire into whether Mr. Parr had a health condition that would have contributed to his two prior single-vehicle accidents; and (3) placing Mr. Parr back on the road when they knew or should have known that Mr. Parr was not safe to operate a motor vehicle. The plaintiffs submitted Mr. Parr's November 2, 2007 health report indicating that he smoked and was overweight and other evidence showing that, at the time of the fatal accident, Mr. Parr was suffering from severe coronary artery disease

, diabetes, obesity, and probable sleep apnea and had a prescription for an anti-diabetic drug. The plaintiffs also submitted portions of deposition testimony in which each of the defendants admitted to being partly responsible for making sure each of Breeden Transportation's drivers were safe to operate a commercial motor vehicle. The circuit court sustained the defendants' motion for summary judgment and entered judgment for the defendants.³

The plaintiffs appealed to the court of appeals, and the majority affirmed the circuit court's judgment. The dissenting judge certified the case for transfer to this Court.⁴ Mo. Const. art. V, sec. 10

.

Standard of Review

Summary judgment is proper when the moving party demonstrates there is no genuine dispute about material facts and, under the undisputed facts, the moving party is entitled to judgment as a matter of law. Rule 74.04(c)(6); ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 380 (Mo. banc 1993)

. A defending party can demonstrate entitlement to summary judgment by showing: (1) facts negating any of the claimant's necessary elements; (2) the claimant, after an adequate period of discovery, has been unable, 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) there is no genuine dispute of the existence of facts required to support the defending party's properly pleaded affirmative defense. ITT Commercial, 854 S.W.2d at 381. This Court's review of summary judgment is de novo.

Roe v. Replogle, 408 S.W.3d 759, 763 (Mo. banc 2013).

Failure to Show Duty Separate and Distinct from Employer's Nondelegable Duties

On appeal, the plaintiffs raise two points: (1) the circuit court erred in granting summary judgment because genuine disputes of material fact exist as to the defendants' negligence in that the defendants admitted they had a duty to ensure all of Breeden Transportation's drivers were safe to operate a commercial motor vehicle, the defendants knew or should have known Mr. Parr could not safely operate a commercial motor vehicle, the defendants caused Mr. Parr's death by placing him on the road the night of the fatal accident, and the plaintiffs suffered damage as a result of Mr. Parr's death; and (2) the circuit court erred in entering summary judgment because there was a genuine dispute of material fact as to whether the defendants breached their duties, separate and apart from the employer's nondelegable duties, that arose from federal regulations. Because both points involve the question of whether the defendants owed Mr. Parr a duty and that issue is dispositive of this appeal, the arguments in the two points will be considered together.

The plaintiffs' wrongful death action arises from Mr. Parr's fatal accident, which the plaintiffs' allege was caused by the defendants' negligence. Though Mr. Parr's fatal 2008 accident occurred in the course of his employment, the plaintiffs are not precluded under the workers' compensation law from bringing a common law action for negligence against Mr. Parr's co-employees if they can show the co-employees owed a duty separate and distinct from the employer's nondelegable duties. Peters v. Wady Indus., Inc., 489 S.W.3d 784, 2016 WL 3180586 (Mo. banc 2016) (No. SC94442)

.⁵ “In any action for 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.” Martin v. City of Washington, 848 S.W.2d 487, 493 (Mo. banc 1993). The element at issue in this case is the existence of a duty owed by the defendants to Mr. Parr.

Under the common law, an employee may be liable for injuries to another employee caused by a breach of a duty of care owed by the employee independent of the master-servant relationship. Peters, 489 S.W.3d 784 (Mo. banc 2016) (No. SC94442);

Lambert v. Jones, 339 Mo. 677, 689, 98 S.W.2d 752 (1936). “In other words, the liability of the servant or agent ... results from the breach of a duty owed to the third party under the law, which makes him liable without regard to whether he is the servant or agent of another or not.” Ryan v. Standard Oil Co. of Indiana, 144 S.W.2d 170, 173 (Mo.App. 1940).

When the co-employee is performing the employer's nondelegable duty to provide a safe workplace, however, liability attaches to the employer, not the co-employee. Bender v. Kroger Grocery & Baking Co., 310 Mo. 488, 276 S.W. 405, 406 (1925)

. The employer's duty to provide a safe workplace is continuing, Bender, 276 S.W. at 408, and includes specific duties relating to keeping employees safe:

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, section 80 at 569 (5th ed. 1984); see Kelso v. W.A. Ross Const. Co., 337 Mo. 202, 85 S.W.2d 527, 534–36 (1935)

; Schaum v. Sw. Bell Tel. Co., 336 Mo. 228, 78 S.W.2d 439, 442 (1934).

In their response to the defendants' motion for summary judgment, the plaintiffs asserted the defendants “had a duty to insure that every driver that drove for Breeden Transportation was safe to operate a commercial motor...