Peters v. Wady Indus., Inc.

• Decision Date: 07 June 2016
• Docket Number: No. SC 94442,SC 94442
• Citation: 489 S.W.3d 784
• Parties: Curt Peters and Cheri Peters, Appellants, v. Wady Industries, Inc., Defendant, and Patrick Terrio, Respondent.
• Court: Missouri Supreme Court

489 S.W.3d 784

Curt Peters and Cheri Peters, Appellants,

v.Wady Industries, Inc., Defendant, and Patrick Terrio, Respondent.

No. SC 94442

Supreme Court of Missouri, en banc .

Opinion issued June 7, 2016

The Peterses were represented by Eric D. Holland, Gerard B. Schneller, Steven L. Groves and Patrick R. Dowd of The Holland Law Firm in St. Louis, (314) 241– 8111; and J. Mark Kell of Kell Lampin LLC in St. Peters, (636) 757–1700.

Terrio was represented by Teresa M. Young, John P. Rahoy and Kelly M. Brunie of Brown & James PC in St. Louis, (314) 421–3400.

The Missouri Association of Trial Attorneys, which filed a brief as a friend of the Court, was represented by Michael W. Manners of Langdon & Emison in Lexington, (660) 259–6175.

Patricia Breckenridge

, Judge

Curt and Cheri Peters filed a personal injury action against Patrick Terrio, alleging that Mr. Peters was injured at work because Mr. Terrio, a supervisory co-employee, was negligent. The trial court dismissed the Peterses' claims against Mr. Terrio, finding they failed to allege Mr. Terrio owed Mr. Peters a duty outside of their employer's nondelegable duty to provide a safe workplace. The Peterses appealed, asserting that their petition alleges sufficient facts to support a common law negligence action against Mr. Terrio.

At the time of Mr. Peters' work-related injuries, immunity from common law liability as provided for under section 287.120, RSMo

Supp. 2005,¹ of the workers' compensation law was limited to employers, and an injured employee could maintain a cause of action recognized by common law against a co-employee. At common law, co-employees are liable to their fellow employees for breaches of a duty owed independently of the master-servant relationship. Inherently, if a co-employee is assigned to perform an employer's nondelegable duties, performance of that duty derives solely from the master-servant relationship, and a co-employee cannot be liable for a breach of such a duty. Because the Peterses pleaded facts establishing only duties that are a part of the employer's nondelegable duty to provide a safe workplace, their petition failed to state a negligence cause of action against Mr. Terrio. Therefore, this Court affirms the trial court's judgment dismissing the Peterses' claims against Mr. Terrio.

Factual and Procedural Background

Mr. Peters and Mr. Terrio were employed by Tramar Contracting, Inc., a company that specializes in providing services and products to general contractors in the construction industry. Among its services, Tramar delivers dowel baskets, which are 200–pound rebar paver baskets used in concrete construction, manufactured by Wady Industries. Wady Industries shipped the dowel baskets to Tramar stacked, one on top of the other, without warning, bracing, or other precautionary measures. Upon arriving at Tramar, the dowel baskets were kept in this stacked manner in a staging area until they were needed. Once needed, the baskets were moved from the staging area to a specified construction site in the same stacked manner in which they were shipped by Wady Industries.

Mr. Terrio, a project manager for Tramar, had received warnings from other employees about the potential safety hazards posed by the stacked dowel baskets. Despite these warnings, on September 24, 2008, Mr. Terrio ordered that the dowel baskets be delivered to a construction site on a Tramar flatbed truck while kept in the stacked manner in which they were sent to Tramar. A row of baskets fell from the flatbed truck onto Mr. Peters, causing permanent and catastrophic injuries.²

Mr. and Ms. Peters filed suit against Wady Industries and Mr. Terrio. Among other claims in their petition, Mr. Peters asserted a claim for negligence against Mr. Terrio, and Ms. Peters asserted a loss of consortium claim based on Mr. Peters' injuries.³ In the claims against Mr. Terrio, the Peterses alleged that Mr. Terrio was negligent in that he breached his duty to exercise reasonable care in the following ways:

a. [Mr. Terrio] allowed the baskets to be transported on a flatbed truck while stacked at a level that exceeded a safe height;

b. [Mr. Terrio] failed to insure that the baskets were properly braced or secured for transportation and unloading;

c. [Mr. Terrio] failed to provide sufficient help; ...

d. [Mr. Terrio] failed to provide adequately trained help; ...

e. [Mr. Terrio] failed to provide a proper area for the unloading of the baskets; ...

f. [Mr. Terrio] failed to heed the warnings of employees about the stacked baskets;

g. [Mr. Terrio] allowed the unsafe course to become standard operating procedure;

h. [Mr. Terrio] ordered and directed plaintiff Curt Peters to load, stack, transport, and unload the baskets in the aforementioned unsafe manner; [and]

i. [Mr. Terrio] ordered and directed plaintiff Curt Peters to load, transport, and unload the baskets in the aforementioned manner in violation of OSHA Regulations including 29 CFR 1926.250(a)(1)

.

In his answer to the petition, Mr. Terrio raised several affirmative defenses, including that the Peterses' claims are barred by Missouri's workers' compensation laws, section 287.010, et seq., and asserted that the Peterses failed to state a cause of action. Mr. Terrio also filed a motion to dismiss the Peterses' claims for lack of subject matter jurisdiction. Specifically, Mr. Terrio argued that the Peterses' claims fall within the exclusive purview of workers' compensation laws because the Peterses did not allege any conduct by Mr. Terrio that lies outside of Tramar's nondelegable duties to provide a safe workplace. The trial court sustained Mr. Terrio's motion to dismiss, finding that the Peterses failed to allege that Mr. Terrio owed a duty independently of Tramar's nondelegable duty to provide a safe workplace. The court entered judgment dismissing the Peterses' claims against Mr. Terrio.⁴

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

.

Standard of Review

This Court reviews a trial court's grant of a motion to dismiss de novo.

Conway v. CitiMortgage, Inc., 438 S.W.3d 410, 413 (Mo. banc 2014)

. Mr. Terrio filed a motion to dismiss on the ground that the trial court lacked subject matter jurisdiction, arguing that the exclusive remedy for the Peterses' claims is provided by Missouri's workers' compensation laws, section 287.010 et seq., and that the Peterses failed to allege Mr. Terrio breached a duty he personally owed to the Peterses. Applicability of the workers' compensation laws is an affirmative defense and not a matter of the trial court's jurisdiction. McCracken v. Wal–Mart Stores East, LP, 298 S.W.3d 473, 479 (Mo. banc 2009). Although not a jurisdictional claim, Mr. Terrio's motion to dismiss raised the claim that the Peterses failed to state a cause of action against him. See

Leeper v. Asmus, 440 S.W.3d 478, 482 (Mo.App. 2014).

“A motion to dismiss for failure to state a claim tests the adequacy of a plaintiff's petition.” Conway, 438 S.W.3d at 413–14

. “When considering whether a petition fails to state a claim upon which relief can be granted, this Court must accept all properly pleaded facts as true, giving the pleadings their broadest intendment, and construe all allegations favorably to the pleader.” Bromwell v. Nixon, 361 S.W.3d 393, 398 (Mo. banc 2012). The Court reviews the petition to see if the facts alleged, given their broadest intendment, meet the elements of a cause of action that is recognized or that might be adopted. State ex rel. Henley v. Bickel, 285 S.W.3d 327, 329 (Mo. banc 2009).

No Immunity Under the Workers' Compensation Law

In his motion to dismiss, Mr. Terrio argued that the exclusive remedy for the Peterses' claims is provided for by the workers' compensation law. More specifically, Mr. Terrio asserted that employer immunity under the workers' compensation law extends to co-employees in negligence actions when it is alleged that the co-employee failed to maintain a safe working environment. At the time of Mr. Peters' injuries, however, the workers' compensation law provided no immunity to co-employees from common law negligence actions.

“This Court's primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute at issue.” Howard v. City of Kansas City, 332 S.W.3d 772, 787 (Mo. banc 2011)

(internal quotation omitted). “If the intent of the legislature is clear and unambiguous, by giving the language used in the statute its plain and ordinary meaning, then [this Court is] bound by that intent and cannot resort to any statutory construction in interpreting the statute.” Id. (internal quotation omitted).

When Mr. Peters was injured, the exclusivity provisions of the workers' compensation law provided:

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.

Section 287.120, RSMo

Supp. 2005. Section 287.120.1 addressed an employer' s liability under the workers' compensation law for accidents arising out of and in the course of an employee's employment and released employers from all other liability for the work-related accident. Section 287.120.1 was silent as to co-employees. The plain language of section 287.120.1, therefore, pertained only to employers.

As relevant to this case, “employer” is defined...