 

 

 

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT

NADINE McCOMB,

Appellant,
WD7 7 761

September 6, 2016

GREGORY NORFUS and DAVID

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)
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§
) oPINIoN FILED:
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CHEESE, )
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Respondents.
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 Judgel

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

 

’ Judge Ellis retired as an active member of the court on March l, 2016, after oral argument in this case. He
has been assigned by the Chief Justice to participate in this decision as Senior Judge.

 

 

 

 

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 l 1:30 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 conditionsl Cheese determined that

 

2 We view the facts “in the light most favorable to the party against whom summary judgment was granted,
and all the facts properly pled by the nonmoving party and all inferences therefrom are assumed as true.” Hill v. Gov ’t
Employee lns. Co., 390 S.W.3d 187, 190 (Mo. App. W.D. 2012) (quoting Waldrop v. Sheller Mut. Ins. Co., 221
S.W.3d 401, 403 (Mo. App. W.D. 2006)).

 

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.

Staudard 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.” ]TT
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 [subj ect 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
o an affirmative negligent act that purposefully and dangerously caused or increased
q 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.

 

3 All statutory citations are to the Revised Statutes of Missouri.

 

 

 

 

 

 

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 Robz'nson 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 Ina’us., 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 “Robz'nson 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.” ld. 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,

 

‘ Recently, the Missouri Supreme Court clarified that extending immunity “to co-employees . . . was
inconsistent with established workers’ compensation law precedent and resulted iri the adoption of a standard not
supported under any constmction of the workers’ compensation law’s exclusivity provision.” Peters v. Wady Indus.,
Inc., 489 S.W.3d 784, 790 (Mo. banc 2016).

5 Those duties are: (l) “‘to provide a safe workplace; (2) to provide safe equipment in the workplace; (3) to
warn employees about the existence of dangers of which the employees could not reasonably be expected to be aware;
(4) to provide a sufficient number of competent fellow employees; and (5) to promulgate and enforce rules governing
employee conduct for the purpose of enhancing safety.”’ Hansen v. Ritter, 375 S.W.3d 201, 208 (Mo. App. W.D.
2012) (quoting Gunnett v. Girardier Bldg. & Realty Co., 70 S.W.3d 632, 638 n.8 (Mo. App. E.D. 2002)).

 

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).

 

6 In so holding, we also rejected the refined “something more” test that had been previously articulated in
State ex rel. Badami v. Gaertner, 630 S.W.2d 175 (Mo. App. E.D. 1982) (en banc) and used to determine whether a
co-employee owed a personal duty of care to the injured employee. Leeper v. Asmus, 440 S.W.3d 478, 491-94 (Mo.
App. W.D. 2014). But we noted that “the ‘something more’ test as originally announced in Badami was
indistinguishable from the common law.” Id. at 490. And the Missouri Supreme Court agreed, reaffirming the
“something more” test as originally articulated in Badami. Peters, 489 S.W.3d at 797 (“Badami’s ‘something more’
analysis Was consistent with common law co-employee liability principles. Accordingly, cases applying the
‘something more’ test can still prove instructive in a common law analysis.”).

 

 

 

In Peters, the Missouri Supreme Court overruled our decision iii 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 nondelegable duties” and that this causation (as opposed to existence) determination
“is a question of fact.” Leeper, 440 S.W.3d at 489, 494.7

B. The source of the duty breached is an issue of material fact that remains in dispute.

To be entitled to summary judgment, the moving party must demonstrate 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).8 “For purposes of Rule 74.04, a ‘genuine issue’ exists where the record
contains competent materials that evidence two plausible, but contradictory, accounts of the
essential facts.” ITT Commercial Fin. Corp., 854 S.W.2d at 382. “A ‘ genuine issue’ is a dispute
that is real, not merely argumentative, imaginary or frivolous.” Id.

As we made clear in Leeper, the threshold question of “whether a workplace injury is
attributable to a breach of the employer’s nondelegable duties is a question of fact.” Leeper, 440
S.W.3d at 494. And it is one that is “uriique to the workplace.” Id. at 488.

[It is] influenced by, among other things: the nature of the employer’s work; the

risks and perils attendant to doing the employer’s work as directed; whether the

instrumentalities of the work are safe; whether a co-cmployee causing injury was

acting as directed by the employer; whether the methods for performing the work

are safe; the competency of the employees hired to perform the work; the training

of employees; the rules and regulations of the workplace adopted by the employer

to protect workers from the risks and perils of the work about which the employer

should have known; the communication and enforcement of these rules and

regulations; and other facts or circumstances which might tend to establish the

existence of a risk or peril that, through the exercise of ordinary care, the employer
could reasonably have acted to prevent.

 

7 Though Judge Fischer, in his concurrence, advocated overruling Leeper entirely, the Court rejected that

approach. Peters, 489 S.W.3d at 800-01 (Fischer, J., concurring).
8 All rule references are to the Missouri Supreme Court Rules (2015) unless otherwise noted.

 

 

 

 

 

 

Ial. Indeed, as our Supreme Court recognized, “[t]he scope of the employer’s duty to provide a
safe workplace . . . is dependent on several factors, including the nature of the employer’s work
and the risks associated with the work.” Peters, 489 S.W.3d at 795 (emphasis added). “If, after
considering all relevant facts and circumstances, an employee’s workplace injury can be attributed
to the employer’s breach of a nondelegable duty, then a negligent co-employee owes no duty in
negligence to the injured employee as a matter of law.” Leeper, 440 S.W.3d at 488. Here, the
relevant facts and circumstances are still in dispute; thus, summary judgment was improper.9
According to Leeper, an “employer’s nondelegable duties are expansive and continuing in
nature, [but] they are not unlimited.” Id. at 485. “An employer must create a safe work
environment, and must take precautions to protect against foreseeable risks and perils in the work
environment . . . .” Ial. But “[e]mployers are not insurers of the safety of employees.” Id. (quoting
Graczak v. City of St. Louz's, 202 S.W.2d 775, 777 (Mo. 1947)). The specific non-delegable duties
associated with an employer’s general duty to use reasonable care are: “To see that the place of
work is reasonably safe; to see that suitable instrumentalities are provided; and to see that those
instrumentalities are safely used.” Ia'. at 487 (quoting Kelso, 85 S.W.2d at 534) (emphasis added).
“[T]he manner in which instrumentalities are used may make a place safe or unsafe as a place of
work, and, therefore, the duty to see that instrumentalities are safely used may become the most
important element in the safety of a workman in his place of work . . . .” Id. (quoting Kelso, 85

S.W.2d at 535). In short, an employer has a duty to provide a “‘safe method of work,’ by

 

9 Our case is distinguishable from the Missouri Supreme Court’s recent decision in Parr v. Breeden, 489
S.W.3d 774, 776 (Mo. banc 2016), where the Court affirmed the grant of summary judgment in a co-employee
negligence claim. In Parr, the issue was whether the plaintiffs had adequately alleged the existence of a duty on the
part of the co-employees that was separate and distinct from the employer’s non-delegable duty to maintain a safe
workplace. Id. at 778-79 (“The element at issue in this case is the existence of a duty owed by the defendants to
Mr. Parr.”). Here, the issue is not whether there exists a duty of care but rather what the scope of that duty was, and
whether Husband’s co-employees were acting within or outside the scope of their employer’s duty to maintain a safe
workplace at the time of Husband’s death.

 

‘prescrib[ing] rules sufficient for its orderly and safe management.”’ Id. (quoting Kelso, 85
S.W.2d at 535). That being said, however, “the rule that the master is bound to see that the
environment in which a servant performs his duties is kept in a reasonably safe condition is not
applicable where that environment becomes unsafe solely through the default of that servant
himself, or of his fellow employees.” Id. at 488 (quoting Kelso, 85 S.W.2d at 536). In other words,
“[w]hen . . . the employee’s injuries result from a co-employee’s negligence in carrying out the
details of the work, the injuries are attributable to the co-employee’s breach of a duty separate and
distinct from the employer’s nondelegable duty to provide a safe workplace.” Peters, 489 S.W.3d
at 796.

In the context of this case, where the hospital employed individuals to work as couriers,
the risk posed to drivers during inclement weather was obvious and foreseeable Therefore, the
scope of the employer’s duty to provide a safe workplace included the need for policies to address
this obvious, foreseeable risk. In this situation, to determine whether Husband’s death was
attributable to the breach of a non-delegable duty of his employer or if it was, instead, attributable
to a personal duty owed to Husband by either Norfus or Cheese or both, there are several questions
yet to be answered. The first question is whether St. Mary’s had a policy regarding whether
couriers should be sent on their route during inclement weather.lo (And, as a related question,
whether St. Mary’s defined what constituted “inclement weather.”) According to Leeper,
St. Mary’s should have had such a policy in order to comply with its non-delegable duty to ensure

that the instrumentality at issue (Husband’s vehicle) was safely used. See Leeper, 440 S.W.3d at

 

‘° An employer’s policy can be communicated either in writing or orally. Even if a policy exists, whether it
provides a safe workplace may depend upon whether the policy is communicated effectively and whether training and
supervision are provided. Other facts, such as the employer’s awareness and acceptance of deviations from the policy
are also relevant. See, e.g., Peters, 489 S.W.3d at 799 (holding that the scope of the employer’s non-delegable duty
to provide a safe workplace included an unsafe manner of work performance where the unsafe manner, through
employer acceptance, had become “standard operating procedure[].”).

 

 

 

492 (where an employer fails to ensure that the workplace and work methods are safe, only the
employer will be responsible in negligence). Thus, if it did not have such a policy, then Husband’s
death would be attributable to his employer’s failure to discharge its non-delegable duties to
provide Husband with a safe workplace and to ensure that the work instrumentalities were safely
used, and Norfus and Cheese would face no personal liability. n

The second question is, if St. Mary’s had such a policy, whether Norfus and Cheese
followed that policy by sending and keeping Husband on his route during the hazardous weather
conditions present on January 26, 2009, If so, according to Leeper, Husband’s death would have
been attributable to St. Mary’s non-delegable duty to ensure that Husband’s work place was safe.
See id. at 493 (“Charging a co-employee with the personal duty to protect a fellow employee from
the risk of operating a dangerous instrumentality of work violates a core maxim by ascribing to
the employee the responsibility of performing the employer’s nondelegable duties.”). If not,
however, Husband’s death may have been attributable to a personal duty owed by his
co-employees. See id. at 496.

The third question is, if St. Mary’s had a policy that required the termination of courier

service during certain inclement weather situations, and Norfus and Cheese violated that policy by

 

" During oral argument, both paities agreed that St. Mary’s did not have a policy regarding whether couriers
are to maintain their routes during inclement weather. Generally, an admission of fact made in oral argument does
not constitute a true judicial admission, but more often amounts to nothing more than an admission against interest
A judicial admission “is a more or less formal act done during a judicial proceeding which waives or dispenses with
the production of evidence and concedes for litigation purposes that a certain proposition is true.” Hewitt v. Masters,
406 S.W.2d 60, 64 (Mo. 1966). “A judicial admission must be clear and unqualified ” Goudeaux v. Board of Police
Comm ’rs of Kansas City, 409 S.W.3d 508, 519 (Mo. App. W.D. 2013). Seldom are questions during oral argument
so clear and unambiguous, or the answers of counsel so precise and unqualified, as to amount to true judicial
admissions An admission against interest, on the other hand, “is usually some form of self-contradiction, and which
is merely an item of evidence . . . , an inconsistency which discredits, in greater or lesser degree, [a party’s] present
claim and his other evidence, . . . [and] is to be considered along with the other evidence and circumstances of the
case.” Mitchell Engineering Co., A Div. of CECO Corp. v. Summit Realty Co., Inc., 647 S.W.2d 130, 141 (Mo. App.
W.D. 1982). As such, typically a trier of fact must judge the credibility and weight to be attributed thereto.
Accordingly, it is seldom that an “admission” made during oral argument on appeal can be dispositive of any matter
in that appeal

10

 

 

 

 

 

sending and keeping Husband on his courier route on the date of his death, whether their actions,
alone, rendered Husband’s otherwise safe work environment unsafe. If so, then Husband’s death
was likely attributable to a personal duty owed him by Norfus and Cheese, subjecting them to
potential liability under the common law. See Leeper, 440 S.W.3d at 496 (co-employee liability
may exist where allegations in the petition suggest that a co-employee “made what was otherwise
a safe workplace and safe instrumentality of work unsafe” by “fail[ing] to follow specific
instructions imposed [by the employer] to [e]nsure safe operation of’ a work instrumentality).

Given the timing of the Leeper decision in relation to the filing of the suggestions in support
of and opposition to summary judgment below, the parties understandably did not focus on the
scope of St. Mary’s non-delegable duty to provide a safe workplace as related to either the
existence or the effect of any policy regarding couriers driving in hazardous weather conditions’2
Nevertheless, the record reflects that this is a matter that remains in dispute, thus precluding
summary judgment,

In some of their suggestions Respondents asserted that St. Mary’s had no policy regarding
couriers driving in hazardous weather conditions (“There was no inclement weather policy which
affected the courier’s position and advised supervisory staff when the courier should and should
not drive.”) But Husband’s job description, filed as an exhibit, suggests that St. Mary’s may, in
fact, have had some relevant policy provisions in place. For example, one of Husband’s job duties

was to be aware of a safety code identified as “Code Operation Weather Warning/Watch”; another

was to clear snow or frost “for STAT runs in winter months”; and yet a third was to “complete

 

12 Wife’s First Amended Petition alleged that both Norfus and Cheese were negligent for, among other things,
“[f]ail[ing] to implement and/or follow safety guidelines governing the deployment of couriers in conditions involving
hazardous and dangerous road conditions including ice and snow slick roadways.” As discussed above, the failure to
implement safety guidelines would have been encompassed within the employer’s non-delegable duty to maintain a
safe workplace, whereas the failure to follow safety guidelines could have established a breach of a personal duty
owed to Husband by Respondents

ll

 

tasks in inclement weather.” Cheese testified in a deposition, however, that a courier’s job duties
did not require him to perform pickups and deliveries “in severe winter weather when a state of
emergency has been called.” Thus, the record reflects that there is an unresolved dispute as to the
material facts of whether St. Mary’s had applicable rules or regulations in effect and whether
Norfus and Cheese complied with any existing rules or regulations In other words, the factual
issue regarding the scope of St. Mary’s non-delegable duty to provide a safe workplace remains in
dispute. Until that question is answered, it is impossible to discern whether Husband’s death was
due to the breach of his employer’s non-delegable duties or to the breach of a personal duty owed
to Husband by Respondents Accordingly, summary judgment cannot lie.
Conclusion

Because there remains a genuine issue of material fact regarding the scope of the duty
allegedly breached, Respondents were not entitled to summary judgment, Thus, the court’s
judgment is reversed, and the matter is remanded for further proceedings consistent with this

opinion.

 

Karen King Mitchell, Judge

Anthony Rex Gabbert, Presiding Judge,
and Joseph M. Ellis, Senior Judge, concur.

12

 

 

