            IN THE MISSOURI COURT OF APPEALS
                    WESTERN DISTRICT

NADINE McCOMB,                                  )
                                                )
                                   Appellant,   )
                                                )
                                                     WD77761
v.                                              )
                                                )
                                                     OPINION FILED:
                                                )
                                                     April 21, 2015
GREGORY NORFUS and DAVID                        )
CHEESE,                                         )
                                                )
                               Respondents.     )


                  Appeal from the Circuit Court of Cole County, Missouri
                           The Honorable Jon E. Beetem, Judge

              Before Division Two: Anthony Rex Gabbert, Presiding Judge, and
                      Joseph M. Ellis and Karen King Mitchell, Judges

       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 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 back to the trial

court for further proceedings consistent with this opinion.

                                      Factual Background

       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 11:30 p.m.,

delivering medical supplies and other materials to various clinics around the mid-Missouri area.

That same day, a dangerous winter storm moved into the area, which created hazardous driving

conditions and prompted the governor to declare a state of emergency.

       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 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 conditions. Cheese determined

that 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




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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.

                                      Standard 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.” ITT

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




                                                3
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 [subject 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 an affirmative negligent act that purposefully and dangerously caused
       or increased the risk of injury.

§ 287.120.1.1         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.

       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. Thus, we held in Robinson



       1
           All statutory citations are to the Revised Statutes of Missouri.


                                                            4
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.

        This Court later clarified the holding in Robinson, noting that “Robinson 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). After discussing the fact that employers have five non-delegable duties

related to safety,2 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.” Id. 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. 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 some questions. Specifically, “Hansen did not ‘definitively determine the

        2
          Those duties are: (1) “‘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)).


                                                         5
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.”3 Id. at 485. Thus, “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.

        For workplace injuries within that time frame, it must first be determined whether
        a workplace injury is attributable to a breach of the employer’s nondelegable
        duties. If yes, then a co-employee’s negligent act or omission will not support a
        personal duty of care in negligence as a matter of law, regardless [of] whether the
        act or omission can be characterized as “something more.” If no, then a
        co-employee’s negligent act or omission may support an actionable duty of care
        in negligence, regardless [of] whether the act or omission can be characterized as
        “something more.” Determining whether a workplace injury is attributable to a
        breach of the employer’s nondelegable duties is a question of fact.

Id. at 494.

    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).4 “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


        3
          In so holding, we also rejected the “something more” test that had been previously articulated 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).
        4
          All rule references are to the Missouri Court Rules (2014) unless otherwise noted.


                                                         6
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 “unique 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-employee 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.

Id. “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.” Id. Here, the relevant

facts and circumstances are still in dispute; thus, summary judgment was improper.

       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 . . . .” Id. But “‘[e]mployers are not insurers of the safety of employees.’”

Id. (quoting Graczak v. City of St. Louis, 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.’” Id. at 487 (quoting Kelso, 85




                                                 7
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 other words, an employer has a duty to

provide a “‘safe method of work,’ by ‘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 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, in

order to provide a safe workplace, the employer needed to have policies in place 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 to be answered. First, did St. Mary’s have a policy regarding whether couriers

should be sent on their route during inclement weather?5 (And, as a related question, did

St. Mary’s define 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 492


        5
          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 may be relevant.


                                                        8
(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.6

         The second question is, if St. Mary’s had such a policy, did Norfus and Cheese follow

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 sending and keeping Husband on his courier route on the date of his death, did their actions,

         6
            During oral argument, both parties 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. Div. 2 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.


                                                          9
alone, render 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 either the existence or the effect of any policy by St. Mary’s regarding couriers driving in

hazardous weather conditions.7 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 courier 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 tasks in inclement weather.” Cheese testified in a deposition, however,



        7
            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.


                                                        10
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. Until those matters are determined, 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 until these

factual disputes are resolved.

                                           Conclusion

       Because there remains a genuine issue of material fact regarding the source 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, Judge, concur.




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