 

 

 

Missouri Court of Appeals

Western District
‘ANDREW GARRETT, )
Appellant, § WD78443
v. § OPINION FILED: September 6, 2016
MlCHAEL BROWN, §
Respondent. §

Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Kevin D. Harrell, Judge

Before Division Three: Joseph M. Ellis, Senior Judge, Presidingl, Karen King Mitchell,
Judge and Gary D. Witt, Judge

Appellant Andrew Garrett ("Garrett") appeals the grant of summary judgment by

the Circuit Court of Jackson County, in favor of Respondent Michael Brown ("Brown").

While working as a billposter for CBS Outdoor, Garrett was injured when he fell while

climbing a billboard structure. He brought suit against his co-employee and supervisor,

Brown, for violating the duty of care owed to Garrett. The court granted summary

judgment finding that Brown could not be liable for Garrett's injuries because they were

 

l Judge Ellis retired as an active member of the court on March l, 201 6, after oral argument in this case.
He has been assigned by the Chief Justice to participate in this decision as Senior Judge.

 

 

 

 

caused by CBS Outdoor's non-delegable duty to provide a safe work environment Garrett
alleges that the court erred in granting summary judgment because there was a genuine
issue of material fact as to whether Brown violated the policies of CBS Outdoor causing
Garrett's injuries and thus, may be liable. We reverse and remand
Factual Background2
ln 2007, Garrett worked for CBS Outdoor as a billposter installing billboard signs.
Brown served as his supervisor. As a billposter, Garrett would climb billboard structures
to hang advertising signs on the structures On ()ctober 26, Garrett was using a ladder to
climb a billboard structure The cross-brace on which his ladder was resting snapped,
causing him to fall and suffer injury.
CBS Outdoor had a Safety Manual that it and its employees were required to follow
("Safety Manual"). Section 19 of the Safety Manual required Brown, as Operations
Manager of the Kansas City market, to complete or schedule annual safety inspections of
y each structure using a specific document entitled Structure Maintenance and Safety
Checklist. Garrett alleges that, during his employment and prior to the October 26 accident,
Brown did not perform the required annual inspections of the billboard structures.
Additionally, prior to October l6, Brown routinely ignored reports from billposters of
structures that appeared to be unsafe. At times, after Brown received a report of a

potentially unsafe structure from one billposter, he would immediately send a second

 

` 2 On review of summary judgment, we view the record in the light most favorable to the party against
whom the judgment was entered. Hill v. Gov'l Emp. Ins. Co., 390 S.W.3d 187, 189 n. l (Mo. App. W.D. 2012).
"All reasonable inferences are given to the non-movant." Ia'.

2

 

 

 

 

 

 

billposter to the structure in question without inspecting the structure or informing the
second billposter that a safety concern was raised.

Due to Brown's prior behavior, although Garrett had concerns about the structure
upon which he was working on October 26, he did not report his safety concerns prior to
climbing the structure. Garrett brought suit against Brown claiming that Brown's violation
of CBS Outdoor policy caused his injury.

Brown sought summary judgment, arguing that, under the circumstances, he could
not be liable as a co-employee for Garrett's workplace injury as it fell under the employer's
non-delegable duty to provide a safe workplace The circuit court agreed, granting his

motion. Garrett 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. 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. We accord the non-
movant the benefit of all reasonable inferences from the record. 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.
Thus, [t]he propriety of summaryjudgment 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
McComb v. Norfus, WD 77761, at *3 (Mo. App. W.D. Sept. 6, 2016) quoting ITT
Commercial Fin. Corp. v. Mz'd-Am. Marine Supply Corp., 854 S.W.Zd 371, 376 (Mo. banc

1993) (internal citations and quotation marks omitted).

 

WMW~

Analysis

Garrett's sole point on appeal contends that summary judgment was improper
because there exists a genuine issue of material fact as to whether Brown's actions
constituted a breach of his employer's non-delegable duty to maintain a safe work
environment or a breach of Brown's own personal duty of care owed to Garrett. We agree.

There have been a number of changes to Missouri‘s law on co-employee negligence
since 2005. ln 2005, the Missouri legislature amended § 287.800 to require the Workers'
Compensation Act ("Act") to be strictly construed. In 2010, this Court held that strict
construction no longer allowed co-employees to be immunized under the statutory
definition of "employer" effectively removing those employees in some circumstances
from protections under the Act. Robinson v. Hooker, 323 S.W.3d 418, 423-25 (Mo. App.
W.D. 2010). ln 2012, the legislature again amended the Act by shielding co-employees
from civil liability unless their actions "purposefully and dangerously" injure a party. §
287.120 (2012). There exists then a body of law devoted to determining co-employee
liability for workplace injuries that occurred between the effective dates of the 2005 and
2012 amendments of the Act. Because Garrett's injury occurred in 2007, we will only be
discussing the statutes and case law applicable to this limited timeframe.

In Hansen v. Ritter, this Court noted 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 provisions of the Act." 375 S.W.3d 201, 207 (Mo. App. W.D.
4

 

 

 

 

 

2012). The court found that, it is only when "a co-employee . . . has violated an independent
duty to an injured employee [will the co-employee] be 'answerable to such person for the
consequences of his negligence."' ld. at 213, quoting Giles v. Mouna’ridge Milling Co.,
173 S.W.2d 745, 751 (Mo. 1943).

Two years later, in Leeper v. Asrnus this Court attempted to further clarify the state
of co-employee liability for workplace injuries. 440 S.W.3d 478 (Mo. App. W.D. 2014).
In doing so, we began by discussing the "something more" test which existed prior to the
2005 amendment of the Act which operated to immunize co-employees from liability for
ordinary negligence Id. at 490-92.3 We found the test, as applied in Missouri, was
inconsistent with the common law. Id. at 492. As a result, we established a two-step
analysis that was consistent with the common law to assist triers of fact in determining co-
employee liability. F or injuries occurring between 2005 and 2012, the analysis to be
applied is:

[I]t must first be determined whether a workplace injury is attributable to a

breach of the employer's non-delegable 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 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

whether the act or omission can be characterized as "something more"
Ia’. at 494 (internal footnotes omitted).

Leeper identifies five non-delegable safety duties owed by employers: (l) "provide

a safe place to work"; (2) "provide safe appliances, tools and equipment for the work"; (3)

 

3 Leeper provides a complete and thorough discussion of the development of the "something more" test
under Missouri law. lt is not necessary for the disposition of this case to reproduce the discussion here.

5

 

 

"give warning of dangers of which the employee might reasonably be expected to remain
ignorant"; (4) "provide a sufficient number of suitable fellow employees"; and (5)
"promulgate and enforce rules for conduct of employees which would make the work safe."
Id. at 484 (quoting W. Prosser, LAW OF TORTS, section 80, p. 526 (4th ed. 1971). If an
injury is caused by a breach of one of these non-delegable duties, a co-employee is not
liable ld.

According to Leeper, the injury must be caused "solely" by the breach of duty by
the co-employee. Id. at 496, n.l6.

The Missouri Supreme Court recently clarified the holding of Leeper and sought to
better define co-employee liability. Peters v. Waa’y Ina’ustries, ]nc., 489 S.W.3d 784 (Mo.
banc 2016); Parr v. Breeden, 489 S.W.3d 774 (Mo. banc 2016).4 ln Peters, the Court noted
that "to the extent that [Leeper] holds that that the existence of a duty is not purely a
question of law" it is overruled. As this Court noted in McComb, however, in all other
respects, Leeper remains good law including its holding 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."' McComb, WD77761 at *7 (quoting Leeper, 440 S.W.3d at 489, 494).

In other words, "the question becomes where the employer's non-delegable duty ends and

 

` 4 We find Parr to be distinguishable from this case ln Pa)'r, the court examined whether the plaintiffs had
adequately proved the existence of a duty on the part of the co-employee that was separate and distinct from the duty
owed by the employer. Parr, 489 S.W.3d at 782. ln this case, Garrett does not challenge that CBS Outdoor had a
non-delegable duty but rather argues that the actions of Brown fell outside the scope of that duty.

6

 

 

 

 

 

 

the employee's independent duty begins." Abbot v. Bolton, ED100773, 2016 WL 4097509,
at *3 (Mo. App. E.D. August 2, 2016).

Brown's Motion for Summary Judgrnent argued, and the circuit court found, that
Garrett's injuries were caused by CBS Outdoor's failure to provide a safe workplace and
thus there could be no co-employee liability. The court relied on Garrett's own admission
that "[b]ut for the structurally unsafe condition of the billboard for which [he] fell, [he]
would not have suffered [his] alleged injuries. . . ." Applying Garrett's statements to the
two-part test established in Leeper, the court held that the injury was caused by a non-
delegable duty of the employer under the first step and thus, it did not need to proceed to
the second step and there was no co-employee liability.

On appeal, Garrett argues that the circuit court erred in entering summary judgment
because there exists a genuine issue of material fact as to whether his injury was caused by
a breach of CBS Outdoor's duty or a personal duty owed by Brown to Garrett. He contends
that Brown violated a personal duty owed to Garrett by violating CBS Outdoor's policies
regarding workplace safety. In support of this, Garrett relies in large part on this Court's
recent ruling in McComb.

In McComb,5 a hospital delivery driver, Edward McComb, died while driving his
route in bad weather conditions. WD77761 at *l. Both before and during his shift he
contacted his supervisor, who in turn contacted another supervisor, regarding the

cancellation of his shift due to hazardous road conditions and the nonemergency nature of

 

5 McComb was originally decided April 21, 2015, after the circuit court entered judgment in the case at bar
on February 5, 2015. Following the Supreme Court's decisions in Parr and Peters, McComb was reissued on

September 6, 2016.

 

 

the items he was to deliver that day. Id. at *2. Both times McComb was instructed to
continue driving his route Id. at *3. Near the end of his shift, McComb's vehicle slid off
the road resulting in his death. Id. Following McComb's death, his wife brought suit
against the two supervisors that instructed McComb to continue his route Id. The trial
court granted summary judgment to supervisors who argued the suit was barred by the
workers' compensation statute's exclusivity provision. Id. This Court reversed and
remanded the matter for further proceedings Ia’. at *7-12.

The Court cited to Leeper noting if "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. at *8. lt further
notes, however, that under the analysis of Leeper, "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 *9, quoting Leeper, 440
S.W.3d at 488.

McComb held that there were a number of relevant facts and circumstances still in
dispute regarding the safety of the work environment and those questions of fact were
material and precluded summary judgment Specifically, the Court highlighted three
factual questions that were relevant:

l. Did employer have a policy regarding whether couriers should be sent on their

route during inclement weather? "[I]f it did not have such a policy, then

[l\/lcComb's] death would be attributable to his employer's failure to discharge

8

 

 

 

its non-delegable duties to provide [McComb] with a safe workplace and to

ensure that the work instrumentalities were safely used, and [Supervisors] would

 

face no personal liability." Id. at *10. The court also recognized the relevance
of facts such as "whether the policy is communicated effectively," "whether
training and supervision are provided," and "employer's awareness and
acceptance of deviations from the policy." Id. at *9, n. l0. §

2. Was any relevant policy followed? "If not . . . [McComb's] death may have been

 

attributable to a personal duty owed by his co-employees." Ia’. at * lO.

3. If the policy was violated by keeping McComb on his route did his supervisor's
violation of the policy "alone, render [McComb's] otherwise safe work
environment unsafe?" Id. at *ll. "If so, then [McComb's] death was likely

attributable to a personal duty owed him by [Supervisors], subjecting them to

 

potential liability under the common law." Id.
These questions were intended to determine whether there was an otherwise safe
work environment established by the employer but that McComb was injured as a result of
decisions co-employees lnade contrary to company policies. An employer may meet its

duty of establishing a safe workplace but the workplace may be rendered unsafe by a co-

 

employee failing to follow guidelines established by the employer for safety. Leeper, 440
S.W.3d at 496; McComb, WD77761 at * l l. Where the employer establishes a safe
environment but co-employee violates workplace rules to cause an unsafe environment the

co-employee may have violated a "personal duty" owed to plaintiff.

 

This is not to say, however, that an employer may simply delegate safety to a co-
employee Leeper, 440 S.W.3d at 493 ("Charging a co-employee with a 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."); Hansen, 375 S.W.3d at 217 ("[A] co-employee's
personal duties to fellow employees do not include a legal duty to perform the employer's
non-delegable duties. Unless a petition asserts a personal duty owed by a co-employee that
exists independent of the employer's non-delegable duties, and thus a duty that would exist
independent of the master-servant relationship, the petition will not survive a motion to
dismiss for failure to state a cause of action for negligence.") lnstead, a co-employee may
be liable where an individual employee acted to render the work environment unsafe
"When . . . 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 Peters, an employee sought recovery from his employer's project manager, under
a theory of co-employee liability, for an injury resulting from the "stacking, loading, and
transporting" of dowel baskets in an unsafe manner that had "become standard operating
procedure." Id. at 799. The Court found that the employee alleged he was injured because
he was ordered to conduct his work in an allegedly unsafe manner "in the course of
business." Id. at 800. This distinguished the case from a situation in which "a co-employee

negligently carried out some detail or aspect of his work." Id.

10

 

 

"The employer's duty to provide a safe workplace is not unlimited." Id. at 795. An
employer's duty "does not extend to protecting them from the transitory risks [that] are
created by the negligence of the [employees] themselves in carrying out the details of that
work." Ia’. As stated in Abbot:

[W]here the employer directed the employee to act in a negligent manner or

had a negligent standard operating procedure in place, the employee's

negligence is subsumed in the employer's duties; however, where the

employee is negligent on his own in carrying out the details of the work, any
resulting injuries are attributable to the employee's breach of his or her
separate and distinct common-law duty of care

Abbot, 2016 WL 4097509 at *3.

We find the facts of this case, as they exist at this stage, to be more similar to that
of McComb and Abbot than that of Peters, and warrant remanding the case for further
factual determinations Like McComb and Abbot, the employee made allegations that the
behavior of the co-employee exceeded the scope of the employer's non-delegable duty.
That the employer had established a safe work environment but that the co-employee acted
on his own in carrying out the details of his work in a dangerous or negligent manner. In
Peters, there was no allegation that the employer attempted to create a safe work
environment beyond simply directing the project manager to create such an environment
Thus, to the extent that the project manager acted negligently, it was merely on behalf of
the employer. In this case, Garrett specifically alleged that CBS Outdoor had written

regulations in place directing Brown how to create a safe work environment To the extent

that evidence may show that Brown failed to follow those procedures, despite proper

ll

 

 

oversight by CBS Outdoor, Garrett's injury could have been caused solely by his co-
employee's negligence because it was outside the scope of CBS Outdoor's duty.

Garrett alleges that his injuries were caused by Brown's failure to adhere to the
policies of CBS Outdoor. He alleges his injuries were caused by the "structurally unsafe
condition of the billboard" from which he fell.6 CBS Outdoor implemented policies to
keep those billboards safe, and it instructed Brown to implement its safety policies to make
the billboards safe The question then becomes, was it solely Brown's failure to follow the
policy which caused the billboard in question to be unsafe or was it CBS Outdoor's failure
over time to enforce its policy which caused the billboard to be unsafe?

There are facts in the record to suggest that Brown's violations of the CBS Outdoor's
policy regarding the inspection and repair of billboards was a longstanding issue
However, there is nothing in the record as to CBS Outdoor's knowledge of the violations
and what steps they may or may not have taken to enforce the policy. If CBS Outdoor had
the policy and took reasonable steps to ensure that the policy was communicated to Brown,
that Brown was properly trained on the policy and that the policy was enforced by Brown,
then Brown's violation of the policy under these facts may have constituted a violation of
his personal duty owed to his co-employee Garrett. See McComb, WD77761 at *9-11.
However, if CBS Outdoor was aware of longstanding violations of the policy by Brown

and took no reasonable action to enforce the policy, then it may be found that CBS Gutdoor

 

6 The record contains a number of these admissions stating that "[his] injury was caused, at least in part, by
the fact that his workplace . . . was not reasonably safe."

12

 

 

 

failed to discharge its non-delegable duty to provide a safe work environment for Garrett

and Brown and would face no liability, Id. at *10-12.

 

Conclusion

Because there is a genuine issue of material fact as to this narrow issue, we reverse §

the grant of summary judgment and remand the matter to the trial court

 

 

Gary D. Witt, ludge

All concur

 

13

 

