PAIGE PARR, a minor, by and through            )
her Conservator, JANETT WAID,                  )
JERIMY MOREHEAD, and CHARLES                   )
PARR,                                          )
                                               )
               Plaintiffs-Appellants,          )
                                               )
       vs.                                     )               No. SD32602
                                               )               Filed: August 6, 2014
CHARLES BREEDEN, WENDY                         )
COGDILL, and MELANIE BUTTRY,                   )
                                               )
               Defendants-Respondents.         )

        APPEAL FROM THE CIRCUIT COURT OF NEW MADRID COUNTY

                        Honorable Fred W. Copeland, Circuit Judge

AFFIRMED

       On April 28, 2008, Kevin Parr (“Parr”) was killed when the commercial motor

vehicle he was driving for his employer, Breeden Transportation, Inc., left the road in a

single vehicle accident. His two children and father (“Plaintiffs”) appeal from the trial

court’s grant of summary judgment to three of Parr’s supervisory co-employees on

Plaintiffs’ claim for Parr’s wrongful death based on alleged workplace negligence.

Plaintiffs raise two points on appeal. At its core, each point claims that the trial court




                                              1
erred in granting summary judgment because the record shows a genuine issue of

material fact that if true would establish that the co-employee defendants owed Parr a

legal duty sufficient to support a cause of action for workplace negligence. In view of the

fact the points raise a common issue, we combine the points and consider them as a

single point. We conclude that the co-employee defendants as a matter of law owed no

legal duty to Parr under the common law, and that the Federal Motor Carrier Safety

Administration regulations did not impose a separate legal duty on the co-employee

defendants independent of the common law. The trial court’s grant of summary

judgment to the co-employee defendants is affirmed.

                                   Facts and Procedural History

         A little less than two years after the single-car accident that killed Parr, his two

children and father filed a suit for wrongful death against three of Parr’s co-employees –

Charles Breeden, President of Breeden Transportation, Wendy Cogdill (now Wendy

Knupp), Director of Safety, and Melany Buttry,1 an employee with the responsibility of

“making sure drivers complied with health and safety regulations” (“Defendant Co-

Employees”).2 In their Second Amended Petition, Plaintiffs alleged that Defendant Co-

Employees “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.” Based on this duty allegedly owed by

Defendant Co-Employees to Plaintiffs’ decedent, Plaintiffs asserted two causes of action

1
 The parties spell Ms. Buttry’s first name as “Melanie.” In an affidavit in the record, Ms. Buttry spelled
her first name “Melany,” and we use that spelling in our opinion.
2
 Wendy Cogdill denies she was Director of Safety or supervisor, and there is conflicting testimony about
whether or not Melany Buttry was dispatcher; however, neither matters for purposes of this appeal.


                                                     2
against Defendant Co-Employees: (1) “[g]eneral [n]egligence,” and (2) “despite

knowing, or reasonably knowing, of Kevin Parr’s [medical conditions], directed Kevin

Parr to drive a tractor-trailer owned and/or operated by Breeden Transportation, Inc. on

April 28, 2008, which direction was dangerous and reasonably recognizable to be

hazardous and beyond the usual requirements of employment.”

       Defendant Co-Employees filed a motion for summary judgment. One ground for

summary judgment asserted in the motion was that “plaintiffs are unable to offer any

proof that defendants breached a duty owed to decedent.” Viewing the record in the light

most favorable to Plaintiffs as we must do under our standard of review, the

uncontroverted facts and reasonable inferences from the record included the following:

(1) “Kevin Parr was employed by Breeden Transportation, Inc. and[, on April 28, 2008,

was] driving northbound on Interstate 55 hauling gas when he was involved in a fatal

vehicle accident;” (2) “Defendants were employees of Breeden Transportation, Inc. at all

times material to this lawsuit” with the responsibilities described above; (3) A medical

examiner certified in a November 2, 2007 medical examination report that Parr was

“physically fit to operate a commercial motor vehicle” and “qualifies for 2 year

certificate;” (4) The November 2, 2007 report indicated that Parr “[s]mokes” and was

“[o]verweight” but did not “reveal” any disqualifying medical condition; and (5) Breeden

Transportation, Inc., did not investigate December 2006 and April 11, 2008 commercial

motor vehicle accidents in which Parr was involved other than asking Parr how the

accident occurred, did not require that Parr receive education or training after either of

the accidents, and did not require that Parr be recertified as physically fit to operate a

commercial motor vehicle by a medical examiner after the April 11, 2008 accident.




                                               3
           In Plaintiffs’ memorandum in opposition to summary judgment, Plaintiffs argued

that Defendant Co-Employees breached the duty they owed Plaintiffs’ decedent:

           by failing to remove Mr. Parr from the road, pending a medical evaluation
           and/or treatment, at minimum following the accident of April 11, 2008.
           Further exacerbating the breach, Defendants utterly failed to inquire into
           whether Mr. Parr had any sort of health condition that may have
           contributed to either of his prior single vehicle accidents.

Plaintiffs further argued that they:

           have also presented evidence of Defendants’ affirmative acts which
           injured Mr. Parr. Defendants clearly placed Mr. Parr back on the road
           when they were aware, or should have been aware, that he was not safe to
           operate a motor vehicle. This affirmative placing of Mr. Parr back on the
           road, without even bothering to ask him about his health following two
           previous single vehicle accidents, the most recent of which was only 17
           days before the fatal accident is more than enough to create a genuine
           issue of material fact as to whether Defendants breached the “Something
           More” doctrine.

           After the court entered a docket entry granting summary judgment, Plaintiffs filed

a motion to “alter” judgment and argued for the first time that the Federal Motor Carrier

Safety Administration regulations imposed on Defendant Co-Employees a legal duty to

Parr that was independent of Missouri common law. The motion to “alter” the judgment

was denied.

                                            Standard of Review

           Under Rule 74.04(c),3 a moving party is entitled to summary judgment if the

summary judgment record shows “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));

ITT Commercial Finance Corporation v. Mid-America Marine Supply Corporation,

854 S.W.2d 371, 380-82 (Mo. banc 1993). A “genuine issue”:



3
    All references to rules are to Missouri Court Rules (2014).


                                                        4
        exists where the record contains competent materials that evidence two
        plausible, but contradictory, accounts of the essential facts. A “genuine
        issue” is a dispute that is real, not merely argumentative, imaginary or
        frivolous. Where the “genuine issues” raised by the non-movant are
        merely argumentative, imaginary or frivolous, summary judgment is
        proper.

ITT Commercial, 854 S.W.2d at 382. Further:

        Where a “defending party” will not bear the burden of persuasion at trial,
        that party need not controvert each element of the non-movant's claim in
        order to establish a right to summary judgment. Rather, a “defending
        party” may establish a right to judgment by showing (1) facts that negate
        any one of the claimant's elements facts, (2) that the non-movant, after an
        adequate period of discovery, has not been able to produce, 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) that there is no
        genuine dispute as to the existence of each of the facts necessary to
        support the movant's properly-pleaded affirmative defense. Regardless of
        which of these three means is employed by the “defending party,” each
        establishes a right to judgment as a matter of law.

Id. at 381.

        In reviewing whether the trial court properly granted summary judgment, we:

        review the record in the light most favorable to the party against whom
        judgment was entered. Zafft v. Eli Lilly, 676 S.W.2d 241, 244 (Mo. banc
        1984); Cooper v. Finke, 376 S.W.2d 225, 228 (Mo.1964). 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. Cherry v. City of Hayti Heights, 563 S.W.2d 72, 75
        (Mo. banc 1978); Dietrich v. Pulitzer Publishing Company, 422 S.W.2d
        330, 333 (Mo.1986). We accord the non-movant the benefit of all
        reasonable inferences from the record. Martin v. City of Washington, 848
        S.W.2d 487, 489 (Mo. banc 1993); Madden v. C & K Barbecue Carryout,
        Inc., 758 S.W.2d 59, 61 (Mo. banc 1988).
                Our review is essentially de novo. The 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. E.O. Dorsch Electric Co. v. Plaza Const.
        Co., 413 S.W.2d 167, 169 (Mo.1967). The propriety of summary
        judgment 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. Elliott v.




                                            5
        Harris, 423 S.W.2d 831, 834 (Mo. banc 1968); Swink v. Swink, 367
        S.W.2d 575, 578 (Mo.1963).

Id. at 376.

                                             Analysis

        As mentioned previously, each of Plaintiffs’ two points relied on at its core claims

that the trial court erred in granting summary judgment because the record shows a

genuine issue of material fact that if true would establish that Defendant Co-Employees

owed fellow employee Parr a legal duty sufficient to support a cause of action for

workplace negligence.4 Plaintiffs contend that their claims fall squarely within the

“something more” doctrine of State ex rel. Badami v. Gaertner, 630 S.W.2d 175 (Mo.

App. E.D. 1982) (en banc), or the common law as set forth in Hansen v. Ritter, 375

S.W.3d 201, 208 (Mo. App. W.D. 2012).

        An employee’s common-law cause of action against a co-employee for workplace

negligence has the same elements as all claims of negligence – (1) “existence of a duty,”

(2) breach of that duty, and (3) injury proximately caused by the breach. Hansen, 375

S.W.3d at 208. “‘[T]he threshold matter is to establish the existence of a duty owed by

the co-employee.’” Id. (internal citation omitted); see also Id. at 213. Unlike the other

elements of a negligence cause of action, the existence of a duty is a question of law for

the court. Id. at 208; see also Leeper v. Asmus, No. WD76772, ___ S.W.3d ___, 2014

WL 2190966, at *3 (Mo. App. W.D. May 27, 2014) (“existence of duty is a question of

law to be decided by the court” (internal citation omitted)).



4
 Our analysis is confined to the period between the amendment of the Workers’ Compensation Law in
2005 and 2012 when an employee retained a common-law cause of action against a co-employee for
workplace negligence that occurred in that period. Leeper v. Asmus, No. WD76772, ___ S.W.3d ___,
2014 WL 2190966, at *1 (Mo. App. W.D. May 27, 2014).


                                                  6
          At common law, an employer has a general, non-delegable duty to use reasonable

care, and this general duty gives rise to five, specific, non-delegable duties relevant to

safety:

          (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, 375 S.W.3d at 208 (internal citations omitted); see also Leeper, 2014 WL

2190966, at *5-6. An employer’s non-delegable duties are continuing in nature. Leeper,

2014 WL 2190966, at *6.

          Further, at common law:

          a co-employee who has violated an independent duty to an injured
          employee will be “answerable to such person for the consequences of his
          negligence, and he may not escape liability on the supposed differences in
          nonfeasance, misfeasance and malfeasance.” Giles v. Moundridge Milling
          Co., 351 Mo. 568, 173 S.W.2d 745, 751 (1943) (citing Devine, 349 Mo.
          621, 162 S.W.2d 813; Lambert, 339 Mo. 677, 98 S.W.2d 752) (other
          internal citations omitted). However, a co-employee’s independent duties
          owed to fellow employees do not include the duty to perform the
          employer’s non-delegable duties, as those duties necessarily derive from,
          and are not independent of, the master-servant relationship.

Hansen, 375 S.W.3d at 213-14, 217; see also Leeper, 2014 WL 2190966, at *4 (“a co-

employee’s personal duties to fellow employees do not encompass a legal duty to

perform the employer’s nondelegable duties” (internal citation omitted)).

          The “something more” standard is not part of the common law, and a co-

employee may owe an independent duty to another co-employee under the common law

only when the co-employee’s “workplace injury is in no way attributable to the

employer's breach of its non-delegable duties.” Leeper, 2014 WL 2190966, at *1-2, *13,




                                              7
*17 & n.16. Plaintiffs argue that Leeper controls the resolution of this summary

judgment. Leeper is not controlling.

       Plaintiffs’ claim is that Defendant Co-Employees owed Parr a duty (1) to provide

a safe working environment to Parr, (2) to monitor the physical condition of Parr to

determine if he was fit to drive a tractor trailer, and (3) to determine whether Parr was in

compliance with the Federal Motor Carrier Safety Administration Regulations. The first

allegation was clearly the non-delegable duty of the employer under the common law and

workers’ compensation statutes. The second is a contention that co-employees have a

legal duty to protect Parr from his own decision to work as a driver and his own conduct

with respect to his health and employment as a driver of a commercial motor vehicle. To

be clear, we are not talking about a duty to the general public. We are not talking about

an action that increased Parr’s risk of harm to others. Plaintiffs have not referred us to

any authority that supports the existence of such a duty on the part of co-employees to

their co-employee, and we are not aware of any authority that supports Plaintiffs’ claim.

Likewise, we find no authority that the Federal Motor Carrier Safety Administration

Regulations created an independent duty of co-employees to determine whether Parr was

a danger to himself based on his own health history.

       As importantly, the only affirmative act by Defendant Co-Employees alleged and

supported by reasonable inferences from the record was that Defendant Co-Employees

assigned Parr to deliver goods by driving a commercial motor vehicle. Assigning Parr

this type of work was a normal job duty necessarily attendant to performing the

employer’s business as directed by the employer. He had received a clean bill of health

five months prior to the accident in question. Further, if Parr’s death was attributable to




                                              8
the breach of any duty or duties, it was attributable at least in part to breach of the

employer’s non-delegable duties to enforce safety rules (including the Federal Motor

Carrier Safety Administration regulations), to provide competent employees (i.e., drivers

that were medically able to operate commercial motor vehicles safely), and to provide a

safe workplace. As a result, Defendant Co-Employees owed Plaintiffs’ decedent no legal

duty as a matter of law under either the “something more” standard or the common law.

       Plaintiffs’ points are denied, and the trial court’s grant of summary judgment to

Defendant Co-Employees is affirmed.



Nancy Steffen Rahmeyer, P.J. – Opinion Author

Daniel E. Scott, J. – Concurs

William W. Francis, Jr., C.J. – Dissents In Separate Opinion




                                               9
PAIGE PARR, a minor, by and through                  )
her Conservator, JANETT WAID,                        )
JERIMY MOREHEAD and CHARLES PARR,                    )
                                                     )
                Plaintiffs-Appellants,               )
                                                     )
        vs.                                          )      No. SD32602
                                                     )
CHARLES BREEDEN, WENDY COGDILL,                      )
and MELANIE BUTTRY,                                  )
                                                     )
                Defendants-Respondents.              )

                                     DISSENTING OPINION

        I respectfully dissent. In my opinion, the majority opinion mischaracterizes the points

relied on by Kevin Parr’s survivors (“Survivors”), which leads to not only an incorrect analysis,

but an incorrect result.

        Survivors’ first point states as follows:

        The trial court erred in entering summary judgment in favor of Respondents
        Charles Breeden, Wendy Cogdill, and Melanie Buttry because a genuine issue of
        material fact exists as to whether Respondents knew or should have known Kevin
        Parr was not safe to operate a commercial motor vehicle in that Respondents
        admitted that they have a duty to ensure that every driver who drove for Breeden
        Transportation was safe to operate a commercial motor vehicle, that Respondents
        knew or should have been aware of Kevin Parr’s inability to safely operate a
        commercial motor vehicle due to his health condition and two previous single
        vehicle accidents within the eighteen months preceding his fatal accident, and that
        Respondents failed to take steps to address Kevin Parr’s condition, thus causing
        or contributing to cause the fatal accident of April 28, 2008.
Survivors’ second point states as follows:

       The trial court erred in entering summary judgment in favor of Respondents
       because there was at minimum a genuine issue of material fact as to whether
       Respondents breached their individual duties, separate and apart from the
       nondelegable duties of an employer, which arose from federal regulations in that
       Respondents failed to take the steps to either remove Kevin Parr from the road,
       have him medically recertified, or provide him with additional training following
       his multiple accidents, thus causing or contributing to cause the accident resulting
       in Kevin Parr’s death on April 28, 2008.

       By combining the points into one, for purposes of analysis, the majority opinion

concludes the points raise a common issue. They do not.

       Point I speaks to a genuine issue of material fact as to whether Co-Employee

Respondents knew or should have known that Parr was not safe to operate a commercial motor

vehicle, and goes on to contend that Co-Employee Respondents admitted they had a duty to

ensure that every driver who drives for Breeden Transportation was safe to operate a commercial

motor vehicle. If Survivors were able to present their evidence to a jury, raised by this point,

they would have the opportunity to prove Parr was unable to safely operate a commercial motor

vehicle because of his health condition and the two previous single motor vehicle accidents he

had within 18 months, of which caused or contributed to cause his fatal accident. Survivors

alleged these facts, but the majority opinion precludes them from ever having an opportunity to

prove these facts to a jury.

       Point II speaks to different issues. Point II speaks to a genuine issue of material fact as to

whether Co-Employee Respondents breached their individual duties to Parr, separate and apart

from the nondelegable duties of an employer, to provide a safe place to work. Those duties arise

from federal regulations, which if followed, would have resulted in requesting medical

recertification for Parr or providing him with additional training. These failures caused or

contributed to cause his death thus creating the cause of action in Survivors—a statutorily

                                                 2
created cause of action permitted by section 537.080,1 which was first codified by our General

Assembly in 1939. In other words, “but for” the failure of Co-Employee Respondents, as alleged

in this case, it certainly can be argued that Survivors would not have a need to file this litigation.

Since the majority opinion deprives Survivors of the ability to attempt to prove their case before

a jury, this is another question to which we will never know the answer.

           Unfortunately, by combining these points, Survivors are deprived of their day in court.

In my opinion, Survivors will never know whether Co-Employee Respondents did or did not

fulfill their duties to Parr.

           It is also my opinion that the majority opinion incorrectly concludes the issue of a legal

duty raised by this appeal and the analysis that leads to that conclusion.

           The majority opinion concludes that Co-Employee Respondents, as a matter of law, did

not owe a legal duty to Parr, which duty is now raised by Survivors. By characterizing this

appeal as presenting nothing more than an interpretation of the law as to the legal duty owed by

Co-Employee Respondents to Survivors, the majority opinion overlooks or ignores precedent in

our state.

       The majority opinion concludes that Co-Employee Respondents owed no legal duty under

the common law to Parr, and as asserted by Survivors here, to Survivors themselves. That is

incorrect. In Leeper v. Asmus, --- S.W.3d ---- 2014 WL 2190966 (Mo.App. W.D. May 27,

2014) reh’g and/or transfer denied June 24, 2014, the Western District outlined in great detail

how and why co-employees are responsible to one another between the legislature’s amendments

in 2005 and 2012.

       In Leeper, an employee injured while working on a drilling rig brought a negligence action

against a co-employee, alleging breach of co-employee’s common law duty of care in failing to
1
    All references to statutes are to RSMo 2000, unless otherwise indicated.

                                                            3
perform his job duties as he had been directed, thereby causing employee’s injuries. Id. at *1.

The Western District held that the dismissal was predicated on an incorrect statement of Missouri

law, warranting reversal and remand. Id. at *17. Specifically, the Court held that there was a

common law duty owed by co-employee to employee independent of employer’s non-delegable

duties. Id.

       In Leeper, the Western District explained:

       Leeper raises a single point on appeal. . . . In effect, Leeper argues that the
       common law duty owed by a co-employee in negligence does not align with the
       “something more” test. We agree.

       The Legislature’s 2005 Amendment to Section 287.800 Restored the Common
       Law of Co–Employee Negligence

               The 2005 amendment to section 287.800 required the [Workers’
       Compensation] Act to be strictly construed. In Robinson [v. Hooker, 323 S.W.3d
       418 (Mo.App.W.D.2010)] we held that strict construction no longer permitted us
       to construe the Act to immunize co-employees by sweeping their conduct into the
       statutory definition of “employer.” [Id.] at 423–25. The effect of strict
       construction of the Act was to remove co-employees, in most circumstances, from
       the protective reach of the Act’s exclusivity provision. Id. at 425.

       Many misread Robinson as creating a carte blanche right to pursue claims of co-
       employee negligence for all workplace injuries. Hansen [v. Ritter, 375 S.W.3d
       201 (Mo.App.W.D.2012)] clarified that Robinson did not create an otherwise non-
       existent remedy against co-employees. [Id.] at 207. Instead, Robinson held that
       the 2005 amendment of the Act restored the remedy against co-employees as it
       existed at common law. Id. Hansen addressed the common law remedy against
       co-employees and determined that:

              [A]t common law, a co-employee who has violated an independent
              duty to an injured employee will be “answerable to such person for
              the consequences of his negligence.” ... However, a co-employee’s
              independent duties owed to fellow employees do not include the
              duty to perform the employer’s nondelegable duties, as those
              duties necessarily derive from, and are not independent of, the
              master-servant relationship.

       Id. at 213–14 (citation omitted) (emphasis in original). Thus, for workplace
       injuries subject to the 2005 amendment of the Act, injured employees could
       separately pursue a cause of action against negligent co-employees so long as the

                                               4
co-employee owed the injured employee a duty of care at common law. “[U]nder
the common law, a co-employee’s personal duties to fellow employees do not
encompass a legal duty to perform the employer’s nondelegable duties.” Carman
v. Wieland, 406 S.W.3d 70, 77 (Mo.App.E.D.2013) (citing Hansen, 375 S.W.3d
at 217).

        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.” Hansen, 375 S.W.3d at 217. The plaintiff in
Hansen did not allege independent duties owed by a co-employee, but instead
pled that the co-employee was “assigned the duty to provide a safe workplace,”
and thus the duty to perform the employer’s nondelegable duties. Id. at 206.
Here, in stark contrast, Leeper has attempted in his amended petition to
differentiate between a personal duty owed by Asmus and the employer’s
nondelegable duties. We must determine whether Leeper’s allegations are
sufficient to establish that Asmus owed an independent duty of care. “Unless a
petition asserts a personal duty owed by a co-employee that exists independent of
the employer’s nondelegable 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.” Hansen, 375 S.W.3d
at 217.

At Common Law, it Must First be Determined Whether a Workplace Injury is
Attributable to a Breach of The Employer's Nondelegable Duties, a Question of
Fact

At common law, employers could be sued in negligence for workplace injuries.
Employers owed employees the general duty to exercise ordinary care to protect
employees from the foreseeable risks and perils of employment. Kelso v. W.A.
Ross Constr. Co., 337 Mo. 202, 85 S.W.2d 527, 534 (1935) (observing that the
employer’s specific nondelegable duties arise from the general duty of an
employer to use “the reasonable care of the average prudent person under similar
circumstances”); Moles v. Kansas City Stock Yards Co. of Maine, 434 S.W.2d
752, 754 (Mo.App.1968) (holding that at common law, “[a] duty rests upon the
[employer] not to expose the [employee], in the discharge of his duty, to perils
and dangers against which the master may guard by the exercise of reasonable
care”) (citation omitted). The employer’s general duty of care was nondelegable,
and manifested itself in several specific nondelegable duties:

       1. The duty to provide a safe place to work.

       2. The duty to provide safe appliances, tools and equipment for the
       work.

       3. The duty to give warning of dangers of which the employee
       might reasonably be expected to remain ignorant.

                                        5
       4. The duty to provide a sufficient number of suitable fellow
       employees.

       5. The duty to promulgate and enforce rules for the conduct of
       employees which would make the work safe.

W. Prosser, LAW OF TORTS, section 80, p. 526 (4th ed.1971); see also Hansen,
375 S.W.3d at 208–09; Carman, 406 S.W.3d at 76–77. Because the employer’s
general and specific duties of care are nondelegable, “the employer cannot escape
its dut[ies] by delegating the task to another. When an employee fails to perform
[one of] the employer’s nondelegable duty, the failure rests with the employer, not
the employee.” Carman, 406 S.W.3d at 76–77. Thus, at common law, co-
employees were not chargeable in negligence for injuries attributable to the
employer’s breach of a nondelegable duty. Kelso, 85 S.W.2d at 534. The
underpinning for this rule recognized that employees have no meaningful ability
to control whether an employer’s nondelegable duties will be performed. Id.
(holding that the employer’s nondelegable duties “often concern matters beyond
the control of individual employees”); see also, Stitt by Stitt v. Raytown Sports
Ass’n, Inc., 961 S.W.2d 927, 930 (Mo.App.W.D.1998) (holding that duty requires
alleged tortfeasor to have “some right or obligation to control the activity which
presents the danger of injury”).

        The employer’s nondelegable duties are continuing in nature. Bender v.
Kroger Grocery & Baking Co., 310 Mo. 488, 276 S.W. 405, 408 (1925). Thus,
“[t]he [employer] [is] liable for the negligent performance of any act directed by it
to be performed by any employee, whether of high or the most lowly degree,
which affect[s] the safety of th[e] [work]place. The duty of exercising ordinary
care to keep such [work]place reasonably safe [is] a continuing and nondelegable
duty.” Id. (emphasis added). Risks that are attendant to performing the
employer’s work as directed are thus necessarily subsumed within the employer’s
nondelegable duties, and cannot support an independent personal duty owed by a
co-employee. Kelso, 85 S.W.2d at 534.

Though the employer’s nondelegable duties are expansive and continuing in
nature, they are not unlimited. At common law, “[e]mployers are not insurers of
the safety of employees.” Graczak v. City of St. Louis, 356 Mo. 536, 202 S.W.2d
775, 777 (1947). See also Moles, 434 S.W.2d at 754 (“[A] master is not an
insurer against injuries which a servant may incur in the discharge of his duties.”).
It follows 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. To 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
In Gimmarro v. Kansas City, 342 Mo. 428, 116 S.W.2d 11 (1937), our Supreme
Court held that the employer breached its nondelegable duty to provide a
reasonably safe place to work. 116 S.W.2d at 12–13. The employer should have
known of the danger of requiring employees to work in trenches below excavated
rock without the presence of barricades. Id. at 13. In other words, the employer
negligently permitted a hazardous condition and an unsafe place to work. Id.
Because the employer breached its nondelegable duties, the employer was liable
in negligence when a foreman ordered the plaintiff to work in the dangerous
location. Id.

In Bender, an employee ordered an employee to detach and move a tractor from
the trailer it had been hauling, but failed to warn a third employee inside the
trailer. 276 S.W. at 405–06. The employee who disconnected and moved the
tractor failed to put down the trailer leg, causing the employee inside the trailer to
be injured when the trailer tipped forward. Id. at 406. The court concluded that
the order to detach and move the tractor from the trailer was attendant to
performing the employer’s work as directed, and that the resulting injury was thus
attributable to the employer’s nondelegable duty to see that its work as directed
was not negligently performed. Id. at 407–08. The employer was liable in
negligence, but the negligent employee was not.

       The outcomes in Gimmarro and Bender are illustrative of the broad
expanse of the employer’s nondelegable duties. An employer must create a safe
work environment, and must take precautions to protect against foreseeable risks
and perils in the work environment, as in Gimmarro. And because the
nondelegable duties are continuing, tasks necessarily attendant to the employer’s
work and performed at the employer’s direction are normally chargeable to the
employer’s nondelegable duties if negligently performed, as in Bender.

However, because employers are not insurers against workplace injuries at
common law, some workplace injuries cannot be attributed to a breach of the
employer’s nondelegable duties. In Marshall v. Kansas City, 296 S.W.2d 1, 2
(Mo.1956), the Supreme Court set aside a verdict in favor of an employee
premised on the theory that the employer negligently failed to furnish safe tools
and a safe place to work. Plaintiff was injured when a co-employee, who had
been directed to get and connect a hose to a compressor by a foreman, began
shaking and pulling on the hose to remove kinks. Id. In the process, the plaintiff
became entangled in the hose, and was tripped by the jerking movements of the
hose. Id. The Supreme Court explained the difference between an employer’s
nondelegable duties and duties owed independently by a co-employee. The
lengthy discussion is instructive:




                                          7
       The employer, here the city, owes to its employees the
       nondelegable duty to furnish safe tools and appliances and a
       reasonably safe place to work and failing in these respects is
       subject to liability for injury resulting to its employees. There
       were kinks in the hose and it was necessary to get them out before
       attaching the hose to the jackhammer, but there is no evidence or
       claim by the appellant that the hose was defective; [Plaintiff’s]
       injury came about by reason of [co-employee’s] negligent use of
       the hose and not because it was defective. Likewise the place of
       work was not unsafe and the hazard was not brought about by the
       manner in which the work was being done; the danger came about
       by reason of the manner in which [co-employee] handled the
       hose.... [Co-employee’s] suddenly and unexpectedly jerking the
       hose and tripping [Plaintiff] was not, of course, the exercise of
       due care on his part, but it does not support the inference or
       demonstrate negligence on the part of the city with respect to
       either the tools furnished, place of work or the manner in which
       the work was being done. In the particular circumstances it can
       only be said ... that [Plaintiff’s] injuries resulted from the
       negligent act of his fellow employee and not be reason of the
       breach of any nondelegable duty owed by the city.

Id. at 3 (internal citations and quotations omitted) (emphasis added). The court
contrasted its holdings in other cases, including Gimmarro, noting particularly
that Gimmarro “is a typical illustration of injury and liability resulting from a
hazardous condition and an unsafe place to work due to the method or manner in
which work was being done.” Id.

         Marshall’s emphasis on the fact that its holding was dependent upon the
“particular circumstances” before it is significant. Id. Had the facts in Marshall
supported the inference that the employer knew or should have known of its
employee’s careless conduct and failed to take measures to remediate the risk or
peril, then a fact finder could have concluded that the workplace injury was the
result of a breach of the employer’s nondelegable duties. Or, had the co-
employee in Marshall been directed by a supervisor to shake the hose to remove
kinks, the workplace injury would have been attributable to the employer’s non-
delegable duties as the co-employee would have been performing his work as
directed, albeit negligently. The salient point is that at common law, before
assessing whether a co-employee owed an independent duty of care, it was first
required to determine whether the workplace injury was attributable to a breach of
the employer’s nondelegable duties, a question of fact.




                                        8
The Supreme Court clearly articulated this point in Kelso:

       Since negligence in a master and servant case depends upon the
       existence of a duty on the part of the master, the ultimate question
       to be first determined in every case is whether the master is guilty
       of a breach of duty to the servant who brings the action.

85 S.W.2d at 534 (internal citations and quotations omitted) (emphasis added). In
Kelso, an employee was injured by a truck while working on crushed rock piles.
Id. at 533–34. The employer contended that it owed no duty to the employee, and
that the employee’s injuries were a result of his own negligence or the negligence
of the co-employee truck driver for whom the employer was not liable. Id. at 534.
The employee contended that his claims against the employer were based on the
employer’s “nondelegable duties with reference to the safety of the place and the
method in which the work was done there.” Id. The Supreme Court concluded
that it was a proper question for the jury in that case whether “the system of work
adopted by the [employer] was an improper one” and thus unsafe. Id. at 536
(emphasis added). In other words, it was for the jury to first determine whether
the workplace injury could be attributed to the employer’s breach of nondelegable
duties, as resolution of that issue would control whether the co-employee could be
liable in negligence.

The determination of an employer’s breach of its non-delegable duties is a
question of fact. See Luallen v. Reid, 58 S.W.3d 50, 53 (Mo.App.W.D.2001)
(holding that “where reasonable minds could infer negligence, determinations of
breach of duty are questions of fact for the finder of fact, not questions of law for
this court”). The facts and circumstances unique to each workplace injury will
thus bear on whether the workplace injury can be attributed to breach of the
employer’s nondelegable duties. On this point, our Supreme Court’s decision in
Kelso is again instructive:

               The general standard of care, by which the duty of an
       employer is determined, is that required of every one in all
       relations with others; namely the reasonable care of the average
       prudent person under similar circumstances. The more specific
       duties which arise from the general duty of an employer 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. These nondelegable
       duties are duties of the employer to his employees and not of
       fellow servants to each other. These duties are all closely related,
       and often concern matters beyond the control of individual
       employees.... [T]he place in which the work is done cannot always
       be separated from the instrumentalities with which the work is
       done and it is often difficult, if not impossible, to say with
       confidence which of these two conceptions is appropriate to the

                                         9
facts in evidence. For example, a locomotive, which is clearly a
piece of machinery so far as the engineer and fireman are
concerned, is just as clearly something which makes the place of
work unsafe as regards a trackman who is run down by it. Thus,
the 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.... A safe method of doing the work is something that the
employer can provide to safeguard his employees from some risks
of the shifting and changing of physical surroundings of the place
of work, and the use of the required instrumentalities therein; and
when it is necessary for their protection, in the exercise of
reasonable care, it should be held to be a part of his duty to them
and his failure to perform it is negligence. In other words, the
employer’s duty is not merely safety of the place of work of his
employee, but also his safety in his place of work; in short, a safe
environment as well as a safe place.

This duty is performed by providing a safe method of work, and it
properly arises from circumstances where an employee cannot
safely look out for himself because of the complexity of the
operations under way. One who employs servants in complex and
dangerous business ought to prescribe rules sufficient for its
orderly and safe management. The chief circumstance on which
the duty to do this depends is that the business is an intricate and
complex one in which different workmen or groups of workmen
have distinct tasks, and one group in the performance of its tasks is
liable to endanger the safety of some other groups engaged in
different tasks.

The distinctive characteristic elements of the duty to see that
instrumentalities are safely used are obviously: (1) General orders
issued for the guidance of servants; (2) particular orders with
reference to the details of the work during its progress. As regards
general orders, the master may be conceived to be subject to three
obligations: (1) To frame suitable rules and regulations (2) To
bring those rules and regulations to the knowledge of the servants
for whose benefit they are framed (3) To carry out those rules and
regulations in such a manner that the objects for which they are
framed may be attained.... Except in cases in which the master is
himself directing the work in hand, his obligation to protect his
servants does not extend to protecting them from the transitory
risks which are created by the negligence of the servants
themselves in carrying out the details of that work. In other
words, the rule that the master is bound to see that the

                                 10
       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....

               However, an obligation of the employer to warn employees
       of certain transitory dangers, under some circumstances does arise
       out of his duty to conduct the business on a safe system.... A
       master’s duty does not end with prescribing rules calculated to
       secure the safety of employees. It is equally binding on him
       honestly and faithfully to require their observance.

Id. at 534–36 (internal citations omitted) (emphasis added). See also, Gunnett v.
Girardier Building and Realty Co., 70 S.W.3d 632, 639 (Mo.App.E.D.2002)
(“Once the facts and circumstances are known, whether this personal duty exists
in any particular situation is a question of law, to be determined by the court.”).

        Thus, before a court can determine whether a co-employee owes a duty in
negligence at common law (a question of law), it must first be determined
whether the workplace injury is attributable to the employer’s breach of a
nondelegable duty, a question of fact unique to the workplace, and 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. 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. Conversely, if an
employee’s workplace injury is not attributable to the employer’s breach of a
nondelegable duty, then a negligent co-employee may owe a legal duty to the
injured employee. In other words, the co-employee’s negligent act or omission is
independent of the master-servant relationship. Hansen, 375 S.W.3d at 213.
Plainly, the starting point is to first determine whether a workplace injury is
attributable to a breach of the employer’s nondelegable duties, a question of fact.




                                        11
The “Something More” Test Determines whether a Co–Employee owes an
Actionable Duty of Care in Negligence Based on the Nature and Attributes of
the Co–Employee’s Conduct

The Act became effective in 1927. See Bethel v. Sunlight Janitor Service, 551
S.W.2d 616, 618 (Mo. banc 1977). For years, employers or employees were
permitted to opt out of the Act, allowing employers under some circumstances to
defend workplace injury claims by asserting the affirmative defenses of
contributory negligence, assumption of the risk, or the fellow servant doctrine.
Section 287.080 (RSMo 1949); see W. Prosser, LAW OF TORTS, section 80, pp.
526–27 (4th ed.1971). Section 287.080 was repealed in 1978, negating for all
intents and purposes the relevance of the employer’s affirmative defenses.
Hansen, 375 S.W.3d at 209 n. 11. The effect was to create “a no-fault system of
compensation for the employee” from an employer which rendered the subject of
an employer’s common law liability in negligence moot. Gunnett, 70 S.W.3d at
636.

       However, the Act did not prohibit injured employees from pursuing
common-law actions against negligent third-parties, including co-employees.
Schumacher v. Leslie, 360 Mo. 1238, 232 S.W.2d 913, 916 (1950) (holding Act
does not negate right to pursue claims against negligent third parties, including
co-employees, for injuries in the workplace); Sylcox v. National Lead Co., 225
Mo.App. 543, 38 S.W.2d 497, 502 (1931) (holding that a co-employee is a “third
party” under the Act amendable to actions at common law). The retained right to
pursue third party claims intensified attention on the prospect of recovery from a
negligent co-employee in addition to no-fault recovery from the employer under
the Act.

It was in this environment that the “something more” test was announced in [State
ex rel.] Badami [v. Gaertner], 630 S.W.2d [175,] 179–80 [(Mo.App.E.D.1982)
(en banc)]. Badami held that “for an injured employee to charge a co-employee
with actionable negligence, ‘something more’ than breach of one of the
employer’s [nondelegable] duties must be pled.” Hansen, 375 S.W.3d at 214
(citing Badami, 630 S.W.2d at 180). In effect, Badami construed the Act to
immunize all co-employee conduct except conduct beyond the scope of the
employer’s non-delegable duties. Thus, the “something more” test as originally
announced in Badami was indistinguishable from the common law—with one
exception. Badami’s characterization of a co-employee’s actionable negligence
as “something more” focused attention on the nature and attributes of the co-
employee’s conduct, noting that “[t]he extent and nature of the additional charge
can only be determined and sorted out on a case-by-case basis.” Badami, 630
S.W.2d at 180–81 (emphasis added). In contrast, the common law focused
attention on the employer’s conduct, first requiring it to be determined whether a
workplace injury was attributable to a breach of the employer’s nondelegable
duties. Post-Badami refinements of the “something more” test attached legal
significance to this difference in focus.

                                       12
For example, in Craft v. Scaman, 715 S.W.2d 531, 537 (Mo.App.E.D.1986), the
Eastern District observed that the “something more” test required an affirmative
act outside the scope of the employers responsibility before a co-employee could
owe a personal duty of care to a fellow employee. (Emphasis added.) In
Tauchert v. Boatmen’s Nat. Bank of St. Louis, 849 S.W.2d 573, 574 (Mo. banc
1993), the Supreme Court observed that the “creation of a hazardous condition is
not merely a breach of an employer’s duty to provide a safe place to work” but an
“affirmative negligent act outside the scope of ... responsibility to provide a safe
workplace.” (Emphasis added.) See also, Kelley v. DeKalb Energy Co., 865
S.W.2d 670, 672 (Mo. banc 1993), (holding that “an employee may sue a fellow
employee for affirmative negligent acts outside the scope of an employer’s
responsibility to provide a safe workplace”) (emphasis added); Gunnett, 70
S.W.3d at 641, (holding that a “personal duty will arise out of circumstances
where the co-employee engages in an affirmative act, outside the scope of
employer’s nondelegable duties, directed at a worker, increasing the risk of
injury.”) (emphasis added).

       In State ex rel. Taylor v. Wallace, 73 S.W.3d 620, 622 (Mo. banc 2002),
the Supreme Court heightened the “something more” standard, requiring
“purposeful, affirmatively dangerous conduct” to move a fellow employee
outside the scope of an employer’s responsibility to provide a safe workplace.
(Emphasis added.) In Garza v. Valley Crest Landscape Maintenance, Inc., 224
S.W.3d 61, 63 (Mo.App.E.D.2007), the Eastern District observed that Taylor
superseded all earlier “something more” cases by holding that “mere allegations
of negligence” are insufficient to establish “something more.” (citing Taylor, 73
S.W.3d at 621–22). In Nowlin ex rel. Carter v. Nichols, 163 S.W.3d 575, 580
(Mo.App.W.D.2005) (abrogated on other grounds by Burns v. Smith, 214 S.W.3d
335, 338–39 (Mo. banc 2007)), we held that a co-employee’s conduct was not
“something more” because he acted within the scope of his employment and “did
not engage in inherently dangerous conduct purposefully directed at” his fellow
employee. (Emphasis added.) In Burns, 214 S.W.3d at 338 the Supreme Court
held that “the notion of an affirmatively negligent act—the ‘something more’—
can best be described as an affirmative act that creates additional danger beyond
that normally faced in the job-specific environment.” (Emphasis added.)

The post-Badami refinements of the “something more” test operated to immunize
co-employees from liability for ordinary negligence by narrowing recovery
outside the exclusivity of the Act to outrageous or reckless conduct directed at a
particular employee. See, e.g., Burns, 214 S.W.3d at 338 (“[T]he notion of an
‘affirmative negligent act’ certainly includes the commission of an intentional
tort....”); Nowlin, 163 S.W.3d at 580 (holding that “[a]n affirmative negligent act
is not synonymous with any negligent act, as the law requires a purposeful act
‘directed’ at a co-employee”) (emphasis added). Post-Badami courts strived to
define “bright lines” within which recovery from a co-employee for negligence
would be precluded as a matter of law based solely on the nature and attributes of

                                        13
the co-employee’s conduct. Though not precisely stated in such terms, the
“something more” test gravitated toward immunization of co-employees if their
conduct loosely fell within the scope and course of their job duties. See, e.g.,
Nowlin, 163 S.W.3d at 579 (holding that act of leaving bulldozer running was not
“something more” because “use of the bulldozer was within the usual scope of
[co-employee’s] employment”).

The post-Badami refinements of the “something more” test were fashioned at a
time when section 287.800 required our courts to liberally construe the Act “with
a view to the public welfare.” Given this legislative directive, it is understandable
that the “something more” test evolved to reduce the circumstances where both
the employer and a co-employee could face liability for a workplace injury.
However, as noted, section 287.800 was amended in 2005 to require “strict” in
lieu of “liberal” construction of the Act. The judicial construct of “something
more,” which evolved over time to sweep most co-employee conduct into the
exclusivity of the Act, was abrogated, restoring co-employee negligence claims as
existed at common law. Robinson, 323 S.W.3d at 424–25.

The Refined “Something More” Test does not Align with the Common Law of
Co–Employee Negligence

        We observed in Hansen that because the “something more” test as
originally announced in Badami “did nothing more than restate the common law”
of co-employee liability, the test was not necessarily rendered obsolete by the
2005 amendment of the Act. 375 S.W.3d at 215. Though technically accurate,
our observation did not resolve whether the post-Badami refinements to the
“something more” test continued to align with the common law. Our discussion
herein plainly reveals they do not.

The “something more” requirement that a co-employee only and always owes an
actionable duty in negligence if the co-employee commits a “purposeful,
affirmative act directed at a fellow employee” has no common law origin. In fact,
Taylor held as much, as it held “mere allegations of negligence” are insufficient to
establish “something more.” 73 S.W.3d at 621–22. Moreover, the “something
more” requirement of an “affirmative” act is inconsistent with the common law
and harkens back to efforts to distinguish between misfeasance and nonfeasance
(acts and omissions)—an unwieldy lens for establishing whether a duty is owed
that was abandoned by our Supreme Court for common law negligence claims.
Lambert v. Jones, 339 Mo. 677, 98 S.W.2d 752, 757 (1936) (holding that
determining whether a duty is owed based on whether a co-employee’s conduct
constitutes misfeasance or nonfeasance is “a fictitious distinction, which can only
result in confusion,” as acts of omission or commission can fall into either
category). In short, the “something more” test’s focus on the nature and attributes
of a co-employee’s conduct without first determining whether a workplace injury
is attributable to a breach of an employer’s nondelegable duties can impose an
independent duty on a co-employee when the common law would not, and may

                                         14
fail to impose an independent duty on a co-employee when the common law
would. We offer several examples.

In Gimmarro, the foreman purposefully and affirmatively directed an employee to
work in an area that was not protected by barriers from falling rock. 116 S.W.2d
at 12–13. Yet our Supreme Court found only the employer to be responsible in
negligence because the employer failed to insure that the workplace and work
methods were safe. Id. The foreman’s purposeful, affirmative order directing an
employee to work in a dangerous area was attributable to the employer’s breach
of its nondelegable duties, and did not give rise to a personal duty of care owed by
the foreman. In Marshall, a co-employee carelessly shook a compressor hose to
remove kinks, unwittingly causing a fellow employee to trip over the hose. 296
S.W.2d at 2. Though the co-employee’s acts were affirmative in nature, there was
no indication that the acts were purposefully directed at the injured fellow
employee. Yet, the employee was held to have breached a personal duty of care
independent of the employer’s nondelegable duties. Both of these cases, decided
at common law, would likely have been decided differently under the “something
more” test.

         In Logsdon v. Duncan, 293 S.W.2d 944, 949–50 (Mo.1956), our Supreme
Court held that a co-employee who threw a brick off of a house in connection
with construction activities without regard for, or warning to, co-workers below
owed a common law duty of care, an outcome that necessarily presupposed that
the workplace injury was not chargeable to a breach of the employer’s
nondelegable duties. In contrast, and under nearly identical facts, the Eastern
District in Quinn v. Clayton Construction Co., Inc., 111 S.W.3d 428, 433–34
(Mo.App.E.D.2003) affirmed the dismissal of a petition alleging co-employee
negligence where a co-employee carelessly threw a piece of iron from the roof of
a construction site without regard for, or warning to, co-employees below because
the conduct was “not an allegation of ‘something more,’” as there was no
allegation of “an affirmative act directed at [injured employee] that increased the
risk of injury.”

In Graczak, 202 S.W.2d at 776, an employee was injured when his hand was
smashed by a hydraulic hammer being operated by a fellow employee. Under the
facts and circumstances before it, the court concluded that:

       [T]he competency and method of work by [co-employee] is not
       questioned.... The steam hammer was in proper condition.
       Plaintiff’s injury was not the result of any fault of plan, or
       construction, or defect, or lack of repair, or want of safety in
       defendant’s place of work or the machinery used therefor, or in the
       manner ordinarily used. Plaintiff’s injury is attributable to ... the
       negligence of a competent fellow employee in an operative detail
       of the work they were engaged in at the time.



                                        15
Id. at 780. As such, the employer’s nondelegable duties were not breached, and
any actionable duty was owed by the co-employee, notwithstanding that the co-
employee was merely negligent.

In Groh v. Kohler, 148 S.W.3d 11, 16 (Mo.App.W.D.2004) (abrogated on other
grounds by Burns, 214 S.W.3d at 338–39), we applied the “something more” test
and held that a petition asserting co-employee negligence should not have been
dismissed when a supervisor directed an employee to use a machine “regardless
of the machine’s known dangerous spontaneous operation.” We characterized the
co-employee’s conduct as “something more.” Id. Yet, the machine in question
was “defective,” and “inherently dangerous.” Id. 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.
Barring facts that might have indicated, for example, that the employer had taken
all reasonable steps to remove the equipment from service or to order the
equipment not to be used, the outcome in Groh is difficult to reconcile with the
common law. Kelso, 85 S.W.2d at 534–36.

Our courts have acknowledged that the common law and the refined “something
more” test are not aligned. In Workman v. Vader, 854 S.W.2d 560, 561
(Mo.App.S.D.1993), a co-employee carelessly discarded cardboard and packing
material behind a counter, and a fellow employee later slipped and fell on the
cardboard. The Southern District concluded that the act of throwing the
cardboard on the floor did “not involve a general nondelegable duty of the
employer,” but instead the co-employee’s common law duty to exercise
reasonable care. Id. at 564. In Gunnett, 70 S.W.3d at 638–640, the Eastern
District explored several “something more” cases, and acknowledged that the
imposition of a common law duty in Workman could not be reconciled with the
“something more” test because the co-employee’s conduct in Workman was not
purposeful, affirmative conduct directed at another employee. Id. at 640, n. 9.

         We need not ascertain whether the outcomes reached in every “something
more” case would be different had the common law been applied. For our
purposes, it only matters that a different result can be, and in some cases has been,
reached. The refined “something more” test can impose on a co-employee a duty
in negligence when no duty would have been imposed at common law, and can
fail to impose a duty when a duty would have been imposed at common law.

         We are thus required to conclude that for workplace injuries occurring
between the effective dates of the 2005 and 2012 amendments of the Act, the
common law, and not the refined “something more” test, must be applied to
determine whether a co-employee owes a duty of care in negligence. 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

                                         16
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.”
Determining whether a workplace injury is attributable to a breach of the
employer’s nondelegable duties is a question of fact. Kelso, 85 S.W.2d at 534–
36; Luallen, 58 S.W.3d at 53.

In light of this conclusion, we decline to follow two Eastern District decisions
which addressed workplace injuries subject to the 2005 amendment of the Act.
Both cases relied on the refined “something more” test to determine whether a co-
employee owed a duty in negligence. In Amesquita v. Gilster–Mary Lee Corp.,
408 S.W.3d 293, 303 (Mo.App.E.D.2013), the Eastern District affirmed the grant
of a motion to dismiss a petition asserting a claim of co-employee negligence.
The court held that “[i]n order for an employee to become personally liable to a
co-employee for injuries suffered in the scope and course of employment, the
employee must have done ‘something more’ beyond performing or failing to
perform normal job duties[.]” (emphasis added). The principle that the
performance or failure to perform a job duty will never support a duty of care
independent of the employer’s nondelegable duties has no support at common
law. Nearly every co-employee negligence case will involve the co-employee’s
performance, or failure to perform, a job duty. Applied literally, Amesquita will
abrogate co-employee negligence at common law by requiring a co-employee to
act outrageously, recklessly, or intentionally—and thus in a manner that is
effectively outside the scope and course of his duties. The inquiry in Amesquita
should have been whether the co-employee’s performance of, or failure to
perform, a job duty was attributable to the employer’s failure to perform one or
more of its nondelegable duties. See Kelso, 85 S.W.2d at 534–36. This would
have required an assessment of whether the manner in which the employee
performed or failed to perform his job duty was an ordinary risk or peril of the
employer’s work as to which the employer had the continuing duty to exercise
ordinary care to prevent. Kelso, 85 S.W.2d at 534–35. Had the common law
standard been applied, the same result may ultimately have been reached in
Amesquita. We decline to follow Amesquita, however, not because we can
discern that it reached the wrong result, but because it reached the result it did by
employing an erroneous standard.

        Similarly, we decline to follow Carman, where the Eastern District held
that the trial court erred in failing to grant summary judgment in favor of a co-
employee in a co-employee negligence case. 406 S.W.3d at 79. The court held as
a matter of law that:




                                         17
       [A] co-employee owes to a fellow employee no common-law duty
       to exercise ordinary care and safety requiring the co-employee to
       refrain from operating a vehicle in a negligent manner when
       driving in the course of his work. As a matter of law, that
       responsibility is subsumed within an employer’s nondelegable
       duty to provide a safe working environment.

Id. (emphasis added). The absolute nature of this holding abrogates co-employee
negligence in all motor vehicle cases, (and arguably in all cases involving the
operation of any instrumentality of the employer's work). At common law, it is
possible that a co-employee’s operation of a motor vehicle (or other
instrumentality of the work) will support a personal duty of care independent of
the employer’s nondelegable duties. See, e.g., Marshall, 296 S.W.2d at 2. The
existence of an independent co-employee duty depends on whether the co-
employee’s negligent operation is somehow attributable to a breach of the
employer’s nondelegable duties, a question of fact. Kelso, 85 S.W.2d at 534–36.
The question is whether “the [employer] ... expose[d] the [employee], in the
discharge of his duty, to perils and dangers against which the master [could have]
guard[ed] by the exercise of reasonable care.” Moles, 434 S.W.2d at 754. See
also, Kelso, 85 S.W.2d at 536 (requiring determination of whether “the system of
work adopted by the [employer] was an improper one” and thus unsafe). As
discussed, supra, this assessment requires consideration of numerous relevant
facts and circumstances unique to each case. Though the ultimate result in
Carman might have been the same had the proper lens for determining co-
employee duty been employed, our declination to follow Carman is not a function
of its result, but is instead a function of the standard used to determine co-
employee duty.

The Sufficiency of the Allegations in Leeper’s Amended Petition at Common
Law

Applying the common law, we turn to Leeper’s amended petition. Leeper alleges
that it was Asmus’s job duty to “ensure that the cable is tight as the 500–pound
pipe is lifted, otherwise the 500–pound pipe will become unsecure and fail.”
Leeper alleges that Asmus was “personally negligent in operating the drilling rig
in that he violated his job duty ... by lifting the 500–pound pipe without ensuring
that the cable was tight.” Leeper alleges that Asmus “was independently
negligent ... in that he violated his job duty in operating the drilling rig winch by
lifting the 500–pound pipe without ensuring that the cable was tight.” Leeper
alleges that “[a] 500–pound pipe falling from a Schramm drilling rig is not a
normal risk of operating and working on a Schramm drilling rig and as a result,
[Leeper] was subjected to a risk which was something more than the normal risk
of operating and working on a Schramm drilling rig.”




                                         18
       These facts, taken as true, establish a duty owed by Asmus to Leeper independent
       of the employer’s nondelegable duties. The amended petition alleges that Asmus
       failed to perform his job as he had been instructed, and that as a result he made
       what was otherwise a safe workplace and safe instrumentality of work unsafe.
       Construed favorably to Leeper, these allegations support a conclusion that a safe
       drilling rig, safe methods for operation of the drilling rig, and a sufficiently
       trained operator of the drilling rig, were only made unsafe because Asmus failed
       to follow specific instructions imposed to insure safe operation of the drilling rig.

       It will remain Leeper’s obligation to prove that the employer performed all of its
       nondelegable duties such that a reasonably safe workplace, a safe instrumentality
       of work, and safe methods of work, became unsafe solely through the fault of
       Asmus, a determination that depends on the facts and circumstances of the
       workplace injury. Though it may be difficult in most cases to establish that a
       workplace injury is not attributable to breach of an employer’s nondelegable
       duties, given the inherently factual nature of that determination, dismissal of a
       petition for failure to state a claim will be premature if the petition alleges facts
       which would support that conclusion.

       Leeper’s amended petition alleges sufficient facts to establish an independent duty
       of care owed by a co-employee at common law. . . .

Leeper, at *4-*17 (footnotes omitted).

       At page 3, the majority opinion correctly recites how the record must be viewed in the

light most favorable to Survivors. Given that standard of review, and the legal analysis in

Leeper, reversal is required.

       Unfortunately, without so much as a citation from page 8 through the end of the opinion,

the majority opinion offers zero authority as to why Leeper is not controlling here.

       Furthermore, the majority opinion is incorrect in its analysis of the duty that was owed to

Parr by Co-Employee Respondents, with respect to their breach of federal regulations.

       In McHaffie v. Bunch, 891 S.W.2d 822 (Mo. banc 1995), our Supreme Court noted that

the driver of a tractor-trailer operated by Donald R. Farmer, owned by Bruce Transport and

Leasing, and operated by Rumble Transport as the operator/lessee of the truck, had a duty which

arose out of a breach of federal regulations. Our Supreme Court held:



                                                19
                The evidence here, viewed in a light most favorable to the plaintiff,
        indicates that Farmer had driven more than the time permitted by the [federal]
        Department of Transportation on the date of the collision. As a result, he may
        have been fatigued. The jury might infer that the fatigue affected Farmer’s
        attention and reactions.

Id. at 878. This principle of law from the original opinion of our Supreme Court in 1995, has

never been overruled. The principle of law recognized is that a breach of federal Department of

Transportation regulations may, under an appropriate record and with appropriate evidence,

result in a duty owed to persons injured by that breach.

        In McHaffie, our Supreme Court further held that an employer, in this case Breeden

Transportation, is liable under a theory of respondeat superior for damages attributable to the

misconduct of an employee or agent acting within the course and scope of the employment or

agency. Id. at 875. The Supreme Court also described a second theory under which an employer

may be held liable and that is “negligent entrustment.” That theory requires proof that the

entrustee (in this case Parr) is incompetent; the entrustor (Breeden Transportation) knew or had

reason to know of Parr’s incompetence; there was an entrustment of a chattel (in this case an 18-

wheeled truck); and the negligence of the entrustor concurred with the negligence of the

entrustee to harm the plaintiff, in this case Survivors.    This theory permits imputation of

negligence without requiring a finding that the employee was acting in the course or scope of

employment. Id.

        Finally, in the original McHaffie decision, our Supreme Court held that Missouri has

recognized a cause of action for negligent hiring. Our Supreme Court held:

        One element of negligent hiring is some form of misconduct by the employee that
        caused damages to the plaintiff. Like respondeat superior or negligent
        entrustment, this is a form of imputed liability because the employer’s duty is
        dependent on and derivative of the employee’s misconduct.

Id. at 826 (italics in original).

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       Without belaboring the point further, the evidence in McHaffie went further and

described all the breaches of federal Department of Transportation regulations that may have

been committed by defendants, thus creating the clear impression and conclusion that in

Missouri, the violation of a federal Department of Transportation regulation creates a duty and

breach of that duty, may create a cause of action. In this case, the duty is in existence in the

period from 2005 to the 2012, and Survivors seek to utilize that duty as an appropriate remedy

here. Cogdill and Buttry each had duties to provide a safe working environment for Parr;

monitor his physical condition to determine if he was fit to drive a tractor-trailer; and to

determine if Parr was in compliance with federal regulations.

       Finally, as to Co-Employee Respondent Breeden, as admitted, he was president of

Breeden Transportation. Breeden, as president of Breeden Transportation, was responsible for

the acts of employees and agents, Cogdill and Buttry, in the course and scope of their

employment or agency. McHaffie, 891 S.W.2d at 825. Breeden was responsible for hiring

competent and capable employees to enforce regulations.

       McHaffie, is still good law in our state. It has spawned a great deal of commentary, but

has not been overruled. Our Supreme Court most recently observed the difficult issues presented

by McHaffie in terms of instructing a jury, but given the opportunity to overrule McHaffie

entirely, it chose not to do so. See Coomer v. Kansas City Royals Baseball Corp., Nos.

WD73984, WD74040, 2013 WL 150838, (Mo.App. W.D. Jan. 15, 2013).

       The majority opinion couches the allegations against Co-Employee Respondents as to

whether or not Co-Employee Respondents owed Parr a duty to protect him from his own

decisions and conduct with respect to his health and employment as a driver of a commercial

vehicle. However, that is not the record before us here. Parr is not filing the lawsuit seeking to

                                               21
protect himself from his own decisions and conduct; Survivors are the plaintiffs in this litigation

and they have, in fact, alleged sufficient pleadings and responses in the motion for summary

judgment to not only create a material issue of fact, but to establish the legal duty and/or duties

owed by Co-Employee Respondents to Survivors. As the majority opinion notes:

                  In their Second Amended Petition, Plaintiffs’ alleged that Defendant Co-
           Employees ‘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.’

(Emphasis added).

           Litigants in our courts every day describe or present evidence where persons who need to

support their family, pursue jobs in order to complete that support; unfortunately, these very

same people also encounter persons who do not take their job duties seriously and/or have no

quarrel with overlooking the duties imposed upon them by law. Based upon the majority

decision here, we will never know if that was the case.

           If proven, Parr’s death was caused or contributed to be caused by the failure of the Co-

Employee Respondents to provide competent employees to evaluate and determine whether or

not drivers of Breeden Transportation were medically able to operate commercial motor vehicles

safely.

           Due to this dissent, and my opinion that the majority opinion incorrectly declines to

follow the opinion of the Western District in Leeper, I certify that this opinion is contrary to a

previous decision of an appellate court of this state and pursuant to authority of Rule 83.03,2

transfer this case to the Supreme Court of Missouri.


WILLIAM W. FRANCIS, JR., C.J., P.J. - Dissenting Opinion Author


2
    All rule references are to Missouri Court Rules (2014).

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