Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of St. Louis County 11SL-CC03452
Honorable Thomas J. Prebil
NL Giertner, Jr., Judge.
Abbott (Abbott) appeals from the judgment of the trial court
granting summary judgment in favor of DeMarco Bolton (Bolton)
in Abbott's personal-injury case. On appeal, Abbott
asserts summary judgment was improper because there remained
genuine issues of material fact and because Bolton owed
Abbott a duty independent of their mutual employer's
non-delegable duty to provide a safe workplace. We reverse
and remand for further proceedings in accordance with this
opinion and the recent Missouri Supreme Court decisions in
Peters v. Wady Indus., Inc.. ___ S.W.3d ___, 2016 WL
3180586 (Mo. banc June 7, 2016), and Parr v.
Breeden. ___ S.W.3d ___, 2016 WL 3180249 (Mo. banc June
and Bolton were co-employees, both employed with the St.
Louis County Department of Highways and Traffic (St. Louis
County) as members of the same work crew. At or around noon
on July 7, 2010, the following incident occurred. Abbott was
standing behind a work vehicle on a St. Louis County work
site getting a drink from the water cooler when Bolton drove
a St. Louis County tandem-axle dump truck (work truck) over
Abbott's foot and ankle, causing severe and continuing
injuries. Bolton was driving the work truck back from lunch
when the incident occurred. Bolton saw Abbott getting a drink
of water, but Bolton did not attempt to avoid the accident
because he thought he had two or three feet of clearance and
did not believe he was going to hit Abbott.
petition asserted Bolton acted in a negligent manner in the
course and scope of his employment, in that Bolton failed to
exercise the highest degree of care while operating a motor
vehicle by not reducing his speed, not keeping a safe
stopping distance between the vehicle and Abbott, not keeping
a careful lookout, and failing to stop properly to prevent a
collision. Abbott specified, however, that the petition was
not accusing Bolton of recklessness or intentional
malfeasance. Bolton in his answer denied that both he and
Abbott were acting in the course and scope of their
moved for summary judgment, asserting he was entitled to
judgment as a matter of law because he had no independent
duty to exercise ordinary care outside the employer's
nondelegable duty to provide a safe workplace. Bolton
concluded that because he owed Abbott no personal duty of
care, Abbott could not establish the essential elements of
his negligence claim. The trial court agreed and granted
summary judgment in favor of Bolton. This appeal follows.
judgment is appropriate where the moving party demonstrates a
right to judgment as a matter of law based on facts about
which there is no genuine dispute. ITT
Commercial Fin. Corp. v. Mid-Am. Marine Supply
Corp.. 854 S.W.2d 371, 376 (Mo. banc 1993). The movant
has the burden to establish both a legal right to judgment
and the absence of any genuine issue of material fact
supporting that claimed right to judgment. Id. at
378. A defending party may establish a right to summary
judgment as a matter of law by showing: (1) facts that negate
any one of the elements of claimant's cause of action;
(2) the non-movant, after an adequate discovery period, has
not and will not be able to produce evidence sufficient to
allow the trier of fact to prove the elements of its claims;
or (3) there is no genuine dispute as to the existence of
each of the facts necessary to support the movant's
affirmative defense. Parr, 2016 WL 3180249, at*4.
review is essentially de novo. Cardinal Partners, L.L.C.
v. Desco Inv. Co.. 301 S.W.3d 104, 108 (Mo. App. E.D.
2010). When considering an appeal from summary judgment, we
review the record in a light most favorable to the party
against whom judgment was entered, and we afford the
non-movant the benefit of all reasonable inferences from the
record. Id. at 108-09. In opposing summary judgment,
the non-moving party may not rely on mere allegations and
denials, but must use affidavits, depositions, answers to
interrogatories, or admissions on file to demonstrate the
existence of a genuine issue for trial. Meramec Valley
R-HI Sch. Dist. v. City of Eureka, 281 S.W.3d 827, 835
(Mo. App. E.D. 2009).
first point on appeal, Abbott argues the trial court erred in
granting summary judgment in favor of Bolton because there
remained a genuine issue of material fact regarding whether
Abbott and Bolton were co-employees. This argument is without
argument is not sufficient to create a genuine issue of
material fact. A genuine issue of material fact exists where
the record contains competent evidence that two plausible but
contradictory accounts of essential facts exist. Hibbs v.
Berger, 430 S.W.3d 296, 305 (Mo. App. E.D. 2014). To
preclude summary judgment, the dispute must be real and not
merely argumentative, imaginary, or frivolous. Hargis v.
JLB Corp., 357 S.W.3d 574, 577 (Mo. banc 2011).
Abbott's assertion that Bolton's initial denial that
he was acting in the scope of his employment created a
genuine issue of material fact as to whether he and Abbott
were co-employees is merely argumentative and does not, on
its face, create a genuine dispute of fact, material or
otherwise. See id. The parties agree that Abbott and
Bolton worked together on the same road crew for St. Louis