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Abbott v. Bolton

Court of Appeals of Missouri, Eastern District, Third Division

August 2, 2016

DANIEL ABBOTT, Appellant,
v.
DeMARCO BOLTON, Respondent.

         Appeal from the Circuit Court of St. Louis County 11SL-CC03452 Honorable Thomas J. Prebil

          Gary NL Giertner, Jr., Judge.

         Introduction

         Daniel 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 7, 2016).

         Background

         Abbott 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.

         The 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 employment.

         Bolton 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.

         Discussion

         Standard of Review

         Summary 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.

         Our 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).

         Point I

         In his 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 merit.

         Abbott's 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 ...


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