Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of St. Louis County 12SL-CC002619
Honorable David Lee Vincent, III
M. GAERTNER JR., JUDGE.
Fowler and Mary Fowler (collectively, Appellants) appeal the
judgment of the trial court granting summary judgment in
favor of Amy Phillips (Phillips) in Appellants'
personal-injury case. On appeal, they assert summary judgment
was improper because the facts established co-employee
liability. 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. Breedem __S.W.3d__, 2016 WL 3180249 (Mo.
banc June 7, 2016).
John Fowler (Fowler) and Phillips were co-employees, employed
by Avis Budget Group, Inc. (Avis). In October of 2010,
Phillips was driving a vehicle out of the Avis car wash onto
the Avis parking lot when she struck Fowler, knocking him
down. Appellants filed a suit for damages against Phillips,
asserting negligence and reckless conduct, resulting in
severe and disabling injuries to Fowler and loss of
consortium to Mary Fowler. For the negligence claim,
Appellants claimed Phillips failed to exercise "the
requisite degree of care" in that she failed to keep a
careful lookout, failed to yield the right of way, and
violated traffic signals. For the reckless-conduct claim,
Appellants asserted Phillips knew or should have known she
was creating an unreasonable risk of harm to Fowler when she
failed to stop at the stop sign posted outside the car wash,
exited the car wash without honking, made a prohibited left
turn out of the car wash, did not look left before turning,
and failed to signal her turn.
moved for summary judgment asserting she was entitled to
judgment as a matter of law because Appellants failed to
offer any evidence to prove Phillips had a duty of care
towards Fowler. In her statement of uncontroverted facts,
Phillips stated the incident occurred in the course and scope
of her employment while she was driving an Avis vehicle as
part of her job duties on Avis property. In a later response
to Appellant's Statement of Additional Material Facts,
Phillips stated that she did not fail to stop at the stop
sign but rather did stop, that turning left out of the
carwash was not prohibited, that there was no rule that she
honk before exiting the carwash, and that she did not fail to
look before turning.
arguments on the motion, the trial court granted summary
judgment in favor of Phillips, finding that the employer has
a non-delegable duty to provide a safe workplace and that
employees are not personally liable for carrying out that
non-delegable duty. This appeal follows.
their sole point on appeal, Appellants argue the trial court
erred in granting summary judgment to Phillips because the
facts showed Phillips' reckless conduct constituted
affirmative acts sufficient to establish co-employee
liability. We agree.
judgment is appropriate where the moving party demonstrates
that there is no genuine dispute about material facts and
that the moving party is entitled to judgment as a matter of
law based on those undisputed facts. Rule 74.04(c)(6);
ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply
Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary
judgment as a matter of law in favor of the defending party
is appropriate when: (1) there are facts that negate any one
of the elements of claimant's cause of action; (2) the
movant shows that 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 of the trial court's grant of summary judgment 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.
here filed claims against Phillips for both negligence and
reckless conduct, and the trial court granted summary
judgment in favor of Phillips on both claims, finding she had
no personal duty of care towards Fowler. Appellants appeal
only the trial court's grant of summary judgment on their
claim for reckless conduct and its derivative
loss-of-consortium claim. During the pendency of this appeal,
however, the Missouri Supreme Court issued decisions in
Parr and Peters finding that co-employees
may be liable at common law for injuries caused to fellow
co-employees by negligent actions if the plaintiff-employee
can show the defendant-employee violated a personal duty of
care separate from the employer's duties to provide a
safe workplace. Peters. 2016 WL 3180586, at *16;
Parr, 2016 WL 3180249, at *6. While Parr and Peters
analyze the issue in the context of negligence rather than
reckless conduct, this distinction is not material here.
Recklessness is an aggravated form of negligence. Hatch
v. V.P. Fair Foundation, Inc., 990 S.W.2d 126, 139 (Mo.
App. E.D. 1999). The first issue to consider in either a
claim for negligence or reckless conduct is whether the
defendant had a personal duty of care towards the injured
party. See Hackmann v. Mo. Am. Water Co.. 308 S.W.3d
237, 239 (Mo. App. E.D. 2009) (elements of negligence);
Nichols v. Bresnahan, 212 S.W.2d 570, 573 (Mo. 1948)
(elements of reckless conduct). The analysis for the
existence of that duty is the same.
the Missouri Supreme Court's recent decisions in
Parr and Peters, and as recognized by this
Court's recent decision in Abbott v. Bolton,
__S.W.3d__, 2016 WL 4097509 (Mo. App. E.D. Aug, 2, 2016),
co-employees acting negligently within the scope of
employment are not granted immunity under Section 287.120,
RSMo. (2000) of the Worker's Compensation Act (the Act)
for injuries caused by their negligent acts committed between
2005 and 2012. Rather, to determine co-employee liability
during this timeframe, courts should consider a claim for a
co-employee-caused workplace injury as it would any
common-law negligence claim. At common law, "an employee
may be liable for injuries to another employee caused by a
breach of a duty of care owed by the employee independent of
the master-servant relationship." Parr, 2016 WL 3180249,
at *6 (citing Peters. 2016 WL 3180586, at *16).
common law, the employer has certain non-delegable duties for
which it remains liable, regardless of whether the employer
has assigned these duties to an employee. These duties are:
(1) the duty to provide a safe workplace; (2) the duty to
provide safe appliances, tools, and equipment; (3) the duty
to give warning of dangers of which the employee might
reasonably be expected to remain in ignorance; (4) the duty
to provide a sufficient number of suitable co- employees; and
(5) the duty to promulgate and enforce rules for the conduct
of employees to ensure the safety of the workplace.
Peters, 2016 WL 3180586, at *17; Parr, 2016 WL
3180249, at *6-7 (citing W. Keeton, Prosser and Keeton on
the Law of Torts, § 80 at 569 (5th ed.
1984)). However, if the co-employee's act falls outside
the employer's non-delegable duties and instead violates
a personal duty of care, the co-employee may be liable at
common law, regardless of whether he or she was performing
his or her job when the injury occurred. See Abbott,