Court of Appeals of Missouri, Western District, Second Division
from the Circuit Court of Cole County, Missouri The Honorable
Jon E. Beetem, Judge.
Anthony Rex Gabbert, Presiding Judge, Karen King Mitchell,
Judge, and Joseph M. Ellis, Senior Judge. 
King Mitchell, Judge.
McComb (Wife) appeals the grant of summary judgment in favor
of Respondents, Gregory Norfus and David Cheese, in her
action for wrongful death of her husband, Edward McComb
(Husband). Husband died as the result of a single-car
accident after his vehicle slid off an icy road while he was
driving as part of his job duties as a courier for St.
Mary's Health Center.
were Husband's supervisors at the time of his death. Wife
argues that summary judgment was improper because there
exists a genuine dispute of material fact as to whether
Respondents were simply carrying out their employer's
non-delegable duty to maintain a safe work environment, or
whether they breached a personal duty of care owed to
Husband, when they directed him to drive his route in bad
weather conditions. We agree with Wife, reverse the grant of
summary judgment, and remand the case to the trial court for
further proceedings consistent with this opinion.
January 26, 2009, Husband worked as a courier for St.
Mary's Health Center in Jefferson City. Norfus was his
immediate supervisor, and Cheese supervised both Husband and
Norfus. On that day, Husband was scheduled to work from 3:30
p.m. until 11:30 p.m., delivering medical supplies and other
materials to various clinics around the mid-Missouri area.
That same day, a dangerous winter storm, which created
hazardous driving conditions and prompted the governor to
declare a state of emergency, moved into the area.
Husband's scheduled shift, Norfus contacted Cheese to see
if Husband should drive his route despite the conditions.
Cheese directed Norfus to have Husband drive the route, but
indicated that Husband should do so slowly and carefully.
Cheese did not inform himself of the impending weather
conditions before making the decision that Husband should
drive his route. Sometime in the middle of Husband's
shift, Norfus called to check in with Husband. At that time,
Husband reported that his windshield was freezing. Norfus
again contacted Cheese to see if they should pull Husband
from his route due to the weather conditions. Cheese
determined that Husband should continue. At the time, Husband
was not carrying any vital organs or "STAT"
materials (ones needed immediately by a facility).
the end of Husband's shift, he slid off the road,
flipping his vehicle several times, leading to his death.
Wife subsequently sued Respondents, arguing that they were
negligent in sending Husband out on his courier route despite
the hazardous road conditions. Respondents sought summary
judgment, arguing that Wife's suit was barred by the
workers' compensation statute's exclusivity
provision. Respondents argued that Wife could not demonstrate
that Respondents owed any personal duty of care to Husband
beyond their employer's non-delegable duty to maintain a
safe work environment. The court agreed and granted
Respondents' motion for summary judgment. Wife appeals.
considering appeals from summary judgments, [an appellate
c]ourt will review the record in the light most favorable to
the party against whom judgment was entered." ITT
Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp.,
854 S.W.2d 371, 376 (Mo. banc 1993). "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."
Id. "We accord the non-movant the benefit of
all reasonable inferences from the record." Id.
Our review is de novo because "[t]he criteria on appeal
for testing the propriety of summary judgment are no
different from those which should be employed by the trial
court to determine the propriety of sustaining the motion
initially." Id. Thus, "[t]he propriety of
summary judgment is purely an issue of law."
Id. "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." Id.
raises a single point on appeal. She argues that summary
judgment was improper because there exists a genuine issue of
material fact regarding whether Respondents' actions
constituted a breach of their employer's non-delegable
duty to maintain a safe work environment, or a breach of
their own personal duty of care owed to Husband, when they
directed Husband to drive his courier route in hazardous
driving conditions. We agree.
Co-employee liability and workers' compensation
current version of the Workers' Compensation Act's