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McComb v. Norfus

Court of Appeals of Missouri, Western District, Second Division

September 6, 2016

NADINE McCOMB, Appellant,
v.
GREGORY NORFUS and DAVID CHEESE, Respondents.

         Appeal from the Circuit Court of Cole County, Missouri The Honorable Jon E. Beetem, Judge.

          Before Anthony Rex Gabbert, Presiding Judge, Karen King Mitchell, Judge, and Joseph M. Ellis, Senior Judge. [1]

          Karen King Mitchell, Judge.

         Nadine 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.

         Respondents 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.

         Factual Background[2]

         On 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.

         Before 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).

         Near 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.

         Standard of Review

         "When 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.

         Analysis

         Wife 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.

         A. Co-employee liability and workers' compensation exclusivity

         The current version of the Workers' Compensation Act's ...


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