Court of Appeals of Missouri, Western District, Third Division
from the Circuit Court of Jackson County, Missouri The
Honorable Kevin D. Harrell, Judge.
Before: Joseph M. Ellis, Senior Judge,
Presiding, Karen King Mitchell, Judge and Gary D.
D. Witt, Judge.
Andrew Garrett ("Garrett") appeals the grant of
summary judgment by the Circuit Court of Jackson County, in
favor of Respondent Michael Brown ("Brown"). While
working as a billposter for CBS Outdoor, Garrett was injured
when he fell while climbing a billboard structure. He brought
suit against his co-employee and supervisor, Brown, for
violating the duty of care owed to Garrett. The court granted
summary judgment finding that Brown could not be liable for
Garrett's injuries because they were caused by CBS
Outdoor's non-delegable duty to provide a safe work
environment. Garrett alleges that the court erred in granting
summary judgment because there was a genuine issue of
material fact as to whether Brown violated the policies of
CBS Outdoor causing Garrett's injuries and thus, may be
liable. We reverse and remand.
2007, Garrett worked for CBS Outdoor as a billposter
installing billboard signs. Brown served as his supervisor.
As a billposter, Garrett would climb billboard structures to
hang advertising signs on the structures. On October 26,
Garrett was using a ladder to climb a billboard structure.
The cross-brace on which his ladder was resting snapped,
causing him to fall and suffer injury.
Outdoor had a Safety Manual that it and its employees were
required to follow ("Safety Manual"). Section 19 of
the Safety Manual required Brown, as Operations Manager of
the Kansas City market, to complete or schedule annual safety
inspections of each structure using a specific document
entitled Structure Maintenance and Safety Checklist. Garrett
alleges that, during his employment and prior to the October
26 accident, Brown did not perform the required annual
inspections of the billboard structures. Additionally, prior
to October 16, Brown routinely ignored reports from
billposters of structures that appeared to be unsafe. At
times, after Brown received a report of a potentially unsafe
structure from one billposter, he would immediately send a
second billposter to the structure in question without
inspecting the structure or informing the second billposter
that a safety concern was raised.
Brown's prior behavior, although Garrett had concerns
about the structure upon which he was working on October 26,
he did not report his safety concerns prior to climbing the
structure. Garrett brought suit against Brown claiming that
Brown's violation of CBS Outdoor policy caused his
sought summary judgment, arguing that, under the
circumstances, he could not be liable as a co-employee for
Garrett's workplace injury as it fell under the
employer's non-delegable duty to provide a safe
workplace. The circuit court agreed, granting his motion.
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.
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. We accord the non-movant the benefit of all
reasonable inferences from the record. 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. Thus, [t]he propriety of
summary judgment is purely an issue of law. 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.
McComb v. Norfus, WD 77761, at *3 (Mo. App. W.D.
Sept. 6, 2016) quoting ITT Commercial Fin. Corp.
v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.
banc 1993) (internal citations and quotation marks omitted).
sole point on appeal contends that summary judgment was
improper because there exists a genuine issue of material
fact as to whether Brown's actions constituted a breach
of his employer's non-delegable duty to maintain a safe
work environment or a breach of Brown's own personal duty
of care owed to Garrett. We agree.
have been a number of changes to Missouri's law on
co-employee negligence since 2005. In 2005, the Missouri
legislature amended § 287.800 to require the
Workers' Compensation Act ("Act") to be
strictly construed. In 2010, this Court held that strict
construction no longer allowed co-employees to be immunized
under the statutory definition of "employer"
effectively removing those employees in some circumstances
from protections under the Act. Robinson v. Hooker,323 S.W.3d 418, 423-25 (Mo. App. W.D. 2010). In 2012, the
legislature again amended the Act by shielding co-employees
from civil liability unless their actions "purposefully
and dangerously" injure a party. § 287.120 (2012).
There exists then a body of law devoted to determining
co-employee liability for workplace injuries that occurred
between the ...