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Garrett v. Brown

Court of Appeals of Missouri, Western District, Third Division

September 6, 2016

MICHAEL BROWN, Respondent.

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable Kevin D. Harrell, Judge.

          Before: Joseph M. Ellis, Senior Judge, Presiding[1], Karen King Mitchell, Judge and Gary D. Witt, Judge.

          Gary D. Witt, Judge.

         Appellant 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.

         Factual Background [2]

         In 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.

         CBS 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.

         Due to 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 injury.

         Brown 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. Garrett 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. 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).


         Garrett's 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.

         There 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. ยง 287.120 (2012). There exists then a body of law devoted to determining co-employee liability for workplace injuries that occurred between the ...

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