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Evans v. Wilson

Court of Appeals of Missouri, Southern District, First Division

September 19, 2016

RUSSELL EVANS, Appellant,
v.
RON WILSON and MONTE BARRETT, Respondents.

         APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Michael J. Cordonnier, Judge.

          OPINION

          DANIEL E. SCOTT, J.

         We consider co-employee liability for a workplace injury in 2009, when "an injured employee could maintain a cause of action recognized by common law against a co-employee." Peters v. Wady Industries, Inc., 489 S.W.3d 784, 787 (Mo. banc 2016).[1] Because Evans pleaded and developed facts "establishing only duties that are a part of the employer's nondelegable duty to provide a safe workplace" (id.), as opposed to "a duty separate and distinct from the employer's nondelegable duties" (id. at 796), we affirm the summary judgment entered in favor of co-employee Barrett.[2]

         Background

         The essential facts are not in dispute. Evans and Barrett were co-employed constructing apartments. Barrett, driving a forklift, was moving a load of trusses. Evans walked ahead and to the side of the forklift, holding a tag line connected to both the forklift and trusses to stabilize the load as it moved.

         According to Evans, Barrett negligently drove the forklift over a rock, causing the load to shift and pull Evans toward the forklift, which struck him and ran over his foot.

         Evans sued Barrett, alleging that Barrett had not been licensed, certified, or "adequately trained to drive a forklift"; that Barrett's direct supervisor (and company president) knew all these deficiencies, yet "ordered" Barrett to operate the forklift near Evans and other workers; that Barrett was negligent "[i]n operating a vehicle he was not trained to operate" and in other respects; all resulting in injury to Evans.

         The trial court eventually granted Barrett summary judgment, ruling that safe forklift operation fell within the employer's nondelegable duty to provide a safe working environment, and finding that Evans had alleged no duty independent of the employer's nondelegable duty. Evans appeals.

         Co-Employee Liability - Relevant Principles

         As in any negligence claim, Evans must establish that Barrett owed (and breached) a duty to Evans. Parr, 489 S.W.3d at 778. Whether a duty exists may hinge on particular facts, but "is purely a question of law." Id. at 782.

         Recent explications on co-employee workplace duties include Peters, Parr, and Leeper v. Asmus, 440 S.W.3d 478 (Mo.App. 2014), from which we summarize observations relevant to this case:

• At common law, employees are liable to co-employees "for breaches of a duty owed independently of the master-servant relationship-that is, a duty separate and distinct from the employer's nondelegable duties." Peters, 489 S.W.3d at 796.
• But an employee's personal duties to co-employees do not include the employer's nondelegable common-law safety duties to provide a safe workplace, safe equipment, a sufficient number of suitable co-workers, etc. Id.; Parr, 489 S.W.3d at 779.
• Any failure to perform one of the employer's nondelegable duties rests with the employer, not the ...

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