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Conner v. Ogletree

Court of Appeals of Missouri, Southern District, First Division

September 19, 2016

MICHAEL E. CONNER, Plaintiff-Appellant,
DALE OGLETREE and SCOTT KIDWELL, Defendants-Respondents.

         APPEAL FROM THE CIRCUIT COURT OF WRIGHT COUNTY Honorable R. Craig Carter, Circuit Judge.


          JEFFREY W. BATES, J.

         This case involves a 2007 workplace accident in which Plaintiff Michael Conner (Conner) was rendered a quadriplegic. Conner filed a personal injury action against two co-employees, Dale Ogletree and Scott Kidwell (hereinafter referred to individually as Ogletree and Kidwell, and collectively as Defendants). The trial court entered judgment in favor of Defendants on their motions for summary judgment. Because Conner failed to establish that Defendants owed him a duty separate and distinct from the employer's nondelegable duty to provide a safe workplace, we affirm the trial court's grant of summary judgment. Our disposition follows recent decisions by our Supreme Court clarifying co- employee liability under the common law from 2005 until 2012 in Parr v. Breeden, 489 S.W.3d 774 (Mo. banc 2016), and Peters v. Wady Indus., Inc., 489 S.W.3d 784 (Mo. banc 2016).

         Standard of Review

         Summary judgment is proper when the moving party demonstrates there is no genuine dispute about material facts and, under the undisputed facts, the moving party is entitled to judgment as a matter of law. Rule 74.04(c)(6); ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 380 (Mo. banc 1993). A defending party can demonstrate entitlement to summary judgment by showing: (1) facts negating any of the claimant's necessary elements; (2) the claimant, after an adequate period of discovery, has been unable, and will not be able, to produce evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements; or (3) the undisputed facts support each of the necessary elements of the defending party's properly pleaded affirmative defense. ITT Commercial, 854 S.W.2d at 381. When considering an appeal from a summary judgment, we review the record in the light most favorable to the party against whom judgment was entered, and we afford that party the benefit of all reasonable inferences. Id. at 376. Because the propriety of summary judgment is purely an issue of law, we review the grant of a summary judgment de novo. Id.; see Parr, 489 S.W.3d at 778.

         Factual and Procedural Background

         In December 2007, Conner and Defendants were employed by Intercounty Electric Cooperative Association (Intercounty). Conner was employed as a journeyman lineman and had been with Intercounty since January 2001. Ogletree was also a journeyman lineman and employed as a crew supervisor. Kidwell was employed as a service lineman. It is undisputed that Conner and Defendants were all working in the course and scope of their employment the day of the accident.

         On December 7, 2007, the job that afternoon was to retire a transformer bank and remove power lines near an old shoe factory. Ogletree and Kidwell were among the first to arrive at the job site. In an effort to de-energize the lines, Kidwell "opened the switches" from the ground with an "extendo stick."[1] Kidwell then told Ogletree that the power was disconnected. Ogletree was sitting on top of an elevated transformer platform at the time, with his back in close proximity to an energized line. When Conner joined Ogletree on the platform, Conner asked Ogletree if the power had been cut, and Ogletree responded that it had. Conner then reached up with a wire-cutting tool in his hand and attempted to cut a line that was not de-energized. The electric shock knocked Conner off of the platform. He landed on his neck, causing severe injuries that rendered him a quadriplegic. Conner admitted that Kidwell did not purposefully cause the accident.

         In December 2012, Conner filed his first amended petition naming Ogletree and Kidwell as defendants. Conner's petition included a total of five counts. The first three counts alleged negligence by Ogletree, and the remaining two counts alleged negligence by Kidwell.

         With respect to the first three counts against Ogletree, Count 1 was captioned "Affirmative Negligence." That count alleged Ogletree breached a personal duty of care and was affirmatively negligent in the following ways:

a. … Ogletree directed [Conner] to perform work on an energized power line system after [Conner] was wrongfully made to believe that such system had been properly tested for voltage, grounded and in effect de-energized;
b. [Ogletree] negligently failed to make sure that the "high voltage/primary line" was tested for voltage, grounded and de-energized before he directed [Conner] to perform work on the power line system;
c. … Ogletree negligently failed to warn [Conner] of the dangerous condition of the power line system, and [Conner] was instead made to believe that the [line] had been de-energized, and; [Ogletree] failed to direct the workers of his crew to ground the high voltage line/primary line;
d. … Ogletree negligently failed to supervise the work of his linemen including among other things, failed to conduct a "tailgate briefing" at the job site to give directions and supervision to the members of his crew and;
e. That sub-paragraphs [a-e] constitute failure to follow the safety rules and relative safety standards as set forth in Missouri Law, the National Electrical Code, and the National Electrical Safety Code.

         Count 2 was captioned "Assumption of a Duty Pursuant to Restatement (Second) of Torts § 324a (1965)" and alleged that Ogletree assumed a duty to exercise ordinary care to protect Conner against injury in the performance of his work. Count 3 was captioned "Negligence" and alleged that "Ogletree owed a personal duty to [Conner] to exercise such care in the prosecution of his work as men of ordinary prudence use in like circumstances." This count alleged that failure to hold a tailgate meeting, test for voltage, ground the line, and warn Conner that the line was not de-energized also were violations of Intercounty's safety rules.

         The two counts against Kidwell were similarly captioned as "Affirmative Negligence" and "Negligence." In Count 4, Conner alleged Kidwell was ...

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