Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of the County of St. Louis Honorable
Mark D. Seigel
B. SULLIVAN, P. J.
Fogerty (Appellant) appeals from the circuit court's
entry of summary judgment in favor of Larry Meyer
(Respondent) in Appellant's personal injury case. We
reverse and remand.
and Procedural Background
and Respondent were co-employees at Wright Construction
Company. On October 20, 2011, Appellant and Respondent were
installing a fountain and were moving large stones with a
Takeuchi 230 track front loader outfitted with forks.
Respondent was operating the forklift. In the course of
moving the stones, the forks of the machine repeatedly
dropped down onto Appellant's back, driving Appellant
into the ground, and causing injuries to Appellant's back
and right knee.
filed a negligence action against Respondent alleging he had
a duty to operate the forklift in a reasonably safe manner
and he breached said duty by lowering the forks without
taking any steps to warn Appellant or protect him from being
impacted by the forks.
moved for summary judgment asserting he was entitled to
judgment as a matter of law, arguing Appellant failed to
demonstrate Respondent owed Appellant a duty of care separate
and apart from their employer's non-delegable duties and
that a breach of this personal duty proximately caused
Appellant's injuries. Respondent maintained he had no
personal duty to operate the forklift in a reasonably safe
manner and, instead, it was Wright Construction Company's
non-delegable duty to supervise and provide a safe work
filed a response to the motion for summary judgment, to which
Respondent filed a reply. After arguments on the motion, the
circuit court granted summary judgment in favor of
Respondent. This appeal follows.
review the circuit court's grant of summary judgment
de novo. ITT Comm. Fin. Corp. v. Mid-Am. Marine
Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).
Whether to grant summary judgment is purely an issue of law.
Ashford Condo., Inc. v. Horner & Shifrin, Inc.,
328 S.W.3d 714, 717 (Mo. App. E.D. 2010). We will uphold
summary judgment on appeal only where there is no genuine
issue of material fact and the movant is entitled to judgment
as a matter of law. ITT Comm. Fin. Corp., 854 S.W.2d
at 376; Rule 74.04(c). The record is viewed in the light most
favorable to the party against whom judgment was entered.
Citibrook II, L.L.C. v. Morgan's Foods of Missouri,
Inc., 239 S.W.3d 631, 634 (Mo. App. E.D. 2007).
appeal, Appellant argues the circuit court erred in granting
summary judgment in favor of Respondent on his negligence
claim because his petition alleged Respondent, as his
co-employee, had a duty to operate an employer-provided tool
in a reasonably safe manner, a duty not subsumed within their
employer's non-delegable duty to provide a safe
sustain a claim for negligence, the plaintiff must establish
(1) the defendant had a duty to the plaintiff; (2) the
defendant failed to perform that duty; and (3) the
defendant's breach was the proximate cause of the
plaintiff's injury. Peters v. Wady Industries,
Inc., 489 S.W.3d 784, 793 (Mo. banc 2016). Whether the
defendant owed a duty to the plaintiff is a question of law.
Id. at 793-94.
the pendency of this appeal, the Missouri Supreme Court
issued decisions in Parr v. Breeden, 489 S.W.3d 774,
778-79 (Mo. banc 2016) and Peters v. Wady Industries,
Inc., 489 S.W.3d 784, 795-96 (Mo. banc 2016), finding
employees may be liable at common law for injuries to a
co-employee caused by their negligent actions if the
plaintiff can demonstrate the defendant violated a personal
duty of care separate from the employer's duty to provide
a safe workplace. See Fowler v. Phillips, ___S.W.3d
___, 2016 WL 4442319 *2 (Mo. App. E.D. Aug. 23, 2016). Under
Parr and Peters, co- employees acting
negligently within the scope of their employment are not
granted immunity under the 2005 version of ...