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Fogerty v. Armstrong

Court of Appeals of Missouri, Eastern District, Second Division

September 20, 2016

MATTHEW FOGERTY, Plaintiff/Appellant,
v.
RICK ARMSTRONG, Defendant, and LARRY MEYER, Defendant/Respondent.

         Appeal from the Circuit Court of the County of St. Louis Honorable Mark D. Seigel

          SHERRI B. SULLIVAN, P. J.

         Introduction

         Matthew 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.

         Factual and Procedural Background

         Appellant 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.

         Appellant 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.[1]

         Respondent 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 environment.

         Appellant 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.

         Standard of Review

         We 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).[2] 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).

         Discussion

         On 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 workplace.

         To 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.

         During 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 ...


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