Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of Cape Girardeau County Hon. Gary P.
G. DOWD, JR, Judge
Nolen appeals the trial court's summary judgment in this
action in favor of his former supervisor, Kasey Guss, and
former co-workers, Gary Bess and Derrick Eaves (collectively,
Respondents), after Nolen was injured in a workplace
accident. We reverse and remand.
was employed as a janitor in the Show Me Center arena at
Southeast Missouri University (SEMO) in Cape Girardeau. In
May 2007, Nolen was mopping bleachers when he fell off the
end of a row onto the floor ten to fifteen feet below,
sustaining a spinal injury resulting in paralysis.
filed a negligence action alleging, as pertinent here, that
Respondents instructed or permitted Nolen to mop the
bleachers without first installing rails. Respondents moved
to dismiss the petition for failure to state a claim on which
relief can be granted in that Respondents owed no duty to
Nolen since the allegations fell within SEMO's
nondelegable duty to provide and maintain a safe working
environment. The trial court overruled Respondents'
motions noting that there were factual matters precluding
judgment on the pleadings. After completing some discovery,
Respondents filed motions for summary judgment, which the
trial court granted, reasoning that Respondents could not be
held liable for SEMO's non-delegable duty to provide a
safe workplace. Nolen appeals, asserting that Respondents
breached a personal duty of care separate from SEMO's
duty to provide a safe workplace.
review of summary judgment is de novo, viewing the
record in the light most favorable to the party against who
judgment was entered." Comp & Soft, Inc. v.
AT&T Corp., 252 S.W.3d 189, 194 (Mo. App. E.D.
2008). "The purpose of summary judgment is to resolve
cases in which there is no 'genuine issue of material
fact and . . . the moving party is entitled to judgment as a
matter of law.'" Id. (internal quotations
is well established that an employer owes certain
non-delegable duties to its employees with respect to safety
and that, even if an employer assigns the performance of
those duties to an employee, the employer remains liable for
any breach of such duties." Peters v. Wady
Industries, Inc., 489 S.W.3d 784, 795 (Mo. 2016). An
employer's non-delegable duties include: (1) providing a
safe workplace, (2) providing safe appliances, tools, and
equipment, (3) giving warning of dangers of which the
employee might reasonably be expected to remain ignorant, (4)
providing a sufficient number of suitable co-workers, and (5)
promulgating and enforcing rules of conduct to make the work
safe. Id. Included with the employer's duty to
provide a safe workplace is a duty to see that
instrumentalities of the workplace are used safely.
an employer's duty to provide a safe workplace is not
unlimited. Id. Except in the cases where the master
is directing the work, his obligation to protect his servants
does not extend to protecting them from the transitory risks
created by the negligence of the servants themselves carrying
out the details of that work. Id. Framing his
argument within this exception, Nolen asserts that
Respondents were negligent in carrying out the details of
their work in that they created a transitory risk by
instructing Nolen to mop the bleachers without the rails,
thereby breaching a personal duty separate from SEMO's
to resolution of the matter, at the time of Nolen's
injury, workers' compensation law was in flux. Before
2005, Chapter 287 was interpreted to shield employees from
liability to co-workers except for affirmative acts beyond
normal job duties, i.e., the "something more"
standard. See e.g., Burns v. Smith, 214
S.W.3d 335 (Mo. 2007). Then in 2005, a statutory amendment
led appellate courts to hold that the statutory definition of
"employer" did not include a claimant's
co-workers. Robinson v. Hooker, 323 S.W.3d 418 (Mo.
App. W.D. 2010). As a result, employees were left exposed to
liability to co-workers for common law negligence. The
legislature passed a corrective amendment in 2012 that
essentially codified the "something more" doctrine.
For injuries occurring in the interim, like this case,
appellate courts interpreted the standard for co-employee
liability with varying results. This court applied the
"something more" doctrine and concluded that, in
order for an employee to be personally liable for a
co-worker's injury, the employee must have engaged in
"an affirmative act, outside the scope of employer's
nondelegable duties, directed at a worker, increasing the
risk of injury." Amersquita v.
Gilster-Mary Lee Corp., 408 S.W.3d 293, 304-305 (Mo.
App. E.D. 2013). By contrast, the Western District rejected
the "something more" doctrine and held that, for
the period in question, an employee's simple
negligence-whether by act or omission-is actionable so long
as it falls outside the employer's non-delegable duty.
Leeper v. Asmus, 440 S.W.3d 478 (Mo. App. W.D.
Supreme Court endeavored to resolve the conflict in Parr
v. Breeden, 489 S.W.3d 774 (Mo. banc 2016) and
Peters v. Wady Indus., Inc., 289 S.W.3d 784 (Mo.
banc 2016). In Peters, Mr. Peters and Mr.
Terrio's employer was a company specializing in providing
services and products to general contractors in the
construction industry. Id. at 787. Its services
included providing dowel baskets manufactured by Wady Industries.
Id. Wady shipped the dowel baskets to the employer
stacked on top of one another "without warning, bracing,
or other precautionary measures." Id. The dowel
baskets remained stacked in both the employer's staging
area and once delivered to a specified construction site.
Terrio, a project manager for the employer, "had
received warnings from other employees about the potential
safety hazards posed by the stacked dowel baskets."
Id. On the day in question, despite the warnings, he
ordered that the dowel baskets be delivered to a construction
site on the employer's flatbed truck in the same stacked
manner in which they were sent to employer. Id. A
row of baskets fell on Mr. Peters causing permanent and
catastrophic injuries. Id.
affirming the trial court's dismissal of the action,
reasoning that his conduct fell within the employer's
non-delegable duty to provide a safe workplace, the Supreme
Court of Missouri drew a "distinction between an
employer's nondelegable duty to provide a safe workplace
and a co-employee's duty arising from transitory risks in
how the co-employee carries out the details of her
work." Id. at 796, 800. The Court discussed its
earlier decision in Marshall v. Kansas City, 296
S.W.2d 1 (Mo. 1956), where the plaintiff was injured when his
co-employee shook a compressor hose to remove the kinks. The
Court in Marshall found that the plaintiff was not
injured by the manner in which the work was being done but by
the manner in which the hose was handled by the co-employee.
Marshall, 296 S.W.2d at 3. The Court in
Peters noted that the Marshall decision
"demonstrates that when an employee's injuries
result from the tools furnished, the place of work, or the
manner in which the work was being done, the injuries are
attributable to a breach of the employer's nondelegable
duty to provide a safe workplace." Peters, 489
S.W.3d at 796. However, when "the employee's
injuries result from a co-employee's negligence in
carrying out the details of the work, the injuries are
attributable to the co-employee's breach of a duty
separate and distinct from the employer's nondelegable
duty to provide a safe workplace." Id.
that an "employer's nondelegable duty to provide a
safe workplace does not include transitory risks arising from
an employee's negligence in carrying out his or her work,
" the Court held the allegations pertained to Mr.
Terrio's supervisory role as project manager negligently
carrying out his employer's nondelegable duty to provide
a safe workplace rather than an unsafe workplace resulting
from Mr. Terrio's negligence in carrying out the details
of his work. Id. at 799. The Court further noted
that providing a safe method of work is part of an
employer's duty to provide a safe work environment and
that the allegations regarding the unsafe stacking of the
dowel baskets went to the manner in which the work was
performed under the employer's standard operating
procedures. Id. The Court distinguished the
allegations that Mr. Peters was ordered and directed to
conduct work in the alleged unsafe manner in the course of
his employer's business from instances in which a
co-employee "negligently carried out some details or
aspect of his work." Id. at 800. The Court
found that "[t]he Peteres failed to allege . . . any
aspect or detail of work that Mr. Terrio negligently carried
out other than that, in his role as project manager, Mr.
Terrio negligently performed [his employer's]
nondelegable duty to provide a safe manner or place of
the alleged unsafe manner of work in Peters may have
created an unsafe work place, in this case, SEMO provided the
equipment necessary for a safe manner and place of work. In
the same way an employer may provide its employees with hard
hats or safety goggles, SEMO provided bleachers with rails,
and it is generally understood that such rails are to be used
with the bleachers. Rather than allegedly creating an unsafe
work place as ...