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Bierman v. Violette

Court of Appeals of Missouri, Eastern District, First Division

February 14, 2017

SHERI BIERMAN, Appellant,
v.
KIMMIE VIOLETTE, Respondent.

         Appeal from the Circuit Court of St. Louis County 13SL-CC01540, Honorable Richard C. Bresnahan

          ROBERT M.CLAYTON III, Presiding Judge.

         Sheri Bierman ("Plaintiff") appeals the judgment dismissing her negligence action against her co-employee, Kimmie Violette ("Defendant"), for failure to state a claim upon which relief can be granted. The trial court found Plaintiff's petition should be dismissed because the allegations therein do not establish an independent duty of care owed by Defendant, which is separate and distinct from their employer's non-delegable duty to provide a safe workplace. We reverse and remand.

         I. BACKGROUND

         A. The Relevant Allegations in Plaintiff's Petition

         Because this appeal involves a grant of a motion to dismiss for failure to state a claim, it is important to initially set out the relevant allegations in Plaintiff's petition. These allegations are as follows.

         Plaintiff and Defendant were co-employees who worked for Espino's Mexican Bar and Grill ("Employer"). On June 19, 2009, Plaintiff entered a lofted space accessible only through the use of a twelve-foot, A-frame ladder. At that time and place, "Defendant [ ] knew or should have known that Plaintiff [ ] had used the ladder to enter the lofted space." While Plaintiff was in the loft, Defendant unlocked, closed, and moved the ladder, and then Defendant returned the ladder to the place where it was accessible to Plaintiff. However, Defendant failed to fully open the ladder and failed to fully lock and secure the ladder. When Plaintiff returned from the lofted space and stepped on the ladder, it collapsed suddenly and without warning, causing Plaintiff to fall, strike a concrete countertop, and then land on the ground. As a result of Plaintiff's fall, she sustained injuries.

         "Defendant [ ] had a duty to Plaintiff to take reasonable and necessary precautions and measures designed to lock and secure the ladder prior to Plaintiff returning from the lofted space." In addition, Plaintiff argued Defendant was negligent in one or more of the following respects:

a. Defendant [ ] negligently failed to exercise reasonable care with respect to the safety and security of Plaintiff;
b. Defendant [ ] failed to lock the ladder;
c. Defendant [ ] failed to properly secure the ladder;
d. Defendant [ ] failed to warn Plaintiff when Defendant knew or should have known the likelihood of a fall; [and]
e. Defendant [ ] otherwise failed to exercise that degree of care that an ordinary careful person would use under the same or similar circumstances.

         "Defendant [ ] knew, or by use of ordinary care, should have known of the existence of said conditions and that they were not reasonably safe and that such conditions were likely to cause injury to Plaintiff [ ]." And as a direct and proximate result of the alleged negligence of Defendant, Plaintiff suffered injuries to her left middle finger, right elbow, and right shoulder; Plaintiff suffered lost wages and income; Plaintiff incurred medical expenses; and Plaintiff is ...


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