Court of Appeals of Missouri, Southern District, Second Division
JOHN T. WILLIAMS, Plaintiff-Appellant,
MIKE ROBERTS and KIM HOLLOWAY, Defendants-Respondents.
FROM THE CIRCUIT COURT OF NEW MADRID COUNTY Honorable Fred W.
WILLIAM W. FRANCIS, JR., J. - OPINION AUTHOR
Williams ("Williams") appeals the trial court's
grant of summary judgment in favor of Mike Roberts
("Roberts") and Kim Holloway ("Holloway")
(referred to collectively as "co-employees"),
finding that there was "no triable issue of any material
fact." Williams claims that co-employees are not
entitled to summary judgment because Williams produced facts
sufficient to support a finding that co-employees breached a
personal duty owed to him that was separate and apart from
the nondelegable duties of their employer. We agree, reverse
the trial court's judgment, and remand the case for
further proceedings consistent with this opinion.
and Procedural History
considering appeals from summary judgments, the Court will
review the record in the light most favorable to the party
against whom judgment was entered." ITT Commercial
Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d
371, 376 (Mo. banc 1993). "We accord the non-movant the
benefit of all reasonable inferences from the record."
Id. So viewed, the facts are as follows.
January 2012, Williams and co-employees were employed by
Associated Electric Co-op, Inc. ("AECI"). Williams
was employed as a journeyman mechanic in the coal yard
maintenance department at the New Madrid Power Plant
("NMPP"), and had been with AECI since January
1978. It is undisputed that Williams and co-employees were
all working in the course and scope of their employment on
the day of the accident.
January 11, 2012, co-employees were assigned the task of
cleaning up the top floor of the NMPP crusher house, which
required lowering any materials by crane through the outside
door, to the ground. The top floor was approximately 60 feet
from the ground. Williams' job was to be the "ground
man" to secure the area and ensure no one entered the
drop zone. During the process of co-employees rigging and
lowering a load of materials, a piece of channel iron came
loose hitting Williams and causing serious injury.
recollection was that within a minute or two of his arrival
at the drop zone, co-employees began lowering the materials.
Williams was not told what materials were being lowered, but
did recognize a 4-wheel cart-approximately 3-foot wide and
4-foot long-upon which materials were stacked. Co-employees
were using two choker straps and a rope to lower the
materials, but did not use a "come along, " even
though one was also available in the tool room. Williams
disputes that the configuration used by co-employees to rig
the load was appropriate. It was undisputed that if the load
had been secured properly, the 51-pound piece of channel iron
would not have come loose from the rigging allowing the
channel iron to strike him.
observed as co-employees began to lower the materials, the
cart wheels would not clear the toe board. Roberts radioed Williams to advise they
were taking the load back inside the crusher house to be
re-rigged, and would radio Williams when they were ready to
begin re-lowering the load. Williams, believing that the load
was being taken back inside to be re-rigged and believing
that he would be notified when co-employees intended to begin
re-lowering the materials, left his buggy and began to walk
toward the north side of the crusher house to ensure no one
was coming into the danger zone because he did not have time
to secure the area with cones and tape.
walking to the north side of the crusher house, Williams was
hit with the piece of channel iron. Apparently, while inside
being re-rigged, the load became tilted causing the channel
iron to come loose and fall striking Williams. Williams
sustained a broken left shoulder and collar bone, three
broken ribs, injury to his spleen, a laceration to his head,
lost three teeth, a compression fracture to the thoracic
region of his spine, and a brachial plexus injury.
assert that as they began to lower the load, it became hung
up on the corner of a vent brace attached to the crusher
house. After a discussion, co-employees made the decision to
continue lowering the load in hopes it would become unstuck.
As co-employees continued to lower the load, the load tipped
and the channel iron slipped from the rigging, striking
Williams on his head and shoulders, knocking him to the
ground. Co-employees claimed that the load only tipped
October 2015, Williams filed his first amended petition
naming co-employees as defendants. In separate counts,
Williams alleged co-employees were each negligent in that
they owed Williams a "personal duty to exercise
reasonable care so that [their] actions did not create
additional dangers beyond those normally found in
[Williams'] work environment." Williams further
asserted that co-employees failed to exercise reasonable care
and affirmatively breached a personal duty of care which they
independently owed to Williams in one or more of the
(a) [Co-employees] violated AECI's safety policies when
[they] chose to begin lowering materials from the upper floor
of the crusher house when [they] knew that they were not
properly secured and when [they] knew that items falling from
a distance of fifty (50) feet or more could reasonably result
in death or seriously [sic] bodily injury to [Williams] who
was acting as [the] 'ground man.'
(b) [Co-employees] violated AECI's safety policies when
[they] carelessly and recklessly operated the sling device
which lowered materials from the upper floor of the crusher
house when [they] knew that items falling from a distance of
fifty (50) feet or more could reasonably result in death or
seriously [sic] bodily injury to [Williams] who was acting as
[the] 'ground man.'
(c) [Co-employees] violated AECI's safety policies when
[they] carelessly and recklessly failed to warn [Williams]
when the materials that were being lowered shifted so that
[Williams] could move to an area of safety.
April 1, 2016, co-employees filed their "Joint Motion
for Summary Judgment, " "Joint Statement of
Uncontroverted Facts" consisting of 96 purportedly
uncontroverted facts, and "Suggestions in Support of
[Co-employees'] Joint Motion for Summary Judgment."
In the motion, co-employees asserted that Williams was unable
to produce any evidence to support his theory that
co-employees failed to exercise reasonable care and
affirmatively breached a personal duty of care independently
owed to him; co-employees did not engage in an affirmative
negligent act that purposefully and dangerously caused or
increased the risk of harm to Williams; and co-employees did
not violate a personal duty ...