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Conner v. Ogletree

Supreme Court of Missouri, En Banc

March 6, 2018

MICHAEL E. CONNER, Appellant,
v.
DALE OGLETREE AND SCOTT KIDWELL, Respondents. and RUSSELL EVANS, Appellant,
v.
RON WILSON AND MONTE BARRETT, Respondents.

         APPEAL FROM THE CIRCUIT COURT OF WRIGHT COUNTY The Honorable R. Craig Carter, Judge, The Honorable Michael J. Cordonnier, Judge

          PAUL C. WILSON, JUDGE

         In both cases before this Court, an employee brought a common law negligence claim against co-employees for an injury sustained on the job. In each case, the trial court granted summary judgment in the co-employees' favor. On appeal, this Court affirms because the plaintiffs failed to allege the co-employees breached a duty separate and distinct from an employer's duty to provide a reasonably safe workplace, i.e., a breach of a duty unrelated to employment or a breach of the employer's duty to provide a safe workplace that was not reasonably foreseeable to the employer.

         Background

         Conner

         In 2007, Michael Conner was injured after touching a live power line he thought had been de-energized. On the day of the accident, Conner, a journeyman lineman, was working near an old shoe factory to retire a transformer bank for his employer, Intercounty Electric Cooperative Association ("Intercounty"). Conner was joined by four co-employees, including Dale Ogletree and Scott Kidwell. Ogletree, a supervisor, was responsible for enforcing Intercounty's safety manual, rules, and guidelines as the crew worked. Intercounty's safety manual meticulously explains how to safely de-energize a power line. Those instructions were not followed on the day of the accident.

         Before Conner arrived, Kidwell (a serviceman) used an improper tool to de-energize the power line and did not properly confirm the line had been de-energized. He and the rest of the crew mistakenly believed he had successfully de-energized the line and began working next to it. Conner later arrived at the work site. Seeing the rest of the crew working next to the line, Connor assumed it had been de-energized. Out of caution, Conner asked Ogletree whether the line had been de-energized. Even though Ogletree had not properly confirmed the line was de-energized, Ogletree told Conner it was. Conner then climbed atop a work platform and attempted to cut the line. The resulting shock blew him off the platform and rendered him a quadriplegic.

         Conner brought a negligence action against Kidwell and Ogletree, alleging they negligently carried out the details of their work in several respects. Generally, Conner alleged Kidwell failed to de-energize the line, failed to ensure the line had been de-energized, failed to warn Connor the line had not been de-energized, and failed to abide by Intercounty's safety rules. Conner also alleged Ogletree failed to supervise Kidwell in carrying out these responsibilities. Kidwell and Ogletree argued that Conner's petition merely alleges breaches of Intercounty's nondelegable duty to provide a reasonably safe workplace. The trial court agreed and granted summary judgment. Connor appealed, this Court granted transfer, and it has jurisdiction under article V, section 10, of the Missouri Constitution.

         Evans

         In November 2009, Russell Evans was injured on the job when a forklift driven by his co-employee, Monte Barrett, struck him and ran over his foot. Evans and Barrett were working to construct apartment buildings for their employer, Wilco Contractors, Inc. ("Wilco"). At the time of the accident, Barrett was driving a forklift with a load of trusses hanging from one of its two prongs. To stabilize the load, Evans walked alongside and held a tagline connected to the forklift and trusses. Barrett allegedly hit a rock, causing the load to shift. As the load shifted, Evans was pulled toward the forklift, which struck him and ran over his foot.

         Evans sued Barrett for negligently operating the forklift. Barrett argued that Evans' petition merely alleges a breach of Wilco's nondelegable duty to provide a reasonably safe workplace. The trial court agreed and granted summary judgment in Barrett's favor. Evans appealed, this Court granted transfer, and it has jurisdiction under article V, section 10, of the Missouri Constitution.

         Analysis

         This Court reviews a grant of summary judgment de novo. Parr v. Breeden, 489 S.W.3d 774, 778 (Mo. banc 2016). "Summary judgment is proper when the moving party demonstrates there is no genuine dispute about material facts and, under the undisputed facts, the moving party is entitled to judgment as a matter of law." Id. (citations omitted). A defendant

can demonstrate entitlement to summary judgment by showing: (1) facts negating any of the [plaintiff's] necessary elements; (2) the [plaintiff], after an adequate period of discovery, has been unable, and will not be able, to produce evidence sufficient to allow the trier of fact to find the existence of any one of the [plaintiff's] elements; or (3) there is no genuine dispute of the existence of facts required to support the [defendant's] properly pleaded affirmative defense.

Id. (citation omitted).

         Conner and Evans were injured between 2005 and 2012. During that period, a plaintiff could pursue a negligence action against a co-employee for an injury sustained in the course of work under certain circumstances. See Peters v. Wady Indus., Inc., 489 S.W.3d 784, 789-90 (Mo. banc 2016). "To maintain a negligence action against a co-employee, a plaintiff must show that the co-employee breached a duty separate and distinct from the employer's nondelegable duty to provide a safe workspace for all employees." Parr, 489 S.W.3d at 782. To determine whether Conner and Evans met this burden, this Court must examine the scope of an employer's nondelegable duty to provide a safe workplace at common law.[1]

         The common law surrounding workplace injuries arose against the backdrop of respondeat superior, i.e., the principle that a master generally is liable for the acts of its servants within the course and scope of their employment. Using this doctrine, an employee could sue the employer for injuries resulting from a co-employee's negligence. To prevent this, this Court - and others - adopted an exception to the doctrine of respondeat superior known as the "fellow servant" rule, holding an employer was not liable for an employee's injury resulting from the negligence of a co-employee.[2] See McDermott v. Pac. R. Co., 30 Mo. 115, 116 (Mo. 1860) ("[A] servant, who is injured by the negligence or misconduct of his fellow servant, can maintain no action against the master for such injury.").

         Of course, neither the doctrine of respondeat superior nor the "fellow servant" rule is directly relevant to this case because each dealt only with the employer's civil liability, a topic long ago rendered moot by the immunity granted to employers under the workers' compensation statutes. See § 287.120.1, RSMo Supp. 2005. A review of these common law principles is instructive only because they set the stage for an exclusion to the "fellow servant" exception known as the "nondelegable duty" rule. See Hough v. Texas & P.R. Co., 100 U.S. 213, 217 (1879). ("[P]erhaps the most important [exception to the 'fellow servant' rule] arises from the obligation of the master, whether a natural person or a corporate body, not to expose the servant, when conducting the master's business, to perils or hazards against which he may be guarded by proper diligence upon the part of the master.").

         This exclusion was referred to as the "nondelegable duty" rule because this Court (and many others) had held the "duty of the master to exercise ordinary care to furnish his servant a reasonably safe place … cannot be delegated." Bender v. Kroger Grocery & Baking Co., 276 S.W. 405, 406 (Mo. 1925). The name "nondelegable duty" was somewhat misleading, however, because this Court repeatedly had emphasized that corporations and other employers often can act only through their employees. As a result, such employers had no choice but to delegate to their employees the responsibility for complying with this "nondelegable duty." See, e.g., Dayharsh v. Hannibal & St. J.R. Co., 15 S.W. 554, 555 (Mo. 1891) ("The duties which the master owes the servant may … be delegated to subordinates, and the wide extent of modern business enterprises often necessitates so doing …."); Zellars v. Mo. Water & Light Co., 92 Mo.App. 107, 124 (1902) ("Where a corporation is the master, it necessarily must entrust this duty into the hands of servants."); Carter v. Wolff, 296 S.W. 187, 189 (Mo. App. 1927) ("The master very rarely performs the service of fixing a reasonably safe place and keeping it safe himself, but performs the task through and by his servants.").

         Nevertheless, what was "nondelegable" about the employer's "nondelegable duty" to provide a reasonably safe workplace was the employer's responsibility to ensure its duty was fulfilled. Even though an employer could - and, often, had to - assign to employees the tasks required to fulfill this duty, it could not delegate responsibility for ensuring those tasks were carried out or avoid the liability for injuries to an employee due to a co-employee's breach of this duty. Combs v. Rountree Const. Co., 104 S.W. 77, 80 (Mo. 1907) ("The duty of the master to exercise reasonable care, to the end that the place in which his servant is required to work is reasonably safe, is … one that he cannot delegate to any servant, high or low, so as to escape liability for a negligent act thereof."); Bender, 276 S.W. at 408 (an employer is "liable for the negligent performance of any act directed by it to be performed by an employee, whether of high or the most lowly degree, which affect[s] the safety of [the workplace]"). "Inherently, a co-employee's breach of the employer's nondelegable duty to provide a safe workplace does not constitute a breach of a duty owed independently of the master-servant relationship." Peters, 489 S.W.3d at 795; see also id. at 800 (employer has a "nondelegable duty to provide a safe work environment, and it breaches that duty where it charged an employee with the responsibility to provide a reasonably safe work environment but the employee did not so provide") (citing Bender, 276 S.W. at 408).

         At the time it was developed, the "nondelegable duty" rule was aimed at whether the employer was liable, i.e., whether the ordinary rules of respondeat superior would apply or whether application of that doctrine would be barred by the "fellow servant" rule.[3]Parr and Peters, however, look to the scope of that nondelegable duty to define the limits of a common law suit against a co-employee during the brief period (2005 to 2012) when such suits were permitted by Missouri's workers' compensation statutes. Parr, 489 S.W.3d at 778-79; Peters, 489 S.W.3d at 793-96. Under Parr and Peters, if a co-employee was negligent for breaching a duty owed by the employer (i.e., the nondelegable duty to provide a reasonably safe workplace), the co-employee cannot be held liable and the injured employee's sole recourse is workers' compensation. But, if a co-employee was negligent for breaching a duty separate and distinct from the employer's nondelegable duty to provide a reasonably safe workplace (i.e., either a breach of a duty unrelated to employment or an unforeseeable breach of the ...


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