FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY The Honorable Mark
D. Seigel, Judge
C. Wilson, Judge
Fogerty ("Fogerty") filed a personal injury suit
against his co-employee, Larry Meyer ("Meyer"), for
injuries he sustained while they were working together to
build a fountain. The trial court sustained Meyer's
motion for summary judgment. Fogerty appealed, and this Court
has jurisdiction under article V, section 10, of the Missouri
Constitution. The circuit court's judgment is affirmed.
was employed by Wright Construction Company
("Employer"). In October 2011, Fogerty was assigned
to work at Logan College. When he arrived for work, he was
assigned to work with Meyer to install a fountain. Neither
Meyer nor Fogerty knew how to install a fountain. Employer
provided them with blueprints but no detailed instructions
for how to construct the fountain. To install the fountain,
Fogerty and Meyer were required to move large stones. Meyer
decided to use a front loader to move the stones even though
he had never used a front loader in that manner before. He
suggested they use a strap to sling a stone beneath one of
the front loader's forks. Meyer then asked Fogerty to
walk beside the stone to keep it from swinging as Meyer drove
the front loader up a roughly graded, muddy area of the
they were moving one of the stones, Fogerty stepped beneath
the forks while steadying the stone. As he did so, Fogerty
was looking forward and had his back to Meyer in the cab of
the front loader. Unexpectedly, Meyer allowed the forks to
drop. He yelled a warning to Fogerty, but a fork hit Fogerty
in the back and drove him to his knees. Fogerty was able to
continue working that day, but he was unable to return to
work the following day.
later filed and settled a workers' compensation claim for
injuries he sustained to his back and right knee. Then
Fogerty filed this personal injury suit against
Meyer. Meyer moved for summary judgment,
asserting he was entitled to judgment as a matter of law
because Fogerty failed to show Meyer breached a duty separate
and distinct from Employer's nondelegable duty to provide
a safe workplace. The circuit court agreed and granted
summary judgment in Meyer's favor.
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). When the defendant is the moving party, the
defendant may demonstrate entitlement to judgment by showing,
among other things, undisputed "facts negating any of
the [plaintiff's] necessary elements." Id.
workplace accident occurred in 2011. At that time, an
employee could pursue a negligence action against a
co-employee for an injury sustained in the course of work
only 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.
claims that a co-employee breached a duty separate and
distinct from the employer's nondelegable duty to provide
a safe workspace fall into two categories:
(1) allegations that a co-employee breached a duty unrelated
to co-employee's employment, Peters, 489 S.W.3d
at 794-95 ("employees are liable at common law to third
persons, including co-employees, for breaching a legal duty
owed independently of any master-servant relationship");
and (2) allegations that a co-employee breached the
employer's nondelegable duty to provide a safe workplace
in a manner that was not reasonably foreseeable to the
employer, id. at 796 (describing such a breach as a
Conner v. Ogletree, __ S.W.3d __, slip op. at 14,
n.4 (Mo. banc 2018) (No. SC95995, decided Mar. 6, 2018). As
in Conner and McComb v. Norfus, __ S.W.3d
__ (Mo. banc 2018) (No. SC96042, decided Mar. 6, 2018),
Fogerty's claim against Meyer does not fall within either
The scope of the employer's nondelegable duty is broad.
"It is the duty of the master to exercise reasonable
care, commensurate with the nature of the business, to
protect his servant from the hazards incident to it."
Curtis v. McNair, 73 S.W. 167, 168 (Mo. 1903);
see also Smith v. S. Ill. & Mo. Bridge Co., 30
S.W.2d 1077, 1083 (Mo. 1930) (It is the duty of the master
"to use all reasonable precautions which ordinary
prudence would dictate, under the particular circumstances,
in respect to the dangers to be reasonably ...