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Fogerty v. Armstrong

Supreme Court of Missouri, En Banc

March 6, 2018

MATTHEW FOGERTY, Appellant,
v.
RICK ARMSTRONG, Defendant, and LARRY MEYER, Respondent.

         APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY The Honorable Mark D. Seigel, Judge

          Paul C. Wilson, Judge

         Matthew 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.

          Background

         Fogerty 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 construction site.

         While 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.

         Fogerty 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.[1] 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.

         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). 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. (citation omitted).

         Fogerty's 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.

         Generally, 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 "transitory risk").

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 category.

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 ...

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