Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McComb v. Norfus

Supreme Court of Missouri, En Banc

March 6, 2018

FELECIA Y. McCOMB, Appellant,
v.
GREGORY NORFUS and DAVID CHEESE, Respondents.

         APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY The Honorable Jon E. Beetem, Judge

          GEORGE W. DRAPER III, JUDGE

         Edward R. McComb died while driving a delivery vehicle for his employer. His widow brought a wrongful death action against her husband's supervisory co-employees, Gregory Norfus and David Cheese (collectively, "Co-employees"). The trial court agreed with Co-employees that the suit was barred by the exclusivity provision in Missouri's workers' compensation statutes, section 287.120, [1] and granted summary judgment. Felecia Y. McComb ("Appellant")[2] appeals the trial court's judgment.

          At issue in this case is the application of two recent opinions from this Court concerning common law liability for co-employees: Peters v. Wady Industries, Inc., 489 S.W.3d 784 (Mo. banc 2016), and Parr v. Breeden, 489 S.W.3d 774 (Mo. banc 2016). Because Appellant failed to establish Co-employees owed McComb a duty separate and distinct from his employer's nondelegable duty to provide a safe workplace, this Court affirms the trial court's judgment.

         Background

         Edward R. McComb worked as a courier for a hospital and was tasked with delivering medical supplies and other materials to clinics. He was scheduled to work on a day when a severe winter storm moved through Missouri, causing the governor to declare a state of emergency.

         Before McComb's shift began, his immediate supervisor, Gregory Norfus, was informed by other employees that a severe winter storm was approaching the area. Norfus called David Cheese, who supervised both Norfus and McComb, and asked if Cheese wanted McComb to drive his route. Cheese instructed Norfus to tell McComb to go on his route, but to drive slowly and carefully. Cheese did not consult with anyone or check the weather forecast before making the decision.

         During McComb's shift, Norfus called him to check on his status. McComb told Norfus the windshield of his vehicle was freezing. Norfus again contacted Cheese to ask if they should pull McComb from his route, but Cheese instructed Norfus that McComb, who was not delivering any vital organs or "STAT" items that needed immediate delivery, should continue as scheduled. Before the end of his shift, McComb's vehicle slid off the road, flipping several times down an embankment. He died as a result of the accident.

         Appellant sued Co-employees for wrongful death, arguing they were negligent in sending McComb on his route and declining to pull him off his route despite the weather conditions. Co-employees moved for summary judgment and claimed the suit was barred by the exclusivity provision in Missouri's workers' compensation statutes. See sec. 287.120. The trial court granted summary judgment. Appellant appeals.[3]

         Standard of Review

         This Court reviews a trial court's grant of summary judgment de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is appropriate when the moving party has demonstrated there is no genuine dispute about material facts and the moving party is entitled to judgment as a matter of law. Rule 74.04(c)(6); ITT Commercial, 854 S.W.2d at 380.

         Analysis

         Appellant argues the trial court erred in granting summary judgment because there is a genuine issue of material fact. According to Appellant, whether McComb's death was attributable to his employer's nondelegable duty to provide a safe workplace is a question of fact for a jury to decide.

          The workers' compensation statute applicable at the time of McComb's death provided the following exclusivity provision:

1. Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of the employee's employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person. . . .
2. The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee . . . at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter.

Sec. 287.120.

         Pursuant to section 287.120.1, an employer was subject to liability under workers' compensation law for accidents arising out of and in the course of an employment, but employers were released from all other liability for the accident. As explained in Peters, the definition of "employer" in the statute does not include a co-employee. 489 S.W.3d at 790. Because a co-employee is not an employer under the workers' compensation law, a co-employee is not covered in the exclusivity provision. Id. As a result, section 287.120.1 does not release a co-employee from any common law liability resulting from the work-related accident. Id. Appellant is permitted to pursue common law remedies against Co-employees because the version of section 287.120.1 in effect at the time of McComb's death did not release Co-employees from common law liability.[4] See Peters, 489 S.W.3d at 790.

          To establish a cause of action for common law negligence, "the plaintiff must establish that (1) the defendant had a duty to the plaintiff; (2) the defendant failed to perform that duty; and (3) the defendant's breach was the proximate cause of the plaintiff's injury." Id. at 793 (quoting Martin v. City of Washington,848 S.W.2d 487, 493 (Mo. banc 1993)). As this Court has repeatedly affirmed, the question of whether a duty existed ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.