FELECIA Y. McCOMB, Appellant,
GREGORY NORFUS and DAVID CHEESE, Respondents.
FROM THE CIRCUIT COURT OF COLE COUNTY The Honorable Jon E.
W. DRAPER III, JUDGE
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,
granted summary judgment. Felecia Y. McComb
("Appellant") appeals the trial court's judgment.
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
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.
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.
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
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
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.
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.
workers' compensation statute applicable at the time of
McComb's death provided the following exclusivity
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.
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. See Peters, 489 S.W.3d at 790.
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 ...