Andrew Andrew Garrett v. Michael Brown

In

I the

Misssouri Court

C off Appeaals

Westeern Disttrict

ANDRE

EW GARR

RETT, )

)

Appellant, ) D78443

WD

)

v. ) OPIINION FIL LED:

) Deccember 15,, 2015

AEL BROW

MICHA WN, )

)

Resp

pondent. )

Appea

al from thee Circuit Court of Jacckson Coun nty, Missou

uri

The Honorable

H Kevin

K D. H

Harrell, Judgge

Beforee Division Three:

T Joseeph M. Elliss, Presidingg Judge, Kaaren King M

Mitchell, Juddge

and Garyy D. Witt, JJudge

Appellant

A Andrew

A Garrrett ("Garreett") appealls the grantt of summaary judgmennt by

the Circuit Court of Jackson County,

C in favor

f of Reespondent M

Michael Broown ("Brow

wn").

While working

w as a billposterr for CBS Outdoor,

O G arrett was iinjured wheen he fell w

while

climbing

g a billboarrd structure. He broug

ght suit agaainst his coo-employee and supervvisor,

Brown, for violatin

ng the duty

y of care owed

o to G

Garrett. Thhe court grranted summ

mary

judgmen

nt finding th b liable fo r Garrett's injuries beccause they were

hat Brown could not be

caused by

b CBS Outdoor's

O non-delegab

n ble duty too provide a safe worrk environm

ment.

Garrett alleges

a thatt the court erred in grranting sum

mmary judggment becauuse there w

was a

genuine issue of material fact as to whether Brown violated the policies of CBS Outdoor

causing Garrett's injuries and thus, may be liable. We reverse and remand.

Factual Background1

In 2007, Garrett worked for CBS Outdoor as a billposter installing billboard signs.

Brown served as his supervisor. As a billposter, Garrett would climb billboard structures

to hang advertising signs on the structures. On October 26, Garrett was using a ladder to

climb a billboard structure. The cross-brace on which his ladder was resting snapped,

causing him to fall and suffer injury.

CBS Outdoor had a Safety Manual that it and its employees were required to

follow ("Safety Manual"). Section 19 of the Safety Manual required Brown, as

Operations Manager of the Kansas City market, to complete or schedule annual safety

inspections of each structure using a specific document entitled Structure Maintenance

and Safety Checklist. Garrett alleges that, during his employment and prior to the

October 26 accident, Brown did not perform the required annual inspections of the

billboard structures. Additionally, prior to October 16, Brown routinely ignored reports

from billposters of structures that appeared to be unsafe. At times, after Brown received

a report of a potentially unsafe structure from one billposter, he would immediately send

a second billposter to the structure in question without inspecting the structure or

informing the second billposter that a safety concern was raised.

1

On review of summary judgment, we view the record in the light most favorable to the party against

whom the judgment was entered. Hill v. Gov’t Emp. Ins. Co., 390 S.W.3d 187, 189 n. 1 (Mo. App. W.D. 2012).

"All reasonable inferences are given to the non-movant." Id.

2

Due to Brown's prior behavior, although Garrett had concerns about the structure

upon which he was working on October 26, he did not report his safety concerns prior to

climbing the structure. Garrett brought suit against Brown claiming that Brown's

violation of CBS Outdoor policy caused his injury.

Brown sought summary judgment, arguing that, under the circumstances, he could

not be liable as a co-employee for Garrett's workplace injury as it fell under the

employer's non-delegable duty to provide a safe workplace. The circuit court agreed,

granting his motion. Garrett appeals.

Standard of Review

When considering appeals from summary judgments, [an appellate c]ourt

will review the record in the light most favorable to the party against whom

judgment was entered. Facts set forth by affidavit or otherwise in support

of a party's motion are taken as true unless contradicted by the non-moving

party's response to the summary judgment motion. We accord the non-

movant the benefit of all reasonable inferences from the record. Our review

is de novo because [t]he criteria on appeal for testing the propriety of

summary judgment are no different from those which should be employed

by the trial court to determine the propriety of sustaining the motion

initially. Thus, [t]he propriety of summary judgment is purely an issue of

law. As the trial court's judgment is founded on the record submitted and

the law, an appellate court need not defer to the trial court's order granting

summary judgment.

McComb v. Norfus, WD 77761, 2015 WL 1813573, at *1 (Mo. App. W.D. Apr. 21,

2015), reh'g and/or transfer denied (June 2, 2015) quoting ITT Commercial Fin. Corp. v.

Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993) (internal citations

and quotation marks omitted).

3

Analysis

Garrett's sole point on appeal contends that summary judgment was improper

because there exists a genuine issue of material fact as to whether Brown's actions

constituted a breach of his employer's non-delegable duty to maintain a safe work

environment or a breach of Brown's own personal duty of care owed to Garrett. We

agree.

There have been a number of changes to Missouri's law on co-employee

negligence since 2005. In 2005, the Missouri legislature amended § 287.800 to require

the Workers' Compensation Act ("Act") to be strictly construed. In 2010, this Court held

that strict construction no longer allowed co-employees to be immunized under the

statutory definition of "employer" effectively removing those employees in some

circumstances from protections under the Act. Robinson v. Hooker, 323 S.W.3d 418,

423-25 (Mo. App. W.D. 2010). In 2012, the legislature again amended the Act by

shielding co-employees from civil liability unless their actions "purposefully and

dangerously" injure a party. § 287.120 (2012). There exists then a body of law2 devoted

to determining co-employee liability for workplace injuries that occurred between the

effective dates of the 2005 and 2012 amendments of the Act. Because Garrett's injury

occurred in 2007, we will only be discussing the statutes and case law applicable to this

limited timeframe.

2

The Missouri Supreme Court and Missouri Court of Appeals for the Eastern District have currently

pending three additional cases regarding co-employee liability. The Missouri Supreme Court has heard argument in

Parr ex rel. Waid v. Breeden, SC94393 (Mo. banc submitted Feb. 24, 2015) and Peters v. Wady Indus., Inc.,

SC94442 (Mo. banc submitted Feb. 24, 2015) and the cases are under submission. The Eastern District has heard

argument in Nolen v. Cunningham, ED101591 (Mo. App. E.D. June 10, 2015), but declined to take the case under

submission until the resolution of Parr and Peters.

4

In Hansen v. Ritter, this Court noted that "Robinson neither created nor defined the

rights or remedies of an injured person against co-employees but merely acknowledged

that whatever rights and remedies were available 'at common law or otherwise; were not

barred by the exclusivity provisions of the Act." 375 S.W.3d 201, 207 (Mo. App. W.D.

2012). The court found that, it is only when "a co-employee . . . has violated an

independent duty to an injured employee [will the co-employee] be 'answerable to such

person for the consequences of his negligence.'" Id. at 213, quoting Giles v. Moundridge

Milling Co., 173 S.W.2d 745, 751 (Mo. 1943).

Two years later, in Leeper v. Asmus this Court attempted to further clarify the state

of co-employee liability for workplace injuries. 440 S.W.3d 478 (Mo. App. W.D. 2014).

In doing so, we began by discussing the "something more" test which existed prior to the

2005 amendment of the Act which operated to immunize co-employees from liability for

ordinary negligence. Id. at 490-92.3 We found the test, as applied in Missouri, was

inconsistent with the common law. Id. at 492. As a result, we established a two-step

analysis that was consistent with the common law to assist triers of fact in determining

co-employee liability. For injuries occurring between 2005 and 2012, the analysis to be

applied is:

[I]t must first be determined whether a workplace injury is attributable to a

breach of the employer's non-delegable duties. If yes, then a co-employee's

negligent act or omission will not support a personal duty of care in

negligence as a matter of law, regardless whether the act or omission can be

characterized as "something more." If no, then a co-employee's negligent

act or omission may support an actionable duty of care in negligence,

3

Leeper provides a complete and through discussion of the development of the "something more" test

under Missouri law. It is not necessary for the disposition of this case to reproduce the discussion here.

5

regardless whether the act or omission can be characterized as "something

more."

Id. at 494 (internal footnotes omitted).

Leeper identifies five non-delegable safety duties owed by employers: (1)

"provide a safe place to work"; (2) "provide safe appliances, tools and equipment for the

work"; (3) "give warning of dangers of which the employee might reasonably be

expected to remain ignorant"; (4) "provide a sufficient number of suitable fellow

employees"; and (5) "promulgate and enforce rules for conduct of employees which

would make the work safe." Id. at 484 (quoting W. Prosser, LAW OF TORTS, section 80,

p. 526 (4th ed. 1971). If an injury is caused by a breach of one of these non-delegable

duties, a co-employee is not liable. Id.

According to Leeper, the injury must be caused "solely" by the breach of duty by

the co-employee. Id. at 496, n.16.

Brown's Motion for Summary Judgment argued, and the circuit court found, that

Garrett's injuries were caused by CBS Outdoor's failure to provide a safe workplace and

thus there could be no co-employee liability. The court relied on Garrett's own admission

that "[b]ut for the structurally unsafe condition of the billboard for which [he] fell, [he]

would not have suffered [his] alleged injuries. . . ." Applying Garrett's statements to the

two-part test established in Leeper, the court held that the injury was caused by a non-

delegable duty of the employer under the first step and thus, it did not need to proceed to

the second step and there was no co-employee liability.

6

On appeal, Garrett argues that the circuit court erred in entering summary

judgment because there exists a genuine issue of material fact as to whether his injury

was caused by a breach of CBS Outdoor's duty or a personal duty owed by Brown to

Garrett. He contends that Brown violated a personal duty owed to Garrett by violating

CBS Outdoor's policies regarding workplace safety. In support of this, Garrett relies in

large part on this Court's recent ruling in McComb.

In McComb,4 a hospital delivery driver, Edward McComb, died while driving his

route in bad weather conditions. 2015 WL 1813573, at *1. Both before and during his

shift he contacted his supervisor, who in turn contacted another supervisor, regarding the

cancellation of his shift due to hazardous road conditions and the nonemergency nature of

the items he was to deliver that day. Id. Both times McComb was instructed to continue

driving his route. Id. Near the end of his shift, McComb's vehicle slid off the road

resulting in his death. Id. Following McComb's death, his wife brought suit against the

two supervisors that instructed McComb to continue his route. Id. The trial court

granted summary judgment to supervisors who argued the suit was barred by the workers'

compensation statute's exclusivity provision. Id. This Court reversed and remanded the

matter for further proceedings. Id. at *2-6.

The Court cited to Leeper noting if "an employee's workplace injury can be

attributed to the employer's breach of a nondelegable duty, then a negligent co-employee

owes no duty in negligence to the injured employee as a matter of law." Id. at *3. It

4

McComb was decided April 21, 2015, after the circuit court entered judgment in the case at bar on

February 5, 2015.

7

further notes, however, that under the analysis of Leeper, "the rule that the master is

bound to see that the environment in which a servant performs his duties is kept in a

reasonably safe condition is not applicable where that environment becomes unsafe

solely through the default of that servant himself, or of his fellow employees." Id. at *4,

quoting Leeper, 440 S.W.3d at 488.

McComb held that there were a number of relevant facts and circumstances still in

dispute regarding the safety of the work environment and those questions of fact were

material and precluded summary judgment. Specifically, the Court highlighted three

factual questions that were relevant:

1. Did employer have a policy regarding whether couriers should be sent on their

route during inclement weather? "[I]f it did not have such a policy, then

[McComb's] death would be attributable to his employer's failure to discharge

its non-delegable duties to provide [McComb] with a safe workplace and to

ensure that the work instrumentalities were safely used, and [Supervisors]

would face no personal liability." Id. at *4. The court also recognized the

relevance of facts such as "whether the policy is communicated effectively,"

"whether training and supervision are provided," and "employer's awareness

and acceptance of deviations from the policy." Id. at *4, n.5.

2. Was any relevant policy followed? "If not . . . [McComb's] death may have

been attributable to a personal duty owed by his co-employees." Id. at *5.

3. If the policy was violated by keeping McComb on his route did his supervisor's

violation of the policy "alone, render [McComb's] otherwise safe work

8

environment unsafe?" Id. "If so, then [McComb's] death was likely

attributable to a personal duty owed him by [Supervisors], subjecting them to

potential liability under the common law." Id.

These questions were intended to determine whether there was an otherwise safe

work environment established by the employer but that McComb was injured as a result

of decisions co-employees made contrary to company policies. An employer may meet

its duty of establishing a safe workplace but the workplace may be rendered unsafe by a

co-employee failing to follow guidelines established by the employer for safety. Leeper,

440 S.W.3d at 496; McComb, 2015 WL 1813573 at *5. Where the employer establishes

a safe environment but co-employee violates workplace rules to cause an unsafe

environment the co-employee may have violated a "personal duty" owed to plaintiff.

This is not to say, however, that an employer may simply delegate safety to a co-

employee. Leeper, 440 S.W.3d at 493 ("Charging a co-employee with a personal duty to

protect a fellow employee from the risk of operating a dangerous instrumentality of work

violates a core maxim by ascribing to the employee the responsibility of performing the

employer's nondelegable duties."); Hansen, 375 S.W.3d at 217 ("[A] co-employee's

personal duties to fellow employees do not include a legal duty to perform the employer's

non-delegable duties. Unless a petition asserts a personal duty owed by a co-employee

that exists independent of the employer's non-delegable duties, and thus a duty that would

exist independent of the master-servant relationship, the petition will not survive a

motion to dismiss for failure to state a cause of action for negligence.") Instead, a co-

employee may be liable where an individual employee acted to render the work

9

environment unsafe. "'[T]he rule that the master is bound to see that the environment in

which a servant performs his duties is kept in a reasonably safe condition is not

applicable where that environment becomes unsafe solely through the default of that

servant himself, or of his fellow employees.'" McComb, 2015 WL 1813573, at *4,

quoting Kelso, 85 S.W.2d at 536.

As in McComb, the risk of injury to this employee by virtue of climbing onto

billboard structures which were in a deteriorated condition was obvious and foreseeable.

Unlike McComb, in this case we have evidence in the record to show that the employer

had a very specific policy which required the inspection, repair or removal from service

any billboard structures that were in a dangerous deteriorated condition and we have

evidence from which a jury could find that Brown violated the employers policy and that

this violation may have caused Garrett's injuries. Garrett alleges that under these facts,

Brown's failure to follow the employer's specific policy and evidence that his violation of

the policy alone rendered the otherwise safe work environment unsafe means he can be

found liable for a breach of a personal duty owed to Garrett under McComb and Leeper.

McComb, 2015 WL 1813573 at *5; Leeper, 440 S.W.3d at 496.

Garrett alleges that his injuries were caused by Brown's failure to adhere to the

policies of CBS Outdoor. He alleges his injuries were caused by the "structurally unsafe

condition of the billboard" from which he fell.5 CBS Outdoor implemented policies to

keep those billboards safe, and it instructed Brown to implement its safety policies to

5

The record contains a number of these admissions stating that "[his] injury was caused, at least in part, by

the fact that his workplace . . . was not reasonably safe."

10

make th

he billboard

ds safe. Th

he question then becom

mes, was itt solely Broown's failuure to

follow the

t policy which

w question to be unsafe, or was it CBS

caussed the billboard in qu

ver time to enforce its policy whicch caused th

Outdoorr's failure ov the billboardd to be unsaafe?

There

T are facts

f o suggest tthat Brownn's violationns of the CBS

in thee record to

Outdoorr's policy reegarding th on and repaair of billbboards was a longstannding

he inspectio

issue. However,

H th hing in thee record as to CBS Ouutdoor's knnowledge oof the

here is noth

violation y may or may not havee taken to eenforce the policy. If CBS

ns and what steps they

d took reaasonable stteps to enssure that tthe policy was

Outdoorr had the policy and

commun

nicated to Brown,

B w properlyy trained oon the policy and thaat the

thaat Brown was

policy was wn, then Brrown's violation of thhe policy unnder these facts

w enforceed by Brow

may hav

ve constitutted a violattion of his personal

p duuty owed too his co-em

mployee Gaarrett.

See McC

Comb, 2015

5 WL 18135

573. Howeever, if CBS

S Outdoor w

was aware of longstannding

violation

ns of the po

olicy by Brrown and took

t no reaasonable action to enfo

force the poolicy,

then it may

m be fou

und that CB or failed to discharge its non-deelegable duty to

BS Outdoo

k environmeent for Garrrett and Broown and woould face noo liability. Id.

provide a safe work

Conclusioon

Because

B therre is a genu

uine issue off material ffact as to thiis narrow isssue, we revverse

the grant of summaary judgmen

nt and remaand the mattter to the triial court.

_____________________________

_________

Gary D. W

Witt, Judge

All conccur

11