Andrew Garrett v. Michael Brown

Missouri Court of Appeals

Western District

‘ANDREW GARRETT, )

Appellant, § WD78443

v. § OPINION FILED: September 6, 2016

MlCHAEL BROWN, §

Respondent. §

Appeal from the Circuit Court of Jackson County, Missouri

The Honorable Kevin D. Harrell, Judge

Before Division Three: Joseph M. Ellis, Senior Judge, Presidingl, Karen King Mitchell,

Judge and Gary D. Witt, Judge

Appellant Andrew Garrett ("Garrett") appeals the grant of summary judgment by

the Circuit Court of Jackson County, in favor of Respondent Michael Brown ("Brown").

While working as a billposter for CBS Outdoor, Garrett was injured when he fell while

climbing a billboard structure. He brought suit against his co-employee and supervisor,

Brown, for violating the duty of care owed to Garrett. The court granted summary

judgment finding that Brown could not be liable for Garrett's injuries because they were

l Judge Ellis retired as an active member of the court on March l, 201 6, after oral argument in this case.

He has been assigned by the Chief Justice to participate in this decision as Senior Judge.

caused by CBS Outdoor's non-delegable duty to provide a safe work environment Garrett

alleges that the court erred in granting summary judgment because there 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 Background2

ln 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 ()ctober 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

y 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 l6, 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

` 2 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'l Emp. Ins. Co., 390 S.W.3d 187, 189 n. l (Mo. App. W.D. 2012).

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

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billposter to the structure in question without inspecting the structure or informing the

second billposter that a safety concern was raised.

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 summaryjudgment 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, at *3 (Mo. App. W.D. Sept. 6, 2016) quoting ITT

Commercial Fin. Corp. v. Mz'd-Am. Marine Supply Corp., 854 S.W.Zd 371, 376 (Mo. banc

1993) (internal citations and quotation marks omitted).

WMW~

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. ln 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). ln 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 law 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.

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.

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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."' ld. at 213, quoting Giles v. Mouna’ridge Milling Co.,

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

Two years later, in Leeper v. Asrnus 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. F or 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 regardless

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

Ia’. at 494 (internal footnotes omitted).

Leeper identifies five non-delegable safety duties owed by employers: (l) "provide

a safe place to work"; (2) "provide safe appliances, tools and equipment for the work"; (3)

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

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

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"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 ld.

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

the co-employee. Id. at 496, n.l6.

The Missouri Supreme Court recently clarified the holding of Leeper and sought to

better define co-employee liability. Peters v. Waa’y Ina’ustries, ]nc., 489 S.W.3d 784 (Mo.

banc 2016); Parr v. Breeden, 489 S.W.3d 774 (Mo. banc 2016).4 ln Peters, the Court noted

that "to the extent that [Leeper] holds that that the existence of a duty is not purely a

question of law" it is overruled. As this Court noted in McComb, however, in all other

respects, Leeper remains good law including its holding that "'the starting point is to first

determine whether a workplace injury is attributable to a breach of the employer's

nondelegable duties' and that this causation (as opposed to existence) determination 'is a

question of fact."' McComb, WD77761 at *7 (quoting Leeper, 440 S.W.3d at 489, 494).

In other words, "the question becomes where the employer's non-delegable duty ends and

` 4 We find Parr to be distinguishable from this case ln Pa)'r, the court examined whether the plaintiffs had

adequately proved the existence of a duty on the part of the co-employee that was separate and distinct from the duty

owed by the employer. Parr, 489 S.W.3d at 782. ln this case, Garrett does not challenge that CBS Outdoor had a

non-delegable duty but rather argues that the actions of Brown fell outside the scope of that duty.

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the employee's independent duty begins." Abbot v. Bolton, ED100773, 2016 WL 4097509,

at *3 (Mo. App. E.D. August 2, 2016).

Brown's Motion for Summary Judgrnent 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.

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,5 a hospital delivery driver, Edward McComb, died while driving his

route in bad weather conditions. WD77761 at *l. 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

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

on February 5, 2015. Following the Supreme Court's decisions in Parr and Peters, McComb was reissued on

September 6, 2016.

the items he was to deliver that day. Id. at *2. Both times McComb was instructed to

continue driving his route Id. at *3. 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 Ia’. at *7-12.

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 *8. lt 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 *9, 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:

l. 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

[l\/lcComb's] death would be attributable to his employer's failure to discharge

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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 *10. 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 *9, n. l0. §

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

attributable to a personal duty owed by his co-employees." Ia’. at * lO.

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

environment unsafe?" Id. at *ll. "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 lnade 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, WD77761 at * l l. 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.") lnstead, a co-employee may

be liable where an individual employee acted to render the work environment unsafe

"When . . . the employee's injuries result from a co-employee's negligence in carrying out

the details of the work, the injuries are attributable to the co-employee's breach of a duty

separate and distinct from the employer's nondelegable duty to provide a safe workplace."

Peters, 489 S.W.3d at 796.

In Peters, an employee sought recovery from his employer's project manager, under

a theory of co-employee liability, for an injury resulting from the "stacking, loading, and

transporting" of dowel baskets in an unsafe manner that had "become standard operating

procedure." Id. at 799. The Court found that the employee alleged he was injured because

he was ordered to conduct his work in an allegedly unsafe manner "in the course of

business." Id. at 800. This distinguished the case from a situation in which "a co-employee

negligently carried out some detail or aspect of his work." Id.

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"The employer's duty to provide a safe workplace is not unlimited." Id. at 795. An

employer's duty "does not extend to protecting them from the transitory risks [that] are

created by the negligence of the [employees] themselves in carrying out the details of that

work." Ia’. As stated in Abbot:

[W]here the employer directed the employee to act in a negligent manner or

had a negligent standard operating procedure in place, the employee's

negligence is subsumed in the employer's duties; however, where the

employee is negligent on his own in carrying out the details of the work, any

resulting injuries are attributable to the employee's breach of his or her

separate and distinct common-law duty of care

Abbot, 2016 WL 4097509 at *3.

We find the facts of this case, as they exist at this stage, to be more similar to that

of McComb and Abbot than that of Peters, and warrant remanding the case for further

factual determinations Like McComb and Abbot, the employee made allegations that the

behavior of the co-employee exceeded the scope of the employer's non-delegable duty.

That the employer had established a safe work environment but that the co-employee acted

on his own in carrying out the details of his work in a dangerous or negligent manner. In

Peters, there was no allegation that the employer attempted to create a safe work

environment beyond simply directing the project manager to create such an environment

Thus, to the extent that the project manager acted negligently, it was merely on behalf of

the employer. In this case, Garrett specifically alleged that CBS Outdoor had written

regulations in place directing Brown how to create a safe work environment To the extent

that evidence may show that Brown failed to follow those procedures, despite proper

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oversight by CBS Outdoor, Garrett's injury could have been caused solely by his co-

employee's negligence because it was outside the scope of CBS Outdoor's duty.

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.6 CBS Outdoor implemented policies to

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

the billboards safe The question then becomes, was it solely Brown's failure to follow the

policy which caused the billboard in question to be unsafe or was it CBS Outdoor's failure

over time to enforce its policy which caused the billboard to be unsafe?

There are facts in the record to suggest that Brown's violations of the CBS Outdoor's

policy regarding the inspection and repair of billboards was a longstanding issue

However, there is nothing in the record as to CBS Outdoor's knowledge of the violations

and what steps they may or may not have taken to enforce the policy. If CBS Outdoor had

the policy and took reasonable steps to ensure that the policy was communicated to Brown,

that Brown was properly trained on the policy and that the policy was enforced by Brown,

then Brown's violation of the policy under these facts may have constituted a violation of

his personal duty owed to his co-employee Garrett. See McComb, WD77761 at *9-11.

However, if CBS Outdoor was aware of longstanding violations of the policy by Brown

and took no reasonable action to enforce the policy, then it may be found that CBS Gutdoor

6 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."

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failed to discharge its non-delegable duty to provide a safe work environment for Garrett

and Brown and would face no liability, Id. at *10-12.

Conclusion

Because there is a genuine issue of material fact as to this narrow issue, we reverse §

the grant of summary judgment and remand the matter to the trial court

Gary D. Witt, ludge

All concur

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