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