Conner v. Ogletree

542 S.W.3d 315
CourtSupreme Court of Missouri
DecidedMarch 6, 2018
DocketNo. SC 95995; No. SC 95997
StatusPublished
Cited by11 cases

This text of 542 S.W.3d 315 (Conner v. Ogletree) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Conner v. Ogletree, 542 S.W.3d 315 (Mo. 2018).

Opinions

Paul C. Wilson, Judge

In both cases before this Court, an employee brought a common law negligence claim against co-employees for an injury sustained on the job. In each case, the trial court granted summary judgment in the co-employees' favor. On appeal, this Court affirms because the plaintiffs failed to allege the co-employees breached a duty separate and distinct from an employer's duty to provide a reasonably safe workplace, i.e., a breach of a duty unrelated to employment or a breach of the employer's duty to provide a safe workplace that was not reasonably foreseeable to the employer.

Background

Conner

In 2007, Michael Conner was injured after touching a live power line he thought had been de-energized. On the day of the accident, Conner, a journeyman lineman, was working near an old shoe factory to retire a transformer bank for his employer, Intercounty Electric Cooperative Association ("Intercounty"). Conner was joined by four co-employees, including Dale Ogletree and Scott Kidwell. Ogletree, a supervisor, was responsible for enforcing Intercounty's safety manual, rules, and guidelines as the crew worked. Intercounty's safety manual meticulously explains how to safely de-energize a power line. Those instructions were not followed on the day of the accident.

Before Conner arrived, Kidwell (a serviceman) used an improper tool to de-energize the power line and did not properly confirm the line had been de-energized. He and the rest of the crew mistakenly believed he had successfully de-energized the line and began working next to it. Conner later arrived at the work site. Seeing the rest of the crew working next to the line, Connor assumed it had been de-energized. Out of caution, Conner asked Ogletree whether the line had been de-energized. Even though Ogletree had not properly confirmed the line was de-energized, Ogletree told Conner it was. Conner then climbed atop a work platform and attempted to cut the line. The resulting shock blew him off the platform and rendered him a quadriplegic.

Conner brought a negligence action against Kidwell and Ogletree, alleging they negligently carried out the details of their work in several respects. Generally, Conner alleged Kidwell failed to de-energize the line, failed to ensure the line had been de-energized, failed to warn Connor the line had not been de-energized, and failed to abide by Intercounty's safety rules. Conner also alleged Ogletree failed to supervise Kidwell in carrying out these responsibilities. Kidwell and Ogletree argued that Conner's petition merely alleges breaches of Intercounty's nondelegable duty to provide a reasonably safe workplace.

*319The trial court agreed and granted summary judgment. Connor appealed, this Court granted transfer, and it has jurisdiction under article V, section 10, of the Missouri Constitution.

Evans

In November 2009, Russell Evans was injured on the job when a forklift driven by his co-employee, Monte Barrett, struck him and ran over his foot. Evans and Barrett were working to construct apartment buildings for their employer, Wilco Contractors, Inc. ("Wilco"). At the time of the accident, Barrett was driving a forklift with a load of trusses hanging from one of its two prongs. To stabilize the load, Evans walked alongside and held a tagline connected to the forklift and trusses. Barrett allegedly hit a rock, causing the load to shift. As the load shifted, Evans was pulled toward the forklift, which struck him and ran over his foot.

Evans sued Barrett for negligently operating the forklift. Barrett argued that Evans' petition merely alleges a breach of Wilco's nondelegable duty to provide a reasonably safe workplace. The trial court agreed and granted summary judgment in Barrett's favor. Evans appealed, this Court granted transfer, and it has jurisdiction under article V, section 10, of the Missouri Constitution.

Analysis

This Court reviews a grant of summary judgment de novo. Parr v. Breeden , 489 S.W.3d 774, 778 (Mo. banc 2016). "Summary judgment is proper when the moving party demonstrates there is no genuine dispute about material facts and, under the undisputed facts, the moving party is entitled to judgment as a matter of law." Id. (citations omitted). A defendant

can demonstrate entitlement to summary judgment by showing: (1) facts negating any of the [plaintiff's] necessary elements; (2) the [plaintiff], after an adequate period of discovery, has been unable, and will not be able, to produce evidence sufficient to allow the trier of fact to find the existence of any one of the [plaintiff's] elements; or (3) there is no genuine dispute of the existence of facts required to support the [defendant's] properly pleaded affirmative defense.

Id. (citation omitted).

Conner and Evans were injured between 2005 and 2012. During that period, a plaintiff could pursue a negligence action against a co-employee for an injury sustained in the course of work under certain circumstances. See Peters v. Wady Indus., Inc. , 489 S.W.3d 784, 789-90 (Mo. banc 2016). "To maintain a negligence action against a co-employee, a plaintiff must show that the co-employee breached a duty separate and distinct from the employer's nondelegable duty to provide a safe workspace for all employees." Parr , 489 S.W.3d at 782. To determine whether Conner and Evans met this burden, this Court must examine the scope of an employer's nondelegable duty to provide a safe workplace at common law.1

The common law surrounding workplace injuries arose against the backdrop of re spondeat superior *320, i.e., the principle that a master generally is liable for the acts of its servants within the course and scope of their employment. Using this doctrine, an employee could sue the employer for injuries resulting from a co-employee's negligence. To prevent this, this Court-and others-adopted an exception to the doctrine of respondeat superior known as the "fellow servant" rule, holding an employer was not liable for an employee's injury resulting from the negligence of a co-employee.2 See McDermott v. Pac. R. Co. , 30 Mo. 115, 116 (Mo. 1860) ("[A] servant, who is injured by the negligence or misconduct of his fellow servant, can maintain no action against the master for such injury.").

Of course, neither the doctrine of respondeat superior

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Bluebook (online)
542 S.W.3d 315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conner-v-ogletree-mo-2018.