Marshall v. ETI Explosives Technologies International

874 S.W.2d 442, 1994 Mo. App. LEXIS 281, 1994 WL 49626
CourtMissouri Court of Appeals
DecidedFebruary 22, 1994
DocketNo. WD 48432
StatusPublished
Cited by3 cases

This text of 874 S.W.2d 442 (Marshall v. ETI Explosives Technologies International) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marshall v. ETI Explosives Technologies International, 874 S.W.2d 442, 1994 Mo. App. LEXIS 281, 1994 WL 49626 (Mo. Ct. App. 1994).

Opinion

HANNA, Judge.

The plaintiffs, Gary Marshall and his wife, appeal the summary judgment entered in favor of the defendant, James Owen, based on the trial court’s finding that it lacked subject matter jurisdiction. The plaintiffs filed suit against multiple defendants, including ETI Explosives Technologies International, Inc. (ETI) and ETI chemist James Owen, seeking to recover for injuries resulting from Mr. Marshall’s work-related exposure to hazardous chemicals. The exposure occurred while Marshall was employed by Contract Carriers, Inc. to perform work at ETI’s explosives manufacturing facility in Greenfield, Missouri.

Marshall was the maintenance supervisor of the Quality Control Division, and it was his job to conduct testing on certain new explosives, initially using a small batch- manufacturing process to determine proper ingredient levels for the desired product characteristics, and later on a mass production scale. The performance of these job duties required direct exposure to a number of dangerous chemicals. The plaintiffs have alleged that because of the negligence of ETI and the defendant Owen, Mr. Marshall was not warned that direct unprotected exposure to these chemicals may pose a hazard to his health. Due to the lack of warning, he never wore protective clothing or used any kind of breathing apparatus. Marshall complains of numerous health problems as a result of his unprotected exposure to hazardous chemicals.

The defendant Owen was a chemist employed by ETI. The parties agree that Owen’s role was one of supervision over Marshall and other CCI employees with respect to developing and monitoring the batch manufacturing process of the various explosive materials, including dangerous substances and chemicals. The plaintiffs allege that defendant Owen breached his common law duty to exercise reasonable care owed by one employee to another.

The trial court ruled in favor of both defendants on their respective motions for summary judgment. In a separate order, from which the plaintiffs have not appealed, the trial court determined that Marshall was a statutory employee of ETI and that, therefore, ETI was immune from suit under the Workers’ Compensation Law, §§ 287.040.1, 287.120.2, RSMo 1986. The trial court granted a summary judgment in favor of defendant Owen for lack of subject matter jurisdiction. The court held that plaintiffs’ First Amended Petition does not allege actionable negligence on the part of defendant Owen because it “does not allege affirmative acts constituting the breach of any duty owed by Owen other than the duty of general supervi[444]*444sion and safety owed to ETI.” The plaintiffs appeal.

When considering an appeal from the granting of a summary judgment, this court will review the record in the light most favorable to the party against whom the judgment was entered. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We give the non-movant the benefit of all reasonable inferences from the record. Id.

The 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. Id. Summary judgment is proper when the court determines that the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, that they are entitled to judgment as a matter of law. Rule 74.04(c).

In their first point, the plaintiffs argue that the trial court erred by granting the defendant Owen’s motion for summary judgment because they plead affirmative acts by Owen that caused or increased the risk of injury to plaintiff. Further, they claim that summary judgment was erroneous because genuine issues of material fact existed regarding defendant Owen’s job duties, whether he assumed the status of a co-employee, whether his actions as alleged in the petition were affirmative acts, and whether he breached his personal duty of care towards Marshall.

Among the duties that an employer owes its employees is, “the duty to provide a safe work place, to provide safe appliances and equipment, to warn of dangers about which the employee may be ignorant, to provide suitable fellow employees and to make and enforce rules for employee conduct.” Biller v. Big John Tree Transplanter Mfg. & Truck Sales, Inc., 795 S.W.2d 630, 633 (Mo.App.1990). The overall duty to provide a safe workplace is nondelegable and, therefore, the employer may not escape liability for breach of that duty by delegating the responsibility to someone else. Id. However, an employer is immune from civil liability for breach of that duty and an employee harmed by such a breach can only recover under the applicable workers’ compensation laws. § 287.120, RSMo 1986; Biller, 795 S.W.2d at 633.

A supervisory employee who is charged with carrying out the employer’s duty to provide a safe workplace is also immune from a civil suit for the breach of that duty. Biller, 795 S.W.2d at 633. However, Missouri courts have recognized a cause of action against a fellow employee for active negligence outside the scope of his responsibility to provide a safe workplace for the plaintiff. Tauchert v. Boatmen’s Nat’l Bank, 849 S.W.2d 573, 574 (Mo. banc 1993). Such affirmative negligent acts constitute a breach of personal duty of care owed to the plaintiff. Id.

In paragraph 28(b) of their first amended petition, the plaintiffs alleged the following:

b. Defendant Owen committed the following additional affirmative acts which caused or increased plaintiff Wayne Marshall’s risk of injury:
1. Owen personally worked alongside the plaintiff, testing and mixing the hazardous substances and chemicals with his bare hands and without any protective clothing, gloves or breathing equipment, thereby leading plaintiff to believe no protection was necessary.
2. Owen personally observed and directed plaintiffs unprotected testing and mixing of the hazardous substances and chemicals and remained silent, never advising plaintiff of the risks associated with exposure to the same and the need to wear protective clothing, gloves and breathing equipment.
3. Owen personally advised the plaintiff, in response to Marshall’s statement that the chemicals were affecting him, and inquiring whether protective equipment was necessary: “don’t worry, I have handled this stuff [chemicals] all my life and it didn’t bother me. You must have sensitive skin.”
4. Owen personally observed the effect on plaintiff from handling and mixing the hazardous substances and chemicals, i.e., his yellow stained hands and holes in [445]*445his clothing, yet thereafter, advised the plaintiff to simply wash his hands frequently and try to keep the materials off his clothes, instead of telling plaintiff that he needed protective clothing, gloves and breathing equipment.
5.

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Bluebook (online)
874 S.W.2d 442, 1994 Mo. App. LEXIS 281, 1994 WL 49626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-v-eti-explosives-technologies-international-moctapp-1994.