RUSSELL EVANS,                )
                              )
               Appellant,     )
                              )
    vs.                       )              No. SD33209
                              )
RON WILSON and MONTE BARRETT, )              FILED: September 19, 2016
                              )
               Respondents.   )

          APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                     Honorable Michael J. Cordonnier, Judge

AFFIRMED

      We consider co-employee liability for a workplace injury in 2009, when “an

injured employee could maintain a cause of action recognized by common law

against a co-employee.” Peters v. Wady Industries, Inc., 489 S.W.3d 784, 787

(Mo. banc 2016). 1 Because Evans pleaded and developed facts “establishing only


1We stayed these proceedings pending handdowns in Peters and a companion case,
Parr v. Breeden, 489 S.W.3d 774 (Mo. banc 2016), then invited the parties to file
further suggestions in light of those decisions prior to oral argument. This opinion
cites several cases partially overruled by Peters or Parr but not otherwise
conflicting therewith. We cite these cases for legal principles unaffected by Peters
or Parr and will not further note the latter cases’ impact thereon.
duties that are a part of the employer’s nondelegable duty to provide a safe

workplace” (id.), as opposed to “a duty separate and distinct from the employer’s

nondelegable duties” (id. at 796), we affirm the summary judgment entered in favor

of co-employee Barrett. 2

                                     Background

       The essential facts are not in dispute. Evans and Barrett were co-employed

constructing apartments. Barrett, driving a forklift, was moving a load of trusses.

Evans walked ahead and to the side of the forklift, holding a tag line connected to

both the forklift and trusses to stabilize the load as it moved.

       According to Evans, Barrett negligently drove the forklift over a rock, causing

the load to shift and pull Evans toward the forklift, which struck him and ran over

his foot.

       Evans sued Barrett, alleging that Barrett had not been licensed, certified, or

“adequately trained to drive a forklift”; that Barrett’s direct supervisor (and company

president) knew all these deficiencies, yet “ordered” Barrett to operate the forklift

near Evans and other workers; that Barrett was negligent “[i]n operating a vehicle he

was not trained to operate” and in other respects; all resulting in injury to Evans.

       The trial court eventually granted Barrett summary judgment, ruling that safe

forklift operation fell within the employer’s nondelegable duty to provide a safe

working environment, and finding that Evans had alleged no duty independent of

the employer’s nondelegable duty. Evans appeals.


2Evans does not appeal the summary judgment granted to defendant Wilson, the
company president and Barrett’s direct supervisor.
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                 Co-Employee Liability – Relevant Principles

      As in any negligence claim, Evans must establish that Barrett owed (and

breached) a duty to Evans. Parr, 489 S.W.3d at 778. Whether a duty exists may

hinge on particular facts, but “is purely a question of law.” Id. at 782.

      Recent explications on co-employee workplace duties include Peters, Parr,

and Leeper v. Asmus, 440 S.W.3d 478 (Mo.App. 2014), from which we summarize

observations relevant to this case:

          • At common law, employees are liable to co-employees “for breaches of a
            duty owed independently of the master-servant relationship—that is, a
            duty separate and distinct from the employer’s nondelegable duties.”
            Peters, 489 S.W.3d at 796.

          • But an employee’s personal duties to co-employees do not include the
            employer’s nondelegable common-law safety duties to provide a safe
            workplace, safe equipment, a sufficient number of suitable co-workers,
            etc. Id.; Parr, 489 S.W.3d at 779.

          • Any failure to perform one of the employer’s nondelegable duties rests
            with the employer, not the employee. Leeper, 440 S.W.3d at 484.

          • “Thus, at common law, co-employees were not chargeable in negligence
            for injuries attributable to the employer’s breach of a nondelegable
            duty.” Id.

          • It follows that “an employer and a co-employee cannot be jointly and
            severally liable in negligence for a workplace injury.” Id. at 496 n.16.

          • “If a workplace injury is attributable in any manner to the employer’s
            breach of its non-delegable duties, then a co-employee can owe no duty
            of care in negligence and the co-employee’s negligence is chargeable to
            the employer.” Id. 3




3As carefully and painstakingly demonstrated in Hansen v. Ritter, 375 S.W.3d
201, 210-18 (Mo.App. 2012). See also Peters, 489 S.W.3d at 795 (citing Hansen).


                                           3
                                      Analysis

       Summary judgment was proper for at least three reasons.          First, Evans’s

allegations that the employer’s supervisor (and company president) knowingly

ordered Barrett to operate work machinery without adequate training, etc., describe

a violation of the employer’s nondelegable duties of safety. Barrett thus “can owe no

duty of care in negligence and [his] negligence is chargeable to the employer.” Id.

As stated nearly a century ago:

          The [employer] was liable for the negligent performance of any act
          directed by it to be performed by any employee, whether of high or
          the most lowly degree, which affected the safety of that [work]place.
          The duty of exercising ordinary care to keep such place reasonably
          safe was a continuing and nondelegable duty. For the negligent act
          of the employee, to whom such duty was assigned, the [employer] is
          liable.

Bender v. Kroger Grocery & Baking Co., 276 S.W. 405, 408 (Mo. 1925). Or

per Peters just this year: “The allegations in the petition were that [Barrett] was

ordered and directed to conduct work in the allegedly unsafe manner in the course of

business. These allegations distinguish this case from instances in which a co-

employee negligently carried out some detail or aspect of his work.” 489 S.W.3d at

800.

       Next, so-called “something more” cases are correct to the extent they require,

for co-employee liability, something more than an alleged failure to fulfill the

employer’s nondelegable duty to provide a safe workplace. Id. at 797. 4 Yet Evans’s

bad-driving allegations “allege nothing more than a failure to provide a safe working


4 The “something more” test and cases are more fully described in Peters, 489
S.W.3d at 796-98.
                                      4
environment.” State ex rel. Taylor v. Wallace, 73 S.W.3d 620, 622 (Mo. banc

2002). 5   “A simple allegation of negligent driving by a co-employee … is not

‘something more’ than an allegation of a breach of the duty to maintain a safe

working environment.” Id. at 622-23. Our court of appeals has followed this high-

court dictate. “A simple allegation of negligent operation of machinery or a vehicle is

not ‘something more’ than an allegation of a breach of duty to maintain a safe

working environment.” Nowlin ex rel. Carter v. Nichols, 163 S.W.3d 575, 580

(Mo.App. 2005)(citing Taylor). “The cases reach this result by concluding that an

employee’s duty to drive safely is merely an extension of the duty to maintain a safe

work environment.” State ex rel. Larkin v. Oxenhandler, 159 S.W.3d 417, 422

(Mo.App. 2005). More recently and forcefully, our Eastern District declared:

           [W]e hold that a co-employee owes to a fellow employee no
           common-law duty to exercise ordinary care and safety requiring the
           co-employee to refrain from operating a vehicle in a negligent
           manner when driving in the course of his work. As a matter of law,
           that responsibility is subsumed within an employer’s nondelegable
           duty to provide a safe working environment.

Carman v. Wieland, 406 S.W.3d 70, 79 (Mo.App. 2013). 6

      Finally, risks attendant to performing the employer’s work as directed are

“necessarily subsumed within the employer’s nondelegable duties, and cannot


5 Taylor was partially overruled in another respect in McCracken v. Wal-Mart
Stores East, LP, 298 S.W.3d 473, 478-79 (Mo. banc 2009).
6 We are puzzled by our colleagues’ failure to acknowledge their quoted Carman

holding or our supreme court’s Taylor ruling in two seemingly contrary decisions
last month. See Fowler v. Phillips, No. ED100801 (Mo.App. E.D. Aug. 23, 2016);
Abbott v. Bolton, No. ED100773 (Mo.App. E.D. Aug. 2, 2016). We are bound to
follow Taylor, as our supreme court’s most recent controlling decision, until that
court directs otherwise.

                                          5
support an independent personal duty owed by a co-employee.”          Leeper, 440

S.W.3d at 485; see also Peters, 489 S.W.3d at 787, 796. Evans, tasked as tag-line

man to stabilize trusses being moved, was injured from the known risk that loads

may and do shift during the usual and necessary process of workplace transit.

                                   Conclusion

      “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. “In this case, the duties [Evans] asserted were breached were not

separate and distinct from [the employer’s] nondelegable duty to provide a safe

workplace.” Id. The petition could have been dismissed for failure to state a claim

(Peters, 489 S.W.3d at 800) and was properly ruled against Evans on summary

judgment. Parr, 489 S.W.3d at 776-77, 782. Judgment affirmed.



DANIEL E. SCOTT, J. – OPINION AUTHOR

JEFFREY W. BATES, P.J. – CONCURS

WILLIAM W. FRANCIS, JR., J. – CONCURS




                                         6