JEFFERSON CITY – The Supreme Court of Missouri has upheld the trial court’s decision to dismiss allegations against two men who were accused of being liable for the death of their co-coworker, Edward R. McComb.
“Because appellant failed to establish co-employees owed McComb a duty separate and distinct from his employer’s nondelegable duty to provide a safe workplace, this court affirms the trial court’s judgment,” the Supreme Court of Missouri said in a March 6 opinion written by Judge Mary R. Russell.
Felecia Y. McComb filed a wrongful death allegation against Gregory Norfus and David Cheese after her father died while driving a delivery vehicle for his employer during a winter storm, the court said. The suit states the original plaintiff in the case was McComb's widow, Nadine McComb, who died in March 2016. Felecia Y. McComb filed a motion to be substituted in her late mother's place as appellant.
After the Circuit Court of Cole County said McComb didn’t prove that the defendants can be held liable, the Supreme Court upheld the decision.
The nondelegable duties, cited by the court, include providing a safe workplace, provide safe appliances, give warning of dangers, provide a sufficient number of suitable fellow servants and enforce safety rules.
According to the court, Edward R. McComb worked as a courier for a hospital delivering medical supplies and other materials to clinics. The court said he died while working on a day when a severe winter storm moved through Missouri.
“Before McComb’s shift began, his immediate supervisor, Gregory Norfus, was informed by other employees that a severe winter storm was approaching the area,” the court said. “Norfus called David Cheese, who supervised both Norfus and McComb, and asked if Cheese wanted McComb to drive his route.”
Without checking the weather forecast, Cheese told Norfus to tell McComb to continue delivering, but to drive slowly, the court said.
“When Norfus called McComb to check on him. McComb told Norfus the windshield of his vehicle was freezing,” the opinion states.
Norfus reportedly contacted Cheese again to ask if they should pull McComb from his route, but Cheese told Norfus that McComb should continue as scheduled, the opinion states.
“Before the end of his shift, McComb’s vehicle slid off the road, flipping several times down an embankment,” the opinion said. “He died as a result of the accident.”
According to the Supreme Court, the trial court was correct in granting summary judgment because the lawsuit is barred by the exclusivity provision in Missouri’s workers’ compensation laws.
The court compared McComb’s case to the case of Marshall v. Kansas City in which the plaintiff was injured when a co-employee tripped him with compressor hose.
In that case, cited by the appeals court, it was ruled that the co-employee was held liable because “the place of work was not unsafe and the hazard was not brought about by the manner in which the work was being done; the danger came about by reason of the manner in which [the co-employee] handled the hose.”
In the case of McComb, however, the ruling said the slippery road condition was not created by co-employees.
“Rather, the severe winter weather made McComb’s workplace unsafe and co-employees’ decision to keep him on his route related to the employer’s nondelegable duty to provide a safe workplace,” the opinion said.