Mo. SC rules for supervisors sued over death of delivery driver sent out during a winter storm

By Robert Davis | Mar 26, 2018

JEFFERSON CITY, Mo. (Legal Newsline) – The Supreme Court of Missouri has affirmed a summary judgment by a trial court in a wrongful death lawsuit brought by the daugher of a delivery driver who died while operating a company vehicle during a winter storm.

Judge Mary R. Russell delivered the opinion of the court on March 6. Judges Zel M. Fisher, Paul C. Wilson, and Laura Denvir Stith concurred with the opinion. Judges George W. Draper III and Patricia Breckenridge dissented. 

In the opinion, the court ruled that the co-employees/supervisors of Edward R. McComb, who was killed while working as a delivery driver, did not owe McComb "a duty separate and distinct from the employer’s nondelegable duties."

The appellant, McComb's daughter, Felecia McComb, argued that the trial court erred in granting a summary judgment because there was a genuine issue of material fact regarding if McComb’s death was attributable to his employer’s nondelegable duties.

McComb worked as a courier for a hospital. He died after his car slid off the road during a winter storm that his supervisors knew about. He was sent on his route with instructions to drive carefully and was not delivering any emergency items.

McComb's daughter argued that the supervisors were negligent in sending her father out on his route during a winter storm. The co-employees moved for a summary judgment, arguing the suit was barred by the exclusivity provision in Missouri’s Workers’ Compensation statutes.

The court ruled that "because a co-employee is not an employer under the Workers’ Compensation law, a co-employee is not covered in the exclusivity provision," in the opinion. This does not release the co-employees from common law liability resulting from a work-related accident, the court noted.

The opinion further stated that because the co-employees were not directly responsible for McComb's vehicle sliding off the road and down an embankment, they were therefore relieved of liability in the case. 

In the dissenting opinion, judges Draper and Breckenridge argued that the co-employees' "directive that McComb continue his route in increasingly dangerous weather conditions created a transitory risk in negligently carrying out the details of the work," thus resulting in a "breach of duty beyond the employer’s nondelegable duty to provide a safe workplace."

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