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Logan v. Show-Me Power Electric Cooperative11/25/2003
a genuine material fact issue regarding imposition of liability upon Sho-Me. The cited documents and contract provisions simply are not a means by which Sho-Me could or did control the physical activities of Irby's employees or the details of the manner in which the work was to be performed, to the extent required by Missouri case law to impose liability. See Williams, 265 S.W.2d at 358-60; Halmick, 832 S.W.2d at 929; Boulch, 366 S.W.2d at 29-30.
In sum, by no fair construction can this contract support Plaintiffs' arguments, or give rise to a material fact issue relating to Sho-Me's control of the physical activities of Irby's men or the details of the manner in which the work was to be performed. Sensibly read, the contract did not shift the duty to use reasonable and ordinary care to prevent injury from Irby back to Sho-Me because Irby maintained the status of landowner. Halmick, 832 S.W.2d at 929. Because no genuine issue of material fact existed concerning this issue, the trial court did not err in granting summary judgment for Irby. Subpoint denied.
Point III: Plaintiffs' Claim Against Irby's Job Superintendent
Plaintiffs' third point maintains that the trial court erred when it dismissed their wrongful death suit against Gorman, Irby's job superintendent. They argue that, contrary to the court's ruling, the court had subject matter jurisdiction over their suit against Gorman. Specifically, they argue their petition alleged "something more" than the mere failure on the part of co-employee Gorman to provide a reasonably safe workplace, i.e., the petition charged Gorman with a breach of a personal duty of care. Consequently, Plaintiffs allege that Gorman was not protected by the immunity provisions of sections 287.120.1-2.
The immunity provisions of the Workers' Compensation Act extend to a co-employee or supervisor (Gorman) chosen to implement the employer's non-delegable duty to provide a reasonably safe workplace. Sexton v. Jenkins & Associates, Inc., 41 S.W.3d 1, 5[12-14] (Mo.App. 2000); Collier, 21 S.W.3d at 861. A co-employee's failure to perform that duty does not give rise to a cause of action by another worker who is injured by that failure. Sexton, 41 S.W.3d at 5 . The injured employee must charge his fellow worker with "something extra" beyond the breach of general supervision and safety. Id. at 5 . This "something extra" is determined on a case-by-case basis and includes "any affirmative act, taken while the supervisor is acting outside the scope of the employer's duty to provide a reasonably safe environment, that breaches a personal duty of care the supervisor owes to a fellow employee." Collier, 21 S.W.3d at 861. Generally, cases in which the "something extra" element has been found are those in which supervisors personally took part in the "affirmative act" by directing employees to engage in dangerous activity that a reasonable person would recognize as hazardous and beyond the usual requirements of the employment. See, e.g., Tauchert v. Boatmen's Nat. Bank of St. Louis, 849 S.W.2d 573, 574 (Mo.banc 1993); Wright v. St. Louis Produce Mkt., Inc., 43 S.W.3d 404, 414-15 (Mo.App. 2001); Pavia v. Childs, 951 S.W.2d 700, 701-02 (Mo.App. 1997); and Hedglin v. Stahl Specialty Co., 903 S.W.2d 922, 927 (Mo.App. 1995).
In their petition, Plaintiffs claimed that (1) Gorman directed Logan to work around an energized power line when he knew Logan was merely an apprentice lineman; (2) Gorman authorized the line to be energized thereby "creat a hazardous condition[;]" and (3) by directing Logan to work on the line, "Gorman was directing [Logan] to engage in a dangerous condition that a reasonable person would recognize as hazardous beyond the
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