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Augur v. Norfolk Southern Railway Co.2/8/2005
Opinion Vote: REVERSED AND REMANDED.
Smart and Howard, J.J., concur.
Opinion:
Mark Augur appeals the trial court's grant of summary judgment in favor of Norfolk Southern Railroad Company on his claim for negligence. Mr. Augur's claim arose from injuries he sustained while descending a ladder on a railcar owned by Norfolk. At the time of Mr. Augur's injuries, he was employed by Freight Consolidation Services, Inc. (FCS). On appeal, Mr. Augur claims that the trial court erred in finding that Norfolk relinquished possession of the job -site and control over FCS employees to FCS and, therefore, in granting summary judgment in favor of Norfolk. Mr. Augur also argues that the trial court erred in finding, as a matter of law, that Norfolk did not have a duty to FCS employees as the supplier of a defective instrumentality. Finally, Mr. Augur contends that the trial court erred in finding that Norfolk did not have actual or constructive knowledge of the condition alleged to have caused Mr. Augur's injuries. Because the trial court lacked jurisdiction over Mr. Augur's claim, the judgment is reversed and the case is remanded with instructions to dismiss Mr. Augur's petition.
Factual and Procedural Background
Norfolk Southern Railroad Company owns and operates an inbound automotive distribution facility in Kansas City, known as the Voltz ramp. Norfolk contracted with FCS to load and unload vehicles shipped by rail to the Voltz ramp and place the vehicles in a storage area. Before FCS employees unload the railcars, Norfolk employees transport the railcars to the Voltz ramp and brake the railcars at appropriate intervals. Norfolk employees perform this task in the morning before FCS employees arrive. FCS employees load and unload vehicles from Norfolk railcars on a daily basis, five days a week, eight hours a day. The contract between FCS and Norfolk designated FCS as an independent contractor and provides that it is solely responsible for supervising its employees. The contract also requires FCS to pay all expenses and charges involved or incurred in the performance of its obligations under the contract, including the payment of workers' compensation insurance.
Mr. Augur is an employee of FCS. On October 17, 1994, while Mr. Augur was unloading vehicles at the Voltz ramp, he was climbing down a ladder when his foot got tangled in a lantern that was inappropriately hung from the ladder. Consequently, Mr. Augur lost his balance and fell. Mr. Augur sustained injuries to his left shoulder and lumbar spine. On or about August 24, 1995, Mr. Augur filed a workers' compensation claim for his injuries. Liberty Mutual Insurance Company, FCS's insurance carrier, provided coverage for Mr. Augur's injuries.
On October 15, 1999, Mr. Augur filed a "Petition for Damages" against Norfolk. The petition alleged that Norfolk was negligent in (1) placing the lantern on the ladder; (2) failing to inspect the ladder; (3) failing to remove the lantern from the ladder; and (4) failing to warn Mr. Augur of the presence of the lantern. Thereafter, Norfolk filed a motion for summary judgment, or in the alternative, motion to dismiss. In its motion, Norfolk claimed that because Mr. Augur's immediate employer, FCS, carried workers' compensation insurance that covered Mr. Augur's injuries, under section 287.040.4, RSMo 2000, Mr. Augur could not bring suit against a remote employer for the same injuries. Alternatively, Norfolk argued that the court lacked subject matter jurisdiction over Mr. Augur's claim because the workers' compensation act provides the exclusive remedy for Mr. Augur's injuries. Specifically, Norfolk alleged that under section 287.040.1, it was a stat
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