Cluck v. Union Pacific Railroad
367 S.W.3d 25
Mo.2012Background
- Co-employee’s pistol carried in luggage discharged, injuring plaintiff while unloading crew van; both were acting as railroad employees within employment period.
- Plaintiff sought imputed (vicarious) liability under FELA; desired instruction under respondeat superior, MAI 24.01(A).
- Trial court refused plaintiff’s proposed verdict directors for imputed liability; alternative instruction on direct liability was given.
- Jury returned verdict for defendant Union Pacific; plaintiff appeals alleging trial court erred in not submitting proper respondeat superior instructions.
- Court analyzes role of respondeat superior under FELA, focusing on whether co-employee’s conduct was in furtherance of employer’s business.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FELA allows vicarious liability for co-employee conduct only if in furtherance of employer's business | Cluck | Union Pacific | No; must be in furtherance of employer's business |
| Whether trial court erred by not submitting plaintiff’s 7D/7J/7E/7H instructions | Cluck proposed 7D/7J/7E/7H | Union Pacific contends instructions inaccurate | Yes; court held instructions inadequate and rejected as to respondeat superior submission |
| Whether trial court had a duty to draft its own correct instruction | Court should draft correct instruction | No duty to draft/modify erroneous instruction | No reversible error; court not obligated to correct erroneous tendered instruction |
| Whether Lavender and related cases require a broader course-and-scope standard in FELA actions | Apply Lavender/Lavender-like logic to 7E/7H | Maintain traditional course-and-scope analysis | Court reaffirmed traditional approach that act must be in furtherance of employer’s business to impose liability |
Key Cases Cited
- Lavender v. Illinois Cent. R.R. Co., 219 S.W.2d 353 (Mo. 1949) (co-employee act must be in course of employment and further the employer’s business)
- Daugherty v. Allee’s Sports Bar & Grill, 260 S.W.3d 869 (Mo.App.2008) (act done by virtue of employment and in furtherance of employer’s business)
- Stanley v. City of Independence, 995 S.W.2d 485 (Mo. banc 1999) (defines course-and-scope test under respondeat superior)
- Copeland v. St. Louis-San Francisco Ry. Co., 291 F.2d 119 (10th Cir.1961) (acts outside scope not chargeable to employer)
- Gallóse v. Long Island Railroad Co., 878 F.2d 80 (2d Cir.1989) (co-employee conduct must be within scope to impose liability under FELA)
- Reeve v. Northern Pacific Ry. Co., 82 Wash. 268, 144 P. 63 (1914) (horseplay cases where conduct not in furtherance of employer’s business)
- Burrus v. Norfolk & Western Ry. Co., 977 S.W.2d 39 (Mo.App.1998) (work-rule violations as evidence of negligence; not dispositive)