McComb v. Norfus, 541 S.W.3d 550

Edward McComb, a hospital courier, was ordered to drive during a severe winter storm that prompted a state of emergency; his vehicle slid off the road and he died.
Supervisor Gregory Norfus learned of the storm and consulted his supervisor David Cheese, who instructed McComb to run his route and later refused to pull him despite reports of a freezing windshield and poor visibility.
McComb's widow (substituted by daughter Felecia McComb) sued the two supervisory co-employees for wrongful death alleging negligent direction and failure to remove McComb from the route.
Co-employees moved for summary judgment, arguing the suit was barred by the workers’ compensation exclusivity provision; the trial court granted summary judgment.
The Missouri Supreme Court considered whether co-employees owe a duty separate and distinct from the employer’s nondelegable duty to provide a safe workplace and affirmed the trial court, holding appellant failed to show a distinct co-employee duty.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether co-employees are liable in common law negligence for workplace death despite workers’ compensation exclusivity	McComb's estate: supervisors negligently ordered him to continue in dangerous weather and breached a duty separate from the employer’s duty by violating inclement-weather procedures	Co-employees: any alleged negligence falls within employer’s nondelegable duty to provide a safe workplace, so common-law claims are barred by exclusivity	Court: summary judgment affirmed — plaintiff failed to show a duty separate and distinct from employer’s nondelegable duty
Whether the existence/scope of duty is a question for the jury or the court	Plaintiff: factual disputes about whether employer nondelegable duty was breached should go to a jury	Defendants: scope/existence of duty is a question of law for the court	Court: duty and its scope are legal questions for the court (citing Peters and Parr); no jury issue here

Peters v. Wady Indus., Inc., 489 S.W.3d 784 (Mo. banc 2016) (co-employee liability depends on whether duty is separate from employer’s nondelegable duties)
Parr v. Breeden, 489 S.W.3d 774 (Mo. banc 2016) (duties alleged against supervisory co-employees fell within employer’s nondelegable duty as a matter of law)
Marshall v. Kansas City, 296 S.W.2d 1 (Mo. 1956) (co-employee liable where sudden handling of equipment created an unforeseeable hazard)
Burns v. Smith, 214 S.W.3d 335 (Mo. banc 2007) (supervisor personally liable where affirmative act created danger beyond job-specific environment)
Tauchert v. Boatmen's Nat'l Bank of St. Louis, 849 S.W.2d 573 (Mo. banc 1993) (supervisor liable for creating hazardous condition via makeshift hoist)
Hedglin v. Stahl Specialty Co., 903 S.W.2d 922 (Mo. App. W.D. 1995) (supervisor liable where directed employee into an extremely dangerous scheme)