Opinion handed down May 1, 2012
Eddie Cluck sued his employer, Union Pacific Railroad Company, under the Federal Employer’s Liability Act (FELA), 45 U.S.C. section 51, for an injury caused by a co-worker. Cluck was injured when the co-worker’s personal pistol, which was packed in the co-worker’s luggage, accidentally discharged while Cluck was unloading the luggage from a company van. The court was faced with determining whether the doctrine of respondeat superior applies to FELA actions, and if so, whether the court should apply the test to the co-worker’s act of packing a loaded pistol in his luggage or simply his failure to warn anyone about it. The plaintiff argued that respondeat superior does not apply to FELA actions, or in the alternative, should be applied more liberally. The trial court ruled differently, however, finding that traditional common law respondeat superior principles are fully applicable to FELA actions. Because Cluck never asserted that the injury-causing act was in furtherance of the employer’s interests, the trial court ruled that his proposed jury instructions failed to accurately state the applicable law. As a result, Union Pacific prevailed. On appeal, the Supreme Court of Missouri affirmed the trial court’s rejection of Cluck’s proposed jury instructions by a vote of 5-2.
I. Facts & Holding
The accident occurred during a business trip in which Cluck, his co-worker Larry Clark, and other members of their Union Pacific train crew were being transported to Coffeyville, Kansas, in order to board and crew a departing train the following day.[2] All of the team members were Union Pacific employees, and the railroad paid for the trip.[3]
Clark, the owner of the pistol, had planned on selling it before the Coffeyville trip, but he failed to do so.[4] The loaded pistol remained in his luggage as the crew arrived in Coffeyville and began unloading their bags.[5] Clark had not warned anyone about the gun.[6] The pistol discharged while Cluck was carrying Clark’s bag, and the bullet struck Cluck in the right knee.[7]
During the jury instruction conference, Cluck attempted to submit an imputed liability instruction under Missouri Approved Instruction 24.01(A), but the trial court ruled that his proposed instructions misstated the law.[8] After permitting Cluck six attempts to correct the instruction, the trial court refused to submit Cluck’s theory of imputed liability to the jury.[9] Though it was undisputed that the incident occurred while Cluck and Clark were working, Cluck failed to submit the issue of whether Clark was carrying the pistol in furtherance of the interests of Union Pacific.[10] The jury returned a verdict for Union Pacific and Cluck appealed.[11] He alleged that the trial court erred by refusing to submit his proposed instructions.[12]
On appeal, the Supreme Court of Missouri affirmed the trial court’s holding, finding that Union Pacific was not liable because Cluck did not submit an instruction that accurately stated the law.[13] In accordance with the trial court’s determination, the Court held that Cluck was required to prove that Clark’s negligent action of packing a loaded pistol was in the furtherance of the railroad’s interests.[14] All of Cluck’s proposed jury instructions failed to instruct the jury on the applicable respondeat superior principles.[15] Cluck merely asserted that he and Clark were working at the time of the gunshot incident.[16] The Supreme Court of Missouri reiterated that such an assertion does not accurately reflect the true test, which pursuant to Daugherty v. Allee’s Sports Bar & Grill, is whether the injury-causing act was done in the scope and course of business and in furtherance of the employer’s interests.[17]
While the plaintiff’s jury instructions did include phrases like “course and scope of employment,” none specifically asserted that the negligent action was in furtherance of Union Pacific’s interests.[18] Since Lavender v. Illinois Central Railroad Company requires a plaintiff to prove “not just that he and his co-employee were acting at the direction of the employer generally, but that the negligent act was committed in furtherance of the employer’s interests, even if not directly authorized or approved by the employer,” the Court held that the trial court did not commit reversible error by rejecting Cluck’s faulty instructions.[19] Therefore, the Court affirmed the judgment below.[20]
The issue of the case was whether respondeat superior applies to FELA actions.[21] Cluck argued it did not, while Union Pacific argued it did.[22] The difference is great, as the former would mean Cluck only had to prove he and Clark were acting on behalf of Union Pacific when the pistol discharged, which is undisputed in the case.[23] However, the latter would require Cluck to prove that the negligent conduct itself was executed on behalf of the employer and in the furtherance of the employer’s interests.[24] While the Supreme Court of Missouri agreed with Union Pacific as to the applicability of respondeat superior, two judges dissented because they disagreed about identifying the negligent act that should be analyzed.[25]
Unlike the majority, which focused on Clark’s specific act of negligently carrying a loaded gun in his luggage, the dissent believed the real conduct at issue was Clark’s failure to warn of the danger created by the loaded gun’s presence while the men were working.[26] Even though a specific negligent act caused the injury, liability must be premised on whether the act was performed in the context of the course and scope of employment and in furtherance of the employer’s business.[27] According to the dissent, viewing the negligent conduct in a contextually isolated vacuum would effectively render the respondeat superior doctrine useless since no business encourages negligence.[28] The dissent also distinguished Lavender, highlighting that the workers in that case were freelancers and were not on the clock when the injury occurred.[29]
It should be noted that Cluck also argued that the trial court, upon finding his jury instructions wanting, should have submitted a corrected version on its own.[30] The Supreme Court of Missouri dispatched the notion in quick fashion and cited Southwestern Bell Telephone Company v. Chester A. Dean Construction Company where the Court held that a trial court does not have a duty to correct a proposed jury instruction sua spontae.[31]
II. Legal Background
Stanley v. City of Independence states that in Missouri traditional respondeat superior principles require the injury-causing conduct of a plaintiff’s co-employee to be within the course and scope of employment in order to hold the employer vicariously liable.[32] Daugherty reaffirmed this holding four years ago, stating that “[w]hether an act was committed within the scope and course of employment is not measured by the time or motive of the conduct, but whether it was done by virtue of the employment and in furtherance of the business or interest of the employer.”[33]
In Lavender, a case the Supreme Court of Missouri determined was directly on point, a railroad employee negligently discharged a firearm, killing a co-employee.[34] Since the gun was not carried for any railroad purpose, it was an act considered wholly outside the scope the employee’s employment.[35] As such, there was no act in furtherance of the railroad and the railroad was not liable.[36]
In Baker v. Chicago, Burlington & Quincy Railroad Company, a dissatisfied foreman shoved and injured an underling.[37] Because the shove was intended to inspire a better performance from the employee and the foreman had the power to demand such performance, the Baker court found the railroad liable since the act was in furtherance of the railroad’s interests.[38] In contrast, the railroad in Reeve v. Northern Pacific Railway Company was not held liable when an injury-causing shove from one employee to another occurred during a scuffle, an act outside of any railroad duties.[39] The Reeve court found that the injury must both “arise out of” and “occur in the course of” employment.[40]
Other jurisdictions have come to similar conclusions. The U.S. Court of Appeals for the Second Circuit held that both the injured employee and the injury-causing co-worker must be acting within the scope of their employment.[41] The Tenth Circuit requires the same, holding that pranks are not executed within the scope of employment, even when both the injured and injury-causing employees were on the clock.[42] The Seventh Circuit held that for an employer to be liable for an injury caused by a co-employee under the Jones Act, FELA’s sister statute that applies the same standard of liability, the injured employee must show that the injury-causing employee’s conduct was in furtherance of the employer’s business.[43]
III. Comment
Through broad strokes, the dissenting opinion makes a fairly strong argument regarding the ramifications of rendering respondeat superior toothless by failing to take into account the context surrounding a specific negligent action. Except for rare cases like Baker where a supervisor assaults an underling in an attempt to motivate him or her, or where work is ordered to be completed in a negligent fashion, no employer would ever be liable under the doctrine of respondeat superior.
Nevertheless, the majority opinion correctly states the law and resolves this case appropriately. As was the case in Lavender, Union Pacific did not order Clark to carry the pistol, nor was any employee handbook or policy mentioned regarding the same. Clark clearly performed the negligent act of his own volition unbeknownst to Union Pacific. Even if the majority humored the dissent and examined Clark’s failure to warn anyone about the pistol’s presence (rather than the act of carrying the gun itself), the case would still come out the same. No one at Union Pacific other than Clark knew about the gun, so no one at Union Pacific other than Clark could be liable for failing to warn about it. While that may seem analogous to the foreman’s actions in Baker, which the railroad was held liable for, this set of facts is distinguishable. The foreman shoved an employee to inspire a better performance in furtherance of the railroad’s interest in Baker. In this case, however, carrying a gun was not in furtherance of any Union Pacific interest. Because Clark was the only party with personal knowledge of the danger, it is appropriate for him to personally bear the weight of his negligent act, whether that act is defined as negligently packing a pistol or failing to warn co-workers about it.
- Joe Palumbo
[1] No. SC91617 (Mo. May 1, 2012) (en banc), available at http://www.courts.mo.gov/file.jsp?id=54063. The West reporter citation is Cluck v. Union Pac. R. Co., 367 S.W.3d 25 (Mo. 2012) (en banc).
[2] Id. at 2.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id. at 1.
[11] Id.
[12] Id. at 3.
[13] Id. at 2.
[14] Id. at 10.
[15] Id. at 12.
[16] Id.
[17] Id.
[18] Id. at 13.
[19] Id. at 16.
[20] Id.
[21] Id. at 4.
[22] Id.
[23] Id.
[24] Id.
[25] Id. at 17.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id. at 14.
[31] 370 S.W.2d 270, 279 (Mo. 1963).
[32] 995 S.W.2d 485, 487 (Mo. 1999) (en banc).
[33] 260 S.W.3d 869, 873 (Mo. App. 2008).
[34] 219 S.W.2d 353 (Mo. 1949).
[35] Id. at 358.
[36] Id.
[37] 39 S.W.2d 535 (Mo.1931).
[38] Id. at 541-42.
[39] 144 P. 63 (Wash. 1914)).
[40] Id. at 64.
[41] Gallose v. Long Island R.R. Co., 878 F.2d 80, 83 (2d Cir. 1989).
[42] Copeland v. St. Louis-San Francisco Ry. Co., 291 F.2d 119, 121-22 (10th Cir. 1961).
[43] Sobieski v. Ispat Island, Inc., 413 F.3d 628, 633-34 (7th Cir. 2005).
