For the second time in just over 16 months, a state appeals court has ruled a widow could sue the two men who supervised her husband's work and didn't tell him to stop working during a major snowstorm.
Edward R. McComb, 51, died Jan. 26, 2009, from injuries he received when his southbound car went off the right side of U.S. 54 in Miller County during a winter storm, overturning several times.
The Missouri State Highway Patrol said McComb was using his seat belt. He was pronounced dead at Lake Regional Hospital in Osage Beach.
The accident happened just before 9:30 p.m., 1 miles west of Missouri 52 in Eldon.
His widow, Nadine McComb, sued her husband's supervisors for wrongful death, arguing Edward died while he was driving as a courier for St. Mary's Health Center.
His job - Appeals Court Judge Karen King Mitchell noted in an 11-page ruling April 21, 2015, and again last Tuesday in a 12-page ruling - was delivering medical supplies and other materials to various clinics around the Mid-Missouri area.
Even before Edward McComb's 3:30-11:30 p.m. shift began, his supervisor, Gregory Norfus, asked Norfus' supervisor, David Cheese, if McComb should attempt to drive his route because of the storm.
The appeals court rulings note Cheese said yes but advised McComb to go slowly and carefully.
About the middle of his shift, McComb reported his windshield was freezing, but Cheese said he should continue the route.
"At the time," Mitchell wrote in both opinions, McComb "was not carrying any vital organs or 'STAT' materials (ones needed immediately by a facility)."
Nadine McComb sued both men in Cole County Circuit Court, arguing "they were negligent in sending (Edward) out on his courier route despite the hazardous road conditions."
But Norfus and Cheese argued - and Circuit Judge Jon Beetem ultimately agreed in a July 1, 2014, ruling - their duties were "non-delegable duties of the employer" under terms of Missouri's workers' compensation law and its "exclusivity" provision "and do not constitute an independent duty of care by a co-employee at common law."
Nadine McComb appealed in 2014, and her case was argued before a three-judge appeals court panel on March 24, 2015.
Four weeks later, the first appeals court ruling sent the case back to Beetem ruling there was a "genuine issue of material fact regarding the duty (that was) allegedly breached," so Norfus and Cheese weren't entitled to the ruling they had received absolving them of responsibility.
But Norfus and Cheese appealed to the state Supreme Court, which accepted the case on June 17, 2015.
A year later, and before scheduling any hearings in the McComb case appeal, the Supreme Court issued rulings in two other cases that said the plaintiffs had failed to prove they had a case against supervisors.
The Supreme Court transferred the McComb case back to the appeals court - and the same three-judge appeals panel found the same result: In the McComb case, the trial court must listen to the arguments about the facts, whether Norfus and Cheese had breached "their own personal duty of care" owed to Edward McComb.
In writing for the court this week, Mitchell cited the Supreme Court's June 7 ruling in the Peters v. Waby Industries case, where Chief Justice Patricia Breckenridge wrote a previous decision "holding that (an employer's) immunity extended to co-employees was inconsistent with established workers' compensation law precedent and resulted in the adoption of a standard not supported under any construction of the workers' compensation law's exclusivity provisions."
The Supreme Court also ruled in the Peters case: "When, however, the employee's injuries result from a co-employee's negligence in carrying out the details of the work, the injuries are attributable to the co-employee's breach of a duty separate and distinct from the employer's non-delegable duty to provide a safe workplace."
Mitchell this week wrote for the appeals court: "There is an unresolved dispute as to the material facts of whether St. Mary's had applicable rules or regulations in effect and whether Norfus and Cheese complied with any existing rules and regulations."
The court ordered Beetem to hold further proceedings, looking at issues addressed in the appeals court decision.
Nadine McComb was 56 when her husband was killed and 63 when she died on March 30 - while the appeals court still was deciding the case for the second time.
The appeals court ruling doesn't say how that will affect the new proceedings.
The couple was survived by 11 children.