Aery v. Moore – Cass County, Missouri (Harrisonville)
The Plaintiff, Mr. Aery, sued his co-employee Mr. Moore, for injuries sustained in a work place accident that occurred on August 22, 2005. Terry Evans and Sheri Smiley represented the Defendant, Mr. Moore.
Mr. Moore, a foreman for Osage Valley Electric Cooperative, was operating a digger derrick during the process of changing out a thirty-five foot utility pole. While stowing the auger, the metal cable broke, which is used to stow the auger. When the auger freefell, Plaintiff was unexpectedly walking in its path with tamp in hand in order to tamp the hole prior to the installation of the replacement pole. According to custom and practice, Plaintiff should not have walked into the work area until the auger was firmly locked into the storage latch mechanism that is bolted to the side of the boom of the digger derrick truck. As a result, the auger struck the ground, then struck the tamp, then struck Plaintiff and catapulted him 12 to 15 feet in the air. Plaintiff suffered injuries to his back requiring surgery and claimed permanent disability, disfigurement, pain and suffering, anxiety, inconvenience, lost wages, lost earning capacity, and loss of enjoyment of the ordinary activities of daily life. The damages including lost wages and medical bills exceeded $40,000.00.
The case was set for trial for July, 2012. At the close of Discovery the defense filed a Motion for Summary judgment arguing that as this was clearly a workplace accident, the Defense had met their burden of showing that workers compensation exclusivity provisions applied and that the burden then shifted to the Plaintiff to show that the Defendant’s conduct fell within an exception to the co-employee immunity. The defense further argued that there was no genuine issue of material fact as to whether the Defendant’s conduct fell within an exception as there were no facts to support that the Defendant’s conduct satisfied the something more exception to co-employee immunity, which was the law at the time of the accident.
Prior to the hearing on the Motion for Summary Judgment, the Plaintiff offered to settle the lawsuit for $2,500.00, and the case was settled in that amount. This was an excellent result for the defense after several years of litigation.