The Missouri Supreme court’s considering the case of a man who died when his delivery van ran off a road during an ice storm.
In 2009, Edward McComb of Jefferson City was instructed by two supervisors at St. Mary’s Health Center in Jefferson City to stay behind the wheel in the dark, despite the conditions. Then Governor Jay Nixon had declared a state of emergency because of the ice storm.
McComb was a courier in the shipping department, who transported items such as equipment and medical supplies to hospitals and clinics affiliated with St. Mary’s in the mid-Missouri area.
He drove routes that would take him to stops in all four directions from Jefferson City. He was not scheduled to deliver any lifesaving supplies or deliver or pick up any ”STAT” items on the evening of the ice storm.
Prior to McComb’s shift, one of his supervisors, Gregory Norfus, became aware of a severe winter storm coming through the area.
Noruf called his supervisor, David Cheese, to ask if he wanted McComb to drive his route. Cheese responded that he did, and McComb was dispatched.
Roughly three hours later, Norfus called McComb on his route, and was told by McComb that the delivery van’s window was freezing up. Norfus then called Cheese to get permission to pull McComb off his route, but Cheese said no for a second time.
McComb’s job description includes language requiring him to “complete tasks in inclement weather”. Sometime before 10 p.m., his vehicle slid off a road and rolled several times. McComb was transported to a hospital where he was pronounced dead last that night.
After his widow brought a wrongful death lawsuit against Norfus and Cheese, a circuit court decided not to order a jury trial and entered a judgement in favor of Norfus and Cheese. The court said it was the responsibility of the employer, not them, to provide a safe workplace.
Attorney David Zevan represented McComb’s widow, Nadine, before the Missouri Supreme Court. He argued the supervisors acted outside the scope of the employer’s procedures.
“It’s that affirmative act outside of the position of a supervisory capacity to make this decision to expose this person to danger.”
Zevan claims the circuit court was wrong to render a judgment favoring Norfus and Cheese because it hasn’t been determined whether or not McComb’s death was the result of the employer’s failure to provide a safe workplace. He concluded the case should be sent back to the lower court for further proceedings.
Attorney Ronald Willanbrock represented Norfus and Cheese before the high court. He said it was not their duty to provide a safe workplace and brought up a similar case where a court ruled in favor of the supervisors, which had the same circumstances involving an employee on the road.
“His health problems were such that it was not a safe work place for him to be in in his condition” said Willanbrock. “If you just take the names and change them around a little bit, and put in ‘Well, they left Mr. McComb out on the road because the weather conditions were bad’.”
As is its standard practice, the Supreme Court did not issue a decision after hearing argument Thursday.