concurring and dissenting.
Because I perceive the appropriate application of our case rules to this situation somewhat differently than the majority of the court, I dissent in some respects and concur in others. I am satisfied that the court is correct in affirming the summary judgment in favor of Downing, McCaskill, Griggs, Seaman, and Mann. I also agree with the majority disposition with respect to Largent, Hesse, and Schütz. However, I cannot agree with its posture as to Goss and Field Maintenance Supervisor Overy. Differing from the majority, I would reverse the summary judgment as to Goss, and I would affirm the summary judgment in favor of Overy.
Succinctly, I understand that a co-employee can become liable for culpable negligence in connection with an injury to an employee in three ways. The co-employee can engage in affirmative activity that is unreasonably dangerous. As I perceive that basis for liability, it is not alleged in this case. A co-employee can be responsible for the maintenance of a working condition that is unreasonably dangerous. That is the basis on which I would reverse as to Goss and agree to reverse as to Largent. In the instance of each of these co-employees, the record does structure genuine issues of material fact. Thirdly, a co-employee, as a supervisor, can affirmatively direct an employee to encounter an unreasonably dangerous condition. I agree that there exist genuine issues of material fact with respect to whether Schütz and Hesse, in specifically supervising Case's activities on the day of his injury, directed him to encounter an unreasonably dangerous condition. Overy, as I understand the record, had no responsibility for the dangerous condition of the boom in the sense that he had authority to correct it. If the co-employee is not responsible for the maintenance of the working condition that is unreasonably dangerous because he has authority to correct the condition, then he cannot intend anything simply because he is aware of the condition. On the day in question, Overy did not direct Case’s activities. The summary judgment as to him should be affirmed.
I would add only that it seems inappropriate to rely upon vulgar language, the tearing up of equipment reports, the refusal to entertain complaints, or post-injury conduct because, in my view, none of those events could have any causal relationship to Case’s injury.