United States Court of Appeals

For the Eighth Circuit

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No. 18-2908

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Andrew Halsey; Tammy Kennedy

lllllllllllllllllllllPlaintiffs - Appellants

v.

The Townsend Corporation of Indiana, doing business as Townsend Tree Service;

Jeffrey Alan Richardson; Townsend Tree Service Company, LLC

lllllllllllllllllllllDefendants - Appellees

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Appeal from United States District Court 

for the Eastern District of Missouri - Cape Girardeau

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Submitted: September 25, 2019

Filed: December 21, 2021 

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Before BENTON, SHEPHERD, and GRASZ, Circuit Judges. 

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 BENTON, Circuit Judge.

Tyler S. Halsey suffered a heat stroke while working for Townsend Tree

Service Company, LLC, under the supervision of Jeff A. Richardson. Andrew Halsey

and Tammy Kennedy, Tyler’s parents, sued for wrongful death and negligence. The
district court1

 dismissed the claims against Richardson with prejudice, dismissed the

claims against Townsend Tree without prejudice, and granted summary judgment to

the parent company, The Townsend Corporation of Indiana. Halsey appeals. Having

jurisdiction under 28 U.S.C. § 1291, this court affirms. 

I. 

Halsey worked for Townsend Tree for four days, on a road crew trimming

trees. Richardson, his supervisor, was responsible for overseeing the work and safety

of the crew members. On July 22, 2016, the temperature reached 96 degrees. The

parents allege that Halsey was especially susceptible to heat stroke due to his physical

condition and inexperience working outside in the heat. Near the end of his shift,

Halsey collapsed. He was taken to a hospital, treated for heat stroke, and passed away

the next day. 

The parents sued Townsend Corporation and Richardson in state court. The

Corporation removed the case to federal court. The parents are both Missouri

citizens. The Corporation is an Indiana citizen. Richardson is also a Missouri citizen. 

The Corporation alleged that the parents fraudulently joined him to defeat diversity. 

The parents filed a motion to remand. The district court denied it. It found no

colorable claim against Richardson, dismissing him with prejudice. 

The district court then substituted Townsend Tree for Townsend Corporation

as Halsey’s employer. The parents amended their complaint naming both of them. 

Both defendants moved for summary judgment. The district court eventually

dismissed Townsend Tree, to allow proceedings before the Missouri Labor and

Industrial Relations Commission. The court granted Townsend Corporation’s motion

1The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the

Eastern District of Missouri.

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for summary judgment, ruling it did not completely supplant Townsend Tree’s duty

to provide a safe working environment. Halsey v. Townsend Corp. of Indiana, 2018

WL 3993983, at *4 (E.D. Mo. May 18, 2017).

II. 

The parents argue that the district court should have remanded this case

because they made a colorable claim that supervisor Richardson is liable for Halsey’s

heat stroke. This court reviews de novo a denial of a motion to remand. In re

Prempro Prods. Liab. Litig., 591 F.3d 613, 619 (8th Cir. 2010). Subject matter

jurisdiction under 28 U.S.C. § 1332 requires complete diversity, if no defendant has

citizenship in the same state with any plaintiff. Id. at 620. A frivolous or illegitimate

claim against a non-diverse defendant—a fraudulent joinder—does not prevent

removal. See id.

A defendant alleging fraudulent joinder must prove that the plaintiff’s claim

against the diversity-destroying defendant has “no reasonable basis in fact and law.” 

Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 810 (8th Cir. 2003). “Where applicable

state precedent precludes the existence of a cause of action against a defendant,

joinder is fraudulent.” Id. Joinder is not fraudulent if state law might impose liability

on the resident defendant under the facts alleged. Id. Doubts about federal

jurisdiction are resolved in favor of remand to state court. Prempro, 591 F.3d at 620. 

The parents argue they have asserted a reasonable basis for co-employee

liability under the Missouri Workers’ Compensation Law. See Gray v. FedEx

Ground Package Sys., Inc., 799 F.3d 995, 999 (8th Cir. 2015) (noting Missouri

substantive law governs a diversity suit). The Workers’ Compensation Law

applicable here is: 

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Any employee of such employer shall not be liable for any

injury or death for which compensation is recoverable

under this chapter and every employer and employees of

such employer shall be released from all other liability

whatsoever, whether to the employee or any other person,

except that an employee shall not be released from liability

for injury or death if the employee engaged in an

affirmative negligent act that purposefully and dangerously

caused or increased the risk of injury.

§ 287.120.1 RSMo (eff. Jan.1, 2014 to Aug 27, 2017). This subsection does not

create a new cause of action for an injured employee to sue a co-employee. Rather,

this subsection is an affirmative defense, granting co-employees broad immunity

unless the worker can show that the co-employee engaged in “an affirmative

negligent act” that “purposefully and dangerously caused or increased the risk of

injury.” See Brock v. Dunne, 2021 WL 5217031, at *3 (Mo. banc Nov. 9, 2021),

quoting § 287.120.1 RSMo (“Section 287.120.1 does not preempt the common law

claim and create a new statutory cause of action for co-employees to bring against

their culpable co-workers. Instead, as a workers’ compensation statute, it provides

immunity to co-employees and employers unless the statutory exception applies.”).

This creates a two-part analysis. First, has the co-employee engaged in an

affirmative negligent act that purposefully and dangerously caused or increased the

risk of injury to the injured employee so as to deny that co-employee immunity? If

so, has the injured employee made allegations that otherwise establish a claim of

common law negligence for a breach of a duty independent of the employer’s

nondelegable duty? 

The parties focus on whether there was an affirmative act that satisfies the first

part. Like the recent Missouri Supreme Court case of Brock v. Dunne, “there is no

direct evidence demonstrating” that Richardson “acted with the purpose to cause or

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increase the risk of injury, and any inference he did so would be ‘unreasonable,

speculative or forced.’” Id. at *5.

The parents also failed to allege the second part, a claim of common law

negligence for a breach of a duty independent of the employer’s nondelegable duties. 

In Missouri, injured employees are “barred from bringing common law negligence

actions against a co-employee when the co-employee was performing a nondelegable

duty owed by the employer.” McComb v. Norfus, 541 S.W.3d 550, 555 (Mo. banc

2018). An employer owes nondelegable duties to its employees with respect to

safety, even if the employer assigns the duties to employees. Peters v. Wady

Industries, Inc., 489 S.W.3d 784, 795 (Mo. banc 2016). These duties include (1) to

provide a safe place to work; (2) to provide safe appliances, tools, and equipment for

work; (3) to give warning of dangers of which the employee might reasonably be

expected to remain in ignorance; (4) to provide a sufficient number of competent

fellow employees; and (5) to promulgate and enforce rules for the conduct of

employees which would make work safe. Id.

According to the Missouri Supreme Court, a co-employee is liable for

breaching a duty separate and distinct from the employer’s nondelegable duties, but 

only if the co-employee either breaches a duty unrelated to the master-servant

relationship, or commits a “breach of workplace safety that was so unforeseeable to

the employer as to take it outside the employer’s nondelegable duty to provide a

reasonably safe workplace.” Conner v. Ogletree, 542 S.W.3d 315, 324 (Mo. banc

2018). See also McComb, 541 S.W.3d at 556; Fogerty v. Armstrong, 541 S.W.3d

544, 548 (Mo. banc 2018). 

In this case, the parents do not meet this standard, because they do not allege

that Richardson breached a duty separate and distinct from the nondelegable duties

of Townsend Tree. The parents stress two allegations: (1) that Richardson directed

Halsey to continue working despite indications of heat exhaustion, and (2) that

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Richardson disabled the air conditioning in the work trucks so Halsey could not

escape the heat. Under Missouri law, both allegations are within Townsend Tree’s

nondelegable duties to provide a safe workplace and equipment. 

As for the first allegation, the closest case is the McComb case. There, a

delivery driver was killed when his vehicle skidded off the road during a severe

winter storm. McComb, 541 S.W.3d at 553. Two supervisors knew of the severe

storm when directing the driver to drive his route. The driver told the supervisors

during his drive that his windshield was freezing. Id. Despite the risks of driving in

a winter storm, the supervisors told him to continue as scheduled. Id. The Missouri

Supreme Court found that the supervisors’ decision to keep him on his route related

to the employer’s nondelegable duty to provide a safe workplace. Id. at 557. The

court stressed that “the risks associated with driving a delivery vehicle in a region that

experiences dangerous weather conditions are reasonably foreseeable to employers.” 

Id. The court stated that it was reasonably foreseeable that a supervisor would be

negligent in directing a driver to remain on the road in dangerous weather conditions. 

Id. 

Like in McComb, the risks of working outside in the July heat are foreseeable. 

Halsey’s job included working outside for ten hours a day, often during the hottest

part of the day. On the day of the stroke, the temperature reached 96 degrees . It is

reasonably foreseeable that an employee could suffer from the effects of the heat. 

Further, as in McComb, it is reasonably foreseeable that a supervisor would be

negligent in instructing an employee to continue work despite warning signs of health

problems. 

The second allegation—that Richardson disabled the air conditioning in the

trucks—also falls within Townsend Tree’s nondelegable duties to provide a

reasonably safe workplace and to provide safe appliances, tools, and equipment. In

Peters, the worker was injured when a stack of dowel baskets fell on him, causing

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permanent, catastrophic injuries. Peters, 489 S.W.3d at 787-88. The worker alleged

that despite warnings from employees, his supervisor allowed the baskets to be

stacked in an unsafe manner, and failed to provide a proper area to unload them. Id.

at 798-99. The Missouri Supreme Court held that the duty to provide safety

equipment and a safe place to unload the baskets fell squarely within the employer’s

duty to provide a safe workspace. Id. at 799. 

Like in Peters, providing a way for employees to avoid heat strokes falls within

the employer’s nondelegable duty to provide a safe place to work. Here, a safe place

to cool off during a hot work day is within the employer’s nondelegable duty. 

Neither allegation against Richardson is a duty separate and distinct from the

employer’s nondelegable duty to provide a safe work place. See Brock, 2021 WL

5217031, at *8 (holding that a co-employee does not owe an independent duty to

keep a safe workplace outside the employer’s foreseeable nondelegable duty). The

parents’ claims against Richardson have no reasonable basis in fact or law. This case

was properly removed to federal court. 

III.

Halsey argues that the district court erred in applying the primary jurisdiction

doctrine and dismissing Townsend Tree without prejudice. This court has avoided

deciding the standard of review for a district court order applying the doctrine. 

Chlorine Inst., Inc. v. Soo Line R. R., 792 F.3d 903, 909 (8th Cir. 2015). As in

Chlorine Institute, this court proceeds with de novo review. Id.

The doctrine of primary jurisdiction applies to claims “that contain some issue

within the special competence of an administrative agency.” Reiter v. Cooper, 507

U.S. 258, 268 (1993). Courts thus will not decide an issue within the jurisdiction of

an administrative tribunal until it makes its decision “(1) where administrative

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knowledge and expertise are demanded; (2) to determine technical, intricate fact

questions; (3) where uniformity is important to the regulatory scheme.” Killian v.

J&J Installers, Inc., 802 S.W.2d 158, 160 (Mo. banc 1991).

Under the Workers’ Compensation Law, the injury or death must be caused by

the effects of a work-related accident, rather than an idiopathic condition. §

287.020.3(3) RSMo. The parents claim that Halsey’s death was caused by an

idiopathic condition (obesity), so their claim is not subject to the Workers’

Compensation Law. “[T]he question of whether [the employee]’s injuries were the

product of an accident. . . lies within the exclusive jurisdiction of the Labor and

Industrial Relations Commission.” Killian, 802 S.W.2d at 161. See also Channel

v. Cintas Corp. No. 2, 518 S.W.3d 824, 826 (Mo. App. 2017) (finding that the

responsibility to determine if decedent’s death constitutes an accident is within the

exclusive jurisdiction of the Commission); Cooper v. Chrysler Grp., LLC., 361

S.W.3d 60, 63-64 (Mo. App. 2011) (collecting Missouri cases concluding that the

Commission has original jurisdiction over determinations of whether there was a

work-related accident). 

If a court applies the primary jurisdiction doctrine, it has the “discretion either

to retain jurisdiction or, if the parties would not be disadvantaged, to dismiss the case

without prejudice.” City of Osceola, Ark. v. Entergy Arkansas, Inc., 791 F.3d 904,

910 (8th Cir. 2015), citing Reiter, 507 U.S. at 268-69. At the time of dismissal, a

question of fact remained whether the cause of Halsey’s death was idiopathic or

work-related. This question was “within the special competence” of the Labor and

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Industrial Relations Commission.2

 The district court properly dismissed Townsend

Tree without prejudice.3

IV. 

The parents argue that the district court erred in granting summary judgment

to Townsend Corporation. According to them, when Townsend Corporation provided

safety consulting services, it assumed Townsend Tree’s duty to promulgate safety

policies under the Restatement (Second) of Torts § 324A(b) or, alternatively, §

324A(c). This court reviews the grant of summary judgment de novo, viewing the

facts in the light most favorable to the nonmoving party. Torgerson v. City of

Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). Summary judgment is

proper only “if the movant shows there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

Missouri courts look to the three-section disjunctive test in Section 324A to

determine whether a defendant has assumed a duty to a third person. Berliner v.

2On April 9, 2020, the Labor and Industrial Relations Commission found that 

“the award of the administrative law judge allowing compensation” for Halsey “is

supported by competent and substantial evidence and was made in accordance with

the Missouri Worker’s Compensation law.” Townsend Tree and the parents

appealed. The Missouri Court of Appeals affirmed. Halsey v. Townsend Tree Serv.

Co., LLC, 626 S.W.3d 788, 791 (Mo. Ct. App. 2021), reh’g and/or transfer denied

(May 3, 2021), transfer denied (Aug. 31, 2021).

3The district court said it lacked jurisdiction over the idiopathic-condition claim

under Rule 12(b)(1). To the contrary, the district court did have subject matter

jurisdiction over the claim. See Frisby v. Milbank Mfg. Co., 688 F.3d 540, 543 (8th

Cir. 2012); McCracken v. Wal-Mart Stores East, LP., 298 S.W.3d 473, 478-79 (Mo.

banc 2009); Cooper, 361 S.W.3d at 63-64 (Mo. App. 2011). Any error in labeling the

dismissal without prejudice as due to a lack of subject matter jurisdiction is harmless.

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Milwaukee Elec. Tool Corp., 501 S.W.3d 59, 67 (Mo. App. 2016). Section 324A

says: 

One who undertakes, gratuitously or for consideration, to

render services to another which he should recognize as

necessary for the protection of a third person or his things,

is subject to liability to the third person for physical harm

resulting from his failure to exercise care to protect his

undertaking if 

. . . 

(b) he has undertaken to perform a duty owed by the other

to the third person, or 

(c) the harm is suffered because of reliance of the other or

the third person on the undertaking. 

Restatement (Second) of Torts § 324A. The parents contend that subsections (b)

and (c) apply to Townsend Corporation. 

Under Missouri law, “merely assisting another in the performance of his duty

to a third person is not enough to trigger liability.” Plank v. Union Elec. Co., 899

S.W.2d 129, 131 (Mo. App. 1995). Rather, under § 324A(b), “one must intend to

completely subsume or supplant the duty of the other party in order to incur liability

for nonperformance of the duty.” Id. 

The parents emphasize that liability may lie under § 324A when a third party

undertakes to provide a specific service, in this case, promulgating safety rules. The

First Circuit considered a factually similar scenario, upholding the district court’s

finding that the parent company had no duty to an employee of a subsidiary in Muniz

v. National Can Corp., 737 F.2d 145, 147 (1st Cir. 1984). In Muniz, the National

Can Corporation issued general safety guidelines and provided assistance with safety

matters when requested by a subsidiary’s local management. Id. The plaintiff argued

this involvement with safety measures imposed a duty to provide a safe working

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environment for the subsidiary’s employees. Id. The court held that this did not

indicate that the Corporation assumed responsibility for safety at the subsidiary. Id.

at 149. Rather, the Corporation “provided general safety measures” and “intended

for these general guidelines to be implemented by local management.” Id. 

Under Section 324A(c), Missouri courts find liability where a third party

conducts safety inspections or safety analysis that completely supplants the duty of

another to conduct those safety activities themselves. See Berliner, 501 S.W.3d at

69; Kraus v. Hy-Vee, Inc., 147 S.W.3d 907, 923-25 (Mo. App. 2004) “[W]here

liability is based on negligent safety inspections, reliance typically will be

demonstrated by continuation of business as usual in the belief that any necessary

precautions would be taken or called to the user’s attention. Berliner, 501 S.W.3d

at 69, citing Smith v. Universal Underwriters Ins. Co., 752 F.2d 1535, 1537 (11th

Cir. 1985). In these cases of reliance, if harm occurs from the defective work of the

third party, liability may lie. 

Although Townsend Tree does not have a safety department, Townsend

Corporation did not completely subsume or supplant the duty to provide a safe

workplace for Halsey. As in Muniz, Townsend Corporation did provide safety

recommendations and safety consulting services to Townsend Tree, but Townsend

Tree was responsible for the safety of its own employees and for implementing safety

rules and guidelines. Townsend Corporation is thus not liable under either Section

324A(b) or 324A(c). 

The district court correctly granted summary judgment to Townsend

Corporation. 

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The judgment is affirmed.

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