Co-Employee Immunity Under Workers’ Compensation Act in Light of New Missouri Supreme Court Opinion

The Missouri Supreme Court recently held that a plaintiff could not hold a former co-employee personally liable for a workplace injury because with one exception, co-employees are legally entitled to immunity under the 2012 amendment to Missouri Statute Section 287.120.1 of the Workers’ Compensation Act.

Case Background

Plaintiff Danny Brock worked at JMC Manufacturing, which utilizes a high-pressure laminating machine to laminate particle boards. Mark Edwards, one of plaintiff’s co-employees who was also a supervisor at JMC, was working with the plaintiff on April 30, 2013. They were using the machine to laminate particle boards when Edwards noticed the machine was collecting glue on the bottom rollers. This collection of glue was applying unwanted glue to the sheets of particle board being fed into the machine. A safety guard, described as a hinged metal grate, rested over the bottom pair of rollers and guarded a pinch point where the rollers met. Edwards instructed the plaintiff to clean the glue off the rollers. In contravention of JMC’s own safety rules, as well as warnings posted on the machine, Edwards removed the safety guard that shielded the pinch point created where the bottom rollers met. Edwards instructed the plaintiff to clean the rollers while the machine was running by squeezing water from a wet rag over the rollers and brushing the rollers as they turned. The wet rag got caught in the rollers and pulled the plaintiff’s thumb into the pinch point, crushing his thumb.

The plaintiff applied for and received workers’ compensation benefits for this workplace injury. He also filed a personal injury lawsuit against Edwards (his co-employee and supervisor), alleging that Edwards negligently caused the crushing injury by: (1) removing the safety device from the machine, (2) ordering the machine to be cleaned while it was in operation without the safety device, (3) failing to instruct or warn of the dangers and hazards of removing the safety guard, and (4) disregarding complaints about the unsafe condition of the machine that the plaintiff was instructed to clean without a safety guard in place. Edwards died before trial, and a defendant ad litem was substituted in his place as defendant.

The matter proceeded to trial. At the close of the evidence, the defendant ad litem moved for directed verdict, claiming that: (1) plaintiff had failed to make a submissible case of negligence under common law, (2) Missouri Statute Section 287.120 released the co-employee from liability because Edwards’ conduct did not constitute an “affirmative negligent act that purposefully and dangerously caused or increased the risk of injury,” (3) Edwards’ acts were within the scope of the employer’s nondelegable duties to provide a safe workplace, and (4) Edwards’ acts did not proximately cause the injuries. The trial court overruled the motion for directed verdict, and a jury found in favor of the plaintiff, awarding him $1.05 million in damages.

The Opinion

On appeal, the defendant ad litem argued that the trial court erred in overruling the motions for directed verdict because the plaintiff failed to make a submissible case of common law negligence and the co-employee was immune from liability under the Workers’ Compensation Act. In a majority opinion authored by Judge W. Brent Powell, the Supreme Court of Missouri held that the trial court did, in fact, err, and the judgment was reversed.

In 2012, the Missouri legislature amended Section 287.120.1 of the Workers’ Compensation Act to provide immunity for co-employees from liability to fellow employees arising out of injuries in the workplace. This followed a seven-year time period during which co-employees had no immunity under the statute and could be held personally liable for accidents in the workplace under theories of common law negligence and the facts of each case. With its 2012 amendment, the legislature sought to eliminate confusion over whether co-employees had immunity from common law liability for accidents in the workplace.

The relevant portion of the amended statute states:

Any employee of such employer shall not be liable for any injury … and … shall be released from all other liability whatsoever … 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

Section 287.120.1 (as amended, 2012).

As amended, then, the 2012 statute provides co-employees with immunity from suit when they may be liable at common law unless the exception set forth within the statute is met. Specifically, a co-employee is immune unless the co-employee “engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.” Because Edwards was a co-employee of the plaintiff, he was immune from personal liability unless he was found to have “engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.”

In the majority opinion, the Supreme Court held that the plain text of the statute provides that a co-employee is statutorily immune unless the co-employee purposefully and dangerously caused or increased the risk. This means the co-employee must have engaged in conduct with the specific purpose to cause or increase the risk of injury. Mere negligent conduct is not enough to meet the requirements of this exception to statutory immunity.

Plaintiff argued that the jury could infer that Edwards acted with the purpose to increase the risk of injury to the plaintiff by virtue of Edwards having intentionally removed a safety guard in violation of the employer’s safety rules. The Supreme Court found that such inference was not reasonable and required improper speculation. In short, the Supreme Court found that the plaintiff suffered injuries that were “tragic, but they resulted from an unfortunate accident in the workplace, not the deliberate and deviant actions of a co-worker who sought and desired to cause or increase the risk of injury to a co-employee.” The Court noted that while the evidence supported a finding that Edwards acted outside of the safety rules, this demonstrated only that Edwards acted negligently, not that he intended to cause or increase the risk of injury. Therefore, it ruled that Edwards was entitled to immunity under the statute.

Dissenting Opinion

In a dissenting opinion, Judge Patricia Breckenridge argued that the majority opinion improperly relied on prior case law that limited the liability of co-employees to negligent acts that are not reasonably foreseeable to the employer. She stated that such an interpretation effectively eliminated any recovery in circumstances where there could be recovery at common law. However, the majority opinion stated that any analysis that a co-employee owes an independent duty to keep a safe workplace outside of the employer’s nondelegable duty disregarded settled law that a co-employee cannot be held liable at common law for negligence in carrying out the duties owed by the employer.

The Takeaway

For co-employee liability claims arising from workplace injuries that occur after the 2012 amendment to the Workers’ Compensation Act referenced in this case, a co-employee will not be personally liable unless there is evidence of a specific intention to increase the risk of injury or death. Without such evidence, a co-employee is immune from liability under Section 287.120.1.

(For review of the Opinion in this case, including its dissenting Opinion, see Danny Brock v. Peter Dunne, in his Capacity as Defendant Ad Litem for Mark Edwards, Deceased, Missouri Supreme Court No. SC97542.)

  • Kathleen S. Hamilton

    Kathleen S. Hamilton focuses her practice on general trial litigation, appellate practice, and insurance defense, including:

    • Premises Liability
    • Professional Liability
    • Construction Law
    • Complex Tort Litigation
    • Catastrophic ...

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Kerri Forsythe

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