Missouri Court of Appeals, Eastern District
No. ED 106319, 2019 WL 2182444 (Mo. Ct. App. May 21, 2019)
Mems was injured when his co-employee, LaBruyere, unscrewed a roller door which detached and fell onto Mems who was directly below. Mems initiated a worker’s compensation claim against the employer and a civil lawsuit against LaBruyere for negligence. LaBruyere argued that Mems could not bring this civil suit for negligence due to the 2012 Missouri Amendment to Mo. Ann. Stat. §287.120.1(2012) which provides immunity to co-employees for civil liability:
Co-employees are immune from liability for injuries which workers compensation is recoverable UNLESS the employee is engaged in affirmative negligent acts that purposefully and dangerously caused or increased the risk of injury.
The Court found LaBruyere was not exempt from immunity under this statute. The Court held co-employees may be held liable for negligent acts if they (1) failed to maintain a certain level of care to protect fellow employees against unreasonable risks of harm; and (2) created or increased the risk of danger to the injured employee. The Court specified that the co-employee must have purposefully performed the act which resulted in the injured employee’s accident, even if it was not designed to cause such harm.
The Court further held that in order to determine if the injury was caused by a breach of the employer’s non-delegable duties, it must be determined if the risk “was reasonably foreseeable from the employer’s perspective.” If not, then the injury was not caused by a breach of the employer’s non-delegable duties.
LaBruyere purposefully loosened the bolts knowing Mems was directly below, placing Mems in danger of harm which was not otherwise there. LaBruyere made an otherwise reasonably safe workplace unsafe. The court stressed that employees still owe a common law duty of care to one another beyond the bounds of workers compensation legislation.
The Court’s holding may result in additional filings of civil suits against co-employees when the evidence reveals the co-employee acted negligently and placed the injured employee in danger. It is important to note that on June 5, 2019, LaBruyere filed a Motion for Rehearing and Application for Transfer to the Missouri Supreme Court. As such, the Supreme Court may have the opportunity to once again address the issue of co-employee liability.
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