Under what conditions workers can sue their coworkers for injury has reemerged as a live question in Missouri in the past few years. The seminal case on this issue was, for years, State ex rel. Badami v Gaertner, 630 S.W.2d 175, 180 (Mo. App. E.D. 1982). The Badami case articulated what was known as a “something more” standard. The idea was that garden variety negligence was insufficient to support co-worker liability. To sue a co-worker it took “something more” than ordinary negligence. For precision, it left something to be desired. The standard evolved over time, eventually pushing most coworker negligence into the exclusivity of the Worker’s Compensation Act. This meant that very seldom could a coworker be held liable for a workplace injury unless their conduct rose to the level of recklessness or intentional harm. However, that changed with the 2005 revision of the Act.
The Missouri Court of Appeals, Western District, considered the issue and found that the strict construction of the 2005 Act had done away with immunity for coworker liability. Robinson v. Hooker, 323 S.W.3d 418, 423-25 (Mo.App. W.D. 2010). Understandably, this created quite a stir in the business community. The effect of coworker liability doesn’t merely create more risk for workers. It greatly impacts employers as they often find themselves involved in these cases either as parties or in support of the defendant. Some employers even choose to carry insurance which will specifically provide coverage for co-employee liability.
In 2012 the Missouri Legislature amended the statute to again provide greater immunity for coworker liability. The new standard provides for immunity for coworkers except in cases where the worker engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury. That reasonably high standard puts most coworker liability cases firmly under the exclusivity of the Act. It also leaves an injury window of increased liability running from 2005 to 2012. So what is the appropriate legal standard for injuries sustained during that window? Is it common law negligence? Is it “something more?” If it is “something more,” what exactly does that mean?
The Missouri Court of Appeals, Western District, recently considered those questions in Leeper v. Asmus. WD76772 (Mo.App. W.D. May 27, 2014). They held that the applicable standard is a common law negligence standard. There was, however, an important caveat. The injury had to be solely attributable to the coworker’s negligence, with no part falling under the employer’s duties. The Court found that “something more” was a misplaced standard because it focused on the actions of the coworker. Their approach is to first consider the role of the employer and then that of the coworker. If the injury to the plaintiff was attributable a non-delegable duty of the employer, there can be no coworker liability, regardless of whether there was “something more” than regular negligence. If, on the other hand, the injury is due completely to the negligence of the coworker aside from any non-delegable duty of the employer, there may be liability. Determining whether a worker’s injury is attributable to an employer’s non-delegable duties is a question of fact.
Another interesting facet of the Leeper decision is that the plaintiff didn’t plead that his coworker owed him a common law duty, instead he plead his case under the old, “something more” standard. The Court accepted that the something more pleading was sufficient to state that the coworker owed a duty. This is important, because the Western District had previously considered this issue and dismissed coworker liability claims where the plaintiff failed to properly state a distinct duty of the coworker apart from that of the employer. Hansen v. Ritter, 375 S.W.3d 201 (Mo.App. W.D. 2012). The question is of what pleadings will be sufficient to state a claim for coworker liability. So Leeper has advanced a standard for a plaintiff injured between the effective dates in 2005 and 2012 to state a claim against a coworker. In order to have a chance at recovery, the injury claimed must be solely attributable to the coworker’s negligence, apart from the duties of the employer.
Lastly, the Leeper Court criticized a recent Court of Appeals decision from the Eastern District in Amesquita v. Gilster-Mary Lee Corp. 408 S.W3d 293 (Mo.App. E.D. 2013). In that case, the Eastern District Court of Appeals allowed that an occupational disease claim was not subject to Workers Compensation Act exclusivity, but dismissed a claim for coworker liability. The reason they dismissed the coworker liability claims was a technical one, based on the sufficiency of the pleadings, which were very similar to those in Leeper. The Western District disagreed with that approach. They took a more liberal stance and allowed Leeper’s coworker liability claim to withstand the motion for summary judgment. So what does this split between the divisions mean? It means that the correct analysis is currently unsettled, and that it would not be surprising at all to see the Missouri Supreme Court take this up soon in order to settle the question.