Workers' Compensation

Missouri: Court Rejects Co-employee Liability in Wrongful Death Claim

Many Missouri employees have been dragged in court recently regarding workplace injuries following a landmark 2010 case Robinson v Hooker, 323 S.W.3d 418 (Mo. App. W.D. 2010), which concluded the exclusive remedy of the Missouri workers’ compensation act after statutory reform no longer provided co-employees or managers an exclusive remedy defense.

In the recent case Hansen v Ritter, et al., WD 74115 (June 29, 2011), 2012 Mo. App. Lexis 876, a corporate safety manager and operations manager were sued for negligence after an employee fell into a wire-stranding machine, resulting in the employee’s death. The court concluded in a narrow ruling that the plaintiffs as a matter of law did not establish a breach of any duty to the plaintiff, and affirmed a dismissal on the petition for failure to state a cause of action.

“We need not determine, therefore, the precise contours of the common-law duty co-employees owe to one another.” The court noted it “is unnecessary in deciding the matter before us to definitely determine the precise parameters of a co-employee’s personal duties to a fellow employee sufficient to support an actionable claim of negligence.”

The court noted before Robinson a plaintiff failed to state a cause of action without demonstrating “something more” purposeful, affirmatively dangerous conduct. The court noted that Robinson did not vitiate case law, indicating such allegations established a breach of duty. By implication, pleading purposeful affirmative conduct would survive a motion to dismiss based on a de novo standard of review, assuming all pleadings to be true. The court suggests there may be a breach of a duty without reaching all of these allegations. The alleged breach not to detect, correct or prevent work practices (causing a guard to give away) simply did not meet the standard in this case. Plaintiff conceded that the duties were not independent of the master-servant relationship and the tasks assumed the safety manager and operations manager were merely “going to work.” The plaintiff failed to establish a recognized duty as a matter of law in a cause of action for negligence.

The court did not disturb the wrongful death count against the machine manufacturer.

The case is important from a pleading issue to establish a duty of care between the co-employee and the plaintiff to survive a motion to dismiss. Despite 30 pages of detailed historical analysis and coaching moments about technical briefing rules, the court defines no bright line test to illuminate the practitioner. Despite criticism by the court of the “something more” standard, the court as a practical matter seems to have returned essentially to that point. About a month before the Hansen case, the legislature redefined what is required to demonstrate a duty of care by co-employees. In 2012 as a result of the Robinson case the legislature re-defined the standard of co-employee liability to require an “affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.”

Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug's Mo. Workers' Comp Alerts.

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