Changes to section 287.120.1 lowered the burden of proof to sue a co-worker based on common law, according to the court of appeals, when it reversed a dismissal for failure to state a claim. Leeper v Asmus WD 76772 (May 27, 2014), 2014 MO App Lexis 605 (lexis.com), 2014 MO App Lexis 605 (Lexis Advance).
The Western District in 2010 sent shock waves through the Missouri business community in Robinson v Hooker, 323 S.W.3d 418 (lexis.com), 323 S.W.3d 418 (Lexis Advance) (Mo. App. 2010) when it concluded 2005 reforms which required strict construction abrogated immunity from negligence due to injuries caused by co-employees. On August 28, 2012 HB 1540 became effective to put tighter limits on co-employee liability and amended 287.120.1 (lexis.com), 287.120.1 (Lexis Advance), to allow immunity unless the worker engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.
The Leeper case arises from an accident in 2011 within the Hooker window. A 500-pound pipe crushed Leeper's arm. Asmus operated a drilling rig guiding the pipe. Leeper alleges Asmus was negligent when he did not check the line was tight before operating the rig resulting in the injuries. The amended petition alleged there was a specific duty of the operator's job and created a unique hazard which was something more than just creating a safe work environment.
The court found that as a matter of law the 2005 amendments (until 2012) restored the law to the common law and that an action could proceed if the injuries arose solely from the defendant's negligence. The court noted Leeper could proceed even though the petition did not allege a breach of a common law duty but alleged a "something more" standard, a standard rejected by the court itself.
The court concluded that injuries after 2005 accident did not require the co-employee conduct to be outrageous, intentional or reckless which imposed too high of a burden on an injured worker inconsistent with common law, and refuses to follow the "something more" standard adopted by the Eastern District. The rationale to require something more arose in liberal construction to assure a remedy through worker's comp.
If that the defendant failed to perform his job as instructed then dismissal was premature because the injury flowed from negligence. "Construed favorably the Leeper, these allegations support a conclusion that a safe drilling rig, safe methods of operation of the drilling rig, and a sufficiently trained operator of the drilling rig, were only made unsafe because Asmus failed to follow specific directions...." Leeper in many ways is a primer about pleading. Hansen v Ritter, 375 S.W.3d 201 (lexis.com), 375 S.W.3d 201 (Lexis Advance) (Mo App. 2012) failed based on pleadings that did not identify a separate duty owed by the defendants independent of the employer.
The court noted there was an easier burden to survive a motion to dismiss rather than prevailing on the merits that required proof that the defendant's negligence was the sole cause of the injuries. The court adopts a balancing test of policy considerations which included foreseeability, the relationship of the parties, and an obligation to control the activity which presents the danger of the injury, the burden of protecting against it and the consequences of placing the burden on the defendant.
Legislative reform unintentionally exposed co-employees in Missouri to liability for negligence suits between the 2005 and 2012 amendments. This decision has broad implications for anyone involved in a work-place injury and has a chilling effect on employers forced to decide whether to tender any defense to its workers caught in the trawl.
Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug’s Mo. Workers’ Comp Alerts.
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