Donald L. O'Keefe1

Timothy W. Callahan1

Missouri's Workers' Compensation Act (the act) provides the exclusive remedy for an injured employee against his or her employer for injuries covered by its provisions.² What is not so clear is whether or not the exclusive remedy defense applies equally to employees of the exempt employer in a civil suit filed by another employee. Typically, Missouri courts have held that suits against co-employees are precluded so long as the allegations include a breach of a duty to maintain a safe working environment. If the co-employee's alleged breach is something more than the employer's duty to provide a safe workplace, then civil liability attaches to the co-employee, thereby allowing suits between fellow employees. This article examines the parameters of co-employee immunity, discusses the current state of the law in this regard, and provides a synopsis of cases decided to date.³

The act provides a forum for injured employees who sustain injuries "arising out of and in the course of . . . employment."⁴ Under the act, an employee is entitled to certain benefits for on-the-job injuries regardless of whether or not the employer was at fault; but in return, an employer generally is immune from civil liability. The act is clear in this regard, and little debate exists regarding the exclusive remedy provisions of the act as it relates to employers.

With respect to third parties, the act allows for such suits on the basis of placing the loss squarely upon the negligent wrongdoer. Missouri courts have held that co-employees are third persons within the meaning of the act and, in certain circumstances, may be sued by an injured employee. However, such liability was limited by State ex rel. Badami v. Gaertner, the seminal case on the issue, which held that the employee must plead "something more" than the employer's non-delegable duty to provide a safe work place.⁵ The employee must plead that the co-employee's affirmative act breached a personal duty owed to the employee. The "something more" test has created problems for lawyers for many years. The courts have historically been inconsistent in the application of the "something more" standard, leaving the issue basically unresolved, especially in non-automobile type cases.

II. The Evolution of Co-Employee Liability

A. The Workers' Compensation Act and the Steps Leading up to "Something More"

Before the 1920s, an employer in Missouri was never liable for negligent acts of its employees.⁶ In overcoming this principle, courts later recognized that an employee can act in a dual capacity at the workplace. The employee can be both a co-employee and "vice-principal."⁷ This characterization allowed an employee to be liable for failure to provide a safe work environment, which was previously a non-delegable duty owed to the co-employee by the employer.⁸ When performing this duty, the employee is not acting as an individual but rather as the employer himself.⁹ Regardless of who performed the act, when that non-delegable duty was breached, it was the employer who breached it, not the employee.¹⁰ Therefore, the employer was eventually found liable for the acts of its employees.

Courts later determined "that an agent [employee] was liable to third persons, including co-employees, only for his misfeasance but not his nonfeasance."¹¹ The rationale was that an agent is only in privity with the principal, and any nonfeasance leaves the agent only liable to the principal.¹² In order for misfeasance to be present, the agent had to have "committed an affirmative act in furtherance of [his] duty."¹³ Thus, when the act was enacted, the employee who acts within one of the employer's non-delegable duties could not be liable for failure to fulfill the duty.¹⁴

The act was originally enacted in 1926. Under the act, an employer must compensate an employee, regardless of negligence, "for personal injury or death of the employee by accident arising out of and in the course of his employment."¹⁵ In return for this mandatory compensation, an employer "shall be released from all other liability therefor whatsoever, whether to the employee or any other person."¹⁶ The act is the exclusive remedy for injury or death in the course and scope of employment. An employee may recover from "a third person [who] is liable to the employee."¹⁷ Missouri courts have consistently held that a co-employee may be considered a third person under the statute.¹⁸

In 1931, the Missouri Court of Appeals in Sylcox v. National Lead Co. stated that the enactment of the act clearly shows that an employee may be liable to another employee for his misfeasance.¹⁹ An employee's liability to a co-employee exists when the employee breaches a duty owed to the co-employee independent from the employer.²⁰ The exclusive remedy provision under the act did not extend to employees when the employees breach duties outside the scope of the employer's non-delegable duties.²¹

B. State ex rel Badami v. Gaertner and "Something More"

In 1982, the Missouri Court of Appeals, in State ex rel. Badami v. Gaertner, for the first time limited the scope of co-employee liability.²² In Badami, the plaintiff alleged that he was injured on the job when his hand was caught in a shredding machine, resulting in the amputation of three fingers. After the plaintiff received a settlement under the act, he then filed suit against the president and the production manager of his employer alleging that the injury to his hand was a result of the defendants' failure to maintain a reasonably safe work place.²³

The defendants filed a motion to dismiss for lack of subject matter jurisdiction, claiming that the exclusive remedy provision of the act barred plaintiff's civil action.²⁴ The central issue was identified in the following terms:

[W]hether a supervisory employee, including a corporate officer, may be held personally liable for injuries sustained by a fellow employee covered by workmen's compensation where the injuries occur because of the supervisor's failure to perform the duty, assigned to him by the employer, to provide the fellow employee a reasonably safe place to work.²⁵

In Badami, the court examined alternative approaches applied in other states. The first approach, which was rejected in Badami, all but eliminated co-employee liability by extending immunity to all employees.²⁶ This majority approach is followed in various states, including North Carolina, Montana, Indiana, and Mississippi.²⁷ The second approach, utilized in Louisiana and New Jersey, applied the Restatement of Agency (2nd) §§ 350-359.26.²⁸ In general, liability is imposed when the employee breaches a duty assigned to him or her by the employer.²⁹ This approach, too, was rejected because the court believed that a co-employee's liability is derived from the act, not the principles of agency law.³⁰ The Badami court also reasoned that these approaches overlooked the importance of the distinction between a non-delegable duty owed by the employer and a duty owed by the employee wholly apart from the employer.³¹

Missouri's approach was one taken from the Wisconsin courts.³² This approach holds that an officer or a supervisor "has immunity under the workmen's compensation law where his negligence is based upon a general non-delegable duty of the employer."³³ There is no protection when "he does an affirmative act causing or increasing the risk of injury."³⁴ The Wisconsin test utilized a "something extra" or "something more" test. This "'[s]omething extra' is required beyond a breach of his duty of general supervision and safety, for that duty is owed to the employer, not the employee."³⁵

The court believed the Wisconsin approach was more consistent with Missouri law, both as to purpose of the act and common law.³⁶ The act was enacted "to place the burden of employment accidents upon the employer," and give employees the right to collect without having to prove any elements or be subjected to any employer defenses.³⁷ The trade off to the employer for this guaranteed recovery was to ensure the employer that he was protected from "general tort liability and damages."³⁸ If other employees were liable for unsafe working conditions, the employer would ultimately be required to indemnify the employee, which would "effectively destroy the immunity provisions of the workmen's compensation law."³⁹

III. Applying the "Something More" Test

The problem that has plagued lawyers since Badami is determining the something more requirement to impose liability upon co-employees. The court provided little guidance as to what does or does not satisfy the something more standard. It is evident from the decisions that followed Badami that Missouri courts were inconsistent in the application of the Badami standard, and significant questions remained as to the scope of something more.

A. Cases With "Something More"

The Supreme Court of Missouri found that there was something more alleged in Tauchert v. Boatmen's National Bank of St. Louis.⁴⁰ The plaintiff filed suit against his supervisor for injuries received due to the supervisor's active negligence.⁴¹ Plaintiff was a laborer assisting the defendant foreman at a construction site. The defendant created a hoist to raise an elevator. The hoist failed, causing the elevator to crash to the ground and injured the plaintiff, who was atop the elevator.⁴²

The Court found that the facts alleged were enough to survive a motion to dismiss.⁴² The Court noted that "[d]efendant's alleged act of personally arranging the faulty hoist system for the elevator may constitute an affirmative negligent act outside the scope of his responsibility to provide a safe workplace for plaintiff."⁴⁴ "Something more" has been described as an affirmative negligent act that "affirmatively causes or increases his[/her] fellow employee's risk of injury."⁴⁵ The Supreme Court of Missouri made an important distinction by stating that "[t]he creation of a hazardous condition is not merely a breach of an employer's duty to provide a safe place to work."⁴⁶

In Craft v. Scaman, the Missouri Court of Appeals reviewed the trial court's dismissal of a lawsuit "for lack of subject-matter jurisdiction."⁴⁷ The suit was brought by the plaintiff, an employee of a fireworks factory who was injured on the job. The defendant was the president of the corporation. Plaintiff was operating a machine that rotated the spools on which the fuses were located. When the machine broke down, the defendant propped a board against the machine as a way to keep the machine working. The defendant then instructed the plaintiff to operate the machine faster. When he did this, a fire started and caused the plaintiff to be burned.⁴⁸

The Craft court held that "the 'something extra' required to impose tort liability upon a corporate officer includes any affirmative act, taken while the officer is acting outside the scope of the employer's responsibility, that breaches a personal duty of care the officer owes to a fellow employee."⁴⁹ The court found that the defendant's actions were not acts consistent with the employer's non-delegable duties.⁵⁰ He owed a duty individually to the plaintiff, and is not covered by the workers' compensation immunity.⁵¹

In Murry v. Mercantile Bank, N.A., plaintiff was injured after being required by his supervisor to attempt to move a 5,000 pound safe.⁵² The plaintiff alleged that the supervisor did something more when he ordered the plaintiff to move the safe "under threat of being fired."⁵³ The court found that this was an affirmative act of negligence.⁵⁴ The supervisor breached a personal duty owed to the plaintiff that was outside the scope of the employer's duty to provide a safe workplace.⁵⁵

In Hedglin v. Stahl Specialty Company, the plaintiff died when "he fell into a vat of scalding water."⁵⁶ The employee's heirs brought a wrongful death lawsuit against the decedent's supervisor alleging that the deceased fell into the water while following his supervisor's orders. The supervisor instructed the deceased to remove a screen from the vat, which still contained the scalding water. The supervisor required the decedent to hang from a forklift into the vat to remove the screen. At this point, the deceased fell into the vat and died. The trial court granted defendant's motion to dismiss based on immunity and an appeal ensued.⁵⁷

The Court of Appeals found that the something more test was satisfied because the defendant caused the deceased's death when he "personally arranged an extremely dangerous scheme."⁵⁸ The facts alleged in the petition were enough to survive a motion to dismiss and could prove to be something more.⁵⁹

In Biller v. Big John Tree Transplanter Mfg. and Truck Sales, Inc., a new employee died while using a piece of machinery to transplant trees.⁶⁰ The defendant, the owner of the company, operated the machine for several minutes, then noticed that the decedent was missing. The defendant later found the deceased on the other side of the truck, apparently dead from injuries sustained when the equipment was lowered upon him, crushing his head.⁶¹

The Biller court, in determining whether this accident was part of the employer's non-delegable duty, focused on whether the defendant was training the deceased at that time of the accident or whether it resulted from acts of a co-employee.⁶² This was important, because training would classify the defendant as decedent's employer.⁶³ Training is a task typically reserved and performed by the employer.⁶⁴ However, the court determined that, at that time, the defendant was not training the deceased, because defendant was operating the machinery and admittedly had no idea where the deceased was located.⁶⁵ The court held that a co-employee owes a personal duty to another "to maintain a careful lookout for the safety of his co-worker."⁶⁶ The plaintiffs were entitled to maintain their negligence claims against the defendant.⁶⁷

The plaintiff in Workman v. Vader was an employee of Wal-Mart when she slipped and fell on a piece of cardboard box that was discarded on the floor behind the counter in the jewelry department."⁶⁸ Plaintiff alleged that her supervisor had negligently left the cardboard box on the floor, and this carelessness resulted in plaintiff's injuries.⁶⁹ The court found that plaintiff's allegations "indicate that the defendant's affirmative acts caused or increased the risk of [plaintiff's] injury."⁷⁰ These acts were outside the scope of the employer's duty to provide a safe workplace; instead, the acts were a breach of the supervisor's personal duty of care owed to the plaintiff.⁷¹ The court followed Tauchert in holding that a creation of a hazardous condition can exceed an employer's non-delegable duty.⁷²

B. Cases Without "Something More"

In Kelley v. DeKalb Energy Company, plaintiff worked for the defendant producing "corn flamers," fire-spewing machines attached to tractors to singe corn plants for farming purposes.⁷³ While working on or near a corn flamer in the factory, plaintiff suffered significant burns when it exploded. Plaintiff brought suit against the defendant company and "five employees asserting [a] negligent design."⁷⁴

In reaching its decision, the Supreme Court of Missouri first distinguished Kelley from Tauchert.⁷⁵ In Tauchert, the Court found that the creation of the makeshift hoist was an affirmative act of personal negligence, and was not an act in furtherance of the employer's duty to provide a safe workplace.⁷⁶ In Kelley, the corn flamers were built from plans approved by the defendants' specifications and standards.⁷⁷ "Defendants demonstrated that the condition of the corn flamer was part of the employer's non-delegable duty to provide a safe workplace, [thereby] shielding the co-employees from liability."⁷⁸

The plaintiff in State ex rel. Feldman v. Lasky brought suit against defendant, the employee responsible for the maintenance of the walkways and stairs of a particular building on a campus.⁷⁹ Plaintiff fell on the walkway and claimed the defendant failed to properly remove the snow and ice from the walkway.⁸⁰ The court found that nowhere in his petition did the plaintiff allege something more than defendant's failure to maintain a safe workplace.⁸¹ This is a breach of the employer's duty, so plaintiff's exclusive remedy fell under the act.

In Collier v. Moore, both the plaintiff and the defendant were employed by Trans World Airlines (TWA) on the day of the accident.⁸² Defendant was driving a truck on the tarmac when he struck the baggage cart that plaintiff was operating. Plaintiff sustained injuries when he was ejected from the cart. Plaintiff alleged that the defendant failed to operate the vehicle properly given the inclement weather.⁸³

The court held that the defendant did not breach any individual duties owed to the plaintiff.⁸⁴ The weather created the hazardous condition, not the defendant.⁸⁵ At the time of the accident, the defendant was performing in his supervisory role and, therefore, his "actions constitute[d] a failure to fulfill his duty to implement his employer's duty to provide a reasonably safe work environment."⁸⁶ The court held that the plaintiff failed to plead other facts that would constitute something more.⁸⁷

In Wright v. St. Louis Produce Market, the Missouri Court of Appeals found that there was not something more when the decedent's heirs brought suit against both the owner and supervisor of the produce market after the deceased was transferred to the night shift and was subsequently murdered.⁸⁸ The court recognized that previous holdings where something more was found involved the co-employee "directing the employees to engage in dangerous conditions that a reasonable person would recognize as hazardous and beyond the usual requirements of employment."⁸⁹ While the defendants may be liable for failure to provide a safe work place, the placement of the deceased on the night shift does not amount to something more in light of prior decisions.⁹⁰

In Stanislaus v. Parmalee Industries, Inc., plaintiff sued his employer and the safety manager when his safety glasses failed to protect his eye against a flying object. The safety manager was in charge of all safety equipment at the factory, including the glasses that the plaintiff was wearing at the time of the injury.⁹¹ The court found that, in light of the facts and holding of Badami, "it is clear that . . . the Safety Manager . . . in control of furnishing and procuring safety glasses, was performing a delegated duty of the employer, to furnish adequate safety appliances for employees' use in the work place."⁹² The court found that the duties breached by the defendant were not independent from the duty that his employer owed to maintain a safe workplace, and the defendant was acting in the stead of his employer.⁹³

In Felling v. Ritter, the deceased was employed as a machine operator.⁹³ He operated a machine that loaded wire onto a spool. After his belt became caught on the machine, he was dragged into the machine and killed.⁹⁵ The court noted that a co-employee is only exposed to liability when "he affirmatively causes or increases his fellow employee's risk of injury."⁹⁶ The allegations were found only to assert a breach of the duty to provide a safe workplace and not something more.⁹⁷

IV. Recent Holdings

A. Gunnett v. Girardier Building and Realty Co.

In Gunnett, Robert Gunnett was on site as a roofer and the defendant was the foreman for the general contractor.⁹⁸ The defendant was a supervisor of Gunnett. The project called for a skylight to be placed in the roof. After the hole was cut, the defendant used a piece of plywood to cover it. Gunnett walked on the plywood and fell through the hole. After suit was filed, the supervisor filed a motion to dismiss Gunnett's negligence claim on the grounds that the court did not have proper subject matter jurisdiction. The trial court granted the defendant's motion, and the Court of Appeals affirmed the decision.⁹⁹

The court found that Gunnett had not pled something more than the duty to maintain a safe work place.¹⁰⁰ By placing the plywood over the skylight, the defendant was carrying out the duty of the employer to ensure the safety of the workplace.¹⁰¹ The defendant's conduct was not deemed an affirmative act directed at the plaintiff because the defendant was not even present at the time of the accident, and did not direct the plaintiff to walk across the plywood.¹⁰²

B. State ex rel. Taylor v. Wallace

In State ex rel. Taylor v. Wallace, William Smith brought a negligence action against Gerry Taylor for injuries resulting from an automobile accident. On December 31, 1996, both Smith and Taylor were employed by a refuse company, Browning-Ferris Industries (BFI).¹⁰³ The accident occurred as Taylor was driving a trash truck along a residential route, while Smith was riding as a helper on the rear of the truck. According to plaintiff's petition, the truck struck a mailbox which, in turn, caused Smith to fall from the truck. Smith claimed significant injuries.¹⁰⁴

The original suit was brought against both Taylor and his employer, BFI. The action was dismissed against BFI via a motion to dismiss on the basis of the act. The co-employee, Taylor, filed a motion to dismiss claiming plaintiff's claim against him was barred on the same grounds under the act. The trial court denied Taylor's motion. After the denial of Taylor's petition for writ of prohibition by the Missouri Court of Appeals, Taylor filed a writ of prohibition, which eventually was made absolute by the Supreme Court of Missouri.¹⁰⁵

The Supreme Court of Missouri, which had not addressed the issue of co-employee immunity since Tauchert & Kelley a decade before, ultimately ruled that plaintiff's negligence claim was barred by the act.¹⁰⁶ Following the progeny of Badami, whether Taylor's acts satisfied the something more test was determined upon the facts. The Court found that Taylor's act did not constitute an affirmative negligent act.¹⁰⁷ Smith's claims were nothing more than a claim against Taylor for negligently failing to discharge his duty to drive safely.¹⁰⁸ The Supreme Court of Missouri noted that "an allegation that an employee failed to drive safely in the course of his work and injured a fellow worker is not an allegation of 'something more' than a failure to provide a safe working environment."¹⁰⁹

C. Post-Taylor Decisions

In later decisions, Missouri courts have consistently followed Taylor. In Kesterton v. Wallut, the Missouri Court of Appeals applied Taylor following an employee's injury from an automobile accident.¹¹⁰ The driver of the vehicle was plaintiff's supervisor and the accident occurred within the scope of plaintiff's employment.¹¹¹ In applying Taylor, the court held that the employer was immune from liability under the act.¹¹² Similarly, the Missouri Court of Appeals followed the Taylor decision in Brown v. Roberson.¹¹³ In Brown, the plaintiff alleged that the driver, a co-employee, of the tractor-trailer in which he was a passenger negligently operated the vehicle and failed to secure the load they were hauling, causing the vehicle to overturn.¹¹⁴ The court found this fact pattern to be similar to Taylor, and concluded that plaintiff alleged nothing more than the driver's breach of his duty to drive safely.¹¹⁵ The Missouri Court of Appeals affirmed the trial court's ruling that this failure is not the purposeful, affirmative act that Missouri courts have held to constitute something more.¹¹⁶

The application of Taylor is not limited to automobile accidents. The court in Quinn v. Clayco Construction Co. found that an employee's exclusive remedy is within the act when the employee was injured by a piece of scrap metal on the job site.¹¹⁷ The plaintiff alleged that the defendant employees negligently discarded a piece of metal off the roof and failed to follow the proper safety guidelines established by the company.¹¹⁸ The court found that these allegations do not amount to "'something more,' other than a failure to provide a safe working environment."¹¹⁹ Also, there was no allegation that the defendants "engaged in an affirmative act directed at [the plaintiff] that increased the risk of injury."¹²⁰

In Graham v. Geisz, the Missouri Court of Appeals affirmed the dismissal of an action brought by a co-employee alleging that the defendant acted in a willful and wanton manner by ignoring instructions.¹²¹ Plaintiff and defendant worked together at Federal Express loading and unloading airplanes. Plaintiff asserted that defendant blatantly disregarded an order by negligently unlatching a large container. The container rolled down the conveyor belt, smashing defendant's hand. ¹²² The court held that even if the defendant disregarded the orders of her supervisor, "this case falls squarely within Taylor."¹²³ Defendant's action were "not the kind of purposeful, affirmatively dangerous conduct that Missouri courts have recognized as moving a fellow employee outside the protection of the Workers' Compensation Law's exclusive remedy provisions."¹²⁴

Taylor does not foreclose all co-employee liability. It does, however, raise the bar. The Missouri Court of Appeals in Groh v. Kohler held that a supervisor who ignored an employee's complaint of faulty machinery acted purposefully, putting the employee in an increased risk of danger.¹²⁵ Plaintiff alerted the supervisor that the machine would occasionally compress on its own. The supervisor did nothing to alleviate the dangerous condition. The machine subsequently malfunctioned when plaintiff's hand was underneath the press, resulting in serious damage to plaintiff's hand.¹²⁶ The court found that the supervisor's negligence forced the plaintiff "to perform an inherently dangerous act although the duties ascribed to her job were not inordinately dangerous."¹²⁷ The court went on to state that the dangerous defect caused the injury to be "virtually inevitable."¹²⁸

Taylor has become the standard bearer when determining whether the acts of a co-employee meet the something more test, as evidenced in the recent decision in State of Missouri ex rel. Larkin v. Oxenhandler.¹²⁹ Plaintiff sued his co-worker when he was accidentally struck by a truck driven by his co-worker. He claims that the co-worker created a "hazardous condition" when he moved the truck out of a construction zone; therefore, this creation of a hazardous condition, according to plaintiff, amounted to something more.¹³⁰ The court, in rejecting plaintiff's contention that his suit was distinguishable from Taylor, noted "that an employee's duty to drive safely is merely an extension of the duty to maintain a safe work environment."¹³¹ The court went on to emphasize that something more is found when the dangerous actions are "hazardous and beyond the usual requirements of the employment."¹³² Finally, the court cited Taylor for the proposition that the requirement that an employee act with a greater degree of care does not necessarily mean that the act meets the something more requirement.¹³³

V. Beyond Taylor

The something more standard first adopted in Badami has proven to be a challenge for practitioners and courts alike, given that the test must be applied on a case-by-case basis. No practical or universal test has been adopted. Exactly what constitutes something more is subject to debate, as the Badami approach is imprecise and oftentimes depends upon the defendant's specific acts. We do know from the Taylor decision that the Supreme Court of Missouri was unwilling to abrogate co-employee liability altogether. Adopting such an approach would, of course, remove co-employees as "third-persons" under the act for injuries arising from on-the-job accidents. In Taylor, the State of Missouri submitted an amicus curiae requesting that the Supreme Court of Missouri join the overwhelming majority of states that provide immunity to all co-employees. However, the Supreme Court of Missouri in Taylor made it clear that persons still may bring an action, under certain circumstances, against a co-employee for negligence.¹³⁴

Consistent with Wisconsin decisions, the something more standard requires a breach of a duty of care that a fellow employee owes to a plaintiff. Missouri courts have interpreted this to mean that, in order to impose liability against a fellow employee, there must be an affirmative act performed while the co-employee is acting outside the scope of the employer's responsibility as employer, thereby breaching a personal duty of care owed to the injured employee. Beyond being a question of law, the analysis hinges, in part, upon whether a duty even exists.

Assessing what constitutes the employer's responsibility to provide a safe work place versus what constitutes a breach of a personal duty is a difficult task, depending upon many factors. This is complicated by the fact that the Supreme Court of Missouri has only addressed the issue on a few occasions. The Taylor decision does provide for some closure on the issue of co-employee liability in automobile cases. The Taylor decision also eliminates any question that co-employee liability extends to supervisors as well as fellow, non-supervisory employees.

It may be that the something more standard is satisfied if the co-employee "personally participate[s] in the 'something more' by directing [another] employee[ ] to engage in dangerous conditions that a reasonable person would recognize as hazardous and beyond the usual requirements of the employment."¹³⁵ Examples of such dangerous conditions are readily apparent in Missouri cases that have found something more in other circumstances, including: when a supervisor directed a subordinate to suspend himself on a make-shift crane over a vat of scalding water (as was the case in Hedglin); or when a supervisor ordered, on threat of termination, a subordinate to manually move a heavy safe from one location to another (as was the case in Murry); and, finally, when a supervisor personally arranged for a make-shift hoist on an elevator that failed, causing the elevator to crash while a subordinate was working on the elevator (as was the case in Tauchert).

The difficulty in applying the dangerous condition rule set forth in the above cases is that not every case can be reconciled on that basis. As was the situation in Workman, the something more standard was simply met when a supervisory employee threw a cardboard box and packing materials on the floor and failed to remove same, resulting in the subordinate employee's slip-and-fall injury. This fact pattern would seem to suggest that such a failure to properly clean a work area is clearly within the employer's duty to provide a safe work place.

Given the recent decisions since Taylor, it appears that the pendulum has swung in favor of co-employee immunity. It may be that the courts have shifted their focus to applying the something more standard to only exceptional cases, perhaps gross negligence or inherently dangerous behavior. With the exception of the Workman decision, this seems to be the trend. Unless the co-employee's act is specifically directed at the co-employee and obviously involves action as opposed to inaction, then something more probably has not been demonstrated. Whether the pendulum will swing back in favor of co-employee liability remains to be seen.

Footnotes

¹ Donald L. O'Keefe is a principal at Rabbitt, Pitzer & Snodgrass, P.C., in St. Louis. He received his juris doctorate in 1991 from the University of Missouri-Columbia. Timothy W. Callahan is an associate at Rabbitt, Pitzer & Snodgrass, P.C., and received his juris doctorate in 2004 from Saint Louis University School of Law.

² Section 287.010, RSMo 2000.

³ For a more thorough history of co-employee liability, see Paul J. Passanante and Sara Stock, Help! We're Lost! Co-Employee Immunity in Missouri. 57 J. Mo. Bar 64 (2001), and William E. Hanna, Co-Employee Immunity: What Does It Take to Plead "Something More?" 53 J. Mo. Bar 77 (1997).

⁴ Section 287.120, RSMo 2000.

⁵ See State ex rel. Badami v. Gaertner, 630 S.W.2d 175 (Mo. App. E.D. 1982).

⁶ Id. at 177.

⁷ Id.

⁸ Id.

⁹ Id.

¹⁰ Id.

¹¹ Id.

¹² Id.

¹³ Id.

¹⁴ Id. at 178.

¹⁵ Section 287.120.1, RSMo 2000.

¹⁶ Id.

¹⁷ Section 287.150.1, RSMo 2000.

¹⁸ Badami, 630 S.W.2d at 177.

¹⁹ Slycox v. National Lead Co., 38 S.W.2d 497, 502 (Mo. App. E.D. 1931).

²⁰ Badami, 630 S.W.2d at 178.

²¹ Id.

²² Workman v. Vader, 854 S.W.2d 560, 562 (Mo. App. S.D. 1993).

²³ Badami, 630 S.W.2d at 176.

²⁴ Id.

²⁵ Id.

²⁶ Id. at 179.

²⁷ State ex rel. Badami, 630 S.W.2d at 179, citing Warner v. Leder, 69 S.E.2d 6 (N.C. 1952); Madison v. Pierce, 478 P.2d 860 (Mont. 1970); Witherspoon v. Salm Executor, 243 N.E.2d 876 (Ind. 1969), and Brown v. Estess, 374 So.2d 241 (Miss. 1979).

²⁸ Badami at 179-80, citing Miller v. Muscarelle, 170 A.2d 437 (N.J. Super. Ct. App. Div. 1961); and Canter v. Koehring Co., 283 So.2d 716 (La. 1973).

²⁹ Badami at 180.

³⁰ Id.

³¹ Id.

³² Id. at 179, citing Kruse v. Schieve, 213 N.W.2d 64 (Wis. 1973), Kruse v. Schieve, 240 N.W.2d 159 (Wis. 1976), Laffin v. Chemical Supply Co., 253 N.W.2d 51 (Wis. 1977).

³³ Badami at 179.

³⁴ Id.

³⁵ Id.

³⁶ Id.

³⁷ Id.

³⁸ Id.

³⁹ Id.

⁴⁰ See Tauchert v. Boatmen's Nat'l Bank, 849 S.W.2d 573 (Mo. banc 1993).

⁴¹ Id. at 574.

⁴² Id.

⁴³ Id.

⁴⁴ Id.

⁴⁵ Felling v. Ritter, 876 S.W.2d 2, 5 (Mo. App. W.D. 1994).

⁴⁶ Tauchert at 574.

⁴⁷ See Craft v. Scaman, 715 S.W.2d 531, 545 (Mo. App. E.D. 1986).

⁴⁸ Id. at 532-33.

⁴⁹ Id. at 537.

⁵⁰ Id.

⁵¹ Id.

⁵² Murry v. Mercantile Bank, N.A., 34 S.W.3d 193, 195 (Mo. App. E.D. 2000).

⁵³ Id. at 196.

⁵⁴ Id. at 197.

⁵⁵ Id.

⁵⁶ Hedglin v. Stahl Specialty Company, 903 S.W.2d 922, 924 (Mo. App. W.D. 1995).

⁵⁷ Id.

⁵⁸ Id. at 927.

⁵⁹ Id.

⁶⁰ Biller v. Big John Tree Transplanter Mfg., 795 S.W.2d 630, 632 (Mo. App. W.D. 1990).

⁶¹ Id.

⁶² Id. at 634.

⁶³ Id.

⁶⁴ Id.

⁶⁵ Id.

⁶⁶ Id.

⁶⁷ Id.

⁶⁸ Workman v. Vader, 854 S.W.2d 560, 561 (Mo. App. S.D. 1993).

⁶⁹ Id.

⁷⁰ Id. at 564.

⁷¹ Id.

⁷² Id., citing Tauchert v. Boatmen's Nat'l Bank, 849 S.W.2d 573, 574 (Mo. banc 1993).

⁷³ Kelley v. DeKalb Energy Co., 865 S.W.2d 670, 671 (Mo. banc 1993).

⁷⁴ Id.

⁷⁵ Id. at 672.

⁷⁶ Id., citing Tauchert, 849 S.W.2d at 574.

⁷⁷ Id.

⁷⁸ Id. at 672.

⁷⁹ State ex rel. Feldman v. Lasky, 879 S.W.2d 783, 785 (Mo. App. E.D. 1994).

⁸⁰ Id.

⁸¹ Id.

⁸² Collier v. Moore, 21 S.W.3d 858, 860 (Mo. App. E.D. 2000).

⁸³ Id.

⁸⁴ Id. at 862.

⁸⁵ Id.

⁸⁶ Id.

⁸⁷ Id. at 859.

⁸⁸ Wright v. St. Louis Produce Market, Inc., 43 S.W.3d 404, 408 (Mo. App. E.D. 2001).

⁸⁹ Id. at 415.

⁹⁰ Id.

⁹¹ Stanislaus v. Parmalee Industries, Inc., 729 S.W.2d 543 (Mo. App. W.D. 1987).

⁹² Id. at 546.

⁹³ Id.

⁹⁴ Felling v. Ritter, 876 S.W.2d 2, 3 (Mo. App. W.D. 1994).

⁹⁵ Id.

⁹⁶ Id. at 5.

⁹⁷ Id.

⁹⁸ Gunnett v. Girardier Building and Realty Co., 70 S.W.3d 632, 641 (Mo. App. E.D. 2002).

⁹⁹ Id.

¹⁰⁰ Id. at 643.

¹⁰¹ Id.

¹⁰² Id.

¹⁰³ State ex rel. Taylor v. Wallace, 73 S.W.3d 620, 621 (Mo. banc 2002).

¹⁰⁴ Id.

¹⁰⁵ Id.

¹⁰⁶ Id.

¹⁰⁷ Id.

¹⁰⁸ Id. at 621.

¹⁰⁹ Id. at 622-23.

¹¹⁰ Kesterton v. Wallut, 116 S.W.3d 590 (Mo. App. W.D. 2003).

¹¹¹ Id.

¹¹² Id. at 592.

¹¹³ Brown v. Roberson, 111 S.W.3d 422, 423 (Mo. App. E.D. 2003).

¹¹⁴ Id.

¹¹⁵ Id. at 425.

¹¹⁶ Id. at 424.

¹¹⁷ Quinn v. Clayton Construction Co., Inc., 111 S.W.3d 428, 430 (Mo. App. E.D. 2003).

¹¹⁸ Id.

¹¹⁹ Id.

¹²⁰ Id.

¹²¹ Graham v. Geisz, 149 S.W.3d 459, 460 (Mo. App. E.D. 2004).

¹²² Id. at 460-61.

¹²³ Id. at 463.

¹²⁴ Id.

¹²⁵ Groh v. Kohler, 148 S.W.3d 11, 12 (Mo. App. W.D. 2004).

¹²⁶ Id.

¹²⁷ Id. at 16.

¹²⁸ Id.

¹²⁹ State of Missouri ex rel. Larkin v. Oxenhandler, 159 S.W.3d 417 (Mo. App. W.D. 2005).

¹³⁰ Id. at 419.

¹³¹ Id. at 422.

¹³² Id. at 423, quoting Groh v. Kohler, 148 S.W.3d 11, 14 (Mo. App. W.D. 2004).

¹³³ Id.

¹³⁴ Taylor, 73 S.W.3d at 621-22.

¹³⁵ Lyon v. McLaughlin, 960 S.W.2d 522, 526 (Mo. App. W.D. 1998).