Introduction

You represent Acme Inc., a prospering manufacturing company. Acme's president calls you seeking advice on how to minimize Acme's civil liability regarding a workplace accident in which an employee has suffered a serious injury due to the negligence of another Acme worker. Knowing that the Missouri Workers' Compensation Act1 ("the Act") exempts Acme from liability to its employees for injuries arising out of the course of employment, you advise that Acme's liability is limited to workers' compensation benefits, and does not include civil liability. But Acme's president then asks another question: What about the personal liability of the allegedly negligent employee?

The answer to this query is not always a simple one. The Act does not prohibit an injured employee from pursuing civil damages from fellow employees who allegedly caused his or her injury. Missouri courts hold co-employees liable for injuries to another employee when the negligent employee has breached a duty of care independent from the employer's duty to provide a safe workplace.2 This article provides a historical look at co-employee immunity, and offers a suggested approach for addressing co-employee immunity in the future.

 Background

Under § 287.120, RSMo 1986,3 which adopts what is known as the "exclusive remedy doctrine," an employer's liability to an employee for such injuries is limited to benefits under the Act. The exclusive remedy doctrine benefits employer and employee alike. While an employee sacrifices any cause of action he may have against his employer for personal injuries, the employee also is guaranteed a recovery of benefits under the Act regardless of fault or negligence on his part, and without having to prove fault or negligence on behalf of the employer. In essence, an employee is assured a recovery of benefits from an employer under the Act even if the employee's injuries were caused completely by his or her own negligence, or even if fault cannot in any way be attributed to the employer. To the employer's benefit, the employer faces no liability other than paying compensation benefits to the injured employee. Because an employer is released, under the wording of the statute, "from all other liability therefor whatsoever, whether to the employee or any other person,"4 an employer incurs no civil liability to an injured employee for injuries arising out of "accidents" in the course and scope of the employee's employment.

Critically, the Act5 does not prohibit an injured employee from collecting workers' compensation benefits and also collecting civil damages from "third parties" who allegedly caused his injury. Missouri courts have included co-employees of an injured person as "third parties" under § 287.150, RSMo 1986.6 With such an interpretation, fellow employees of an injured employee may be sued for civil damages even if the injured employee has collected workers' compensation benefits.

 Discussion

State ex rel. Badami v. Gaertner7 is the seminal Missouri case regarding co-employee immunity under the Act. In Badami, after receiving workers' compensation benefits, an injured party sued the corporate president and production manager for failure to equip the machinery causing the accident with proper safety devices.8 Specifically, plaintiff alleged that defendants "knew or in the exercise of ordinary care could have known, of the danger of the shredding machine and the absence of adequate safety devices thereon."9 Defendants moved to dismiss plaintiff's petition for failure to state a claim and for lack of subject matter jurisdiction based upon immunity under the Act.10

The Badami court first examined Missouri law prior to the enactment of the Workers' Compensation Act in 1926, at which time an employer was not liable for injuries caused to an employee by the negligent acts of a "fellow servant." After discussing Sylcox v. National Lead Co.,11 wherein Missouri first recognized the liability of a co-employee to a fellow employee as a "third person" under § 287.150, the Badami court quoted the following from Sylcox:

Now there is no doubt that at common law one servant is liable to another for his own misfeasance, and there is nothing in the Compensation Act which destroys such liability, or in any way disturbs the common law relationship existing between co-employees.12

The word "misfeasance" in Sylcox was particularly important in light of the existing law at the time of the Sylcox decision that an employee was liable to third persons, including co-employees, only for his misfeasance but not for his nonfeasance. Relying upon this language, Badami determined that Sylcox established that "an employee becomes liable to a fellow employee when he breaches a common law duty owed to the fellow employee independent of any master-servant or agent-principal relation."13

The Badami court then reviewed the approaches taken in other jurisdictions to co-employee immunity. Under Wisconsin law, a corporate officer or supervisory employee performs a dual capacity so that he has immunity under the Act "where his negligence is based upon a general, non-delegable duty of the employer," but does not have immunity "where he does an affirmative act causing or increasing the risk of injury."14 Adopting this analysis, the court dismissed plaintiff's claims against both defendants by stating:

Charging the employee chosen to implement the employer's duty to provide a reasonably safe place to work merely with the general failure to fulfill that duty charges no actionable negligence. Something more must be charged. The extent and nature of the additional charge can only be determined and sorted out on a case-by-case basis. Here plaintiff charges defendant with failing to provide him with a reasonably safe place to work--nothing more. Thus, plaintiff charged no actionable negligence.15

By instructing that the "something more" requirement can only be determined on a "case-by-case" basis, Badami proffered a question that Missouri's courts have attempted to address for 15 years. Missouri courts generally have followed the Badami analysis through the years, with case holdings dependent upon whether the plaintiff pled a breach of duty owed by one employee to another, or pled a breach of a general duty to provide a safe work place.

 B. Supreme Court of Missouri Decisions

The Supreme Court of Missouri has addressed co-employee immunity in only two cases: Tauchert v. Boatmen's Nat. Bank16 and Kelley v. DeKalb Energy Co.17 That the Supreme Court reached different conclusions in each case exemplifies the subtle distinctions between what is, and is not, an actionable claim under Missouri law.

Plaintiff alleged n Tauchert that a foreman (Ritz) allegedly maintained a faulty hoist system for an elevator and, when the hoist broke, an employee fell to the bottom of an elevator shaft, causing plaintiff's injuries. Concluding that he had immunity against plaintiff's claim under the Act, the trial court granted summary judgment on Ritz's behalf. Id. The Supreme Court of Missouri reversed the trial court's ruling, finding that "there is a recognized cause of action against a fellow employee for active negligence and that issues of material fact remain . . . the issue of fact is whether Ritz acted as a supervisor or a co-worker in rigging the elevator hoist system."18 Despite stating that the key issue is whether a defendant acts "as a supervisor or a co-worker," the Tauchert Court did not focus upon the title given to a worker, or the nature of his supervisory role in the workplace. Instead, the Court emphasized the difference between "active" and "passive" negligence — the same distinction made in Badami:

This Court finds the deposition testimony relied on to support summary judgment failed to remove the fact issue that active negligence by Ritz caused plaintiff's injury. The creation of a hazardous condition is not merely a breach of an employer's duty to provide a safe place to work. Defendant'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 to plaintiff. Such acts constitute a breach of personal duty of care owed by plaintiff. These actions may make an employee/supervisor liable for negligence and are not immune from liability under the workers' compensation act.19

In Kelley v. DeKalb Energy Co.,20 the Supreme Court ruled that a plaintiff could not pursue a claim against five fellow employees who allegedly designed, manufactured and constructed a corn flamer that exploded, thereby injuring plaintiff. Citing a different factual scenario than that presented in Tauchert, the Supreme Court ruled that plaintiff failed to state a claim against his co-employees:

This case differs from Tauchert. . . . Defendants demonstrated that the condition of the corn flamer was part of the employer's nondelegable duty to provide a safe workplace, shielding the co-employees from liability. There was no showing that the flamer was "make-shift" or "jerry-rigged." In fact, the design, manufacture, and construction of the corn flamers were an overall employer policy for a significant period of time.21

Tauchert and Kelley make clear that Missouri law recognizes a cause of action against a fellow employee — but just for active negligence.22 When a plaintiff alleges only that a defendant failed to carry out certain precautionary measures to reduce the likelihood of a workplace accident, the plaintiff has failed to state a viable cause of action under Missouri law. Even though Missouri courts, including Tauchert, often frame the issue in terms of whether a defendant acted as a "supervisor or co-worker," the critical question is whether the defendant, regardless of job title, allegedly committed an affirmative negligent act. Missouri cases addressing this issue, both before and after the Tauchert and Kelley decisions, address this issue by focusing upon the specific facts, and the particular allegations of negligence made, in each case.

 C. No "Specific Intent" Required

Tauchert and Kelley reject any argument that a plaintiff must allege a "specific intent to injure" by a co-employee, an argument that existed under the holding of Rhodes v. Rogers.23 In Rhodes, the plaintiff-employee sued a partner of the partnership that employed him for injuries after the defendant poured gasoline into a tire upon which plaintiff was working in an effort to cause an explosion to fill the tire with air and force the tire onto a rim. The Missouri Court of Appeals for the Southern District affirmed dismissal of the petition by stating that the "something extra" requirement under Badami necessitates that the defendant act with a "specific intent to injure."

Rhodes relied principally upon the Missouri Court of Appeals for the Eastern District's decision in McCoy v. Liberty Foundry Company.24 McCoy applied the "specific intent to injure" rule, however, in the context of a claim by an employee against corporate officers acting in their capacities as employers. The McCoy plaintiff did not claim that the officers were acting as co-employees when plaintiff was injured. Thus, the Rhodes court apparently applied the "intentional act" exception to an employer's immunity from employee's personal injury claims to Badami's directive that a co-employee's immunity extends to those situations where an employee is chosen to implement the employer's duty to provide a reasonably safe workplace.25 Although many cases subsequent to Rhodes have dismissed claims against co-employees, none have required the plaintiff to allege that the defendant acted with a "specific intent to injure."

 D. Cases Dismissing Claims Against Co-Employees

In addition to Badami and Rhodes, the majority of Missouri cases deciding the issue consistently have dismissed actions against fellow employees.

In Stanislaus v. Parmalee Industries,26 plaintiff was working on an assembly line when a flying object shattered his safety glasses and a shred lodged in his left eye, causing permanent vision impairment. After his original petition against his employer was dismissed based upon the exclusive remedy provision of the Act, plaintiff filed suit against the manufacturer of his safety glasses, the seller of his safety glasses, and his employer's safety service manager.27 Plaintiff alleged the safety service manager failed to warn him of the poor quality of the safety glasses, failed to inspect the glasses, failed to give instructions on the use of the glasses, and negligence in buying glasses of such poor quality. All defendants settled except the supervisor.

In discussing Badami, McCoy, and Parker, the Stanislaus court held:

It seems clear that the Badami court retained the misfeasance-nonfeasance concepts of co-employee cases announced in prior cases. It unequivocally held that a co-employee's failure to perform a duty delegated to him by his employer (an omission of duty) does not give rise to a cause of action by a fellow employee injured by reason of that omission.28

In addressing the specific allegations set forth in plaintiff's petition, the court ruled:

[A]s Safety Manager, [defendant], 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 . . . . These are all acts of omission of duties owed by Rush to his employer, which constituted mere nonfeasance, which duties had been delegated to him. Under the Badami decision and its progeny, [defendant] is not liable personally for the non-performance of those duties, none of which were independent of his duties to his employer, in whose shoes he stands under the allegations in this case.29

Clearly, Stanislaus relied heavily on the fact that plaintiff had merely alleged the failure of defendant to take affirmative actions to reduce the risk of plaintiff's injuries. By focusing on the misfeasance/nonfeasance distinction initially made in Badami, Stanislaus determined that plaintiff had not alleged that defendant took any negligent affirmative act that was not within the employer's duty to provide a reasonably safe place to work.

In Parker v. St. Louis County Water Co.,30 defendants sought to join plaintiff's co-employees as third-party defendants after plaintiff was injured while repairing an underground gas main which allegedly ruptured due to defendants' negligent excavation. The third-party petition premised the co-employees' liability upon the failure to require safety measures or provide safe tools or appliances; in substance, a failure to provide plaintiff with a safe place to work. The court ruled "an employee chosen to implement the employer's duty to provide a reasonably safe place to work enjoys the same immunity [of the employer] for mere failure to discharge that duty. Therefore, a petition which charges a supervisory employee with the general failure to fulfill that duty pleads no actionable negligence."31 For this reason, the court of appeals affirmed the trial court's dismissal of the third-party petition.

In Holland v. W.A.S.P. , Inc.,32 plaintiff was injured when he was struck by a cargo container engineered by defendant co-employee. The court of appeals upheld the trial court's dismissal for lack of subject matter jurisdiction because plaintiff's allegation of defendant's engineering malpractice in failing to equip the cargo containers with safety devices was not the "something extra" required by Badami.

Plaintiff's attempts to establish liability against a co-employee in a "slip and fall" case was unsuccessful in State ex rel. Feldman v. Lasky.33 The Feldman plain-tiff alleged that a fellow employee, who was charged with the care and maintenance of walkways and stairways at the worksite, negligently failed to clean the sidewalk and stairs. The court ruled that plaintiff failed to allege "something more" required under Badami:

[Plaintiff] does not allege any negligent affirmative act by [defendant] while acting outside the scope of cleaning the sidewalk and stairs in order to provide a safe workplace. Further, none of [plaintiff's] allegations allege a breach of a personal duty owed to her. . . . [The] allegations concern only [defendant's] alleged breach of the duty he owed his employer to effectively discharge the employer's duty to provide a safe workplace.34

Creative pleading by plaintiffs' counsel does not circumvent the exclusive remedy provisions of the Act. In Felling v. Ritter,35 survivors of an employee killed in a workplace accident sued six of his fellow employees. Although plaintiffs attempted to couch defendants' alleged negligence in terms of active negligence, the court of appeals ruled that plaintiff's petition alleged nothing more than a breach of the employer's duty to provide a reasonably safe place to work:

All of the acts alleged in the [plaintiffs'] petition related only to the defendants' general duty to provide a safe working environment. The petition did not allege any acts which were outside the scope of the defendants' responsibility to provide a safe workplace. Averments that the defendants "misresponded," "misinstalled," "misdesigned," "acted intentionally", and with "malfeasance" were mere conclusions not supported by alleged fact. . . . [Plaintiffs] pleaded nothing more than a breach of [the employer's] duty to provide a safe work environment, and the defendants were immune from common law liability for such claims.36

In J.M.F. v. Emerson,37 an employee who cut her finger with an instrument used to withdraw blood from an AIDS patient filed suit against her employer's president, a medical doctor, alleging the doctor negligently directed her in the withdrawal procedure. Plaintiff set forth four allegedly negligent acts committed by defendant:

First, Dr. Emerson knew that [plaintiff] was inadequately trained as to the handling of blood samples from an AIDS patient but nevertheless directed her to draw blood from an AIDS patient.

Second, Dr. Emerson did not appoint himself or an available registered nurse to draw blood from the AIDS patient.

Third, Dr. Emerson instructed [plaintiff] to use instruments that were not proper and safe for performing the blood drawing task.

Fourth, Dr. Emerson initiated a discussion regarding the disposal of the instruments used to draw the blood sample which allegedly confused [plaintiff] at the time she was disposing of said instruments.38

After reviewing these allegations, the court determined:

plaintiff has failed to allege anything other than a breach by defendant of his non-delegable duty of proper supervision owed to the corporation. We believe each of these acts was within Dr. Emerson's non-delegable duty of safe and proper supervision which was owed to his employer . . . thus, [plaintiff] has failed to plead actionable negligence. We believe this claim falls directly within the purview of RSMo § 287.120.1 (1986) for [plaintiff] alleges no more than a failure to provide safe working conditions.39

Emerson is important in that its analysis is not premised upon the misfeasance/nonfeasance distinctions made in Badami, Craft and Parker. In Emerson, the court dismissed plaintiff's claims despite the fact that plaintiff alleged that defendant took affirmative acts of negligence in directing plaintiff to draw blood, and by initiating a discussion regarding the disposal of instruments. By extending co-employee immunity to include allegations of both "active" and "passive" negligence, Emerson broadens the scope of co-employee immunity.

A case similar to Emerson is Gatlin v. Truman Medical Ctr.,40 where a nurse who contracted hepatitis brought a medical malpractice action against a fellow nurse. The court ruled the plaintiff merely alleged a failure of the nurse to fulfill her duty to provide a safe work place, a non-delegable duty of the employer. By not alleging a breach of an independent duty of care, the "something extra" required by Badami, plaintiff failed to state a claim upon which relief could be granted.41 Of critical importance, the Gatlin defendant was not plaintiff's supervisor, but was a nurse who worked alongside plaintiff in treating a patient with hepatitis. The decision in Gatlin to apply the Act's immunity, despite the fact that the defendant was not a supervisor or officer, confirms that co-employee immunity under the Act is not dependent upon the corporate position or role of the defendant in question, but upon the specific allegations of negligence made against the defendant. Therefore, regardless of whether the defendant allegedly negligently carried out supervisory duties, and regardless of whether defendant was employed in a supervisory capacity, the exclusivity provisions of the Act bar plaintiff's suit if the alleged negligent acts relate to the non-delegable duty of the employer to provide a safe work place.

Stewart v. Little42 addressed liability of co-employees in an educational setting. In Stewart, a teacher and her husband filed suit against two assistant principals of a high school where the teacher was raped by a student, Daniel Jones, during a school lunch period. Plaintiffs alleged defendants were negligent in several capacities:

(1) failing to adopt adequate procedures to identify and deal with students with dangerous propensities such as Jones, (2) failing to identify the dangerous propensities of Jones, (3) negligently supervising Jones, (4) negligently disciplining Jones, (5) negligently failing to adopt a plan to insure . . . safety and security, (6) failing to adopt procedures to insure that all students were actually present in the cafeteria during scheduled lunch time, and (7) failing to take adequate steps to insure that Jones was in the cafeteria during his scheduled lunch break.

The trial court granted defendants' motion to dismiss for lack of subject matter jurisdiction; the court of appeals framed the issue as "whether the petition states facts sufficient to allege a cause of action against the two assistant principals."43 The court answered this question by stating:

In short, an injured employee who sues a co-employee for injuries covered by workers' compensation must allege more than that the employee charged with carrying out the employee's duty to provide a reasonably safe place to work failed to perform that duty. Measured by that requirement, the petition in this case fails to state a cause of action. To state a cause of action Badami requires that something more be pleaded than the mere failure on the part of a co-employee to provide a reasonably safe place to work. The petition in this case failed to plead "something more" on the part of [defendants].44

Finally, State ex rel. Hartman v. Kintz45 addresses a wrongful death claim against the manager of an industrial plant. The decedent worked in the drying tower, scraping detergent from the sides of the tower. During her shift, the decedent was struck and killed when a large piece of dried detergent fell from the side of the tower. Plaintiff's petition alleged one count of negligence and one count alleging an intentional tort. The court of appeals, citing Badami, Parker and McCoy, dismissed both counts:

Here, [plaintiff] alleged in his petition that relator intentionally equipped the drying tower with an inadequate shield, failed to equip the tower with an automatic washing unit, and failed to warn wife of the hazards of her job. All of these acts relate solely to relator's general duty to supervise and to provide a safe working environment. The averment that [defendant] acted intentionally is conclusory and is to be disregarded when, as here, it is not supported by the facts pleaded in [plaintiff's] petition.46

Missouri courts have wrestled with the issue of what constitutes "something extra" under Badami. In Craft v. Sca-man,47 plaintiff, an employee at a fireworks factory, informed defendant (the president of plaintiff's employer) that a piece of machinery had broken down. After propping up the broken part of the machine with an 8-foot-long board, defendant instructed plaintiff to run the machine, urging him to "speed it up" when the plaintiff began operating the machine at a slow speed. When plaintiff did so, a flash fire erupted, engulfing both plaintiff and defendant.

After obtaining compensation benefits, defendant's motion to dismiss pursuant to the Act was overruled by the trial court, and plaintiff obtained a judgment of $75,000.48 The Craft court held:

[T]he "something extra" required to impose tort liability 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. In the instant case, the averments in plaintiff's petition indicated that defendant's affirmative act had caused or increased the risk of the plaintiff's injury. Plaintiff alleged that "defendant negligently and carelessly applied friction to the spinning reel of fuse," thereby causing the fire that injured plaintiff. This act did not involve any general, non-delegable duty of the employer, such as the duty to provide a reasonably safe place to work. Rather, defendant breached his common law duty to exercise reasonable care in handling the fuse. This was a duty owed by one employee to another.49

Under the circumstances, the Craft court held that the defendant negligently carried out an independent duty of care and, therefore, was not afforded immunity under the Act.

In Workman v. Vader,50 an injured dis-count store employee sought damages from a co-employee whose negligence was allegedly the cause of her injuries when she slipped on a cardboard box and fell. Citing Tauchert, the Workman court noted that some — but not all — of plaintiff's allegations address defendant's affirmative acts that caused or increased the risk of plaintiff's injury. In particular, plaintiff alleged that defendant personally had thrown packing debris on the floor, together with a cardboard box atop the debris, and thereafter failed to remove it or warn of its presence.51 The Workman court held that such acts "do not involve a general non-delegable duty of the employer, such as the duty to provide a reasonably safe place to work. They are charges that the defendant personally breached her common law duty to exercise reasonable care in handling or disposing of the packing materials and cardboard box."52 Under this reasoning, the Workman plaintiff was allowed to proceed to trial.

Another case to allow an action against a co-employee is Martinez v. Midland Bank & Trust Co.53 In Martinez, plaintiffs filed suit against several parties, including the president of the deceased's employer, contending he had acted on behalf of himself and two co-defendants, Midland and North Star, to obtain authority to construct a sewer line that collapsed during construction. Relying upon Badami, defendant/president sought to escape all liability. The court of appeals rejected defendant's argument:

Although Badami would protect Gibson from the charge in the original petition that he was in general control of the sewer project "as the executive officer of Gibson & Bowles, Inc." that decision provides him no protection with respect to the allegations of the proposed amended petition. Recovery is sought under the amended petition against Gibson, not because of nonperformance of duty on behalf of Gibson & Bowles, but rather because of his alleged joint activities with or on behalf of Midland and North Star. To whatever extent he joined in that action as an officer of Gibson & Bowles, he was doing far more than merely failing to perform a duty of the employer Gibson & Bowles to furnish Martinez a safe place to work.54

Because plaintiffs' causes of actions were unrelated to defendant's alleged negligence as a co-employee, but focused upon the defendant's actions on behalf of Midland and North Star, plaintiffs' claims against the president of their father's employer were upheld.

In Biller v. Big John Tree Transplanter Mfg.,55 an employee's mother and son brought a wrongful death suit against the president, owner and manager of the deceased's employer, alleging negligence in connection with the employee's work-related death. Defendant was operating the controls which activate the stabilizers and the digging apparatus of the machine, and the machine pinned the deceased under a stabilizer bar of the transplanter.56 Plaintiffs claimed defendant was negligent in extending the stabilizer pads of the transplanter and proceeding with the transplanting operation without first determining that the deceased, and perhaps others, were clear of the work area and in no danger from the machine. Defendant contended no cause of action could be asserted against him because the alleged negligent act was "merely the duty of the employer to provide the employee a safe work place," so that "the claim is actually against the employer who is shielded from civil suit by the Workers' Compensation Act."57

The appellate court determined that plaintiffs' claims were not premised upon defendant's alleged failure to carry out the non-delegable duty of the employer to provide a safe workplace, but upon an independent duty of care:

According to Meade's own testimony, he was himself operating the tree transplanter when Biller was injured and at the time, he had no knowledge of where Biller was. For a period of some five to fifteen minutes before the accident, Meade was neither supervising Biller's work with the machine nor could Meade have been providing any instruction to Biller by showing him the use of the digger controls. The conclusion is inescapable that while Biller was presumably away from the job site, Meade simply decided to go ahead and finish the work himself. Regardless of what activity may have preceded the event in the course of Biller's training, at the time of the accident, Meade and Biller were in the relationship of co-employees.58

Under this analysis, the court of appeals held that the trial court correctly ruled that defendant's failure to maintain a careful lookout was not a non-delegable duty owed by an employee to an employer. However, the Biller court distinguished plaintiffs' negligence claims against defendant from those that properly would be dismissed under the Act's immunity:

Had Biller suffered his injury because Meade failed to give proper instructions in the operation of the machine or failed to warn Biller of any dangers the machine presented or otherwise did not adequately discharge the responsibility associated with Biller's training, respondents would have no civil suit against Meade.59

The reasoning in Biller of what does and does not constitute an actionable claim against a fellow employee is helpful in determining whether particular negligence allegations in a plaintiff's petition are within the scope of co-employee immunity regardless of the position or title of the defendant.

Under the current state of Missouri law, the same employees who trigger liability on behalf of their employer under the Act also may be personally liable to their fellow employees for civil damages. The rationale behind this interpretation is that since an employee (as opposed to an employer) incurs no legal obligation under the Act, the employee is not entitled to the same immunity granted to an employer under the Act. This result, however, can have serious consequences for the employer and employee alike.

First, without the benefit of immunity under the Act from lawsuits arising out of personal injuries in the workplace, many employees risk significant personal liability on a daily basis. A lawsuit involving a serious personal injury or death may have a devastating financial impact on an employee. Second, if an employer provides a defense for its allegedly negligent employee, the benefits given to the employer by the exclusive remedy doctrine are effectively limited, if not nullified etirely. Third, in circumstances where the employer's liability insurance policy provides coverage for claims by an employee against a fellow employee for a workplace injury, any benefit an employer or employer's liability insurer may have from the exclusive remedy doctrine is effectively defeated. Finally, while liability insurers typically include exclusions for injuries to an employee caused by another employee, insurers (and, indirectly, the employers who pay the insurance premiums) still are burdened with defense costs and uncertainty of litigation if forced to litigate the validity of such an exclusion, once again losing the major benefit of the exclusive remedy doctrine. For these reasons, the immunity provided by the exclusivity provisions of the Act should include co-employees.

Because both the injured and the allegedly negligent employee have given up to the other his right to a common-law suit, a sufficient quid pro quo is exchanged by the parties. A legislative enactment immunizing fellow employees would place Missouri in accordance with more than 30 states currently limiting co-employee liability,60 and be consistent with the Act's legislative policy of awarding benefits to an employee for work related injuries without the rigors of litigation. Further, although the majority of Missouri cases have held co-employees to be immune from liability under the present interpretation of the Act, it is apparent that a fine line often must be drawn between what is and is not an actionable claim. By providing identical immunity to employers and employees alike, courts would not be burdened with differentiating between what is and is not an "independent duty of care," which, as demonstrated by the case law, can be a subtle distinction indeed. By amending the Act, such a change in Missouri law would be consistent with the policies behind the exclusive remedy doctrine, and also provide a clear path as to the validity of co-employee claims.

1 § 287.010, RSMo 1986.

2 Kelley v. DeKalb Energy Co., 865 S.W.2d 670 (Mo. banc 1993); State ex rel. Badami v. Gaertner, 630 S.W.2d 175 (Mo. App. E.D. 1982); Gabler v. McColl, 863 S.W.2d 340 (Mo. App. E.D. 1993); Holland v. W.A.S.P., Inc., 833 S.W.2d 23 (Mo. App. E.D. 1992); DeShong v. Mid-States Adjustment Inc., 876 S.W.2d 5 (Mo. App. W.D. 1994); State ex rel. Hartman v. Kintz, 832 S.W.2d 9 (Mo. App. E.D. 1992); Stewart v. Little, 797 S.W.2d 862 (Mo. App. W.D. 1990); Gatlin v. Truman Medical Ctr., 770 S.W.2d 510 (Mo. App. W.D. 1989); Stanislaus v. Parmalee Indus., Inc., 729 S.W.2d 543 (Mo. App. W.D. 1987); Rhodes v. Rogers, 675 S.W.2d 107 (Mo. App. S.D. 1984); Parker v. St. Louis County Water Co., 668 S.W.2d 182 (Mo. App. E.D. 1984); J.M.F. v. Emerson, 768 S.W.2d 579 (Mo. App. E.D. 1989).

3 § 287.120, RSMo 1986. Section 287.120 provides, in pertinent part:

4 Id.

5 The Act defines "accident" to mean "an unexpected or unforeseen identifiable event or series of events happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury." Section 287.020(2), RSMo 1986. This definition does not include injuries that are caused when the defendant/employer intentionally acts with the specific purpose of injuring the employee. McCoy v. Liberty Foundry Co., 635 S.W.2d 60 (Mo. App. E.D. 1982); Risse v. APV Anderson Bros., 714 S.W.2d 922 (Mo. App. E.D. 1986).

6 State ex rel. Badami v. Gaertner, 630 S.W.2d 175 (Mo. App. E.D. 1982); Sylcox v. National Lead Co., 38 S.W.2d 497 (Mo. App. E.D. 1931). Section 287.150, RSMo 1986, provides:

7 630 S.W.2d 175 (Mo. App. E.D. 1982).

8 Id. at 176.

9 Id.

10 Id.

11 Sylcox, 38 S.W.2d 497 (Mo. 1931).

12 Badami at 178 (emphasis in original, quoting Sylcox).

13 Id. at 179.

14 The court cited 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), in support of its interpretation of Wisconsin law, and the following cases as adopting similar approaches in other jurisdictions: Neal v. Oliver, 438 S.W.2d 313 (Ark. 1969); Collier v. Wagner Castings Co., 388 N.E.2d 265 (Ill. App. 1979); Kerrigan v. Errett, 256 N.W.2d 394 (Iowa 1977); Zurich Ins. Co. v. Scofi, 366 So.2d 1193 (Fla. App. 1979); Vaughn v. Jernigan, 242 S.E.2d 482 (Ga. Ct. App. 1978); Wilson v. Hasvold, 194 N.W.2d 251 (S.D. 1972); Steele v. Eaton, 285 A.2d 749 (Vt. 1971).

15 Id. at 180-81 (emphasis added).

16 849 S.W.2d 573 (Mo. banc 1993).

17 865 S.W.2d 670 (Mo. banc 1993).

18 Id. at 574.

19 Id.

20 865 S.W.2d 670 (Mo. banc 1993).

21 Id. at 672.

22 Id. at 574.

23 675 S.W.2d 107 (Mo. App. S.D. 1984).

24 635 S.W.2d 60 (Mo. App. E.D. 1982).

25 Badami at 180.

26 Stanislaus at 183.

27 Id.

28 Id. at 543.

29 Id.

30 668 S.W.2d 182 (Mo. App. E.D. 1984).

31 Id.

32 833 S.W.2d 23, 24 (Mo. App. E.D. 1992).

33 879 S.W.2d 783 (Mo. App. E.D. 1994).

34 Id. at 785.

35 876 S.W.2d 2 (Mo. App. W.D. 1994).

36 Id. at 2. In Gabler v. McColl, 863 S.W.2d 340 (Mo. App. E.D. 1993), under substantially similar facts, the court of appeals ruled that a plaintiff's allegations of negligent design, assembly and inspection of an elevator/dumbwaiter fail to allege the "something extra" required under Badami and its progeny.

37 768 S.W.2d 579 (Mo. App. E.D. 1989).

38 Id. at 184.

39 Id. at 185. Similarly, in Marshall v. ETI Explosives Tech. Intern., 874 S.W.2d 442 (Mo. App. W.D. 1994), the court ruled that a co-employee's alleged failure to warn of the dangers of working with certain chemicals does not allege active negligence outside the scope of responsibility to provide a safe workplace.

40 770 S.W.2d 510 (Mo. App. W.D. 1989).

41 Id. at 581.

42 797 S.W.2d 862 (Mo. App. W.D. 1990).

43 Id.

44 Id.

45 832 S.W.2d 9 (Mo. App. E.D. 1992).

46 Id. at 10.

47 715 S.W.2d 531 (Mo. App. E.D. 1986).

48 Id. at 532.

49 Id. at 537.

50 854 S.W.2d 560 (Mo. App. S.D. 1993).

51 Id. at 564.

52 Id.

53 652 S.W.2d 193 (Mo. App. W.D. 1983).

54 Id. at 201.

55 795 S.W.2d 630 (Mo. App. W.D. 1990).

56 Id. at 632.

57 Id. at 632-33.

58 Id. at 634.

59 Id.

60 The following states have statutes which in some manner or another bar co-employee suits: Alabama; Alaska; Arizona; California; Colorado; Connecticut; Delaware; Hawaii; Idaho; Illinois; Indiana; Iowa; Kansas; Kentucky; Massachussets; Michigan; Montana; Nevada; New Jersey; New York; North Carolina; North Dakota; Ohio; Oklahoma; Oregon; Pennsylvania; South Carolina; Texas; Utah; Virginia; Washington; West Virginia.

JOURNAL OF THE MISSOURI BAR
Volume 53 - No.2 - March-April 1997