by Paul J. Passanante1 and Sara Stock 2
The Workerman's Compensation Act ("the act") was enacted in Missouri in 1926.3 The primary legislative purpose of the act was to provide "rapid resolution of employee claims of job-related injury"4 and to supply the injured employee with sufficient funds to enable him or her to function without being a burden to others or the state.5 Under the act, an employee injured during the course of his or her employment is entitled to compensation whether or not the employee can provide that the injury resulted from employer negligence. In return, the act grants the employer immunity from civil liability to the injured employee.
The act fixes the rights and responsibilities of employers and employees; it does not purport to address the rights and responsibilities of persons outside the employer-employee relationship. With respect to such other parties, Missouri courts have stated that workers' compensation laws are "not [a] barrier to suits by injured employees against negligent third parties," which "reflects a policy in [Missouri] 'to place the loss upon the ultimate wrongdoer.'"6
Missouri courts have consistently held that an employee's rights under the act are exclusive and supplant the employee's common law rights.7 "The employer has a . . . duty to provide a reasonably safe place to work" and any claim alleging breach of that duty has been held to fall within the exclusive provisions of the act.8 However, Missouri courts have also consistently held that "[a] coemployee or fellow servant or foreman is a 'third person' within" the meaning of § 287.150 and may be sued by an injured co-employee for negligence resulting in a compensable injury.9
The law is therefore clear that an employer enjoys immunity from liability to a worker for failure to furnish a safe place to work. It is also clear that a co-employee may be sued by an injured worker when the co-employee's negligence causes injury. Unfortunately, under existing Missouri law, clarity ends there. No intellectually honest person can read the cases on the subject and determine, with a reasonable degree of legal certainty, when co-employees do and do not enjoy workers' compensation immunity.10
"Missouri is one of a distinct minority of jurisdictions which allow[s] an injured employee to sue a co-employee for negligence."11 In some states that offer immunity to co-employees, immunity is "limited to negligent acts [and] many states allow co-employee liability for intentional torts."12 The concept of co-employee immunity has troubled so many jurisdictions that. as of 1996, 34 state legislatures had seen fit to enact statutory provisions governing when a co-employee can be held liable.13 Most of these state statutes "have codified a statutory exception" to co-employee immunity when an injury is "caused by conduct committed with a degree of culpability greater than negligence."14
Prior to the act, an employer was not liable for injuries caused to an employee by the negligent acts of a "fellow servant."15 Courts at that time recognized a dual-capacity doctrine that indicated a co-employee could either function as a fellow servant or a "vice principal" of the master.16 Under this form of analysis, one of the duties owed by the master to the servant was the "duty . . . to exercise ordinary care to furnish [the] servant with a reasonably safe" workplace.17 This duty could not "be delegated to a fellow servant . . . to relieve the master from liability for the negligent performance by such servant of an act constituting part of such duty of the master."18 Therefore, when a master utilized a servant to perform a duty that could not be delegated, that servant was functioning as the master himself.19 Liability attached to the master for injuries caused by that servant to third parties or other servants for the failure to perform the duty given to him by the master.20
In addressing who would be held liable for a breach of the non-delegable duty to furnish a safe workplace, cases decided prior to adoption of the act held that an agent was liable to a third person, including other employees, for misfeasance but not nonfeasance.21 Missouri courts found that misfeasance occurred only after the agent had "entered upon the performance of" his duty,22 and an agent "entered upon the performance of" the duty only after he or she had committed an affirmative act in furtherance of that duty.23
The distinction between misfeasance and nonfeasance was developed in cases prior to adoption of the act to determine when an employer might be held liable for injury to an employee. Adoption of the act rendered traditional misfeasance/nonfeasance analysis unnecessary. Unfortunately, more than 70 years after adoption of the act, the distinction between misfeasance and nonfeasance continues to creep into discussions of when an employee may be immune from liability to a co-worker.
The first Missouri case to recognize the liability of a co-employee to a fellow employee as a "third person" after adoption of the act was Sylcox v. National Lead Co.24 The Sylcox court found that co-employees could be held liable for injuries to their co-workers and based this determination on the Supreme Court of Missouri's discussion of the rationale behind the act. Sylcox held that the act was
intended to extend the protection of the law to all employees while in or about any premises where they may be engaged in the performance of their duties, and while at any place where their services, or any act, task, or mission which forms a necessary part of their services, may reasonably require them to be.25
A. State ex rel. Badami v. Gaertner
Obviously, Sylcox established that adoption of the act did not render co-employees immune from liability. Years later, the Eastern District recognized this in its opinion in State ex rel. Badami v. Gaertner: "Sylcox simply articulated the rule 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."26
In Badami, the Missouri Court of Appeals for the Eastern District confronted the issue of whether a corporate officer or "supervisory employee . . . [could] be held personally liable for injuries sustained by a fellow employee."27 The court began its analysis by citing the Schumacher case for the proposition that a co-employee is a "third person" within the meaning of the act.28 The Badami court then examined the law prior to the act and concluded that the employer has a duty to provide a safe workplace and an employee who was alleged to have breached the duty owed by the employer to the employee incurred no personal liability for failure to provide a safe workplace.29 Badami recognized that Sylcox was the first case subsequent to the act to recognize the liability of a co-employee to a fellow employee as a "third person" under the act.30
In Badami, the court examined three approaches to the problem of co-employee liability and decided to look to the Wisconsin approach for guidance.31 Under the Wisconsin approach, a supervisory employee or corporate officer is immune "under the workman's compensation law where his [or her] negligence is based upon a general non-delegable duty of the employer, [but the employee] does not have immunity where he [or she] does an affirmative act causing or increasing the risk of injury."32 The court found that this approach requires "[s]omething 'extra' . . . beyond a breach of [the] duty of general supervision and safety, for that duty is owed to the employer [and] not the employee."33 Based on the above discussion, the Badami court established the following test:
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.34
B. The Debate that Followed Badami
Only three months after the Badami decision, the Eastern District muddied the waters in McCoy v. Liberty Foundry Co. by stating that in some circumstances a supervisory co-employee may be liable to a third person, including subordinate co-employees, for misfeasance but not nonfeasance. The court held that in order to avoid immunity there must be an affirmative act that caused or increased the risk of injury.35 The court also discussed the proposition that intentional injury allows a plaintiff a common law action for damages.36 After McCoy, many felt that "something more" would be satisfied by a showing of misfeasance; nonfeasance was somehow less than "something more" and not enough to overcome immunity.
The Court of Appeals for the Southern District attempted to interpret the Badami holding two years later in Rhodes v. Rogers.37 In doing so, the Southern District endeavored to define "something extra" by looking to McCoy and finding that a corporate officer or supervisory employee is liable for a fellow employee's injuries only if he "intentionally acted with the specific purpose of injury [to the fellow employee]."38 Under Rhodes, many felt that "something more" required an intentional act, which obviously is something very different than misfeasance.
In 1986, the Eastern District wrote an opinion in Craft v. Scaman that responded to the Southern District's definition of "something extra" by stating, "Our own analysis of the 'Wisconsin approach' adopted in Badami leads us to the inescapable conclusion that the Rhodes court misinterpreted that approach."39 The Craft court went on to state that the Rhodes court misplaced its reliance on McCoy because the "'intentional act' rule" is only applicable to "corporate officers acting in their capacities as employers."40 The court found that the "'intentional act' rule" was misplaced because Wisconsin law allowed common law actions for careless and negligent acts.41 The Eastern District held that "something extra" can be defined as "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."42 Perhaps hoping to avoid the misfeasance/nonfeasance conundrum, the Craft court emphasized the importance of determining whether the allegedly negligent co-employee had committed some "affirmative act." The Southern District Court of Appeals did not address this issue again until 1993.43
One year after Craft, the Western District Court of Appeals addressed co-employee immunity in Stanislaus v. Parmalee Industries, Inc.44 The Western District framed the issue by attempting to determine whether a negligent act of misfeasance had occurred.45 The Western District defined misfeasance as "an affirmative act above and beyond mere nonfeasance, i.e., a failure to act."46 Obviously, this analysis was somewhat different than the Eastern District's holding in McCoy that a supervisory co-employee guilty of mere misfeasance, without some affirmative act that constitutes "something extra," would be immune from liability.47 The Western District reviewed the rationale behind the Badami holding and found that the Badami court had retained the "'misfeasance-nonfeasance concepts' of co-employee" liability.48 Furthermore, the Western District reviewed McCoy, Rhodes and Craft, and found that in Craft the Eastern District "stated that the Badami court adopted the Wisconsin approach."49 The Western District agreed with that statement by commenting:
[I]f the Badami decision did not adopt the Wisconsin approach expressly, it certainly came close, especially in its holding that "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," which is comparable to Wisconsin's holding, "Something '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."50
In 1993 the Supreme Court of Missouri tackled the issue in Tauchert v. Boatmen's Nat'l Bank and Kelley v. DeKalb Energy Co. In Tauchert the Court held that "the creation of a hazardous condition" by a foreman constitutes something more than "a breach of an employer's duty to provide a safe place to work."51 The Court cited Craft and stated that "[the acts in question] constitute a breach of personal duty of care owed to plaintiff. These actions may make an employee/supervisor liable for negligence and are not immune from liability under the workers' compensation act."52 Kelley cited Tauchert for the proposition that "an employee may sue a fellow employee for affirmative negligent acts outside the scope of an employer's responsibility to provide a safe workplace."53 By adopting this standard, the Supreme Court of Missouri implicitly rejected the intentional specific purpose test applied in Rhodes54 and managed to decide the cases before it without use of the misfeasance/nonfeasance characterizations.
That same year, subsequent to Tauchert but preceding Kelley, the Southern District Court of Appeals addressed supervisory co-employee liability for the first time since Rhodes in Workman v. Vader.55 The court adopted the principles of Tauchert in holding that if the plaintiff charges the defendant with a breach of a personal duty of care, then the defendant is not immune under the workman's compensation statute.56 Furthermore, the Southern District took this opportunity to respond to the Eastern District's dissection of the Rhodes holding by stating that:
In Craft, the Eastern District characterized this court's opinion in Rhodes . . . as holding that "a corporate officer or supervisory employee is liable for a fellow employee's injuries only if he 'intentionally acted with the specific purpose of injuring [the fellow employee]'" . . . While we disagree with the Craft court's analysis of the import of Rhodes, nevertheless, any doubt about the viability of such a view has been laid to rest by our supreme court in Tauchert.57
Further developments in Missouri co-employee liability law came in 1994 in the case of Felling v. Ritter, in which the Court of Appeals for the Western District cited Badamiand McCoy for the rule that to show a co-employee had lost immunity (i.e. to prove "something more") it must be established that he or she had affirmatively caused or increased the fellow employee's risk of injury.58 However, that same year the Western District also stated in Marshall v. ETI Explosives Technologies Int'l that to establish a supervisory employee is liable (i.e. to prove "something more") it must be shown that "affirmative negligent acts constitute[d] a breach of a personal duty of care owed to the plaintiff."59
In 1995, Judge James M. Smart Jr. of the Western District Court of Appeals concurred separately from the majority in Hedglin v. Stahl Speciality Co. for the sole purpose of commenting on "the vagueness of current Missouri law on the issue of co-employee liability."60 He characterized the "something more" standard as "'something more' beyond the co-employee's failure to implement the employer's duty of providing a safe workplace." Judge Smart determined that "the action in question must, according to [Missouri] decisions, be an 'affirmative negligent act,' . . . one that affirmatively causes or increases his fellow employee's risk of injury, . . . or a breach of [the] personal duty of care owed to the plaintiff.'"61 Judge Smart cited the Supreme Court of Missouri decisions in Tauchert and Kelley and stated, "While these decisions have a certain logic, one wonders whether we are not searching for a better way to describe conduct actionable by the co-employee."62 Judge Smart advocated a different approach in which the inquiry would not focus on the status of the co-employee or "the scope of the employer's duty to provide 'a safe place . . . to work,'" but instead would focus "on the conduct of the co-employee causing the injury."63 He proposed a new analysis under which "[n]egligent acts of any kind (nonfeasance or misfeasance)" would be cloaked with immunity, but if "intentional torts or misconduct tantamount thereto" had been committed by the co-employee, that co-employee should be liable.64
In 1997, the Court of Appeals for the Eastern District in Davis v. Henry observed that in cases in which the "something more" test had been met, the supervisor in question personally participated in the act.65 In 1998, the Court of Appeals for the Western District of Missouri made a similar observation in Lyon v. McLaughlin.66 Furthermore, in 2000, the Eastern District Court of Appeals in Collier v. Moorenoted that in Craft a distinction was made as to how the court would rule based on whether or not the supervisor had "indisputably doffed his supervisory cap and donned the cap of a co-employee."67
Clearly, the cases since Badami have failed to yield a useful test to determine whether a co-employee enjoys the employer's immunity from liability. Such confusion is particularly disturbing in this area because we're dealing with the important question of deciding who enjoys the protection of a statutory immunity. If we're going to allow persons other than the employer to share an immunity granted by statute, it would seem prudent to develop a clear and concise test to determine who is and who is not immune. Thus far, our appellate courts have failed to do that.
One might think that if there is liability when a co-employee breaches a personal duty of care and immunity when the co-employee merely participates in the employer's breach of the duty to provide a safe work place, the cases addressing the issue would yield fairly predictable results. We would probably conclude that if a worker slipped on packing materials left behind a counter by a supervisor, that would constitute a situation in which there would be immunity because it amounted to a mere failure to provide a safe place to work. We would also probably conclude that if a co-employee's negligence in operating a motor vehicle caused injury to a co-worker, that would constitute a breach of a personal duty of care and there would be no immunity.
In fact, if we reached these conclusions, we would be wrong. The Southern District has held that when a worker alleged that she was injured when she fell because a supervisor left packing materials on the floor behind a counter, the supervisor was not immune from liability. Both the Eastern and Western Districts have held that when a worker was injured due to his co-employee's negligence in operating a motor vehicle, the co-employee was immune from liability. In the authors' opinion, the holdings in these cases, which will be discussed below, cannot be reconciled. How did we get to a situation in which two of our appellate courts have reached conclusions that are blatantly contradictory?
A. Acts Held to Constitute "Something More"
1. Eastern District of Missouri
In Craft v. Scaman, the plaintiff was employed by a fireworks factory and informed the president of the company that part of the machinery had broken down.68 The defendant attempted to help by propping a board next to the machine and telling the plaintiff to "speed it up." A fire resulted that injured plaintiff. The court found that by attempting to help the plaintiff fix the machine, the defendant negligently and carelessly applied friction to the machine, thereby causing the fire,69 and his affirmative acts caused or increased the risk of injury. The court found that by doing so, the defendant breached a common law duty to exercise reasonable care that is owed by one employee to another.70
2. Western District of Missouri
An employee's mother and son brought a wrongful death suit against the owner of the company in Biller v. Big John's Tree Transplanter Mfg. and Truck Sales, Inc.71 While defendant was training the deceased on the tree transplanter, he lost track of the deceased for five to fifteen minutes, so he proceeded with the work and in doing so crushed the deceased under the machine. The court concluded that while the deceased was away, the defendant simply decided to go ahead and finish the work and therefore breached a duty of care that was personally owed to the injured employee as a fellow employee.72
In Hedglin v. Stahl Speciality Co., the wife and child of a deceased employee, who died after he fell into a vat of scalding water, brought a wrongful death action against his supervisor.73 The court found that the supervisor of the deceased rigged the forklift with cable and then ordered the employee to suspend himself on that cable while the defendant operated the forklift from which the employee was hanging. The court held that the supervisor's activities constituted an affirmative act of negligence beyond that of a breach of general supervision and safety.74
3. Southern District of Missouri
An injured store employee sought damages from her supervisor for negligently placing cardboard boxes on the floor, thus causing the employee to fall in Workman v. Vader.75 Plaintiff alleged the supervisor personally threw the boxes on the floor and failed to remove them or warn of their presence. The court held that these affirmative acts did not involve a general non-delegable duty of the employer, but instead breached a common law duty to exercise reasonable care in handling or disposing of the boxes.76
In Pavia v. Childs, a grocery store employee brought suit because the store manager had directed him to stand on a pallet 15 feet off the ground from which he fell and sustained injuries.77 The court held that although the creation of a hazardous condition alone does not constitute a breach of an employer's duty to provide a safe workplace, "the facts . . . show[ed] an affirmative negligent act by Defendant [which] create[d] a hazardous condition beyond the responsibility of the employer to provide a safe workplace."78
4. Supreme Court of Missouri
In Tauchert v. Boatmen's Nat'l Bank, an injured plaintiff brought suit because he fell five or six floors to the bottom of an elevator shaft after his foreman had personally constructed a faulty hoist system.79 The Supreme Court of Missouri held that these acts "constitute[d] an affirmative negligent act outside the scope of [the employer's] responsibility to provide a safe workplace" and were, therefore, "a breach of a personal duty of care owed to the plaintiff."80
B. Acts Held Not to Constitute "Something More"
1. Eastern District of Missouri
A plaintiff brought suit against his employer's president and production manager to recover damages for injuries sustained to his hand when it was drawn into a shredding machine in State ex rel. Badami v. Gaertner.81 The plaintiff claimed that the defendants were negligent because they failed to equip the machine with safety devices that would have prevented his injury. The court held that the plaintiff's petition did not allege any actionable negligence because it merely charged that the defendants failed to provide a safe work place and "the general failure to fulfill that duty."82
In J.M.F. v. Emerson, an employee who cut her finger with an instrument used to withdraw blood from an AIDS patient brought suit against her employer's president, alleging that the doctor negligently directed her in the withdrawal procedure.85 The court held that the "plaintiff has failed to allege anything other than a breach [of the] defendant['s] non-delegable duty" to provide safe and proper supervision which was owed by the employer.86
The widower of a worker brought a wrongful death action against a supervisory employee alleging that his acts were responsible for her death in State ex rel. Hartman v. Kintz.87 "During [the deceased's] shift, a large piece of dried detergent fell from the side of the drying tower" that she was scraping and struck and killed her. The court held that the petition, which alleged that the supervisor "intentionally equipped the drying tower with . . . inadequate" safety measures and "failed to warn [the deceased] of the hazards of her job," were conclusory and amounted to merely a breach of the general duty to supervise and provide a safe working environment.88
In Holland v. W.A.S.P., Inc., an airline cargo handler brought an action against his co-employee, a professional engineer, for the injuries he sustained when a cargo container shifted and rolled from a container trailer.89 The plaintiff alleged that his co-employee "was negligent in designing the container trailers in that he failed to [ensure that] certain safety requirements" were made. The court held that engineering malpractice does not constitute "something more" than a failure to provide a safe place to work.90
An employee whose hand and arm were crushed when a dumbwaiter cable broke brought an action against the president of the corporation that employed him and who had personally built the dumbwaiter in Gabler v. McColl. The plaintiff alleged that the "defendant carelessly and negligently designed, engineered, assembled, built, maintained and inspected the elevator/dumbwaiter."91 The court held that the employee had not alleged any particular act of negligence on the part of the president of the employer corporation that directly and immediately caused the injury.92
In State ex rel. Feldman v. Lasky, the plaintiff, an employee of McDonnell Douglas, brought a personal injury action against the defendant for negligently causing her injuries by failing to provide safe sidewalks at her workplace.93 The court held that the plaintiff did not allege anything more than the defendant's failure to effectively clean the sidewalk and stairs and therefore nothing more than breach of her employer's duty to maintain a safe workplace.94
An employee who was injured after his truck containing a 35-ton load of dry cement overturned brought suit against his supervisor in Davis v. Henry.95 The petition alleged that the supervisor ordered the employee to pick up the load knowing that his truck could not carry the weight and also that the supervisor failed to adequately instruct the employee on the dangers of towing a truck containing that weight.96 The court held that the supervisor's actions did not constitute anything more than the failure "to discharge his duty of providing a safe work environment."97
The surviving spouse of the deceased employee bought a personal injury and wrongful death action against the deceased's project manager in State ex rel. Hammock v. Dowd.98 The spouse alleged that the manager intentionally disregarded the safety of the decedent and subjected him to an extreme risk of death by permitting the decedent to remove a drain plug without first checking to determine if the transformer and other power sources had been shut down. The court held that the petition "failed to show any affirmative acts that led to an increase risk of injury" because the allegations only amounted to breach of the "general duty to supervise and provide a safe working environment."99
In Collier v. Moore, an employee brought suit against his supervisor, alleging the supervisor was negligent in hitting him with a Ford Aerostar because the "[d]efendant failed to keep a careful lookout; . . . was traveling at a speed too fast for the existing conditions" and failed to make any attempt to avoid a collision.100 The court held that the defendant failed to allege facts to show that the supervisor had stepped into the role of a co-employee and that the defendant's actions merely constituted a failure to fulfill his duty to implement the employer's duty to provide a reasonably safe work environment.101
2. Western District of Missouri
In Stanislaus v. Parmalee Industries, an employee was injured when an object struck his safety glasses, lodging glass in his eye.102 The employee brought suit against the service manager, claiming that he failed to warn him of the poor quality of the safety glasses, failed to give instructions on the use of the glasses and was negligent in buying glasses of such a poor quality.103 The court held that all of these allegations amounted to errors of omission, or nonfeasance, and therefore the defendant was immune from liability.104
A nurse who contracted hepatitis B while employed at a medical center brought a medical malpractice action against the medical center and a fellow nurse in Gatlin v. Truman Medical Ctr. Plaintiff alleged that the defendants failed to prevent the hepatitis by failing to advise the nurse that her patient had hepatitis and failing to institute safety procedures to prevent exposure to hepatitis.105 The court found that there was no allegation that the plaintiff presented herself to the defendants for treatment or that treatment was undertaken by the defendants and carried out negligently.106 The court held that the petition merely alleged that the defendants failed to fulfill the employer's duty to provide a safe workplace.107
A teacher and her husband filed suit against the assistant principals when the teacher was raped by a student in Stewart v. Little.108 Plaintiffs alleged the defendants were negligent for "failing to adopt . . . procedures to identify and deal with students with dangerous propensities," "failing to identify the dangerous propensities [of the student in question]," negligently supervising and disciplining the student in question, negligently failing to ensure safety and security, and failing to adopt a plan to ensure that the students were in the cafeteria during the scheduled time. The court held that the petition did not plead anything more than the mere failure to provide a safe workplace.109
In Felling v. Ritter the deceased employee's survivors brought a wrongful death action against co-employees, alleging that defendants negligently, "intentionally, willfully, wantonly and maliciously and with knowledge that such misconduct [would result] in bodily harm,"110 approved use of a machine in "violation of federal and state safety law[s]," intentionally "'misresponded' to the safety complaint," and used gross negligence in not responding to the safety complaint.111 The court held that all of these allegations amounted only to a general allegation that the defendants had failed to provide a safe place to work.112
An employee and his wife brought an action against a supervisor and others to recover for injuries from work-related exposure to hazardous chemicals in Marshall v. ETI Explosives Technologies Int'l.113 They alleged that the defendant supervisor committed the affirmative acts of working alongside the plaintiff without protection, "observed and directed plaintiff's unprotected testing," advised the plaintiff that the chemicals would not harm him, observed the effects of the chemicals on the plaintiff, and failed to advise the plaintiff of the need to wear protective equipment.114 The court held that the defendant supervisor did not step out of his supervisory role and that the plaintiff failed to allege any affirmative negligent acts while acting outside the scope of ETI's responsibility to provide a safe workplace.115
In a subrogation action, Shelter Mutual Ins. Co. v. Gebhards, the subject of co-employee immunity was addressed because the plaintiff was injured while traveling on the job with a co-employee in a pickup owned by two other co-employees. The co-employee who was driving crashed into a bridge.116 The court held that the plaintiff's exclusive remedy was under workers' compensation law because the plaintiff did not allege an affirmative act that increased his risk of injury.117 He only alleged "that [his co-employee] was responsible for driving the pickup when it crashed."118
In Lyon v. McLaughlin, an employee brought a negligence action against his supervisor and safety coordinator for injuries resulting from the defendants' instruction to lift a tin cover off a conveyor belt.119 The plaintiff alleged that defendants performed affirmative acts and knowingly created a hazardous condition. The court held that because the safety coordinator's order to the plaintiff to move the belt "was nothing more than a supervisory direction to an employee to fulfill his job requirements, it did "not constitute an 'affirmative act.'"120 Furthermore, the court reasoned that even "if [the] direction was negligent given the size and weight of the tin cover" the direction was nothing more than a breach of the general duty to provide a safe workplace.121
3. Southern District of Missouri
In Rhodes v. Rogers,122 an employee sued the partner who employed him for injuries after the partner poured gas into a tire on which the employee was working. This caused an explosion that would fill the tire with air and force the tire onto the rim,123 but resulted in injury to plaintiff. The court held that the plaintiff's petition alleged an intention to pour gas in the tire and not an intention to injure the plaintiff, and therefore did not allege an affirmative act that increased the risk of injury.124
4. Supreme Court of Missouri
A partnership employee who was injured when a corn flamer exploded brought a negligence action against the partner of his fellow employees in Kelley v. DeKalb Energy Co.125 The plaintiff alleged "negligent design, manufacture and construction of the corn flamer." The Court held that the condition of the corn flamer was part of the employer's non-delegable duty to provide a safe workplace.126 Furthermore, the Court stated this case is distinguishable from Tauchert in that "[t]here was no showing that the flamer was 'make-shift' or 'jerry-rigged.'"127
The problem of co-employee liability has been addressed by practically every jurisdiction in the United States, and a wide variety of solutions have been offered. The different approaches demonstrate that Missouri is not alone in its struggle to define when a co-employee should enjoy the employer's immunity. On one end of the spectrum, some jurisdictions have held that immunity granted to an employer under workers' compensation laws also applies to employees whose act caused the injury, regardless of the nature of that act.128 Under this approach, even "[a] claim against a [co-employee] for the commission of an intentional tort will be barred by the exclusivity clause of the Workers' Compensation Act."129
A number of state courts allow co-employee liability only for intentional torts. Some states, such as West Virginia and Florida, have enacted statutory provisions that provide an exception for intentional torts from co-employee immunity.130 Other states, such as Alaska, Michigan and Illinois, have carved out an intentional tort exception through judicial decision.131
Hawaii's workers' compensation legislation provides an exception to co-employee immunity in cases where the co-employee, acting within the course of his or her employment, has committed "willful and wanton misconduct."132 A Hawaii court found that "willful and wanton misconduct" encompasses both "reckless conduct that [lacks] a specific intent to cause injury" and intentional conduct motivated by a specific intent to cause injury.133 Other states, such as Connecticut, have interpreted "wilful or malicious" to require specific intent to injure that is "either actually entertained [or] is implied from conduct and circumstances."134
Georgia has a different perspective on the role of willful conduct. The Georgia Supreme Court affirmed the rule that "[i ]f the willful act of a third person is directed against an employee for reasons personal to such employee, then there is not a covered injury [for workers' compensation purposes], and consequently, no tort immunity."135 Furthermore, "Georgia law provides a common law cause of action for fraud and other intentional torts committed by an employer or co-employee where the tortious 'act is not an accident arising out of and in the course of employment and where a reasonable remedy for such conduct is not provided by the Workers' Compensation Act.'"136
A more moderate approach is identified as the "Wisconsin approach." Missouri courts have stated that this is the approach they adopted137 because it is most consistent with Missouri's historical development of co-employee liability,138 as well as with the intent of the Missouri legislature in enacting the Workmen's Compensation Act.139 This approach mandates that a corporate officer or supervisory employee has immunity under workers' compensations laws where his or her negligence is based on the general non-delegable duty of the employer, but further holds that the supervisor does not have immunity when he or she does an affirmative act that constitutes "something extra" that causes or increases the risk of injury beyond the breach of a duty of general supervision and safety.140
The state of Maryland has adopted a form of the Wisconsin approach that provides a fairly straightforward approach for compensation to injured employees. In Maryland, if an employee suffers injury or death, the employee or his or her survivors may either file a workers' compensation claim against the employer or file a civil action for damages against the responsible party, even if that responsible party is a co-employee.141 A supervisory co-employee is not liable for breach of the non-delegable duty of the employer to furnish a safe place to work but may be held liable for breach of a personal duty of care owed to the plaintiff.142
In the Eastern and Western Districts of Missouri there is precedent for the principle that a co-employee is immune from liability when his or her failure to exercise the highest degree of care in the operation of a motor vehicle causes injury to a co-employee.143 It is difficult to imagine how the negligent operation of a motor vehicle does not constitute a breach of a personal duty of care.
In the Southern District of Missouri there is precedent for the principle that a supervisor is not immune from liability when she threw packing materials on the floor, an employee slipped on them and sustained an injury.144 Certainly such a situation would be held to constitute merely a breach of the employer's duty to furnish a safe place to work in the Eastern and Western Districts of Missouri.
In the Eastern District of Missouri a finding that an employee was acting as a supervisor at the time of an allegedly negligent act is apparently enough to afford that employee immunity for his negligence without regard to whether the alleged negligence breached a personal duty of care.145 The Supreme Court has held, however, that co-employees and supervisors are either immune or not immune depending on whether the alleged negligence breached a personal duty of care, regardless of whether they are supervisors or co-employees.146
Some cases are decided on the issue of whether there is a charge of misfeasance or nonfeasance.147 Other cases are decided on the issue of whether there is an affirmative act or passive negligence.148
The Southern District ignored the fact that the defendant was a supervisor in deciding that she had no immunity in Workman v. Vader. The Eastern District held that the fact that the defendant was acting as a supervisor in Collier v. Moore was the factor that made him immune from liability. The differences in the way this issue is analyzed in the various appellate courts and the inconsistent results that follow are enough to make a lawyer or trial judge dizzy. We've lost our way. A litigant can find support in the case law for any position he or she wants to argue.
Ideally, appellate opinions furnish guidance to the litigants and judges in the trial courts. The law in Missouri on the issue of co-employee immunity does more to confuse than clarify; it is a road map leading everywhere and nowhere at the same time. If we are to find our way out of this maze, we must go back to the beginning.
The Workman's Compensation Act establishes that an employer is immune from civil liability to its injured worker. There is nothing in the act to establish that a co-worker shares that immunity and strict statutory construction would find none. Our courts have determined that a co-employee should enjoy the employer's immunity when the co-employee is being sued for his or her role in the employer's breach of the duty to furnish its workers with a safe place to work. However, there is nothing in the act that can be construed as furnishing a co-employee immunity for his or her breach of a personal duty of care owed to a co-worker.
The authors submit that Missouri's appellate courts could provide more and better guidance to trial judges and litigants by adoption of the following rule:
(1) A co-employee, whether a supervisor or co-worker, is immune from liability for negligence resulting in injury to a co-employee when the negligence alleged merely constitutes a breach of the employer's duty to provide its employees with a reasonably safe place to work, but
(2) a co-employee, whether a supervisor or a co-worker, is not immune from liability for negligence resulting in injury to a co-employee when the negligence alleged constitutes a breach of a personal duty of care that the employee owes to all persons, whether they are co-employees or not.
Endnotes
1 Paul J. Passanante graduated from Saint Louis University School of Law in 1976 and received the Lon O. Hocker Trial Lawyer Award in 1981. His firm, Simon, Lowe & Passanante, LLC, represents plaintiffs in personal injury cases.
2 Sara Stock is in the third year of a four-year program at Saint Louis University School of Law. She will graduate in May, 2002 with Juris Doctorate and Masters in Business Administration degrees.
3 The Missouri Workman's Compensation Statute, § 287.120, RSMo 1994, provides in pertinent part:
2. The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee . . . at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter.
4 State ex rel. Lakeman v. Siedlik, 872 S.W.2d 503, 506 (Mo. App. W.D. 1994).
5 Patton v. Patton, 573 S.W.2d 71, 72-73 (Mo. App. S.D. 1978).
6 Zueck v. Oppenheimer Gateway Properties, 809 S.W.2d 384, 390 (Mo. banc 1991).
7 State ex rel. Badami v. Gaertner, 630 S.W.2d 175, 180 (Mo. App. E.D. 1982).
8 Kelley v. DeKalb Energy Co., 865 S.W.2d 670, 672 (Mo. banc 1993).
9 Schumacher v. Leslie, 232 S.W.2d 913 (Mo. banc 1950).
10 See generally, William E. Hanna, Co-Employee Immunity: What Does It Take to Plead "Something More?"53 J. Mo. Bar 77 (1997).
11 Hedglin v. Stahl Specialty Co., 903 S.W.2d 922, 928 (Mo. App. W.D. 1995).
12 Id.
13 Iddings v. Mee-Lee, 919 P.2d 263, 271 (Haw. 1996); see, e.g., Ariz. Const., art. 18, § 8; Cal. Lab. Code § 3601(a) (West 1971); Conn. Gen. Stat. Ann. § 31-293a (West 2001); Fla. Stat. Ann. § 440.11(1) (Cum. Supp. 2001); Iowa Code Ann. § 85.20 (Cum. Supp. 2000); Minn. Stat. Ann. § 176.061, 5(c) (West Cum. Supp. 2001); Neb. Rev. Stat. § 48-110 (1998); Or. Rev. Stat. § 656.018(3)(a) (1999); Pa. Stat. Ann., title 77, § 72 (Cum. Supp. 2000); W. Va. Code Ann. § 23-2-6a (Michie 1998); see generally 2A Larson, The Law of Workmen's Compensation, § 72.21, at 14-119 n. 23 (1995).
14 Iddings, 919 P.2d at 271.
15 Bender v. Kroger Grocery & Baking Co., 276 S.W. 405, 406 (Mo. 1925).
16 Id.
17 Id.
18 Id.
19 Mitchell v. Polar Wave Ice & Fuel Co., 227 S.W. 266 (Mo. App. E.D. 1921).
20 Id.
21 See McGinnis v. Chicago R.I. & P. Ry. Co., 98 S.W. 590, 592 (Mo. 1906).
22 See, e.g., Orcutt v. Century Bldg. Co., 99 S.W. 1062, 1067 (Mo. 1906).
23 See, McCarver v. St. Joseph Lead Co., 268 S.W. 687, 690 (Mo. App. E.D. 1925). But see State ex rel. Hancock v. Falkenhainer, 291 S.W. 466, 468 (Mo. banc 1927) (defendant's failure to warn of intention to start machinery was misfeasance).
24 38 S.W. 2d 497 (Mo. App. E.D. 1931); State ex rel. Badami v. Gaertner, 630 S.W. 175, 179 (Mo. App. E.D. 1982).
25 Sylcox, 38 S.W.2d at 501 (quoting Wahlig v. Krenning-Schlapp Grocer Co., 29 S.W.2d 128, 130 (Mo. 1930).
26 Badami, 630 S.W.2d at 179; see also Schumacher v. Leslie, 232 S.W.2d 913, 917 (Mo. banc 1950); Lamar v. Ford Motor Co., 409 S.W.2d 100, 107 (Mo. 1966).
27 630 S.W.2d 175 (Mo. App. E.D. 1982).
28 Id. at 177.
29 Id. at 178.
30 38 S.W.2d 497 (Mo. App. E.D. 1931).
31 Badami, 630 S.W.2d at 179.
32 Id.
33 Id. (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)).
34 Badami, 630 S.W.2d at 180-81.
35 635 S.W.2d 60, 63 (Mo. App. E.D. 1982) (citing Badami, 630 S.W.2d at 179).
36 McCoy, 635 S.W. 2d at 62.
37 675 S.W.2d 107 (Mo. App. S.D. 1984), receded from by Craft v. Scaman, 715 S.W.2d 531 (Mo. App. E.D. 1986).
38 Id. at 108-09.
39 715 S.W.2d 531, 536 (Mo. App. E.D. 1986).
40 Id.
41 Id. at 531; see, e.g., Hoeverman v. Feldman, 265 N.W. 580 (Wis. 1936), Wasley v. Kosmatka, 184 N.W.2d 821 (Wis. 1971), Pitrowski v. Taylor, 201 N.W.2d 52 (Wis. 1972).
42 Craft, 715 S.W.2d 531, 537.
43 See Workman v. Vader, 854 S.W.2d 560 (Mo. App. S.D. 1993).
44 729 S.W.2d 543 (Mo. App. W.D. 1987); see also Martinez v. Midland Bank & Trust Co., 652 S.W.2d 193, 201 (Mo. App. W.D. 1983) (first mention of the Badami Rule).
45 Stanislaus, 729 S.W.2d at 544.
46 Id.
47 McCoy, 635 S.W.2d at 63.
48 Stanislaus, 729 S.W.2d at 549.
49 Id. at 546.
50 Id.
51 849 S.W.2d 573,574 (Mo. banc 1993).
52 Id.
53 865 S.W.2d 670, 672 (Mo. banc 1993).
54 Id. at 672; Tauchert, 849 S.W.2d at 574.
55 854 S.W.2d 560 (Mo. App. S.D. 1993).
56 Id. at 564.
57 Id.
58 876 S.W.2d 2, 5 (Mo. App. W.D. 1994).
59 874 S.W.2d 442, 444 (Mo. App. W.D. 1994).
60 903 S.W.2d 922, 927 (Mo. App. W.D. 1995).
61 Id. at 928.
62 Hedglin, 903 S.W.2d at 928.
63 Id. at 929.
64 Id.
65 936 S.W.2d 862, 865 (Mo. App. E.D. 1997).
66 Lyon v. McLaughlin, 960 S.W.2d 522, 526 (Mo. App. W.D. 1998).
67 Collier v. Moore, 21 S.W.3d 858, 861 (Mo. App. E.D. 2000).
68 Craft, 715 S.W.2d 531, 533.
69 Id. at 537.
70 Id.
71 Biller v. Big John Tree Transplanter Mfg. and Truck Sales, Inc., 795 S.W.2d 630, 632 (Mo. App. W.D. 1990).
72 Id. (noting that "had [the employee] suffered his injury because [the employer] failed to give proper instructions [on operating] the machine or failed to warn [the employee] of any dangers the machine presented or otherwise did not adequately discharge the responsibility associated with [the employee's] training," the co-employee would have been immune under the workers' compensation statute).
73 Hedglin v. Stahl Speciality Co., 903 S.W.2d 922, 923-24 (Mo. App. W.D. 1995).
74 Id. at 927.
75 Workman, 854 S.W.2d at 561.
76 Id. at 564.
77 Pavia v. Childs, 951 S.W.2d 700, 701 (Mo. App. S.D. 1997).
78 Id. at 701-02 (citing Tauchert, 849 S.W. at 574).
79 Tauchert, 849 S.W.2d 573 (Mo. banc 1993).
80 Id. at 574.
81 State ex rel. Badami, 630 S.W.2d 175, 176.
82 Id. at 180-81.
83 Parker v. St. Louis County Water Co., 668 SW.2d 182, 183 (Mo. App. E.D. 1984).
84 Id. at 183.
85 J.M.F. v. Emerson, 768 S.W.2d 579, 580 (Mo. App. E.D. 1989).
86 Id. at 581-82.
87 State ex rel. Hartman v. Kintz, 832 S.W.2d 9, 10 (Mo. App. E.D. 1992).
88 Id.
89 Holland v. W.A.S.P., Inc., 833 S.W.2d 23, 24 (Mo. App. E.D. 1992).
90 Id., 24-25.
91 Gabler v. McColl, 863 S.W.2d 340, 342-43 (Mo. App. E.D. 1993).
92 Id. at 343.
93 State ex rel. Feldman v. Lasky, 879 S.W.2d 783, 784 (Mo. App. E.D. 1994).
94 Id. at 786.
95 Davis, 936 S.W.2d 862, 863 (Mo. App. E.D. 1997).
96 Id. at 864.
97 Id.
98 State ex rel. Hammock v. Dowd, 938 S.W.2d 675,675-76 (Mo. App. E.D. 1997).
99 Id.
100 Collier, 21 S.W.3d at 859.
101 Id. at 861-62.
102 Stanislaus, 729 S.W.2d at 543.
103 Id. at 544.
104 Id. at 546-47.
105 Gatlin v. Truman Medical Ctr., 770 S.W.2d 510, 511 (Mo. App. W.D. 1989).
106 Id. at 511-13.
107 Id.
108 Stewart v. Little, 797 S.W.2d 862-63 (Mo. App. W.D. 1990).
109 Id.
110 Felling, 876 S.W.2d at 3.
111 Id. at 3-4.
112 Id. at 5.
113 Marshall v. ETI Explosives Tech. Int'l., 874 S.W.2d 442, 443 (Mo. App. W.D. 1994).
114 Id. at 444-45.
115 Id. at 446.
116 Shelter Mutual Ins. Co. v. Gebhards, 947 S.W.2d 132, 132-33 (Mo. App. W.D. 1997).
117 Id. at 134.
118 Id.
119 Lyon v. McLaughlin, 960 S.W.2d 522, 523 (Mo. App. W.D. 1998).
120 Id. at 526.
121 Id.
122 Note that this case has been receded from by Craft, 715 S.W.2d 531.
123 Rhodes, 675 S.W.2d at 107-08.
124 Id. at 108-09.
125 Kelley, 865 S.W.2d at 671.
126 Id. at 672.
127 Id.
128 Madison v. Pierce, 478 P.2d 860 (Mont. 1970); Witherspoon v. Salm, 243 N.E.2d 876 (Ind. 1969); Brown v. Estess, 374 So.2d 241 (Miss. 1979). A variation of this rule is employed in North Dakota, stating that under its workers' compensation act, an employee may sue a third person, but not a co-employee, for actions arising out of and in the course of [the employee's] employment." Mitchell v. Sanborn, 536 N.W.2d 678, 683 (N.D. 1995).
129 See, e.g., Fusaro v. Blakely, 661 N.E.2d 1339, 1341 (Mass. App. Ct. 1996).
130 See Mumaw v. U.S. Silica Co., 511 S.E.2d 117, 122-23 (W. Va. 1998); Holderbaum v. ITCO Holding Co., 753 So.2d 699 (Fla. Dist. Ct. App. 2000).
131 Sauve v. Winfree, 907 P.2d 7, 9 (Alaska 1995) (holding a co-employee "committing an intentional tort" is "outside the purview of the statute" and subjection to liability); Whaley v. McClain, 405 N.W.2d 187, 188 (Mich. Ct. App. 1987) (holding that "the workers' compensation act . . . was never meant to apply to intentional torts"); Meerbrey v. Marshall Field & Co., 564 N.W.2d 1222, 1226 (Ill. 1990) (holding "that the exclusivity provisions of the Workers' Compensation Act" will not bar common law actions for injuries that the employer "intentionally inflicts upon the employee or which were . . . expressly authorized by the employer.)"
132 Iddings v. Mee-Lee, 9919 P.2d 263, 267-271 (Haw. 1996).
133 Id. at 269.
134 Nolan v. Borkowski, 538 A.2d 1031, 1033-34 (Conn. 1988).
135 Potts v. UAP-GA. Ag. Chem. Inc., 506 S.E.2d 101, 102 (Ga. 1998).
136 Id. at 103.
137 Stanislaus, 729 S.W.2d at 549.
138 Badami, 630 S.W.2d at 177-79.
139 Id. at 180.
140 Kruse v. Schieve, 213 N.W.2d 64 (Wis. 1973); Kruse v. Schieve, 240 N.W.2d 159 (Wis. 1976).
141 Hastings v. Mechalske, 650 A.2d 274, 279 (Md. 1994).
142 Athas v. Hill, 476 A.2d 710, 710-11 (Md. 1984).
143 Shelter Mutual Ins. Co. v. Gebhards, 947 S.W.2d 132 (Mo. App. W.D. 1997); Collier v. Moore, 21 S.W.3d 858 (Mo. App. E.D. 2000).
144 Workman v. Vader, 854 S.W.2d 560 (Mo. App. S.D. 1993).
145 Collier v. Moore, 21 S.W.3d 858 (Mo. App. E.D. 2000).
146 Tauchert v. Boatmen's Nat'l Bank, 849 S.W.2d 573 (Mo. banc 1993).
147 Stanislaus v. Parmalee Indus., Inc., 729 S.W.2d 543 (Mo. App. W.D. 1987).
148 Lyon v. McLaughlin, 960 S.W.2d 522 (Mo. App. W.D. 1998).
Volume 57 - No. 2 - March-April 2001