Missouri Supreme Court Clarifies Meaning and Application of Co-Employee Immunity Act | Thompson Coburn LLP

The Missouri Supreme Court recently issued a much-anticipated Opinion on Co-Employee Immunity and Liability under Section 287.120.1 of the Missouri Workers’ Compensation Act. Opinion, Brock v. Dunne, — SW3d —-, 2021 WL 5217031 (Mo. bench 9 Nov 2021),[1] provides the Supreme Court’s first interpretation of the 2012 amendment to the law, clarifies its application, and provides guidance regarding the type of conduct that opens the door to co-employee liability.

In Brock, the plaintiff worked with the defendant (a supervisor)[2] on their employer’s lamination line – a job that involved feeding sheets of particleboard, gypsum or fiberboard into a laminating machine, which applied glue to the panel while a pair of rollers propelled the sheet through the machine. On the day of the incident, the machine was applying too much glue to the sheets, resulting in glue drops on the rollers. The defendant, although he was aware of the employer’s safety rules and the machine’s warnings, removed a protector that protected a pinch point created by the rollers and asked the plaintiff to clean the glue from the rollers with a damp cloth. The rollers grabbed the rag and pulled the Applicant’s thumb into the pinch point, causing injury. The plaintiff sued, alleging negligence against the defendant for removing the safety guard and ordering the machine to be cleaned while in operation.[3]

Following a jury verdict for the plaintiff, the defendant appealed and the Missouri Supreme Court granted the transfer after a notice from the Court of Appeal. Upon transfer, the Missouri Supreme Court considered section 287.120.1, as amended in 2012, which provides in the relevant part:

Any employee of such an employer will not be responsible for any injury… and… will be released from any other responsibility whatsoever… except an employee will not be released from liability for injury or death if he has engaged in an act of affirmative negligence which willfully and dangerously caused or increased the risk of injury.

§ 287.120.1, RSMo. (emphasis added). The court said this amended law settled the confusion over co-employee liability – case law that had “shifted and swung like a pendulum.[.]Notice, at 6-7.[4] Brock further resolves uncertainty in this area of ​​law and includes the following:

1. The law grants immunity to co-employees; it does not create a new cause of action.

The Court confirmed that the law “does not prejudge the action at common law and does not create a new legal cause of action which co-employees can bring against their guilty colleagues.[,]” corn “[i]Instead,… grants immunity to co-employees and employers, unless the exception applies. »Notice, at 8.

2. Co-employees enjoy statutory immunity unless they have committed an act of affirmative negligence that willfully and dangerously caused or increased the risk of injury.

The Court explained that the wording of the law “unambiguously states the intention of the legislature that co-employees enjoy immunity from civil liability for injuries they cause at work”. Notice, at 8-9. This is the general rule. But the law “provides for an exception to this broad immunity[…]when “the employee engaged in [1] an affirmative act of negligence which [2] intentionally and dangerously caused or increased the risk of injury. ” Username. to 9 (citing § 287.120.1).

3. The applicant is responsible for establishing the exception.

The Court clarified that once the defendant has discharged his onus of establishing a co-employee relationship, “[t]the burden then shifts to [the plaintiff] to show [the defendant’s] the actions fell under the statutory exception to the general rule of statutory immunity. Notice, at 9-10. More specifically, the plaintiff must establish that: (1) “the co-employee has engaged in positive conduct which constitutes at least negligence[;]”And (2) the co-employee” deliberately and dangerously causes[d] or increase[d] the risk of injury from doing so. Identifier. to 10

4. For the exception to immunity to apply, the defendant must act with the “conscious object” to increase the risk of injury.

The Court interpreted the statute, by its plain text, to provide a “mental element” to the exception — that a co-employed defendant must have “voluntarily caused or increased the risk of injury. Opinion, at 9 (emphasis in original). In view of the dictionary definition and the Missouri law regarding the word “objective”, the Court explained that “[a]n the individual acts intentionally when it comes to conscious object to engage in this conduct or to bring about this result. Username. at 11 (citations omitted) (emphasis added).

With regard to the facts in Brock, the Court declared that “[a]applying this definition of finality, [for the exception to apply] the evidence … should show that when [the defendant] removed the security guard, his goal – or the conscious object of what he sought to achieve – was to increase the risk of injury to [the plaintiff]. “ Username. at 12. The Court held that the plaintiff failed to present sufficient evidence to enable the jury to infer that the defendant acted with such a conscious purpose. Username. Rather, the evidence simply supported a finding that the respondent “acted negligently, not that he intended for cause or increase the risk of injury [the plaintiff] or others. Username. (emphasis added). As the Court explained, “[t]he hurts himself [the plaintiff] suffered are tragic, but they are the result of an unfortunate accident in the workplace, and not the deliberate and deviant actions of a coworker who sought out and wished to cause or increase the risk of injury to a coworker. Username. to 11. Accordingly, section 287.120.1 allowed the defendant to legal immunity. Username. to 13.

5. In addition to establishing that the statutory exception applies, in order to recover, the plaintiff must also establish a common law action for the liability of co-employees.

In Brock, the Court’s decision that the defendant enjoyed statutory immunity was decisive.[5] In order to avoid any confusion and to respond to the dissenting opinion,[6] however, the Court provided a discussion of the liability of co-employees at common law, an additional requirement where the statutory exception applies. Specifically, “[b]Since no new cause of action has been created by section 287.120.1, plaintiffs must establish a common law claim in order to be entitled to a refund. Notice, at 13 n.9. In the context of co-employee liability, this means that “the plaintiff must show that the defendant co-employee has breached an obligation distinct from that foreseeable by the employer. [and nondelegable] duty to provide a safe workplace[.]” Username. to 14. The Court held that the defendant’s act of lifting the safety guard off the machine fell within the employer’s general non-delegable obligation to provide a safe workplace. Consequently, the plaintiff has not presented a case of common law negligence. Identifier. at 16-17.

Ultimately, Brock presents Missouri courts with a new analysis to assess co-employee liability. While determining whether a defendant acted with the “conscious object” to cause or increase the risk of injury depends on the facts of each case, in practice the Missouri Supreme Court opinion requires plaintiffs to provide more. evidence to discharge their burden than before. In addition, it will likely be necessary for the plaintiffs to plead additional material facts against the co-employee to resist a motion to dismiss.

Brock may also affect the strategy of product liability defendants. For example, in cases involving product liability claims against a product manufacturer, it is not uncommon for a plaintiff to also name a Missouri resident co-employee as a defendant in an attempt to destroy diversity. and avoid referring the case to federal court. Brock potentially provides additional support for product liability defendants to refer these cases to Federal Court on the basis of the fraudulent join of the co-employed defendant (assuming a diversity of citizenship between the plaintiff and the defendant in fact products and that the amount in dispute exceeds $ 75,000). Given the urgent nature of the referral, defendants involved in such cases should continue to monitor Missouri state and federal court enforcement. Brock and section 287.120.1 in the future.

[1] On the date of this post, the notice remains subject to a request for review, which must be filed within 15 days of the Tribunal’s notice. See Mo. Sup. Ct. R. 84.17.
[2] The supervisor died before the trial and an ad litem defendant was substituted for him.
[3] The plaintiff also applied for and received workers’ compensation benefits through his employer and settled the claims with the machine manufacturer.
[4] There is a long history of case law relating to co-employee liability under Missouri law. The Court’s opinion details some of the various approaches that have caused confusion [see Opinion, at 6-7 n.5], but for a more complete context of these matters, the reader should separately examine and consider the long history of the law on this subject.
[5] Earlier in its opinion, the Court said: “For cases alleging the liability of co-employees arising after [the 2012 amendment], the analysis must shift from the common law to section 287.120.1 to determine whether the statute prohibits the prosecution of the action. Opinion, at 7. After this determination, a common law analysis must still take place.
[6] The dissent focused on the issue of liability at common law and argued that there was sufficient evidence for the jury to find that the defendant breached a duty owed regardless of the master-servant relationship. The dissent also argued that the majority opinion had misinterpreted and misapplied section 287.120.1.


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