Two recent decisions from the Missouri Court of Appeals have confirmed that work-related injuries caused by co-employees may proceed outside the workers’ compensation system only in narrow circumstances. While claims involving work-related injuries are generally handled exclusively under Missouri Workers’ Compensation Law, a 2012 amendment permits civil lawsuits to proceed against co-employees who “engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.” Mo. Ann. Stat. § 287.120.1 

Following the 2012 amendment, the Missouri Supreme Court clarified its effect on co-employee liability claims in Brock v. Dunne, 637 S.W3d 22 (Mo. Nov. 9, 2021), reh’g denied (Feb. 8, 2022). In Brock, the Court reiterated that Missouri Revised Statute § 287.120.1 did not create a new cause of action against co-employees. Rather, it provides an affirmative defense to co-employees unless the plaintiff could prove an applicable exception. To meet its burden, the plaintiff must prove that “the co-employee engaged in affirmative conduct that constitutes at least negligence” and that the co-employee did so “with the specific purpose to cause or increase the risk of injury,” which the Court described as the “mental element to the exception.”  Id. at 28.

In the short time since the decision, Missouri appellate courts have applied Brock to confirm that the circumstances in which the exception applies are limited. The first ruling since the Brock decision was Miller v. Bucy issued by the Court of Appeals for the Eastern District. In Miller, the Court affirmed the dismissal of a wrongful death claim brought on behalf of the family of a man fatally knocked from the back of a trash truck suit against the man’s co-employee. Miller v. Bucy, No. ED 107055, 2022 WL 453331 (Mo. Ct. App. Feb. 15, 2022). In Miller, the family alleged that the co-employee’s negligence fell outside the nondelegable duties and were not foreseeable by the employer. They further argued it was not foreseeable that a supervisor would violate the employer’s policies and Missouri Workers’ Compensation Law by instructing the decedent to work on a truck with unsecured trashcans, a broken trailer gate, and no protective headgear. The Court in Miller cites the Brock decision’s intent of viewing workers’ compensation laws as the near-exclusive remedy for workplace injuries. Ultimately, the court concluded the family’s factual allegations showed the decedent’s death resulted from “the manner in which the work was being performed, thus his death is attributable to a breach of Employer’s nondelegable duty to provide a safe workplace.” Id. at *5.

Following the Miller decision, the Missouri Court of Appeals for the Western District held that a supervisor’s alleged negligence fell within the employer’s foreseeable nondelegable duty to provide a safe workplace. Bestgen v. Haile, No. WD 83865, 2022 WL 598646 (Mo. Ct. Mar. 1, 2022). In Bestgen, an employee was injured in the collapse of a utility trench after his supervisor asked the employee to enter into a trench even without a safety device in the trench. The employee sued the supervisor and supervisor invoked immunity from suit under the Missouri Revised Statute § 287.120.1. The Court affirmed summary judgment for the supervisor concluding that, although the evidence showed that the supervisor committed an affirmative negligence act by failing to secure the trench with a safety device, the supervisor “did not do so with the conscious object to cause or increase the risk of injury to” the plaintiff. Id. at *4.

These recent rules have made clear that there is no civil liability for injuries arising from the actions of co-employees except for the narrow circumstances in which an employee “deliberately” and through “deviant actions” injures another employee. Brock, supra. “Absent more,” the court held, “a negligent act is, simply, negligence.” Id. 

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