Trapped: Missouri Legislature Seeks to Close Workers' Compensation Loophole with Some Co-Employees Still Inside
Cornwell, Alexander, Missouri Law Review
Robinson v. Hooker, 323 S.W.3d 418 (Mo. App. W.D. 2010), transfer denied, No. SC91216, 2010 Mo. LEXIS 291 (2010) (Mo. Nov. 16, 2010).
"Currently, all Missouri workers are at risk of being sued and held liable for honest accidents at work and that is simply unfair. ..." (1)
Century-old judicial precedent in Missouri clearly establishes that an injured worker may not bring a personal injury action against his or her co-employee for negligently failing to provide a safe workplace. (2) Providing a safe working environment is a non-delegable duty of the employer, so when an employee performs in the employer's stead, the law treats the employee as stepping in the shoes of the employer. (3)
When Missouri passed its workers' compensation statute in 1926, employers were granted immunity from civil actions their employees brought in exchange for providing guaranteed compensation to injured employees, irrespective of negligence. (4) The legislature read the common law treatment of an employer's non-delegable duty into the Act, and co-employees remained immune from civil actions insofar as a compensable injury occurred as a result of their negligent performance of the employer's duty. (5) However, in Missouri, this is the only instance where a co-employee is granted immunity from civil suit. (6) Thus, if a worker is injured by a co-employee's action that constitutes "something more" than a mere failure to provide a safe workplace, a civil action will lie. (7) In this respect, Missouri is in the distinct minority of jurisdictions that allow injured workers to bring personal negligence actions against co-employees. (8)
It is necessary to hold co-employees immune for a failure to correctly carry out the employer's duty to provide a safe work environment because employers, under many circumstances, remain obligated to indemnify their employees for judgments rendered against them. (9) If an employee can be sued for negligently failing to perform the employer's duty and the employer then has to pay damages for injuries resulting from a breach of that duty, the employer would in effect be paying civil damages for its own breach. (10) Since workers' compensation is intended to grant employers immunity under those exact circumstances, allowing such claims is in direct contravention of the whole Act. (11)
As a result of the Western District Court of Appeals' decision in Robinson v. Hooker, co-employee liability in Missouri has changed from being somewhat permissive to utterly submissive. (12) The court, for the first time, focused entirely on the definition of "employer" in the workers' compensation statute and found that employees are not included. (13) By doing so, the court destroyed co-employee immunity in every context, and employees are now amenable to civil suit even if the breach was that of an employer's non-delegable duty. (14) As a result, Missouri is currently the only state in the entire nation to allow a civil action against a co-employee who negligently performs the employer's duty to provide a safe workplace. (15) The court's seismic doctrinal shift is matched only by its immense practical consequences.
This Note is a primer for Missouri practitioners to better understand the practical effect Robinson has had on co-employee liability in Missouri. Part II provides the unassuming factual background giving rise to Robinson's substantial departure from previous case law. To understand the context in which the court decided Robinson, Part III outlines Missouri's historical approach to co-employee liability and the recent statutory amendments mandating strict construction of the workers' compensation act that prompted the court's holding. In response, Part IV considers whether that extensive departure was warranted. After illustrating that the holding is not congruent with legislative intent and historical context, this Note will examine the pragmatic effect of Robinson. …