Appendices one and two
Co-Employee Negligence 2012 to now is addressed in the case of Peters v. Wady Industries, Inc. provides a detailed explanation of alternative causes of action in work comp cases causes by co-employee negligence. 489 S.W.3d 784 (Mo. 2016). It should be noted, however, that in 2012, the legislature amended section 287.120 to state:
Any employee of such employer shall not be liable for any injury or death for which compensation is recoverable under this chapter and every employer and employees of such employer shall be released from all other liability whatsoever, whether to the employee or any other person, except that an employee shall not be released from liability for injury or death if the employee engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.
Section 287.120.1, RSMo Supp. 2012 (emphasis added).
The amended statute does provide immunity to co-employees except when “the employee engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.”
The Missouri Supreme Court in Badami created a “something more” test as a means of providing immunity to co-employees under the workers’ compensation law when the co-employee was discharging the employer’s nondelegable duty to provide a safe workplace. The test was utilized by this Court and the court of appeals thereafter as a limitation on the co-employee’s immunity under workers’ compensation. (796-97).
The 2012 amendment to § 287.120.1, … effectively codified the “something more” test as previously applied by this Court. (801).
The Court also referenced another case where it was found that negligent driving was not enough to meet the “something more” standard: “Moreover, the evolution of the “something more” test to require purposeful conduct is also inconsistent with an employee’s common law duties to third persons. While the “something more” test, as initially articulated, closely followed the common law, this Court later held that ““[a] simple allegation of negligent driving by a coemployee … [was] not ‘something more’ than an allegation of a breach of the duty to maintain a safe working environment.”” Taylor, 73 S.W.3d at 622–23, overruled *798 on other grounds by McCracken, 298 S.W.3d 473. The Court reasoned that negligent driving was “not the kind of purposeful, affirmatively dangerous conduct that Missouri courts have recognized as moving a fellow employee outside the protection of the Workers’ Compensation Law’s exclusive remedy provisions.”
Included within the employer’s duty to provide a safe workplace is a duty to see that the instruments of the workplace are used safely. Peters, 489 S.W.3d at 795. Thus, when an employee’s injuries result from the tools furnished, the place of work, or the manner in which the work is being done, the injuries are attributable to a breach of the employer’s non-delegable duty to provide a safe workplace. Id. at 796 . “The employer’s duty to provide a safe workplace is not unlimited, however.” Id. at 796. Unless the employer is directing the employee, the employer’s obligation to protect his employees “does not extend to protecting them from the transitory risks [that] are created by the negligence of the [employees] themselves in carrying out the details of that work.” Id. (quoting Kelso v. W.A. Ross Const. Co., 337 Mo. 202, 85 S.W.2d 527, 535-36 (Mo. 1935)).
Thus, where the employer directed the employee to act in a negligent manner or had a negligent standard operating procedure in place, the employee’s negligence is subsumed in the employer’s duties; however, where the employee is negligent on his own in carrying out the details of the work, any resulting injuries are attributable to the employee’s breach of his or her separate and distinct common-law duty of care. Fogerty v. Armstrong, No. ED 100947, 2016 WL 5030379, at *2 (Mo. Ct. App. Sept. 20, 2016), reh’g and/or transfer denied (Oct. 26, 2016).
Two questions: Did co-employee violate a nondelegable duty and is the coemployee protected under the 2012 amended version of §287.120? In conclusion, if a work place injury occurs after 2012, we must plead under the “something more” test as articulated in Badami and codified in the 2012 amendments to R.S.Mo §287.120.1. Under the “something more” test simple auto accident negligence will not meet the standard. The standard is more akin to recklessness and requires an “affirmative act” of negligence.