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Posted in Blog on June 25, 2018   |  by Gary Burger

Case Study: Co-Employee Negligence


This past Friday, I attended a hearing and argued against a motion to dismiss a co-employee negligence case. This case highlighted a fascinating aspect of worker’s compensation law as it demonstrates when a suit can be brought against a co-employee for on-the-job injuries and what level of negligence is needed to pursue such a case.

Facts of the Case:

In most worker’s compensation cases the employee is seeking relief from their employer, however, this case demonstrates when a co-worker can be implicated for a workplace injury. Our client, James, unfortunately lost his life on the job. He died when his co-employees had him ride in the back of a trailer with a broken rear gate and unsecured trash cans. On top of this, the driver lacked a commercial driver’s license. While driving, the trailer went around a turn too fast causing one of the trashcans to collide with James and strike him on the head. Unfortunately, James was not wearing a helmet, meaning the injury from this collision was fatal. This was all in violation of company policy and Missouri law.

In pursuing a suit against James’s co-worker, reference was made to Missouri Law. According to Missouri law, co-employees are immune from a civil suit unless the employee engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.

Lessons from the Law:

The important legal take away from this case is an understanding of how narrowly Missouri Courts interpret what constitutes an “affirmative negligent act”.
With this exception in mind, the court’s understanding what constitutes an “affirmative negligent act” became a deciding factor in this case. To clarify what the definition of an “affirmative negligent act”, the Missouri Supreme Court created a “something more” balancing test. Burns v. Smith, 214 S.W.3d 175 (Mo.App.1982).

In applying this theory to our case, the court referenced another case where it was found that negligent driving was not sufficient to meet the “something more” test. In this case the court concluded, “[a] simple allegation of negligent driving by a co-employee… 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. This understanding shows how a simple auto accident will not meet the “something more” standard

The standard is more akin to recklessness and requires an “affirmative act” of negligence. Following the understanding from the above case demonstrates how this act must be “something more” than an allegation. A supervisor can be held to this standard as long as he commits an affirmative negligent act and doesn’t simply fail to properly supervise his employees.

I discuss this fascinating legal issue and much more in my Workers’ Compensation book, which can be downloaded for free.