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An important issue for any employer is to what extent they may be held liable for the behavior of their employees, particularly in circumstances where the employee may not be covered by the exclusive remedy of worker’s compensation, such as farm laborers. In Missouri, an employer owes certain duties to its employees including: providing a safe workplace; providing safe tools and equipment; warning of dangers of which an employee might reasonably be unaware; providing sufficient coworkers; and promulgating and enforcing rules to ensure safety.

An employer’s duty in these limited exempt employee circumstances (which also include domestic servants, certain real estate agents and direct sellers and commercial motor-carrier owner-operators), to provide its employees with a safe work environment is not unlimited. Unless the employer is actively directing the work being done, the employer’s duty to protect its employees “does not extend to protecting them from the transitory risks which are created by the negligence of the [employee] carrying out the details of that work.” Kelso v. W.A. Ross Const. Co., 85 S.W.2d 527 (Mo. 1935). The duty for an employer to provide a safe working environment for its employees does not extend to an environment that becomes unsafe through the actions of the employee. Id. In other words, the doctrine of comparative fault is applicable to reduce the liability of the employer.

Missouri courts have found plaintiffs guilty of comparative fault under circumstances where a person of ordinary prudence and information should know the danger associated with the plaintiff’s actions. In Keeter v. Devoe & Raynolds, Inc., 93 S.W.2d 677 (Mo. 1936), the Supreme Court of Missouri upheld the lower Court’s granting of the defendant’s motion for a new trial after the jury returned a verdict in favor of the plaintiff, on the basis that the plaintiff was contributorily negligent. In that matter, the plaintiff was using a freight elevator. The plaintiff took the freight elevator up one floor from the basement, picked up a piece of furniture and then walked backwards back to the elevator while carrying the furniture. The plaintiff did not look behind him before stepping back onto the elevator and therefore, did not notice that the elevator had moved. He stepped into the open elevator shaft and was injured in the fall. The court reasoned that a person of ordinary prudence and information should know that an elevator serving several floors in a busy building may move and would therefore not blindly rely on the elevator remaining where it was left.

Of course, this case was decided prior to the current statutory worker’s compensation framework, but it provides an example of the duties applicable in those limited exceptional circumstances where the employee does not have a comp claim to make.

While employers have certain duties to their employees regarding the assurance of their safety, those duties are limited. When without direction, employees take it upon themselves to engage in activities they know or should know to be dangerous, they are liable themselves to the extent their negligent behavior contributed to their injuries.

If you or your company are called upon to respond to one of these limited circumstances of direct employee action against their employer, reach out to the lawyers at Gausnell, O’Keefe & Thomas, LLC to see if we can assist in navigating this narrow area of the law.

Article by Ben Warren

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