Co-Employee Immunity After Brock v. Dunne

Following in the footsteps of the Missouri Supreme Court Decision in Brock v. Dunne, 637 S.W.3d 22 (Mo. Banc 2021), the Missouri Court of Appeals for the Eastern District recently affirmed the dismissal of a Petition in which two co-employees were sued for the death of another employee.  In Miller v. Bucy, 641 S.W.3d 725 (Mo. App. ED 2022) the Court determined that plaintiff’s Petition failed to allege facts showing that the co-employees’ actions fell outside the employer’s nondelegable duty to provide a safe workplace. 

The Missouri Supreme Court in Brock reversed a Jury Verdict in favor of an employee injured when his supervisor removed a safety guard from a machine and then ordered the employee to clean the machine while still in operation.  The Court found that, because the employee failed to present sufficient evidence that the supervisor’s negligent act was conducted purposefully and dangerously to cause or increase the risk of injury, the supervisor was legally entitled to immunity under the Missouri Workers’ Compensation Act (RSMo 287.120). 

In Miller v. Bucy, the decedent James Quinn worked for Curbside Cart Master, which assembled and delivered trash and recycling cans.  On March 24, 2017, decedent’s supervisor Fred Bucy instructed Quinn to ride in the back of a truck containing unsecured trash cans, some with wheels, full of rainwater (allegedly contrary to employer’s policy and Missouri law).  Supervisor Bucy and the truck driver, Kasey Baker, further told Quinn not to tie down or secure the trash cans (allegedly contrary to employer’s policy and in violation of RSMo 307.010).  A broken trailer gate left the trailer open and exposed (allegedly contrary to employer’s policy).  In violation of the employers’ policy, Quinn wore no protective headgear.  Baker possessed no commercial driver’s license and drove the truck at a high rate of speed.  Quinn died from injuries he sustained when Baker made a left turn and the unsecured trash cans knocked Quinn out of the truck and onto the street. 

Plaintiff’s Amended Petition alleged that the supervisor and driver acted outside the employer’s nondelegable duties and engaged in affirmative negligent acts which purposefully and dangerously caused or increased the risk of Quinn’s death.  The Circuit Court, without specifying any reason, granted Defendants’ Motion to Dismiss for failure to state a claim upon which relief could be granted. 

On appeal, Plaintiff argued that the Petition sufficiently alleged that co-employees Bucy and Baker owed decedent Quinn personal duties of care, separate and distinct from the nondelegable duties of care the employer owed to decedent Quinn.  In addition, Plaintiff argued that the Missouri Workers’ Compensation Act provided no shield to Bucy and Baker for liability because their affirmative negligent acts purposefully and dangerously caused or increased the risk of death to Quinn.  

In its decision, the Court of Appeals pointed out that the broad scope of the employer’s nondelegable duties includes:  providing a safe place to work; providing safe appliances, tools, and equipment for work; warning of dangers of which the employee might reasonably be expected to remain in ignorance; providing a sufficient number of suitable fellow employees; and promulgating and enforcing rules for the conduct of employees which would make the work safe.  The Court noted that there is a limitation on the employer’s nondelegable duty to provide a safe workplace to “those risks that are reasonably foreseeable.”

“To maintain a negligence action against a co-employee, a plaintiff must show that the co-employee breached a duty separate and distinct from the employer’s nondelegable duty to provide a safe workspace for all employees.”  Conner v. Ogletree,  542 S.W.3d 315, 319 (Mo. Banc 2018)  The Missouri Supreme Court in Brock reemphasized that “it is the employer’s sole duty to provide a safe work environment, and a co-employee’s negligence in carrying out the duties assigned to the employee by the employer is not actionable at common law as a breach of duty separate and distinct from the employer’s nondelegable duty.”  Should an employee’s injuries result from the manner in which the work was being performed, those injuries “are attributable to a breach of the employer’s nondelegable duty to provide a safe workplace.”

In affirming the Circuit Court’s dismissal, the Court of Appeals determined that “the alleged acts of Co-Employees, even afforded all reasonable inferences, cannot demonstrate the breach of any duty separate and apart from Employer’s duty to provide a safe workplace.”  Supervisor Bucy’s alleged actions were reasonably foreseeable breaches of the employer’s nondelegable duty to provide a safe workplace.  Similarly, driver Baker’s alleged actions constituted breaches of the employer’s nondelegable duty to provide a safe workplace.  The Court concluded that “the factual allegations in the Petition show Quinn’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.”

In its opinion, the Court of Appeals referenced Brock and noted that “our decision reflects the Supreme Court’s clear intention to restore the breadth of the Act as the near-exclusive remedy for workplace injuries and a shield to co-employee liability.”  Brock limited the liability of co-employees to a narrow, statutorily defined standard and emphasized that the workers’ compensation statute places “liability for workplace injuries squarely on the shoulders of the employers.”