Danny Brock v. Peter Dunne, in his Capacity as Defendant Ad Litem for Mark Edwards, Deceased
The Missouri Supreme Court recently issued an opinion on co-employee immunity under section 287.120.1 of the Missouri workers’ compensation statute. The opinion, Brock v. Dunne, provides the Court’s first interpretation of the 2012 amendment to the statute.
Edwards (defendant/supervisor), Brock (plaintiff), and two other employees used a high-pressure laminating machine to laminate particle boards. Edwards fed particle board sheets into the machine and as glue-covered sheets began to emerge from the machine, Edwards noticed glue dripped onto the machine’s bottom rollers and instructed Brock to clean the glue. Notwithstanding JMC’s safety rules and the machine’s warnings, Edwards removed the safety guards while the machine was still running. Brock used a wet rag to clean the rollers but because there was no safety guard in place, the wet rag caught in the rollers and pulled Brock’s thumb into the pinch point, crushing it. Brock then filed a negligence claim against Edwards, alleging he negligently removed the safety device from the machine and ordered the machine to be cleaned while it was in operation, among other things.
Following a jury verdict in favor of the plaintiff, the defendant appealed, and the Missouri Supreme Court granted transfer after an opinion by the Court of Appeals. The Supreme Court considered co-employee immunity as delineated by Section 287.120.1.
Section 287.120.1, as amended in 2012, provides in relevant part:
Any employee of such employer shall not be liable for any injury…and…shall be released from all other liability whatsoever…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.
The statute shields co-employees from a lawsuit for injuries they caused in the workplace unless the plaintiff can show two things: the co-employee engaged in affirmative conduct constituting at least negligence and that conduct was done to purposefully and dangerously increase the risk of injury.
The Court emphasized that Missouri case law has already established that an individual acts purposely “when it is the person’s ‘conscious object to engage in that conduct or to cause that result.’” With this definition in mind, the Court interpreted the “purposefully and dangerously” element to require plaintiffs to put forth evidence showing that the co-employee’s conduct made the workplace more dangerous but that the co-employee acted with the “conscious object” of increasing the risk of injury.
Thus, because Brock was unable to present sufficient evidence for the court to find Edwards’ affirmative, negligent act was employed purposefully and dangerously to cause or increase the risk of injury, Edwards was legally entitled to immunity under section 287.120.1.
Going forward, this Supreme Court opinion will require plaintiffs asserting negligence claims against a co-employee to provide more evidence to meet their burden. Specifically, once the defendant establishes the existence of a co-employee relationship (thereby triggering section 287.120.1 immunity), the burden will shift to the plaintiff to show that the defendant engaged in affirmative conduct that constitutes at least negligence; and the defendant purposefully and dangerously caused or increased the risk of injury through that conduct. Therefore, employers, employees, and their insurance carriers should be able to successfully argue that section 287.120.1 bars claims against co-employees unless the narrow exception is met.
Article by Najla Hasic