In a recent Missouri appellate court case, it was found that an employee could maintain a tort action against a co-employee for negligence. This case involved co-employees at Wright Construction Company. On October 20, 2011, they were installing a fountain which required moving large stones using a front loader with forks. While one employer, Meyer, was operating the machine, one of the forks dropped down onto another employee’s, Fogerty’s, back causing back and knee injuries. Fogerty argued that the co-employee had a duty to operate the forklift in a reasonably safe manner and that he breached this duty by lowering the forks without taking any steps to warn or protect him.
The question in this case is whether one co-employee owes another a personal duty of care separate and distinct from the construction company’s non-delegable duty to provide a safe workplace. The negligence claim asserted that Meyer had a duty to operate the forklift in a reasonably safe manner and that he breached this duty by lowering the forks without taking any steps to warn or protect Fogerty. This is not an allegation of a violation of employer’s non-delegable duty to provide a safe work environment, but rather a claim that Meyer was negligent in the operation of the fork-lift and in carrying out of the details of the work.
The court noted that in the majority of cases when injuries result from the place of work or the employer’s tools, directions, or standard operating procedures, the injury falls within the employer’s non-delegable duty to provide a safe workplace and the co-employee enjoys immunity. It was found in this case that Fogerty sufficiently asserted violations of Meyer’s personal duty of care for which he could be liable at common law. The court concluded that under Missouri’s narrow co-employee immunity rule, an employee may be liable at common law for injuries to a co-employee caused by his or her negligent actions if the plaintiff demonstrates that the defendant violated a personal duty of care separate from the employer’s duty to provide a safe workplace. The court concluded that the civil action could proceed.
Therefore, when the injury arises from a co-employee’s action not specifically directed by the employer or resulting from the malfunction of an employer-provided tool or workplace, the co-employee may be liable at common law.
The case, Fogerty v. Armstrong, can be found here. Please feel free contact us with any Missouri workers’ compensation questions. Thanks to attorney Jill Baker for the summary of this case. Jill works out of the Chicago and St. Louis offices of Inman and Fitzgibbons and can be reached at email@example.com.