It looks like Missouri will finally return to the “real world” beginning on August 28, 2012. That is the effective date of Missouri House Bill No. 1540, which was signed by Governor Jay Nixon on July 10, 2012. House Bill No. 1540 is the legislature’s latest attempt to overturn Robinson v. Hooker, 323 S.W.3d 418 (Mo.App.W.D. 2010), in which the court ruled the exclusive remedy of workers compensation did not provide negligent defendants with immunity for injuries caused to fellow employees.
The Robinson decision was an anomaly, and led to substantial tort and insurance coverage litigation. It took multiple attempts for the Missouri legislature to overturn Robinson. Earlier versions of HB 1540 included controversial changes to the definition of “occupational disease” under the Workers Compensation Act, which caused the Governor to veto the bill.
HB 1540 is not retroactive. Thus, a negligent defendant may still be liable for on the job injuries sustained by co-employees. However, defendants will be immune from such claims arising out of injuries occurring after August 28, 2012.
Another change in co-employee liability occurred on June 29, 2012, when the Court of Appeals for the Western District of Missouri further clarified the scope of co-employee liability in Hansen v. Ritter, 2012 WL 2498845. In Hansen, plaintiffs brought a wrongful death action against a supervisor when an employee was killed after a guard on a wire-stranding machine gave way, causing the decedent to become entangled in the moving parts of the machine. Plaintiffs claimed the supervisor failed to detect a defect in the guard and warn the decedent.
However, the Court concluded that the plaintiffs’ petition merely asserted a claim that the supervisor failed to provide the decedent with a safe place to work. Furthermore, the duty to provide a safe workplace was a non-delegable duty that was owed by the employer to its employees, and it was not a personal duty of care owed by a supervisor to his subordinates. Thus, the Court concluded:
…at common law, a co-employee who has violated an independent duty to an injured employee will be answerable to such person for the consequences of his negligence… However, a co-employee’s independent duties owed to fellow employees do not include the duty to perform the employer’s non-delegable duties, as those duties necessarily derive from, and are not independent of, the master-servant relationship.
Hansen, 2012 WL 2498845, at p. 12.
Thus, it appears the scope of a defendant’s potential liability is limited to violations of a duty of care he personally owes a fellow employee. For example, a defendant who negligently operates a vehicle before August 28, 2012 and causes an injury to a fellow employee can be subject to liability because the duty to exercising the highest degree of care in the operation of a motor vehicle is a personal duty of care. On the other hand, if a fellow employee is injured prior to August 28, 2012 because of a supervisor’s alleged failure to adequately train, the supervisor will not be liable because the failure to train is subsumed by the employer’s non-delegable duty to provide a safe place to work, and is not a personal duty of care.