Article written November 12, 2021

The Missouri Supreme Court has finally issued an opinion on the long-awaited case interpreting the new changes to co-employee liability statute in Missouri Workers' Compensation Law. The issue to be determined was how to interpret the recent changes to Missouri Statue 287.120 as it relates to an injured employee's ability to sue a co-employee for the negligent acts that result in harm to employee.

In the case of Brock v. Dunne, No. SC97542 (Mo. 2021), an employee was injured when a co-employee removed his safety guard in violation of the employer’s safety rules which resulted in harm to the employee. The case was originally tried in Saint Louis County, Missouri which resulted in a favorable verdict to the injured employee. It was then appealed and finally made its way to Missouri Supreme Court. Argument was held before the Missouri Supreme Court on May 14, 2019, and the opinion was later issued on November 9, 2021.

The Missouri Supreme Court ruled that Missouri Statute 287.120 did not create a new cause of action for plaintiffs in Missouri. The Court reasoned that an employees only cause of action against a co-employee is that which existed at common law before Missouri Workers’ Compensation was created. Under common law, an injured employee would have to prove that a co-employee had some duty to the plaintiff which was separate and apart from the non-delegable duty of the employer to provide a safe workplace.

Once this is alleged, it is the defendant's obligation to raise the affirmative defense of statutory immunity from suit under Missouri Statute 287.120. Once the affirmative defense is raised, a plaintiff must prove that a co-employee was not only negligent but that the co-employee committed a negligent act with the purpose of causing or increasing the risk of harm to the plaintiff. The court pointed out that although the defendant in this case removed a safety guard in violation of the employer's safety rules, and it was reasonably foreseeable that this act could result in someone being hurt, there was no evidence that the defendant removed that guard with the purpose of causing harm or increasing the risk of harm to the specific plaintiff in this case.

This is great news for employers and insurers throughout the state. The Court has finally clarified that a plaintiff must prove that a co-employee defendant committed a negligent act with the specific purpose of causing harm to the plaintiff. It would seem that only cases in which a co-employee has assaulted a fellow worker or committed some sort of act with the purpose of harming a fellow employee are viable under 287.120 RSMo.