Can I Sue a Co-Worker for a Workers’ Compensation Injury in Missouri?

Sometimes, a work injury is caused wholly or in part by the actions of a co-worker. The primary Missouri statute dealing with this situation is found at section 287.120.1 which provides that such a co-worker shall not be liable and “shall be released from all other liability whatsoever except if the co-worker “engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.” Negligent behavior is characterized by a person’s failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.

A December, 2021 Missouri Supreme Court case entitled Danny Brock v. Peter Dunne, in his capacity as Defendant Ad Litem for Mark Edwards, Deceased, Missouri Supreme Court No. SC97542, was a very important ruling on the issue of co-employee liability for injuries.

This was a personal injury lawsuit filed by a worker injured on the job against a co-employee. Plaintiff Brock used a high-pressure laminating machine to laminate particle boards. Edwards, the co-employee removed a safety guard that shielded the pinch point created where the bottom rollers met. Edwards instructed the plaintiff to clean the rollers while the machine was running by squeezing water from a wet rag over the rollers and brushing the rollers as they turned. The wet rag got caught in the rollers and pulled the plaintiff’s thumb into the pinch point, crushing his thumb. The personal injury lawsuit against Edwards (the co-employee and supervisor) alleged that Edwards negligently caused the crush injury by (1) removing the safety device from the machine, (2) ordering the machine to be cleaned while it was in operation without the safety device, (3) failing to instruct or warn of the dangers and hazards of removing the safety guard, and (4) disregarding complaints about the unsafe condition of the machine that the plaintiff was instructed to clean without a safety guard in place.

The relevant statute for co-employee immunity is section 287.120.1 (as amended 2012) provides that “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.” Thus a co-employee is immune unless the co- employee “engaged in an affirmative act that purposefully and dangerously caused or increased the risk of injury. The Supreme Court held that the plain text of the statute provides that a co-employee is statutorily immune unless the co-employee purposefully and dangerously caused or increased the risk. This means the co-employee must have engaged in conduct with the specific purpose to cause or increase the risk of injury. Mere negligent conduct is not enough to meet the requirement of this exception to statutory immunity.

The takeaway here is that a co-employee will not be personally liable unless there is evidence of a specific intention to increase the risk of injury or death. Without such evidence, a co-employee is immune from liability under section 287.120.1. Thus, personal claims against co-employees for work injuries will be practically nonexistent going forward unless it involves an intentional tort such as assault and battery.