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Home / Opinions / Courts / Missouri Supreme Court / Negligence : Co-Employee Liability – Work Comp Exclusivity – ‘Something More’ Test

Negligence : Co-Employee Liability – Work Comp Exclusivity – ‘Something More’ Test

Where plaintiff and his wife brought a personal injury claim against the plaintiff’s co-employee supervisor after the plaintiff was injured in a 2008 work-related accident allegedly caused by the supervisor’s negligence, at the time of the accident, Missouri workers’ compensation law did not provide immunity to co-employees for common law negligence for injuries occurring before the 2012 amendment, but the trial court’s dismissal of the claim is affirmed because the plaintiffs failed to allege that the supervisor owed any duty of care separate from the employer’s duty to provide a safe workplace, and the court holds that to the extent the “something more” test required affirmative conduct for co-employee liability and purposeful, inherently dangerous conduct under State ex rel. Taylor v. Wallace, the test conflicts with common law co-employee liability.


Leeper v. Asmus

Concurring opinion by Fischer, J.: “I concur with the result reached in the principal opinion, but would overrule the court of appeals’ decision in Leeper v. Asmus, 440 S.W.3d 478 (Mo. App. 2014), and continue to apply the ‘something more’ test consistent with its well-established meaning in this Court….

“However, as recognized by the principal opinion, its holding relevant to the ‘something more’ test is limited to a finite number of cases as it applies only to cases arising prior to the 2012 amendment to § 287.120.1, an amendment that effectively codified the ‘something more’ test as previously applied by this Court. Because § 287.120.1 governs co-employee liability cases now and going forward, I decline to fully expound upon the differences I have with the principal opinion.”


Well-established rule

Concurring opinion by Wilson, J.: “I take the majority opinion as saying that – even though an injured worker does not need to show fault on the part of the employer to recover under the statutory workers’ compensation scheme – an injured worker’s sole remedy is workers’ compensation and may not recover from a co-employee in tort when the injury results from a breach of the employer’s non-delegable duties (among others) to provide a safe manner or place for work to be done. On that, I concur.

“But, to the extent that the majority opinion suggests that a co-employee may be liable to an injured worker in tort regardless of whether the co-employee commits an affirmative negligent act or merely fails to act, I am concerned the majority goes too far. Resolution of this case does not require abandoning the well-established rule that a co-employee cannot be liable to an injured co-worker in tort unless the co-employee commits an affirmative negligent act, and I doubt that this rule will fail to resolve any of the limited universe of these cases arising before the 2012 amendment to section 287.120.1, RSMo.”


Factual question

Dissenting opinion by Teitelman, J.: “Before a court can determine the legal question of whether a co-employee owes a duty in negligence at common law, the court must assess the facts and circumstances of the employment at issue to determine the inherently factual question of whether the workplace injury was caused by the employer’s breach of a nondelegable duty or by the co-employee’s negligence in carrying out the details of the work directed by the employer. The principal opinion discards Leeper, but Leeper’s explanation of the common law is convincing and supported directly by the language of this Court’s opinions.”

Judgment is affirmed.

Peters v. Wady Industries, Inc. (MLW No. 69272/Case No. SC94442 – 35 pages) (Supreme Court of Missouri, Breckenridge, J.; Stith, Draper and Russell, JJ., concur; Fischer, J., concurs in result in separate opinion filed; Wilson, J., concurs in result in separate opinion filed; Teitelman, J., dissents in separate opinion filed) Appealed from circuit court, St. Charles County, Cunningham, J. (Eric D. Holland, Gerard B. Schneller, Steven L. Groves and Patrick R. Dowd, St. Louis, and J. Mark Kell, St. Peters, for appellants) (Teresa M. Young, John P. Rahoy and Kelly M. Brunie, St. Louis, for respondent).

Read the full text of this opinion. (PDF)