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Missouri Lawyers Awards 2022: Brian R. Shank

Evans & Dixon, St. Louis

Brian Shank doesn’t mind that the Missouri Supreme Court took a record amount of time to resolve the first case he ever argued there.

For one thing, it meant that the May 2019 argument took place prior to the COVID-19 pandemic, allowing the factually simple but legally complex case to be argued in person.

For another, it meant that his father, John Shank, an attorney in Kansas City in whose footsteps he followed, got to hear the argument before he died later that year.

“It means a lot that he was able to listen in and watch this case from afar,” Shank said. “I know he’d be proud.”

Shank was the prevailing attorney in Brock v. Dunne, an appeal of a $1.05 million verdict for a worker who alleged that a co-worker was personally responsible for an injury that crushed his left thumb.

The Supreme Court’s 4-2 ruling last November held that plaintiff Danny Brock did not have a cause of action against his former supervisor, who had removed a machine’s safety guard and ordered Brock to clean it while the machine was still in operation. The ruling came two and a half years after the oral argument, the longest such gap in modern Supreme Court history.

“I got calls from lawyers all over the state, some of them saying ‘Did I miss the decision? Is it really still pending?’” Shank said.

The opinion is the latest chapter in a long-running dispute over the shape of Missouri’s workers’ compensation laws, which generally require claims involving on-the-job injuries to be handled exclusively through the state workers’ compensation system no matter who is at fault.  State lawmakers overhauled those laws in 2005, requiring courts to strictly construe the statutory language.

Subsequent court rulings found that, as a result of that strict construction, prior decisions that had extended employer’s immunity from civil suits to the employees who caused the injury no longer applied. That meant that injured workers could file civil suits against those employees.

Lawmakers reacted in 2012 with a law that restored that immunity unless the employee “engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.” Brock’s on-the-job injury in 2013 was the first case tried under that statute.

Shank second-chaired the trial and led the appeal after the lead partner retired. His challenge was to help the court interpret a “unique statute” in light of a recent series of Supreme Court cases that had analyzed — and ultimately rejected — co-employee liability cases that occurred before the statute was written.

“For us, the guiding light was that the legislature intended to raise the bar, to make co-employee claims fewer and farther between, rather than the opposite,” Shank said.

The court’s majority agreed, writing that Brock’s injury was due to an accident rather than the “deliberate and deviant actions” of a co-worker who had intentionally increased the risk of injury. The ruling sets a high bar for claims against co-employees, ensuring that most injuries that are caused by an employee’s negligence will be handled through the workers’ compensation system.

Shank said the opinion offers important guidance for any similar cases that might arise in the future.

“Certainly, there will be issues and fact patterns to discuss in the future, but I think we got a strong answer to the questions we had,” he said.

Missouri Lawyers Awards 2022