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Employees: Yes, You Can Owe Duties To Your Co-Employees

ABSTRACT: The Missouri Court of Appeals rules that a worker may owe an independent duty of care to a co-worker, which is separate and distinct from her employer's non-delegable duties.

In Bierman v. Violette,the Missouri Court of Appeals for the Eastern District, reestablished that yes, employees, you may owe duties to your co-employees that are separate and distinct from those duties the employer owes to its employees. The Court of Appeals reversed trial court’s dismissal of a negligence claim against a co-worker, citing this distinction. 

Plaintiff Bierman and Defendant Violette were co-workers at a bar and grill, who were working together when the Plaintiff was injured.  Specifically, Plaintiff alleged that she was injured after entering “a lofted space accessible only through the use of a twelve-foot, A-frame ladder” that was locked into place, which the Defendant knew or should have known the Plaintiff was doing. Then, while the Plaintiff was still within the lofted space, the Defendant unlocked, closed and moved the ladder for a time and then returned the ladder to the place where it was accessible again to Plaintiff.   Plaintiff alleged that the Defendant failed to properly secure and lock the ladder in its previous position when it was moved, causing it to collapse as Plaintiff descended down the ladder.  This resulted in injuries to Plaintiff after she fell, struck a concrete countertop and landed on the ground.

The Defendant argued that the claim against her was legally insufficient, because Plaintiff’s allegations did not “establish an independent duty of care owed by Defendant, which is separate and distinct from their Employer’s non-delegable duty to provide a safe workspace.”  The trial court agreed and dismissed the Petition, and Plaintiff appealed.  The Court of Appeals postponed oral argument, because then pending before the Missouri Supreme Court were two cases - Peters v. Wady Industries, Inc. and Parr v. Breeden, both of which involved the legal standards for pleading co-employee liability. 

In both Peters and Parr, the Missouri Supreme Court affirmed the decisions in favor of the defendant/co-employees where the plaintiffs failed to establish that the defendants owed duties to the plaintiffs that were separate and distinct from the respective employer’s nondelegable duty to provide a safe workplace. Although the Peters and Parr cases were, on their face, unfavorable to Plaintiff Bierman, both Plaintiff Bierman and the Court of Appeals relied on aspects of the Missouri Supreme Court decisions to differentiate and ultimately reverse the trial court’s decision in favor of the Defendant/co-employee; thus, resulting in a different outcome that the Peters and Parr decisions. 

The Bierman Court, citing Peters and Parr, first noted that the 2005 amendments to the Workers’ Compensation Law gave immunity against tort claims for work-related injuries only to employers; thus, co-employees are not immune and remain at risk for such liability (i.e. plaintiff can pursue a common law negligence claim against her co-employees if her allegations are adequately pled).

In Missouri, a plaintiff asserting allegations of negligence must establish that:

  1.  the defendant had a duty to the plaintiff;
  2. the defendant failed to perform that duty; and
  3. the defendant’s breach was the proximate cause of the plaintiff’s injury.

In Bierman, the Court of Appeals analyzed whether the first element, “duty,” had been adequately pled.  This question turned on what Missouri recognized as a duty owed by a co-employee to another at common law, versus what duty is owed by an employer to its employees.  “An employee is liable to a third person, including a co-employee, for breaching a legal duty owed independently of any master-servant relationship.” An employer, on the other hand, owes its employees certain non-delegable duties with respect to safety and the employer, by itself, is liable for the breach of such a non-delegable duty. Thus, a co-employee cannot be held liable for breach of an employer’s non-delegable duty, which the employer alone owes.  The duty owed by the co-employee must be separate and distinct from that of the employer.

What are an employer’s non-delegable duties, which cannot be separately imposed upon a co-employee?  The Bierman court set forth the following, based on Peters and Parr:

  1. the duty to provide a safe workplace, including a duty to ensure that instrumentalities of the workplace are used safely;
  2. the duty to provide safe work appliances, tools, and equipment;
  3. the duty to give warning of dangers of which an employee might be reasonably expected to be ignorant of;
  4. the duty to provide a sufficient number of fellow employees; and
  5. the duty to make and enforce rules for the conduct of employees to ensure the work is safe.

When does an employer not have a duty to protect its employees and, therefore, when can a co-employee’s duty(ies) arise?  As set forth in Bierman, “[e]xcept in the cases in which the employer is itself directing the work in hand, its obligation to protect its employees does not extend to protecting them from the transitory risks which are created by the negligence of a co-employee carrying out the details of that work.”  In other words, the distinction revolves around how the co-employee is carrying out the details of his or her own work.  For example, is a co-employee misusing equipment, such as a hose, where the co-employee uses the equipment in a manner that is not approved by the employer and causes injury to a co-employee?  Or is the employer allowing defective equipment to remain on the property that results in injury to its employees?).

The Bierman Court determined that the Plaintiff’s injury was alleged to have occurred because of the Defendant/co-employee’s negligent use and manner of handling the ladder (i.e. how the co-employee was carrying out the details of his or her own work) and not because the employer allowed a defective product to remain in use on the property (i.e. the workplace was not unsafe).  As a result, the duty alleged in Plaintiff’s Petition was found to be a separate and distinct duty owed by the Defendant/co-employee from that of an employer’s non-delegable duties to provide a safe workplace.  The Bierman Court further held that the negligence of the Defendant did not need to be the sole cause of plaintiff’s injury, “as long as it is one of the efficient causes thereof, without which injury would not have resulted.”  Therefore, the Court of Appeals reversed and remanded the case back to the trial Court, allowing Plaintiff to attempt to prove her negligence claim against her co-worker.

The Bierman case’s final outcome is presently unknown.  However, this case does teach some simple, but important lessons for plaintiffs, defendants, and those in the business world:

  1. When a workplace negligence claim is asserted, language matters. The wording of a claim by a plaintiff, or a defense by a defendant, needs to adhere to the case law recently articulated by the Missouri appellate courts.
  2. Workplace safety is not just the employer’s concern.  Co-workers must pay attention and take reasonable, precautionary action to ensure the safety of those around them.