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Oct 4, 2016

Employer's Non-Delegable Duties and Co-Employee Liability

ABSTRACT: Employees acting negligently within the scope of employment are not granted immunity under the Worker's Compensation Act; they remain liable if plaintiff establishes that a co-employee breached a personal duty of care.

In June 2016, the Missouri Supreme Court issued its opinions in Peters v. Wady Indus., Inc. and Parr v. Breeden, holding that co-employees may be liable at common law for injuries caused to fellow co-employees by negligent actions if the plaintiff-employee shows that the defendant-employee breached a personal duty of care separate from the employer’s non-delegable duty to provide a safe workplace. In August 2016, the Missouri Court of Appeals for the Eastern District applied Peters and Parr to Fowler v. Phillips, a co-employee liability case involving plaintiff’s claim for injuries sustained as a result of defendant’s alleged reckless driving in the Avis Budget Group, Inc. car wash and parking lot. 

An employer has non-delegable duties for which it always remains liable, including (1) the duty to provide a safe workplace; (2) the duty to provide safe appliances, tools, and equipment; (3) the duty warn of dangers for which an employee might reasonably be expected to remain in ignorance; (4) the duty to provide a sufficient number of suitable co-employees; and (5) the duty to promulgate and enforce rules for the conduct of employees to ensure workplace safety.  If plaintiff establishes that a defendant/co-employee’s negligent or reckless act falls outside the employer’s non-delegable duties, the co-employee may be liable, regardless of whether he or she was performing his or her job when the injury occurred. 

In Fowler, plaintiff, who was struck and seriously injured by an automobile, alleged co-employee liability for defendant Phillips, who acted recklessly when she failed to keep a careful lookout, failed to yield the right of way, and violated traffic signals while driving the employer’s car on the employer’s parking lot.  Applying Peters and Parr, the Eastern District held that plaintiff’s allegations charged defendant with actions outside the employer’s non-delegable duties.  Therefore, the trial court’s grant of summary judgment was improper.  The case was remanded for a determination as to whether plaintiff’s allegations were supported by sufficient evidence for a finding of co-employee liability. 

This case is currently on remand to the district court, and we will monitor to provide updates.