§10.4 Employer’s Nondelegable Duty to Provide a Safe Workplace: “something More” and “transitory Risk” Analysis

• Library: Workers' Compensation Law Deskbook Vol. 2 (2020 Ed.)

2. (§10.4) Employer’s Nondelegable Duty to Provide a Safe Workplace: “Something More” and “Transitory Risk” Analysis

Because of the evolution of § 287.120, now RSMo Supp. 2018, co-employee immunity has received an increasing amount of attention by the appellate courts in Missouri. The court in Memsv. Labruyere, ED106319, 2019 WL 2182444 (Mo. App. E.D. May 21, 2019), does an excellent job of discussing the history of the employer’s nondelegable duty to provide a safe workplace and co-employee liability under the “something more” test, in the context of the 2012 amendment, and the meaning of “an affirmative negligent act that purposely and dangerously caused or increased the risk of injury.” Mems, 2019 WL 2182444, at *9–12. The “affirmative act” must be “misfeasance” rather than a failure to act, involves only “ordinary” negligence rather than “inherently” dangerous activity, and must be purposeful only in the sense that “the defendant meant to do the physical act in question,” meaning the physical act cannot be done accidentally or inadvertently. Id. There is no requirement that the act be done with the intent to harm.

Ultimately, the act must present a “transitory risk” that extends beyond “carrying out the employer’s nondelegable duty to provide a safe workplace.” Id. at *13–14. The 2012 amendment “did not create a cause of action or abrogate the common law—it merely provided that employees were released from ‘all other liability’ except when they engaged in” conduct that created a “transitory risk,” i.e., an unreasonable risk not foreseeable to the employer. Id. at 14–15. The employer’s nondelegable duty to provide a safe workplace lives on. Id. at 14.

Note: Mems was ordered transferred to the Supreme Court of Missouri on September 3, 2019; its disposition there remains unknown at the time of publication of this deskbook.

Older cases are illuminating but should be read keeping in mind that none were written before the 2012 amendment. Recent decisions are discussed below because they are informative in understanding the 2012 amendment in the context of the common-law nondelegable duty to keep a safe workplace. The author notes that the recent trend in the Supreme Court of Missouri has been to extend immunity to co-employees, and readers should contemplate the triumvirate of Conner v. Ogletree, 542 S.W.3d 315 (Mo. banc 2018); Fogerty v. Armstrong, 541 S.W.3d 544 (Mo. banc 2018); and McComb v. Norfus, 541 S.W.3d 550 (Mo. banc 2018), when assessing the...