Have Your Cake and Eat It Too (Unless You Are Danny Brock): The Irony of Missouri's Co-Employee Liability Statute.

• Author: Harrington, Taylor M.

1. INTRODUCTION

   April 30, 2013, started like any other day for Danny Brock. (1) Like each day before, he woke up, drove to work, and clocked in. (2) A few hours later, he looked down to see his thumb completely detached from his hand, barely hanging on by the skin. (3) When the injury occurred, Brock was following direct orders from his supervisor, Mark Edwards. (4) Citing safety concerns, Brock opposed the request. (5) But Edwards demanded that Brock proceed. (6) Fearing loss of employment, Brock did as he was told. (7) As predicted, injury ensued. (8) Within seconds, Brock's hand was crushed. (9) Brock underwent three surgeries and sustained permanent nerve and structural damage to his hand. (10) Today, Brock still suffers from chronic pain and is permanently restricted from doing any heavy labor. (11)

   Day in and day out, Missourians like Brock attend work with the reasonable expectation of a safe working environment. On occasion, those standards are not realized. By no fault of the employer, an employee may be injured by the actions of a co-employee. Although the Missouri Workers' Compensation Act (the "Act") was adopted to serve as the exclusive remedy for workplace injuries, it does not operate as an exclusive remedy when injuries arise from the affirmative negligent acts of a co-employee. (12) Section 287.120.1 of the Revised Missouri Statutes expressly states this exception. (13) The statute, however, is riddled with confusing and inherently contradictory language. (14)

   In Brock v. Dunne, the Supreme Court of Missouri interpreted section 287.120.1 for the first time. (15) Claiming to adhere to principles of strict construction, the court held that section 287.120.1 requires a plaintiff to prove that the co-employee acted both negligently (meaning with heedlessness) and purposefully (meaning with a conscious object to injure the plaintiff). (16) A first-year law student immediately recognizes the clear contradiction. Brock's holding highlights the irony of the statute's plain language and poses a paradoxical question about the statute's legislative intent: did the General Assembly really expect a co-employee to avoid liability only if they acted both negligently and purposefully? Or did the General Assembly, more logically, seek to extend co-employee immunity unless the co-employee engaged in an act that constituted affirmative negligence, as opposed to mere passive negligence? Had the Brock court determined the latter, the court would have rendered meaningful section 287.120.1 in its entirety, in accord with its duty to strictly construe the Act. However, the Supreme Court of Missouri expressly declined to adopt such a holding, exasperating the statute's conflicting language and violating its duty to strictly construe section 287.120.1. (17)

   Part II of this Note first explores the facts and holding of Brock v. Dunne. Next, Part III analyzes the legal background surrounding the general principles of statutory interpretation, the Missouri Workers' Compensation Act, and the history of co-employee liability in Missouri. Part IV then discusses the majority and dissenting opinions of the Supreme Court of Missouri in Brock. Finally, Part V analyzes the soundness of the majority's opinion, as applicable under principles of strict construction. This Note argues that the Supreme Court of Missouri failed to apply common principles of strict construction when interpreting Missouri Revised Statute section 287.120.1 and suggests that policy considerations provide one possibility for the court's deviation from the rule. This Note concludes, however, that the court's potential policy considerations are not viable rationales for the court's departure from well-established principles of strict construction.

2. FACTS AND HOLDING

   In April 2013, appellee Danny Brock ("Brock") sustained an injury during the course of his employment at JMC Manufacturing ("JMC"). (18) At the time of the injury, Brock worked on a lamination line under the supervision of Mark Edwards ("Edwards"). (19) Work on the lamination line required employees to use a high-pressure laminating machine manufactured by Black Bros. Co. (20) The machine's design created a pinch point, where objects could easily become stuck if the machine's safety guard was removed. (21) JMC employees often needed to detach the guard to remove excess glue that built up on the bottom rollers. (22)

   On the day of the injury, Brock, Edwards, and two other employees used the laminating machine to apply glue to pieces of particle board. (23) While feeding the boards through the machine, Edwards noticed that glue was dripping onto the bottom rollers. (24) Edwards removed the safety guard, leaving the pinch point exposed, and instructed Brock to clean the rollers. (25) At the time of Edward's request, the machine was still on. (26) Brock expressed concerns about the safety of cleaning the machine in this state. (27) Upon Edwards' dismissal of this concern, Brock followed Edwards' instructions and cleaned the rollers. (28) Using a wet towel, Brock squeezed water onto the rollers and cleaned them as they turned. (29) As the rollers turned, the towel got caught and pulled Brock's hand into the pinch point, crushing it. (30) After three surgeries, a doctor informed Brock that he had sustained irreparable damage to his hand and that he would be subject to chronic pain. (31) Because of the injury, Brock is permanently precluded from doing the type of work he performed at JMC. (32)

   Following the injury, Brock applied for and received workers' compensation benefits. (33) Brock also filed a negligence suit against Edwards, pursuant to Missouri Revised Statute section 287.120.1. (34) Edwards died before trial and Peter Dunne was substituted as a defendant ad litem. (35) Brock claimed that Edwards negligently caused Brock's injuries when Edwards: (1) removed the safety guard from the machine; (2) ordered the machine to be cleaned while the machine was in operation and the guard was removed; (3) failed to warn Brock of the machine's dangers when the guard was removed, despite being aware of such; and (4) disregarded complaints as to the unsafe condition of the machine and instructed Brock to clean it without the safety guard. (36)

   At trial, Dunne filed a motion for a directed verdict. (37) The court overruled the motion. (38) Subsequently, the jury returned a $1.06 million verdict in Brock's favor. (39) Dunne then filed a motion for judgment notwithstanding the verdict, which was similarly overruled. (40) Dunne appealed, and the Missouri Court of Appeals for the Eastern District affirmed. (41) The Supreme Court of Missouri granted transfer. (42) As a matter of first impression, the court held that section 287.120.1 requires a defendant to (1) engage in "affirmative conduct that constitutes at least negligence," and (2) "act with the conscious object of increasing the risk of injury to a plaintiff or someone else." (43) Applying this interpretation to the facts presented by Brock, the court concluded that while Brock made a submissible case of common law negligence, he did not present sufficient evidence that Edwards acted with the conscious object to increase the risk of injury toward Brock. (44) Thus, the court held that Brock failed to prove his claim of negligence under section 287.120.1 and reversed the lower court's judgment. (45)

3. LEGAL BACKGROUND

   This Section begins with a brief discussion of the guiding principles, theories, and tools of statutory interpretation commonly employed by the judiciary. It then gives an overview of the history and enactment of the Missouri Workers' Compensation Act, the rationale behind the Act's adoption, the theory of the Act as an exclusive remedy, and the statutory interpretation requirements under the Act. The Section concludes with a discussion of the history of co-employee liability for workplace injuries at common law and under the Act.

   1. Guiding Principles of Statutory Interpretation and Strict Construction

      In the 1803 case of Marbury v. Madison, Chief Justice John Marshall stated that "[i]t is emphatically the province and duty of the judicial department to say what the law is." (46) When it comes to statutory interpretation, however, the court's role in "saying what the law is" often plays second fiddle to the General Assembly's intent as drafters of the law. (47) For decades, judges have disagreed on how to best carry out legislative intent. (48) Today, there are two predominant theories of statutory interpretation: purposivism and textualism. (49)

      Purposivists believe that judges should construe statutes in accordance with the legislature's intended purpose. (50) As such, purposivists first ask: what problem did the legislature intend to solve by enacting this statute? (51) The second question then contemplates whether the court's proposed interpretation fits that purpose. (52) In contrast, textualists commonly focus exclusively on the text. (53) Textualists believe that legislative purpose can, and should be, evident in the text itself. (54) Textualism relies on the assumption that a court should look for statutory meaning as an "objectively reasonable user of the words" would. (55) Most judges, however, do not identify as pure purposivists or textualists. (56) Rather, judges often employ elements from both theories. (57) In doing so, courts have adopted a number of interpretive tools that reflect this mixed-bag approach to statutory interpretation. (58) The "plain meaning" rule, a canon of textualism and strict construction, is often a court's first stop on its duty for statutory interpretation, regardless of ideological orientation. (59)

      The plain, or ordinary, meaning rule assumes that a word used in a statute reflects its "popular meaning," as commonly understood by a reasonable person. (60) This is true unless there is evidence that the term has "specialized meaning in the law." (61) When applying the plain meaning rule, judges...