Trapped: Missouri Legislature seeks to close workers' compensation loophole with some co-employees still inside.

• Author: Cornwell, Alexander

Robinson v. Hooker, 323 S.W.3d 418 (Mo. App. W.D. 2010), transfer denied, No. SC91216, 2010 Mo. LEXIS 291 (2010) (Mo. Nov. 16, 2010).

"Currently, all Missouri workers are at risk of being sued and held liable for honest accidents at work and that is simply unfair. ..." (1)

1. Introduction

   Century-old judicial precedent in Missouri clearly establishes that an injured worker may not bring a personal injury action against his or her co-employee for negligently failing to provide a safe workplace. (2) Providing a safe working environment is a non-delegable duty of the employer, so when an employee performs in the employer's stead, the law treats the employee as stepping in the shoes of the employer. (3)

   When Missouri passed its workers' compensation statute in 1926, employers were granted immunity from civil actions their employees brought in exchange for providing guaranteed compensation to injured employees, irrespective of negligence. (4) The legislature read the common law treatment of an employer's non-delegable duty into the Act, and co-employees remained immune from civil actions insofar as a compensable injury occurred as a result of their negligent performance of the employer's duty. (5) However, in Missouri, this is the only instance where a co-employee is granted immunity from civil suit. (6) Thus, if a worker is injured by a co-employee's action that constitutes "something more" than a mere failure to provide a safe workplace, a civil action will lie. (7) In this respect, Missouri is in the distinct minority of jurisdictions that allow injured workers to bring personal negligence actions against co-employees. (8)

   It is necessary to hold co-employees immune for a failure to correctly carry out the employer's duty to provide a safe work environment because employers, under many circumstances, remain obligated to indemnify their employees for judgments rendered against them. (9) If an employee can be sued for negligently failing to perform the employer's duty and the employer then has to pay damages for injuries resulting from a breach of that duty, the employer would in effect be paying civil damages for its own breach. (10) Since workers' compensation is intended to grant employers immunity under those exact circumstances, allowing such claims is in direct contravention of the whole Act. (11)

   As a result of the Western District Court of Appeals' decision in Robinson v. Hooker, co-employee liability in Missouri has changed from being somewhat permissive to utterly submissive. (12) The court, for the first time, focused entirely on the definition of "employer" in the workers' compensation statute and found that employees are not included. (13) By doing so, the court destroyed co-employee immunity in every context, and employees are now amenable to civil suit even if the breach was that of an employer's non-delegable duty. (14) As a result, Missouri is currently the only state in the entire nation to allow a civil action against a co-employee who negligently performs the employer's duty to provide a safe workplace. (15) The court's seismic doctrinal shift is matched only by its immense practical consequences.

   This Note is a primer for Missouri practitioners to better understand the practical effect Robinson has had on co-employee liability in Missouri. Part II provides the unassuming factual background giving rise to Robinson's substantial departure from previous case law. To understand the context in which the court decided Robinson, Part III outlines Missouri's historical approach to co-employee liability and the recent statutory amendments mandating strict construction of the workers' compensation act that prompted the court's holding. In response, Part IV considers whether that extensive departure was warranted. After illustrating that the holding is not congruent with legislative intent and historical context, this Note will examine the pragmatic effect of Robinson. Lastly, this Note will analyze whether Robinson--monumental in its own right--is indicative of a larger problem with workers' compensation in Missouri ushered in by the 2005 amendments requiring strict interpretation of the Act.

2. Facts and Holding

   In October 2007, two co-workers, Richard Robinson and Cheryl Hooker, were performing their duties as street cleaners in Kansas City, Missouri, when Hooker lost her grip on a high pressure hose used to perform her work-related tasks. (16) The hose swung wildly, struck Robinson in his eye, and caused permanent blindness. (17) In response to the eye injury, Robinson filed a workers' compensation claim against his employer, the City of Kansas City. (18) on January 30, 2009, a settlement was reached and approved by a judge within the Division of Workers' Compensation. (19)

   After Robinson received an award for his injuries by way of workers' compensation benefits, he brought a civil claim against his co-worker, Hooker, in Jackson County Circuit Court. (20) In his petition, Robinson alleged that his eye injury was the result of Hooker's negligent operation of the high pressure hose. (21) Hooker filed a motion to dismiss Robinson's petition, declaring that the court lacked subject matter jurisdiction to hear the action. (22) Specifically, Hooker claimed the court lacked jurisdiction because Hooker shared immunity with her employer under workers' compensation law. (23) In addition, she claimed that res judicata and estoppel barred Robinson's cause of action because the prior settlement award he received from the Department of Labor and Industrial Relations arose out of the same alleged incident and injury. (24) Further, Hooker relied on the doctrine of official immunity and stated that she could not be liable because the injury occurred while she was a public official performing a discretionary act. (25) The trial court agreed with Hooker and granted her motion to dismiss without explanation. (26) Thereafter, Robinson appealed the dismissal of his petition. (27)

   The Missouri Court of Appeals for the Western District found that the circuit court erred in granting the defendant's motion to dismiss. (28) With respect to defendant Hooker's claim that the Workers' Compensation Act bars civil claims against co-employees, the court held that the judicial extension of co-employee liability was no longer appropriate after a 2005 amendment to the Act requiring courts to use strict construction in applying the provisions of the workers' compensation statute. (29) The court held immunity only applies to employers under the Act, and co-employees, strictly interpreted, do not fall within the statutory definition of an employer. (30) The court held that the workers' compensation statute does not preclude an injured employee from bringing an action in tort against a co-employee, and therefore, Robinson's claim was not within the exclusive jurisdiction of the Division of Workers' Compensation. (31)

3. Legal Background

   1. Co-Employee Liability Pre-Dating Workers' Compensation

      Prior to the passage of Missouri's Workers' Compensation Act in 1926, employees who sustained an injury at work were severely limited in their ability to recover from their employer. (32) An injured employee could bring a common law negligence action against his employer; however, employers were minimally obligated to exercise reasonable care. (33) Employees were further limited from obtaining redress by the "unholy trinity" of common law defenses. (34) one such defense included the fellow-servant exception. (35) Under this common law defense, employers were absolved from liability to employees "for injuries incurred or suffered solely as the result of the negligence, carelessness, or misconduct of others who are in the service of the employer and who are engaged in the same common or general employment as the injured employee." (36) It represented an exception to the well-established rule of respondeat superior, whereby employers are liable for negligent acts or omissions of their employees if committed within the scope of their employment. (37) The converse of the employer's ability to avoid liability is that an injured employee could bring an action against a co-employee. (38)

      Since employers were practically insulated from any adverse judgments for workplace injuries, (39) Missouri courts began decreasing the level of employer protection. Courts utilized the dual-capacity doctrine to find that an employee could serve concurrently as both a servant (employee) and a vice-principal of the master (employer). (40) The doctrine provided that the employer owed a duty to exercise ordinary care in furnishing his or her employee a reasonably safe place to work. (41) In addition, this duty could not be delegated to a co-employee in order to relieve the employer from liability for the negligent performance by that co-employee. (42) When an employer had an employee perform an act that was non-delegable, the employee himself was acting merely as a conduit of the employer rather than acting in his capacity as a servant. (43) Therefore, when a co-employee negligently failed to provide a safe workplace and another employee was injured as a result thereof, liability attached to the employer and not the co-employee. (44)

      The distinction between employer liability and co-employee liability was further explained by distinguishing between a co-employee's acts that constituted nonfeasance versus those that were misfeasance. (45) A co-employee was held personally liable to a fellow employee who sustained an injury resulting from the co-employee's misfeasance but not his nonfeasance. (46) Nonfeasance is defined as "the omission on the part of the agent to perform a duty which he owes to the principal by virtue of the relationship existing between them." (47) If a fellow employee's injury arose from the negligent non-performance of this duty, a co-employee was not held liable. (48) In contrast, misfeasance is found in instances where an employee "has...