Unreasonable? Missouri rejects a reasonable person standard for determining co-employee liability under Badami's something more test.

• Author: Worth, Richard D.

1. INTRODUCTION

   Missouri's workers' compensation law has changed dramatically since its common law inception. Co-employee liability for injuries caused to fellow employees has shadowed this change. At common law, employers were not liable for injuries to their employees caused by the actions of fellow employees. However, Missouri's adoption of the Workers' Compensation Act in 1926 shifted the burden of liability for work-related injuries from employees to employers and the general public. Although employers now bear the burden of work-related injures to their employees, Missouri has continued to recognize co-employee liability, but only under limited circumstances. For an employee to lose immunity from liability, Missouri courts maintain that the employee must do "something more" than mere negligence. (1) Specifically, the injured employee must show that the co-employee engaged in an affirmative negligent act. (2) In its landmark decision, Badami v. Gaertner, the Missouri Supreme Court provided little guidance for determining what satisfies the something more test, stating simply that courts should decide the issue on a case-by-case basis. (3) Consequently, Badami has created confusion for Missouri courts in applying the something more test, thus leading to inconsistent interpretations.

   Recent Missouri decisions exhibit the ambiguity inherent in the something more test. For instance, the Missouri Courts of Appeals recently began considering the reasonableness of employees' actions when determining liability under the something more test. However, in an effort to better protect injured employees, the Missouri Supreme Court, in Burns v. Smith, explicitly rejected a reasonable person standard. (4) The Missouri Supreme Court's decision, although sympathetic towards injured employees, serves to undermine the primary purpose of Missouri's workers' compensation law. Part II of this article explores the evolution of co-employee liability in Missouri. Part III analyzes the recent development by the Missouri Courts of Appeals of a reasonableness element within the something more test. Finally, Part IV provides arguments both for and against a reasonable person standard. This article ultimately concludes that the Missouri Supreme Court's rejection of the reasonable person standard in Burns is unreasonable because not only is it unjust toward employees who unintentionally cause injury to fellow employees, but it also conflicts with the underlying purpose of Missouri's workers' compensation law.

2. LEGAL BACKGROUND

   Before workers' compensation laws developed, common law principles guided the remedies for work-related injuries caused by co-employees. (5) However, during the beginning of the twentieth century, states began supplanting common law work-related injury rules with workers' compensation statutes. Missouri was no exception. In the mid-1920s, the Missouri legislature adopted a new legal framework for determining the proper remedies for work-related injuries. (6) Specifically, the legislature enacted the Workers' Compensation Act. (7) Recognizing the importance of Missouri's adoption of the Act, an analysis of Missouri's worker's compensation law and its evolution follows.

   1. Co-Employee Liability Before the Workers' Compensation Act

      Prior to the enactment of the Workers' Compensation Act, Missouri employers were not liable for injuries employees suffered due to the negligence of their co-workers. (8) The breadth of employer immunity during this period was relatively unforgiving to employees injured at the workplace. (9) To remedy this problem, courts began recognizing employees in a dual capacity: as both fellow servants and as "vice principals." (10) This distinction created employee liability "for failure to provide a safe work environment, which was previously a non-delegable duty owed to the co-employee by the employer." (11) Significantly, an employee who performed such a duty under the direction of the master/employer was not acting as a fellow servant, but rather "th[e] servant was functioning as the master himself." (12) Hence, when employees breached the duty to provide a safe work environment, courts viewed the employees' breaches not as negligence of fellow servants, but as negligence of masters themselves. (13) Accordingly, failure by employees to provide a safe work environment resulted in liability for the master for injuries caused to co-employees as a result of such failure. (14)

      In contrast, employees were not personally liable merely for failure to fulfill their duty to provide a safe work environment. (15) Rather, courts recognized employee liability only under limited circumstances. (16) Specifically, an agent/employee was liable to co-employees for misfeasance, but not for nonfeasance. (17) An agent committed misfeasance only when that agent "committed an affirmative act in furtherance of [his] duty." (18) As one court noted, the misfeasance-nonfeasance distinction was problematic in that negligent employees incurred no personal liability as long as they did not engage in affirmative negligence. (19) Although the distinction was criticized, Missouri's adoption of workers' compensation laws in the mid-1920s made the misfeasance-nonfeasance meaningless. (20)

   2. Co-Employee Liability After the Workers' Compensation Act

      In an effort to improve upon the common law approach to remedying work-related injury claims, the Missouri Legislature enacted the Workers' Compensation Act in 1926. (21) The legislature's intention was in part to increase efficiency in the workplace by providing a "rapid resolution of employee claims of job-related injury." (22) Maintaining Missouri's policy of placing the loss on the wrongdoer, the Act provides injured employees with a cause of action against fellow employees under limited circumstances. (23) However, ambiguous language in the statute, combined with broad, inconsistent court decisions, has led to unpredictable remedies for employees who sustain work-related injuries due to the negligence of co-employees.

      1. Applicable Missouri Workers' Compensation Law Provisions

         With the enactment of the Workers' Compensation Act in Missouri, the Act became the "exclusive remedy for injury or death in the course and scope of employment." (24) To properly evaluate co-employee liability as provided within the Act, it is important to understand the applicable provisions at issue. Missouri Revised Statute section 287.120, which establishes employer liability, is the statute most frequently relied upon by Missouri courts when determining co-employee liability. (25) The statute provides, in relevant part:

      1. Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of the employee's employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person

         ...

      2. The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee . . . at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter. (26)

         Although the statute does not explicitly prohibit actions against co-employees for work-related injuries, Missouri has interpreted the provision broadly in holding that it does provide co-employees with immunity from liability for their work-related actions except under limited circumstances. (27)

         If such limited circumstances exist, an injured employee may bring suit against a fellow employee under Missouri Revised Statute section 287.150, which provides in pertinent part that "[w]here a third person is liable to the employee or to the dependents, for the injury or death, the employer shall be subrogated to the right of the employee . . . against such third person." (28) Not unlike their construal of section 287.120, the Missouri courts have given section 287.150 a broad interpretation. Missouri has defined "third person" within the meaning of the statute as including co-employees, thus giving injured employees the authority to sue co-workers under the limited circumstances exception to section 287.120. (29)

      2. Judicial Interpretations of Section 287.120--The Something More Test

         After the enactment of the Workers' Compensation Act, the issue of co-employee liability did not reach the appellate level for five years. (30) In 1931, the Missouri Court of Appeals for the Eastern District, in Sylcox v. National Lead Co., reaffirmed Missouri's common law recognition of co-employee liability for misfeasance, stating that "there is nothing in the [Workers'] Compensation Act which destroys such liability, or in any way disturbs the common-law relationship existing between coemployees." (31) Accordingly, Sylcox firmly established that the Act does not provide co-employees with immunity from liability for their work-place misfeasance. (32) For the next fifty years, the scope of co-employee liability established in Sylcox was consistently upheld by Missouri courts. (33)

         However, a 1982 decision by the Missouri Court of Appeals for the first time limited the scope of co-employee liability as provided in Sylcox. (34) Significantly, in State ex rel. Badami v. Gaertner, the Eastern District Court of Appeals created what came to be known as the "something more" test. (35) Badami involved a plaintiff who severed three fingers when the plaintiff's hand became entangled in a shredding machine while on the job. (36) After receiving workers' compensation benefits, the plaintiff brought suit for negligence against the corporate president and the production manager of the plaintiff's company. (37) The issue on appeal was:

         [W]hether a supervisory employee, including a corporate officer, may be held personally liable for injuries...