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Oh-Queso Who's Liable? Eastern District: Mexican Restaurant Employee Can State Claim for Workplace Negligence against Co-Employee

Written by Christian J. Bowling and Brian M. Wacker

Despite recent rulings by the Missouri Supreme Court, the issue of whether an employee may be liable in negligence to a co-employee remains hotly contested in Missouri. Plaintiffs continue to test the limits on what can substantiate such a claim. Recently, the Missouri Eastern District Court of Appeals weighed in on the issue, reversing a lower court ruling dismissing a co-employee's suit for failure to state a claim.  


In Bierman v. Violatte, 2017 WL 582665 (Mo. Ct. App. 2017), Plaintiff and Defendant were co-employees at a local Mexican restaurant. Plaintiff had used an A-frame ladder, which was the only means of access, to enter a lofted area. While Plaintiff was in the loft, Defendant collapsed the ladder, moved it for her own use, and then moved it back. When she placed it back for Plaintiff to step down, Defendant failed to unfold the ladder fully and thus failed to lock it in place. When Plaintiff went to step on the ladder, it collapsed and Plaintiff was injured in her fall to the floor.

Plaintiff sued Defendant for negligently failing to lock the ladder in place upon returning it for Plaintiff's use. The trial court dismissed Plaintiff's suit for failure to state a claim, finding that Plaintiff's allegation failed to establish an "independent duty of care owed by Defendant, which is separate and distinct from their Employer's non-delegable duty to provide a safe workplace."

On appeal, the Appellate Court reversed and remanded, finding that "the plain language of section 287.120 only gives employers immunity against tort claims for work-related injuries and does not afford such immunity to co-employees." Consequently, at the time Plaintiff was injured, she was not precluded from pursuing a common law negligence claim against her co-employee, as long as the facts pled were sufficient to state such a claim.

In analyzing Plaintiff's claim, the Court differentiated between the liability of co-employees and the liability of employers in negligence actions. At common law, employees may be liable to a third person, such as a co-employee, for breaching a legal duty owed independently of a master-servant relationship. In contrast, an employer always owes certain non-delegable duties to all its employees with respect to safety, and is therefore solely liable for any breach of these duties. Accordingly, if a co-employee breaches one of these non-delegable duties, it does not constitute a breach of duty owed independently of the master-servant relationship. These non-delegable duties include:

•· The duty to provide a safe workplace, including a duty to ensure that instrumentalities of the workplace are used safely

•· The duty to provide safe work appliances, tools and equipment

•· The duty to give warning of dangers of which an employee might be reasonably expected to be ignorant of

•· The duty to provide a sufficient number of fellow employees, and

•· The duty to make and enforce rules for the conduct of employees to ensure work is safe.

However, these non-delegable duties are not unlimited. Except in cases where the employer is itself directing the work in hand, its obligation to protect employees does not extend to protecting them from transitory risks which are created by the negligence of a co-employee carrying out the details of that work.

Relying on recent Missouri Supreme Court precedent, Peters v. Wady Indust., 489 S.W.3d 784 (Mo. banc 2016), the Court concluded that, ultimately, whether a co-employee breaches a duty which is separate and distinct from the employer's non-delegable duty to provide a safe workplace is determined by the particular circumstances and facts of each case.

Accordingly, the Court found that Defendant's alleged failure to lock and properly secure the ladder after moving it was not the exercise of due care on her part, and it does not support the inference or demonstrate negligence on the part of the Employer with respect to either tools furnished, place of work or the manner in which the work was being done. Said differently, Plaintiff had sufficiently alleged that her injury resulted from the transitory risks created by a co-employee in carrying out the details of her work, which as alleged was a breach of duty separate and distinct from the employer's non-delegable duty to provide a safe workplace.

The defense litigation attorneys at Herzog Crebs LLP have extensive experience defending employers and employees in claims such as those in Bierman. If you or your business are sued for negligence stemming from a workplace accident, contact the attorneys at Herzog Crebs to discuss how we can best assist you in aggressively defending and resolving these claims.

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