Case Review: Workers' Compensation vs. Personal Injury Suit

The Missouri Supreme Court, sitting en banc, recently ruled on whether an employee can sue a co-employee for injuries sustained as a result of the co-employee's negligent act.  Here, the plaintiff was employed as a driver for the employer.  The defendant was the president of the company and the plaintiff's supervisor.  Plaintiff was injured when a water pressure tank on the side of the company truck exploded and threw him to the ground.  The trial court ruling allowed plaintiff to sue the defendant personally and outside of the workers' compensation regulations.  The Supreme Court stated that section 287.120 does not explicitly prevent the plaintiff from suing his co-employee but that the Missouri courts have ruled to extend the employer's scope of immunity from liability to a fellow employee except in limited circumstances.  These limited circumstances require that there be an affirmative negligent act outside the scope of an employer's responsibility to provide a safe workplace (the "something more" test).  This was described to be "an affirmative act that creates additional danger beyond that normally faced in the job-specific work environment."  The court refused to adopt a reasonable person standard in this test.  Under the circumstances of this case the Supreme Court found that the evidence was substantial to find that the defendant had negligently welded the rusted pressurized water tank and that he directed the plaintiff to "run it till it blows;"   that this satisfied the "something more" test; and that this constituted an affirmatively negligent act by the defendant in creating an additional danger beyond what plaintiff normally faced in his job-specific environment.  The court upheld the trial court's ruling.

Source:  Burns v. Smith, SC87789, (Mo. banc 02/13/2007)