Missouri: Employee May Sue Co-Employee For Negligent Operation of Employer’s Forklift

A Missouri appellate court held an employee could maintain a tort action against a co-employee who was allegedly negligent in the operation of the employer’s forklift; the exclusive remedy provisions of the state’s workers’ compensation law did not bar his civil action. Under Missouri’s narrow co-employee immunity rule, an employee may be liable at common law for injuries to a co-employee caused by his or her negligent actions if the plaintiff demonstrates that the defendant violated a personal duty of care separate from the employer’s duty to provide a safe workplace. The appellate court acknowledged that in most instances, when the injuries result from the place of work or the employer’s tools, directions, or standard operating procedures, the injury falls within the employer’s non-delegable duty to provide a safe workplace and the co-employee enjoys immunity. Here, however, plaintiff alleged the defendant co-employee had a duty to operate the forklift in a reasonably safe manner and that the defendant breached this duty by lowering the forks without taking any steps to warn or protect the plaintiff from being impacted by the forks. The court said this was not an allegation of a violation of employer’s non-delegable duty to provide a safe work environment. Plaintiff’s tort action could proceed.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Fogerty v. Armstrong, 2016 Mo. App. LEXIS 925 (Sept. 20, 2016)

See generally Larson’s Workers’ Compensation Law, § 111.03.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law