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Gunnett v. Girardier Building and Realty Co.3/19/2002
Through the vehicle of this appeal, we have been asked to offer definitive guidance on a question that has long vexed Missouri judges and legal commentators: does the immunity afforded by the workers' compensation law shield a co-employee from a suit by his fellow worker?
Today we offer our answer: it depends.
A fact-dependent inquiry must be undertaken to determine whether liability may be imposed on the co-employee. This necessity flows from the intended scope of the immunity to be afforded by the workers' compensation law. A historical review of workers' compensation law clarifies the point.
Following in the steps of reform in western Europe at the end of the nineteenth century, most notably in Germany and England, various state legislatures began to enact workers' compensation legislation in the early 1900s. See 1 A. Larson, Workmen's Compensation Law, section 5.20 (1998). Though there were initial constitutional challenges and setbacks, enactment of workers' compensation laws spread swiftly across the country; by 1920, all but eight states had adopted compensation acts. 1 A. Larson, Workmen's Compensation Law, sections 5.20 and 5.30 (1998). Missouri followed in 1925. Prior to the enactment of workers' compensation laws, an employee's only hope for redress for injuries sustained on the job was at common law. See E. Blair, Reference Guide to Workmen's Compensation Law, section 1:00 (1968).
However, the employee was met with what has been described as the "unholy trinity" or the "wicked sisters" of common-law defenses: assumption of risk, contributory negligence and the fellow-servant doctrine. See W. Prosser, Law of Torts, section 80 at 526-7 (4th ed. 1971); W. Keeton, Prosser and Keeton on Torts, section 80 at 573 (5th edition, 1984); See also Larson, supra section 4.30. Recoveries by injured workers were few and far between; it has been estimated that between 70 and 94 percent of injured workers who sought to recover for their physical injuries received nothing, leaving the burden of the injury upon the injured worker. See Todd v. Goostree, 493 S.W.2d 411, 416 n.2 (Mo.App. 1973)(noting that of the 50,000 accidents reported in Missouri in 1921, only ten percent received any compensation.); Blair, supra section 1:00; Keeton, supra section 80 at 572; Larson, supra section 4.50.
Workers' compensation statutes were enacted to ameliorate these harsh realities. See Todd, 493 S.W.2d at 416; Blair, supra section 1:00; Larson, supra section 5.20. As Larson notes, the necessity for workers' compensation legislation arose out of the sharp increase in industrial accidents accompanying the rise of the factory system and the simultaneous decrease in the employee's common-law remedies for his injuries. Larson, supra section 4.00. Workers' compensation legislation was based on certain foundational principles to provide employees with rapid, definite and certain compensation for workplace injuries, and to place the burden of such losses on the industry. Todd, 493 S.W.2d at 416; Bethel v. Sunlight Janitor Service, 551 S.W.2d 616, 618 (Mo. banc 1977). For as so aptly stated "the cost of the product should bear the blood of the workman." Keeton, supra section 80 at 573. And it is well established that enactment of workers' compensation laws was not meant as a supplement to the common law, but rather the workers' compensation laws are wholly substitutional in character and create entirely new rights and remedies. Todd, 493 S.W.2d at 416.
In creating these new rights and remedies, workers' compensation laws can be viewed as representing a compromise a give and take between the employer and the employee. Workers' compensation laws provide a no-fa
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