Gunnett v. Girardier Building and Realty Co.3/19/2002
ult system of compensation for the employee. Akers v. Warson Garden Apartments, 961 S.W.2d 50, 56 (Mo. banc 1998); Keeton, supra section 80 at 573; Larson, supra section 2.10. The employee, who sustains an injury through an accident arising out of and in the course of employment, is provided certain compensation, without the necessity of having to prove fault on the part of the employer, and without being subject to the 'unholy trinity' of common-law defenses. See Gambrell v. Kansas City Chiefs Football Club, Inc., 562 S.W.2d 163, 165 (Mo.App. 1978); Todd, 493 S.W.2d at 416; Bethel, 551 S.W.2d at 618; Akers, 961 S.W. 2d at 56. In exchange for definite compensation for all work-connected injuries, the employee foregoes his right to sue his employer for negligence and to obtain the common-law measure of damages in cases where fault could be shown. Leicht v. Venture Stores, Inc., 562 S.W.2d 401, 402 (Mo.App. 1978). From the employer's perspective, the employer accepts absolute liability, assuming a broader range of liability than it might have had at common law, under a fault-based system of liability. See Id.; Akers, 961 S.W.2d at 56. But, in exchange, the employer is protected since the compensation under the workers' compensation statutes is the injured employee's exclusive remedy against the employer; the employer is protected from the possibility of having to pay out the full measure of common-law damages. See Leicht, 562 S.W.2d at 402; Gambrell, 562 S.W.2d at 165; Section 287.120 RSMo. 2000.
Thus, workers' compensation laws address the rights and responsibilities as between the employer and the employee for work-related injuries. Workers' compensation laws are not meant to be a substitute for common-law actions for wrongs or people not comprehended within the law. Deckard v. O'Reilly Automotive, Inc., 31 S.W.3d 6, 14 (Mo.App. W.D. 2000); Gambrell, 562 S.W. 2d at 165; section 287.120.2. Missouri's workers' compensation act does not take away the employee's right to bring a common-law action against an offending third person. Schumacher v. Leslie, 232 S.W.2d 913, 916 (Mo. banc 1950). An employee is free to bring a common-law action against negligent third parties. Zueck v. Oppenheimer Gateway Properties, Inc., 809 S.W.2d 384, 390 (Mo. banc 1991). Given the foundations upon which workers' compensation law is based, this only makes sense; there has been no such give and take between the injured employee and the negligent third party, as there has been between an employee and his employer. Nor does this third party share in the burden and obligation of financing the compensation fund. See Wengler v. Druggists Mut. Ins. Co., 583 S.W.2d 162, 167 (Mo. banc 1979). Thus, since the third party does not share the burdens, they should not be entitled to the immunity which the workers' compensation law provides for the employer.
And so, we return to our co-employee. It has long been established in Missouri that a co-employee is regarded as a "third party" under workers' compensation law, and amenable to an action at common law. Sylcox v. National Lead Co., 38 S.W.2d 497, 502 (Mo. App. 1931). Missouri is in the distinct minority of states which permit an injured worker to bring a negligence action against a co-employee. See 6 A. Larson, Workers' Compensation Law, section 72.11 n. 13.2 (1998); Hedglin v. Stahl Specialty Co., 903 S.W.2d 922, 928 (Mo.App. W.D. 1995)(Smart, J., concurring). Nevertheless, our workers' compensation statute, as it exists today, allows for such actions; however, not all actions will lie. See e.g., Kelley v. DeKalb Energy Co., 865 S.W.2d 670 (Mo. banc 1993); Collier v. Moore, 21 S.W.3d 858 (Mo.App. E.D. 2000); Sexton v. Jenkins & Associates, Inc., 41 S.W.3d 1 (Mo.App. W.D. 2000).
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