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Gunnett v. Girardier Building and Realty Co.3/19/2002
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When one brings a common-law negligence action, the plaintiff must "establish the existence of a duty on the part of the defendant to protect plaintiff from injury , failure of the defendant to perform that duty and, that plaintiff's injury was proximately caused by defendant's failure." Krause v. U.S. Truck Co., Inc., 787 S.W.2d 708, 710 (Mo. banc 1990). So too when an injured worker seeks to bring a negligence action against his co-employee. Thus, as in other common-law actions, the threshold matter is to establish the existence of a duty owed by the co-employee. But, it is not simply the existence of a duty on the part of the co-employee, but the nature of the duty involved which is key in determining whether a co-employee may be held liable. This is the focus of the 'Wisconsin approach' to co-employee immunity that we adopted in State ex rel. Badami v. Gaertner, 630 S.W.2d 175 (Mo.App. E.D. 1982). As so aptly described by the Vermont court, the touchstone of co-employee common-law liability is "whether the negligence occurred in the performance of a non-delegable duty of the employer as opposed to arising out of an obligation owed to the injured employee." Gerrish v. Savard, 739 A.2d 1195, 1198-9 (Vt. 1999). For only in the latter case will an action lie.
In adopting the "Wisconsin approach" in Badami, this court held that "charging the employee chosen to implement the employer's duty to provide a reasonably safe place to work merely with the general failure to fulfill that duty charges no actionable negligence." Badami, 630 S.W.2d at 180. On this point, there is little dispute; this holding of Badami has been widely followed. See e.g., Wright v. St. Louis Produce Market, Inc., 43 S.W.3d 404 (Mo.App. E.D. 2001); Felling v. Ritter, 876 S.W.2d 2 (Mo.App. W.D. 1994); Lyon v. McLaughlin, 960 S.W.2d 522 (Mo.App. W.D. 1998); Davis v. Henry, 936 S.W.2d 862 (Mo.App. E.D. 1997); State ex rel. Feldman v. Lasky, 879 S.W.2d 783 (Mo.App. E.D. 1994). The decision of Badami reflects the overall principle that if a co-employee is negligent in his discharge of the employer's non-delegable duty, the co-employee cannot be held personally liable for his negligent performance of that duty. Providing a safe place to work is just one of the non-delegable duties an employer owes to its employees a duty which the employer may not escape by delegating the task to someone else. Biller by Summers v. Big John Tree Transplanter Mfg. And Truck Sales, Inc., 795 S.W.2d 630, 633 (Mo.App. W.D. 1990). Thus, when an employee fails to perform the employer's non-delegable duty, the failure is that of the employer, not the employee. See Biller, 795 S.W.2d at 633; Laffin v. Chemical Supply Co., 253 N.W.2d 51, --53 (Wis. 1977). Since the failure is that of the employer, and since recovery under workers' compensation law is the employee's exclusive remedy vis-a-vis his employer, a co-employee performing a non-delegable duty of the employer is entitled to the benefit of the employer's immunity from common-law negligence suits under workers' compensation law.
And so, to hold a co-employee personally liable, "something more" must be charged. Badami, 630 S.W.2d at 180. The Badami court suggested that the extent and nature of this "something more" could only be determined on a case-by-case basis. Id. As noted above, the focus should be on the existence, and most importantly, the nature of the duty involved. Under the Wisconsin approach, a corporate officer or supervisory employee is subject to liability for negligence if he breaches a duty of care which he personally owed to the plaintiff. Laffin, 253 N.W.2d at 53. Following in this line, we announced in Craft that
The "something extra" required to impose tort liab
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