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Gunnett v. Girardier Building and Realty Co.3/19/2002
ility includes any affirmative act, taken while the officer is acting outside the scope of the employer's responsibility, that breaches a personal duty of care the officer owes to a fellow employee. Craft v. Scaman, 715 S.W.2d 531, 537 (Mo.App. E.D. 1986).
Since Craft, courts across Missouri have acknowledged this distinction that for a co-employee to be held liable, he must have breached a personal duty of care that he owed to the injured employee. See Biller, 795 S.W.2d at 633; Murry v. Mercantile Bank, N.A., 34 S.W.3d 193, 197 (Mo.App. E.D. 2000); Workman v. Vader, 854 S.W.2d 560, 564 (Mo.App. S.D. 1993). The Supreme Court of Missouri has addressed the issue of co-employee liability/immunity but twice each time with limited discussion of the issue. See Tauchert v. Boatmen's National Bank of St. Louis, 849 S.W.2d 573 (Mo. banc 1993); Kelly v. DeKalb Energy Co., 865 S.W.2d 670 (Mo. banc 1993). However, the Court, in Tauchert, did acknowledge the distinction between a breach of the employer's duty to provide a safe workplace and a breach of a personal duty of care, and that in the latter case, there would be no immunity afforded by the workers' compensation act. Tauchert, 849 S.W.2d at 574. Moreover, construing "something more" as a breach of a personal duty of care that the co-employee owes to the injured worker also comports with the foundational principle of common-law negligence actions that there must exist some duty on defendant's part owing to the plaintiff, the observance of which would have avoided the injury . Thus, the court in Badami was correct -- whether a co-employee may be held liable will depend on the facts and circumstances of each case.
Once the facts and circumstances are known, whether this personal duty exists in any particular situation is a question of law, to be determined by the court. The court must determine whether,
upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant. This is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court. Keeton, supra section 37 at 236; Strickland v. Taco Bell Corp., 849 S.W.2d 127, 131 (Mo.App. E.D. 1993).
No universal test for duty has ever been formulated. Keeton, supra section 53 at 358. As Keeton commented, the statement that a duty does or does not exist really begs the essential question "whether the plaintiff's interests are entitled to legal protection against the defendant's conduct." Keeton, supra section 53 at 358. For duty is "only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection." Keeton, supra section 53 at 358. The question of whether a duty will be imposed rests upon several policy factors, including: (1) the social consensus that the interest is worthy of protection, (2) the foreseeability of the injury and the degree of certainty that the protected person suffered injury, (3) the likelihood of the injury, (4) the moral blame society attaches to the conduct, (5) the prevention of future harm, (6) consideration of cost and the ability to spread the risk of loss, and (7) the consequences of placing that burden on the defendant. Strickland, 849 S.W.2d at 132; Hoover's Dairy, Inc. v. Mid-America Dairymen, Inc./Special Products, Inc., 700 S.W.2d 426, 431-2 (Mo. banc 1985). "A duty may ... be imposed by the legislature or the common law based upo
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