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Gunnett v. Girardier Building and Realty Co.3/19/2002
n a relationship between the parties," or " imposed by a court under the circumstances of a given case based upon what the tortfeasor knew or should have known." Strickland, 849 S.W.2d at 132; See also, Hoover's Dairy, Inc., 700 S.W.2d at 431. However, no duty is owed to persons outside "the orbit of the danger as disclosed to the eye of reasonable vigilance." Krause, 787 S.W.2d at 710, quoting Palsgraf v. Long Island Railroad Co., 162 N.E. 99, 100 (N.Y. 1928).
Even though the existence of a duty owing from the co-employee to the injured worker necessarily depends upon the particular circumstances and upon policy considerations, our cases do offer some guidance as to when this duty will be imposed. As noted by the court in Sexton, Davis, and Lyon, cases that have recognized that the "something more" element had been met, the supervisor/co-employee was present at the time of the injury , and had personally performed an act or operated a piece of equipment that resulted in the injury, or had directed the fellow worker to engage in dangerous activities. Sexton v. Jenkins & Associates, Inc., 41 S.W.3d 1, 5 (Mo.App. W.D. 2000); Davis, 936 S.W.2d at 864; Lyon, 960 S.W.2d at 526; See Hedglin, 903 S.W.2d at 927(holding supervisor personally liable for death of employee where supervisor personally arranged for employee to be dangled from the tines of a forklift over a vat of scalding water into which employee fell and died); Craft, 715 S.W.2d at 537-8(holding president of fireworks company personally liable for employee's injuries where president personally held a board directly against spinning spool of fuse to prop it up, with the fuse catching fire and burning employee operating the machine); Tauchert, 849 S.W.2d at 574(holding summary judgment improper against employee where supervisor had personally arranged the faulty elevator hoist system); Biller, 795 S.W.2d at 634(finding corporate officer did not enjoy immunity from common-law suit for wrongful death of employee whose head was crushed by tree-transplanting machine which officer was operating); Pavia v. Childs, 951 S.W.2d 700, 702 (Mo.App. S.D. 1997)(manager of grocery store personally liable in operating a forklift to elevate an employee fifteen feet off the floor to reach items in warehouse).
Cases from other jurisdictions are also instructive. In Maryland, a supervisory employee will be held personally liable only if the supervisor "commits an affirmative, direct act of negligence toward an employee, and therefore negligently breaches a personal duty of care which is reasonably owed by him to the fellow employee." Athas v. Hill, 476 A.2d 710, 718 (Md. 1984); See also Hastings v. Mechalske, 650 A.2d 274, 279 (Md. 1994). And from the Wisconsin line of cases -- for an officer or supervisor to be personally liable there must have been "some affirmative act of the officer or supervisor which increased the risk of injury to the employee. If the officer or supervisor engages in this act, he owes the involved employee a duty to exercise ordinary care under the circumstances." Laffin, 253 N.W.2d at 53; See also, Kruse v. Schieve, 213 N.W.2d 64 (Wis. 1973). In Minnesota, the type of personal duty contemplated that will give rise to a cause of action is "no different than the duty any individual owes another arising from normal daily social contact -- the duty to refrain from conduct that might reasonably be foreseen to cause injury to another." Wicken v. Winston, 527 N.W.2d 95, 98 (Minn. 1995).
Further guidance is provided by the Supreme Court of Vermont. In analyzing the decisions of Craft and Kruse, the court noted that the co-employees in those cases had "engaged in an affirmative act directed at the particular employee that increased
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