Co-worker not liable for fellow employee’s injuries, Missouri Supreme Court rules

By: Karen Kidd

JEFFERSON CITY – The co-worker of a man injured during a construction accident in 2011 is not liable for those injuries, the Missouri Supreme Court said in a March 6 opinion.

St. Louis County Circuit Court properly granted summary judgment to the co-worker, who agreed with the co-worker’s assertion that “he was entitled to judgment as a matter of law because (plaintiff Matthew) Fogerty failed to show (Larry) Meyer breached a duty separate and distinct from employer’s nondelegable duty to provide a safe workplace,” Supreme Court Judge Paul C. Wilson wrote in the high court’s majority opinion.

“Accordingly, if it is reasonably foreseeable that employees may be harmed in the absence of a safe manner and means for performing their work, an employer has a nondelegable duty to provide those manner and means to its employees,” the high court’s 10-page opinion said. “An employer may – and, often, must – assign responsibility for fulfilling this nondelegable duty to an employee. Such an assignment does not alter the nondelegable nature of the duty, however, and a co-employee’s negligence in fulfilling that duty is not actionable.”

Chief Judge Zel M. Fischer, Judge Mary R. Russell, Judge Patricia Breckenridge and Judge Laura Denvir concurred in the opinion while Judge George W. Draper III concurred in result of the majority opinion and filed his own opinion. Judge W. Brent Powell did not participate in the case.

Matthew Fogerty filed a personal injury suit against his co-employee, Larry Meyer, for injuries Fogerty suffered in a front loader accident in 2011 while working with Meyer to build a fountain, as assigned by their employer Wright Construction Co., according to the Supreme Court’s opinion. After Fogerty sued Mayer over his injuries, the trial court sustained Meyer’s motion for summary judgment, which Fogerty appealed.

The Supreme Court’s opinion noted that Fogerty’s injuries occurred before its 2016 decision Peters v. Wady Industries, which established an employer’s duty to provide a safe workplace also includes providing a safe work method. Prior to that decision, an injured worker could sue a co-worker only if the injured worker could show the co-worker had “breached a duty separate and distinct from the employer’s nondelegable duty to provide a safe workplace,” the opinion said.

In affirming the St. Louis County Circuit Court’s summary judgment, the Supreme Court likewise found that Meyer’s negligence had resulted from a breach of their employer’s nondelegable duty to provide a safe workplace, according to the opinion.

Because the Wright Construction “failed to provide Fogerty or Meyer with a safe manner and means for constructing the fountain and, specifically, for using a front loader to move the large stones that task required,” the negligence the resulted in Fogerty’s injuries was the employer’s negligence, according to the high court’s opinion.

“Under these facts, because employer failed to provide a safe manner and means to install the fountain, both Meyer’s negligence in deciding how to do so and Fogerty’s resulting injury were reasonably foreseeable to employer,” the opinion said. “Accordingly, Meyer’s negligence was a breach of employer’s nondelegable duty to provide a safe workplace, not a breach of some duty ‘separate and distinct’ from employer’s duty.”

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