In Missouri, the umbrella of workers compensation coverage is a broad one. However, Missouri is one of the few states that will allow an injured employee to bring a civil action against a co-employee or supervisor “for affirmative negligent acts outside the scope of an employer’s responsibility to provide a safe workplace.” Graham v. Geisz, 149 S.W.3d 459, 462 (Mo.App. 2004) (citations omitted). To survive a motion to dismiss, the plaintiff must allege “something more” in the petition; that is, an affirmative negligent act committed by the co-employee or supervisor. State ex rel. Badami v. Gaertner, 603 S.W.2d 175 (Mo.App. 1982). Missouri trial and appellate courts determine what constitutes an affirmative negligent act on a case-by-case basis. Id. Badami is one of the first cases in Missouri to recognize the “something more” exception to the exclusive remedy of the Workers Compensation Act.

Missouri courts have held that “something more” was sufficiently alleged when an employee was directed by his supervisor to dangle over a vat of scalding water, resulting in the employee’s death. Hedglin v. Stahl Specialty Co., 903 S.W.2d 922 (Mo.App. 1995). “Something extra” was present when a supervisor negligently repaired a malfunctioning press machine resulting in an injury to plaintiff. Arnwine v. Trebel, 195 S.W.3d 467 (Mo.App. 2006). In Groh v. Kohler, plaintiff informed her supervisor that the machine she was using would sporadically compress without operator input. 148 S.W.3d 11, 14 (Mo.App. W.D. 2004). The supervisor told the employee to “quit whining” and “just deal with it.” The Western District held that plaintiff, who was injured by the malfunctioning machine, sufficiently alleged something extra.

On February 13, 2007, the Missouri Supreme Court reflected on the development of the “something more” case law in Burns v. Smith, Case No. SC87789, 2007 WL 465920. The Court noted that several recent appellate court decisions, including Groh, created a “reasonable person” approach to co-employee liability. “In the cases that have recognized that the ‘something more’ requirement has been met, the supervisor personally participated in the activity constituting the ‘something more’ by directing the employee to participate in acts that were dangerous and that a reasonable person would recognize to be beyond the usual requirements of the employment.” Groh v. Kohler, 148 S.W.3d 11, 14 (Mo.App. 2004).

However, in Burns the Supreme Court concluded that “an express reasonable person standard is unnecessary because the element of reasonableness is implicit in determining the presence or absence of an affirmatively negligent act.” The Court emphasized that “something more…can best be described as an affirmatively negligent act that creates additional danger beyond that normally faced in the job-specific work environment.” In Burns, plaintiff, who was employed as a driver for a cement company, introduced evidence that the defendant supervisor negligently welded a pressurized, rusted water tank on the cement truck. After the negligent repair, the supervisor told the plaintiff to “run it till it blows.” Plaintiff sustained injuries when the tank exploded. The Supreme Court concluded that “something more” was met.

If you have questions about workers compensation law, please contact Kip Kubin for answers.