Two construction workers on a job site.

Co-Employee Liability: Pursuing a Claim for Injury Caused by a Co-worker

When a workplace injury is caused by the negligent or reckless actions of a co-worker, you may be able to bring a personal injury lawsuit against them as an individual. This type of case is referred to as co-employee liability.

But workplace injuries are not always the result of co-employee liability. Accidents can happen anytime, anywhere. For example, a staff member could break their ankle on a pothole in the office parking lot, a server could get hit by an object dropped by a co-worker going up the stairs or a business representative could get rear ended while driving for work. This is why Workers’ Compensation is so important. It is designed to provide financial relief for employees who experience a work-related injury. Under this program, co-workers or “co-employees” are typically immune from lawsuits, but there are a few exceptions.

What is Co-Employee Liability?

Normally, when someone is injured on the job, the employer is immune from a civil lawsuit.  However, according to the Missouri Workers’ Compensation Act, a fellow employee can be sued and does not have immunity when “the co-employee engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.”

In other words, a co-employee may be found liable if they created a job hazard beyond the tasks assigned by their employer; and, if their actions, whether intentional or accidental, put a co-worker in danger. It is also important to note that an affirmative negligent act is not required to be a physical act — it can be verbal, such as giving a direction.

Employees must be mindful of how their actions could endanger a co-worker and subject them to personal liability. To highlight this importance, the Missouri Association of Trial Attorneys (MATA) recently submitted a Brief of Amicus Curiae to the Supreme Court of Missouri. In this brief, MATA petitions the Court to reinterpret a Workers’ Compensation statute so an “affirmative negligent act” is the only legal standard used to determine co-employee liability. This would replace the use of other tests, such as proving an employee’s actions were not reasonably foreseeable by their employer.

Below are three example scenarios to help explain the differences between a Workers’ Compensation case and a lawsuit involving co-employee liability.

Example Scenario #1: A supervisor asks their employee to complete an unexpected task.

An employee named Danny was instructed by his supervisor, Mark, to clean glue off of a high-pressure laminating machine after Mark removed a safety guard from the machine. Danny was asked to clean the machine’s rollers while they were still moving. In doing so, Danny’s left thumb got caught in a pinch point, resulting in permanent nerve damage, pain, and limited use of his thumb and hand.

Type of case? Co-employee Liability. This scenario represents the real-life case Brock v. Dunne. The jury returned a verdict against the supervisor and assessed more than $1,000,000 in damages. Mark created a safety hazard — violating multiple company rules and Occupational Safety and Health Administration (OSHA) regulations — and acted in a way that increased the risk of Danny being injured. This case is awaiting a ruling on appeal by the Missouri Supreme Court.

Example Scenario #2: Lacking protection and a preventable construction site injury.

A crew of construction workers were onsite at a major commercial buildout for several weeks. Co-workers Jim and Jason carried a large metal pipe from the loading dock to another area of the job site. During the process, Jim tripped on a toe board covering a massive hole dug for the utilities and shattered his ankle. Jason did not realize the two men had walked over a toe board because there were no guard rails placed around it.

Type of case? Workers’ Compensation. Employers are required to provide a safe workplace and to abide by OSHA standards. While this is a fictitious scenario, inadequate fall protection is a leading cause of construction site injuries. Even though Jason was working with Jim when the incident occurred, their employer failed to provide the guard rails that could have prevented Jim’s injury.

Example Scenario #3: Convention center renovations take an unexpected turn.

Two men named Charles and Dwyane were employed by a contractor to renovate a St. Louis-area convention center. Both men were tasked with removing a heavy overhead roller door from above a concession stand window. Dwayne unscrewed the roller door when Charles was directly below it, causing the door to strike him in the chest and neck and impaling his leg with a hook that was attached to the door.

Type of case? Co-employee Liability. This scenario represents the real-life case Mems v. LaBruyere. Dwayne’s actions made an otherwise reasonably safe workplace unsafe, even if his actions were unintentional. Charles was placed in danger of harm which was not otherwise there. This case was hotly contested, with Dwayne LaBruyere filing a motion for Rehearing and Application for Transfer to the Missouri Supreme Court in June 2019.

Please note: The above scenarios demonstrate some of the differences between injuries that may correspond to a Workers’ Compensation and/or Co-Employee Liability case. Every case is different. If you have experienced any type of work-related injury, the details should be discussed with a qualified personal injury attorney.

Seeking Legal Remedies for an Injury Caused by a Negligent Coworker

Contact the St. Louis law firm of Padberg, Corrigan & Appelbaum for a free consultation to discuss your work-related injury. Our office works on a contingency fee basis, so you will not pay anything unless we recover a settlement or judgment for you. The Workers’ Compensation attorneys at Padberg, Corrigan & Appelbaum have a proven record of success in cases involving a work-related injury, including co-employee liability.

Our attorneys represented Gene Keller, a construction worker who was injured during the 2005 expansion of the Lambert-St. Louis International Airport runway system. Gene and a co-worker were seriously injured when a dormant piece of dynamite exploded after they were instructed to drill into it. We obtained a $2,000,000 settlement to help aid in Gene’s recovery and pay for medical care.

Our attorneys also secured a $2,300,000 judgment for our client, a bricklayer, who fell and was seriously injured on a job site due to the negligence of his co-employees. Currently, we are representing a construction worker who was injured when his supervisor instructed him to climb into a trench they were digging, despite the trench showing signs of collapsing. The case is on appeal. Read more of our active cases and recent settlements.

To schedule a free consultation with one of our attorneys, submit a request online or contact our office during business hours at (314) 621-2900.