Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Michael J.
E. SCOTT, J.
consider co-employee liability for a workplace injury in
2009, when "an injured employee could maintain a cause
of action recognized by common law against a
co-employee." Peters v. Wady Industries, Inc.,
489 S.W.3d 784, 787 (Mo. banc 2016). Because Evans pleaded and developed facts
"establishing only duties that are a part of the
employer's nondelegable duty to provide a safe
workplace" (id.), as opposed to "a duty
separate and distinct from the employer's nondelegable
duties" (id. at 796), we affirm the summary
judgment entered in favor of co-employee
essential facts are not in dispute. Evans and Barrett were
co-employed constructing apartments. Barrett, driving a
forklift, was moving a load of trusses. Evans walked ahead
and to the side of the forklift, holding a tag line connected
to both the forklift and trusses to stabilize the load as it
to Evans, Barrett negligently drove the forklift over a rock,
causing the load to shift and pull Evans toward the forklift,
which struck him and ran over his foot.
sued Barrett, alleging that Barrett had not been licensed,
certified, or "adequately trained to drive a
forklift"; that Barrett's direct supervisor (and
company president) knew all these deficiencies, yet
"ordered" Barrett to operate the forklift near
Evans and other workers; that Barrett was negligent
"[i]n operating a vehicle he was not trained to
operate" and in other respects; all resulting in injury
trial court eventually granted Barrett summary judgment,
ruling that safe forklift operation fell within the
employer's nondelegable duty to provide a safe working
environment, and finding that Evans had alleged no duty
independent of the employer's nondelegable duty. Evans
Liability - Relevant Principles
any negligence claim, Evans must establish that Barrett owed
(and breached) a duty to Evans. Parr, 489 S.W.3d at
778. Whether a duty exists may hinge on particular facts, but
"is purely a question of law." Id. at 782.
explications on co-employee workplace duties include
Peters, Parr, and Leeper v. Asmus,
440 S.W.3d 478 (Mo.App. 2014), from which we summarize
observations relevant to this case:
• At common law, employees are liable to co-employees
"for breaches of a duty owed independently of the
master-servant relationship-that is, a duty separate and
distinct from the employer's nondelegable duties."
Peters, 489 S.W.3d at 796.
• But an employee's personal duties to co-employees
do not include the employer's nondelegable
common-law safety duties to provide a safe workplace, safe
equipment, a sufficient number of suitable co-workers, etc.
Id.; Parr, 489 S.W.3d at 779.
• Any failure to perform one of the employer's
nondelegable duties rests with the employer, not the