United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
Adam Hilse filed this lawsuit against defendant for injuries
he sustained in a motor vehicle accident with defendant Edwin
Gathecha, who was driving a tractor-trailer owned by
defendant K.N.G. Lines, Inc. while employed by defendant
Vyneria Transportation, Inc. The defendants filed a Third
Party Complaint (“TPC”) against the driver of the
vehicle in which plaintiff was a passenger (#16). The driver,
third party defendant John Chimienti, has filed a motion to
dismiss the TPC (#25).
alleges he was working as an emergency medical technician
(“EMT”) in the back of an ambulance being driven
by his co-employee, third-party defendant Chimienti.
Plaintiff was actively attending to a patient in the
ambulance when the ambulance collided with the truck driven
by defendant Gathecha. Although plaintiff alleges in the
complaint that Chimienti drove with due care, defendants
allege that Chimienti negligently operated the ambulance and
caused the accident. Defendants therefore seek contribution
from Chimienti in the TPC.
purpose of a Rule 12(b)(6) motion to dismiss is to test the
legal sufficiency of a complaint so as to eliminate those
actions “which are fatally flawed in their legal
premises and designed to fail, thereby sparing litigants the
burden of unnecessary pretrial and trial activity.”
Young v. City of St. Charles, 244 F.3d 623, 627 (8th
Cir. 2001) (quoting Neitzke v. Williams, 490 U.S.
319, 326-27 (1989)). A complaint must be dismissed for
failure to state a claim upon which relief can be granted if
it does not plead “enough facts to state a claim to
relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)
(abrogating the prior “no set of facts” standard
set forth in Conley v. Gibson, 355 U.S. 41, 45-46
(1957)). Courts “do not require heightened fact
pleading of specifics, but only enough facts to state a claim
to relief that is plausible on its face.” Id.
at 555. A complaint must set forth factual allegations which
are enough to “raise a right to relief above the
speculative level.” Id. at 555. However, where
a court can infer from those factual allegations no more than
a “mere possibility of misconduct, ” the
complaint must be dismissed. Cole v. Homier Distributing
Co., Inc., 599 F.3d 856, 861 (8th Cir. 2010) (citing
Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
maintain an action for contribution, “both the party
seeking contribution and the defendant against whom
contribution is sought must be tortfeasors, originally liable
to the plaintiff-injured party.” Gramex Corp. v.
Green Supply, Inc., 89 S.W.3d 432, 442 (Mo.
banc 2002). Third-party defendant Chimienti moves to
dismiss because he states Missouri workers compensation law
bars any claims plaintiff himself could have asserted against
Chimienti. As such, Chimienti argues that defendants'
third-party claim against him for contribution is also
workers compensation statute provides, in part:
Every employer subject to the provisions of this chapter
shall be liable, irrespective of negligence, to furnish
compensation under the provisions of this chapter for
personal injury or death of the employee by accident or
occupational disease arising out of and in the course of the
employee's employment. Any employee of such employer
shall not be liable for any injury or death for which
compensation is recoverable under this chapter and every
employer and employees of such employer shall be released
from all other liability whatsoever, whether to the employee
or any other person, except that an employee shall not be
released from liability for injury or death if the employee
engaged in an affirmative negligent act that purposefully and
dangerously caused or increased the risk of injury. The
term “accident” as used in this section shall
include, but not be limited to, injury or death of the
employee caused by the unprovoked violence or assault against
the employee by any person.
287.120 RSMo (emphasis added). Thus, a co-employee is not
liable for an injury caused to another employee unless the
co-employee “engaged in an affirmative negligent act
that purposefully and dangerously caused or increased the
risk of injury.” Halsey v. Townsend Corp. of
Indiana, 1:17-CV-4 SNLJ, 2017 WL 2189459, at *2 (E.D.
Mo. May 18, 2017) (citing id.). “The statutory
exception appears only to deny immunity to the co-employee,
rather than creating a new or different cause of action in
favor of the plaintiff. Because the statute does not create
an independent cause of action against a co-employee, the
Court must look to the common law to determine whether a
cause of action has been alleged.” A.T. v. Newark
Corp., 4:16-cv-448-SNLJ, 2017 WL 57251, at *3 (E.D. Mo.
Jan. 5, 2017). A two-part inquiry is thus required: First,
was the co-employee engaged in “an affirmative
negligent act that purposefully and dangerously caused or
increased the risk of injury[?]” Id. If so,
has plaintiff “made allegations that otherwise
establish a claim of common law negligence[?]”
argues that the third-party plaintiffs here cannot meet
either of those requirements. Looking first to whether a
common-law negligence claim could exist, employees in
Missouri can be liable for negligence to co-employees only
“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 v. Wady Indus., Inc., 489 S.W.3d 784, 796
(Mo. banc 2016). An employer's nondelegable
duties include (1) the duty to provide a safe workplace, (2)
the duty to provide safe appliances, tools, and equipment for
work, (3) the duty to warn of dangers that employees might be
and stay reasonably ignorant of, (4) the duty to provide a
sufficient number of suitable fellow employees, and (5) the
duty to promulgate and enforce rules for employee conduct
that would maintain the safety of the workplace. Id.
Missouri Supreme Court has been clear that, in circumstances
such as those here, the co-employee is immune from suit when
he is carrying out his employer's nondelegable duties:
“The common law always has held an employer cannot
fulfill its duty to provide a reasonably safe workplace
merely by telling its employees to ‘make it so' if
the employee's negligence in carrying out that duty was
reasonably foreseeable.” Conner v. Ogletree,
542 S.W.3d 315, 327 (Mo. banc 2018).
Defendants/third-party plaintiffs here contend that
Chimienti's negligent driving was not “reasonably
foreseeable” and thus he does not enjoy immunity as a
co-employee. However, Missouri courts have held that
similarly negligent operation of vehicles is reasonably
foreseeable and thus constitutes a non-delegable duty of the
employer. In Conner, for instance, the Missouri
Supreme Court recently held that it was reasonably
foreseeable to an employer that an employee would be injured
if a co-employee negligently operated a forklift.
Id.at 328. As that court stated in Peters,
“included within the employer's duty to provide a
safe workplace is a duty to see that instrumentalities of the
workplace are used safely.” Peters, 489 S.W.3d
at 795. Missouri courts have arrived at the same conclusion
with regard to co-employees' negligent driving of a
garbage truck and a firetruck. State ex rel. Taylor v.
Wallace, 73 S.W.3d 620 (Mo. banc 2002),
overruled on other grounds by McCracken v. Wal-Mart
Stores East, LP, 298 S.W.3d 473 (Mo. banc
2009); Carman v. Wieland, 406 S.W.3d 70, 79 (Mo.
App. E.D. 2013).
the ambulance driven by Chimienti was an
“instrumentalit[y] of the workplace” and thus
encompassed by the employer's duty to provide a safe
workplace. Plaintiff could not maintain a claim against
Chimienti under the terms of the workers compensation
statute, and thus ...