Curt Peters and Cheri Peters v. Wady Industries, Inc., and Patrick Terrio
2016 Mo. LEXIS 189
| Mo. | 2016Background
- Curt Peters (employee) was severely injured when stacked 200‑lb rebar baskets fell from a flatbed; he sued his supervisor Patrick Terrio and the supplier. Peters alleged Terrio ordered the baskets transported stacked, unbraced, and contrary to warnings.
- Peters pleaded that Terrio (project manager) failed to secure/brace baskets, provide adequate help/training, provide a proper unloading area, ignored warnings, and directed Peters to load/transport/unload in violation of safety rules.
- Terrio moved to dismiss, asserting (among other defenses) that Missouri workers’ compensation exclusivity barred tort claims against co‑employees or, alternatively, that the petition failed to allege a duty owed by Terrio independent of the employer’s nondelegable duty to provide a safe workplace.
- Trial court dismissed the claims against Terrio for failure to allege a duty separate from the employer’s nondelegable duties; the court of appeals affirmed; the case was transferred to the Missouri Supreme Court.
- At the time of the injury (pre‑2012 amendment), the court held the plain language of section 287.120 released only "employers" and did not by statute immunize co‑employees; therefore common‑law standards control co‑employee liability for pre‑2012 injuries.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether workers’ compensation exclusivity immunized the co‑employee (Terrio) for pre‑2012 injuries | Peters: §287.120 did not bar suit against a co‑employee; common law claims remain | Terrio: exclusivity extends to co‑employees when alleged failures are part of employer’s duty to provide a safe workplace | Held: §287.120 (pre‑2012) applies only to employers; no statutory co‑employee immunity, so common law governs |
| Whether the petition alleged a duty owed by Terrio separate from Tramar’s nondelegable duty | Peters: allegations (affirmative directions, ignoring warnings, violating OSHA) show Terrio created unsafe conditions beyond employer responsibilities | Terrio: alleged duties are part of employer’s nondelegable duty (safe place/methods/tools); therefore no individual duty owed to Peters | Held: Petition alleges breaches of duties that are part of employer’s nondelegable obligations; fails to plead a duty separate and distinct from the employer’s duty; dismissal affirmed |
| Role/viability of Badami’s “something more” test in co‑employee cases pre‑2012 | Peters: relied on common law as pleaded; argued actions amounted to more than employer breach | Terrio: invoked Badami to require something more (affirmative or purposeful act) to overcome immunity principles | Held: Badami’s "something more" approach is consistent in part with common law when used to distinguish employer nondelegable duties, but its affirmative/purposeful‑conduct elements cannot displace the common‑law test focusing on whether a duty independent of the master‑servant relationship was breached |
| Standard for duty analysis (question of law vs. fact) | Peters: factual dispute whether employer default or co‑employee conduct caused unsafe condition | Terrio: duty is a legal question; petition insufficient on its face | Held: Existence of duty is a legal question; here pleadings show only breach of employer’s nondelegable duties, so no separate duty exists as a matter of law |
Key Cases Cited
- Badami v. Gaertner, 630 S.W.2d 175 (Mo. App. 1982) (adopted the “Wisconsin approach” requiring “something more” than failure to fulfill employer’s nondelegable duties to impose co‑employee liability)
- Lambert v. Jones, 98 S.W.2d 752 (Mo. 1936) (rejected rigid misfeasance/nonfeasance distinction; duty owed to third parties is controlling)
- Marshall v. Kansas City, 296 S.W.2d 1 (Mo. 1956) (co‑employee’s negligent handling of equipment causing injury was liability of co‑employee, not employer’s nondelegable duty)
- Kelso v. W.A. Ross Const. Co., 85 S.W.2d 527 (Mo. 1935) (employer’s nondelegable duties include safe method/place/appliances and do not extend to transitory risks created by employees’ negligent performance of details)
- Burns v. Smith, 214 S.W.3d 335 (Mo. banc 2007) (discussed limits of "something more" test; affirmed inquiry into affirmative acts creating additional danger)
- Conway v. CitiMortgage, 438 S.W.3d 410 (Mo. banc 2014) (standard of review for dismissal de novo)