Leeper v. Asmus
440 S.W.3d 478
Mo. Ct. App.2014Background
- Leeper was injured August 12, 2011 while co-operating with Asmus on a Schramm drilling rig; Leeper alleges Asmus failed to keep the cable tight, causing a 500-pound pipe to crush Leeper's arm.
- Leeper amended his petition to plead a personal duty of care by Asmus independent of the employer’s nondelegable duties.
- Asmus moved to dismiss arguing no independent duty and that the “something more” test applies; the trial court dismissed with prejudice.
- Missouri law, post-2005 amendment to section 287.800, permits a co-employee negligence claim only if a private duty exists, with the 2012 amendment addressing exclusivity for co-employees except for affirmative acts.
- The court in Hansen clarified that co-employees owe duties at common law when they breach independent duties; the case also discussed the limits of the “something more” test.
- This appeal concerns whether Leeper’s petition alleges a duty at common law independent of the employer’s nondelegable duties for injuries occurring between the 2005 and 2012 amendments, so that a co-employee may be liable in negligence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Leeper states a common-law co-employee duty independent of employer duties. | Leeper asserts Asmus owed an independent duty by failing to perform his job duties safely. | Asmus contends no independent duty exists; the duty is subsumed by employer nondelegable duties. | Yes; petition states an independent co-employee duty. |
Key Cases Cited
- Hansen v. Ritter, 375 S.W.3d 201 (Mo.App.W.D.2012) (co-employee negligence and duty framework; distinguishes from employer duties)
- Robinson v. Hooker, 323 S.W.3d 418 (Mo.App.W.D.2010) (strict construction of the Act; limits immunization of co-employees)
- Badami v. Gaertner, 630 S.W.2d 179 (Mo.1982) (origin of the 'something more' concept for co-employee liability)
- Taylor v. Wallace, 73 S.W.3d 620 (Mo. banc 2002) (requiring purposeful, affirmatively dangerous conduct to move outside safe workplace)
- Kelso v. W.A. Ross Constr. Co., 85 S.W.2d 534 (Mo. 1935) (duty analysis: determining if employer’s system of work was unsafe; start with employer breach of nondelegable duties)