Miller v. Enders, 425 S.W.3d 723

Air Evac EMS helicopter crash in Benton County, Arkansas, Feb. 21, 2005; Miller (flight nurse), Bratt (EMT), Enders (pilot) were EMS employees.
Miller and Bratt allege Enders’s negligent helicopter operation caused their injuries during emergency transport; injuries occurred in the scope of employment.
Initial state case dismissed; Miller and Bratt filed a new action in 2009 alleging Enders’s negligence proximately caused damages.
Enders asserted immunity under Ark. Code Ann. § 11-9-105; Miller and Bratt argued current law allows tort claims against a co-employee and overruled immunity doctrine.
Administrative history: circuit court granted dismissal; appeals led to Commission findings that Enders was a co-employee fulfilling a nondelegable safety duty and thus immune; Court of Appeals affirmed; Arkansas Supreme Court granted review.
Court held Enders, a co-employee performing employer’s nondelegable duty to provide a safe workplace, is immune under § 11-9-105; prior precedents binding; constitutional challenge overruled.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Enders is a third party for tort liability purposes	Miller argues Enders is a third party under §§ 11-9-410 and 11-9-105.	Enders contends he is a co-employee fulfilling the employer’s duty and is immune.	Enders is not a third party; immune as co-employee.
Whether extending immunity to a co-employee is proper	Immunity should not extend to co-employees; Brown and earlier precedents should be overruled.	Precedent correctly extends immunity to co-employees fulfilling the employer’s duty to provide a safe workplace.	Immunity extended to co-employees is proper; affirmed.
Whether extending immunity to a negligent co-employee contravenes Art. 5, § 32	Extension unlawfully limits recovery; constitution prohibits extending immunity beyond the employer.	Statutory and constitutional framework permit such immunity; precedent consistent with Article 5, § 32.	No constitutional violation; statute and Article 5, § 32 permit co-employee immunity.

Brown v. Finney, 326 Ark. 691 (1996) (co-employees acting to provide safe workplace receive immunity)
Barnes v. Wilkiewicz, 301 Ark. 175 (1990) (expanded workplace to include non-static locations)
King v. Cardin, 229 Ark. 929 (1959) (negligent co-employee can be third party under workers’ comp)
Neal v. Oliver, 246 Ark. 377 (1969) (employer cannot delegate duty to provide safe workplace)
Simmons First National Bank v. Thompson, 285 Ark. 275 (1985) (supervisory employee immunity for unsafe workplace)
Allen v. Kizer, 294 Ark. 1 (1987) (extended immunity to nonsupervisory employees for unsafe workplace)
Stapleton v. M.D. Limbaugh Construction Co., 333 Ark. 381 (1998) (Stapleton limited immunity application to prime contractor context)
Baldwin Co. v. Maner, 224 Ark. 348 (1954) (constitutional interpretation of Article 5, § 32 prior to amendment)
Pifer v. Single Source Transp., 347 Ark. 851 (2002) (recognizes deference to appellate construction of workers’ comp statutes)
McCutchen v. City of Fort Smith, 2012 Ark. 452 (2012) (courts uphold prior interpretations unless manifest injustice requires overrule)