This сase involves a claim of co-employee liability for a workplace injury which occurred between the 2005 and 2012 amendments of the Workers’ Compensation Act (“Act”). Skyler Leeper (“Leeper”) appeals from the trial court’s dismissal of his amended petition for- failure to state a claim. Leeper’s amended petition alleged that co-employee Andy Asmus (“Asmus”) breached a personal duty of care owed to Leeper when Asmus failed to perform his job duties in the safe manner in which he had been directed, causing Leeper’s injuries. Leeper argues that his amended petition sufficiently pled a cause of action for co-employee negligence at common law.
In Hansen v. Ritter,
In response to Robinson, the legislature amended section 287.120.1 of the Act in 2012 to expressly extend the Act’s exclusivity protection to co-employees unless an employee is injured as a result of the co-employee’s “affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.” Shaw v. Mega Indus., Corp.,
In Hansen, we held that at common law, a co-employee who has violated a personal duty of care owed tó a fellow employee is answerable for the consequences of his negligence.
We conclude that the refined “something more” test does not align with the common law of co-employee negligence. At common law, a co-employee violates a personal duty of care when the employer has performed its continuing nondelegable duties, and an otherwise safe work place, work instrumentality, or work method, is rendered unsafe due solely to the co-employee’s negligent act or omission, a determination that does not equate
Because Leeper’s amended petition sufficiently alleges facts to support the existence of a personal duty of care at common law, the trial court’s judgment dismissing Leeper’s action with prejudice is reversed and this cause is remanded for further proceedings consistent with this opinion.
Factual and Procedural History
Leeper filed a petition asserting a claim of negligence against Asmus, a co-employee. The petition alleged that on August 12, 2011, Leeper was injured while working with Asmus; that Asmus was operating a Schramm drilling rig while Leeper was guiding a 500-pound pipe into the tower of the drilling rig; and that when Asmus began lifting the pipe with the drilling rig winch, the cable was loose which resulted in the pipe breaking free and crushing Leeper’s arm. Leeper asserted that Asmus failed to exercise ordinary care and was negligent because Asmus failed to operate the drilling rig in a safe manner and failed to ensure the cable was tight before lifting the pipe.
Asmus filed a motion to dismiss the petition for failing to state a claim. Asmus argued that he did not owe Leeper a personal duty of care to perform his job duties independent of the employer’s nondelega-ble duty to provide a safe workplace. The trial court sustained the motion to dismiss and gave Leeper thirty days to file an amended petition.
On April 29, 2013, Leeper filed an amended petition which alleged the following, pertinent to this case:
8.In the process of attaching the cable to the 500-pound pipe, the job duty of the operator of the drilling rig’s w[i]nch is to ensure that the cable is tight as the 500-pound pipe is lifted, otherwise the 500-pound pipe will become unsecure and fall resulting in catastrophic injury to any fellow co-employees in the path of the falling 500-pound pipe.
9. At the above time and place, Defendant was responsible for and had the job of operating the drilling rig w[i]nch.
10. At the above time and place, Defendant started to lift the 500-pound pipe with a loose cable while Plaintiff guided the 500-pound pipe into the tower of the drilling rig.
11. At the above time and place, Defendant operated the drilling rig while the cable was loose causing the 500-pound pipe to break free and crush Plaintiff’s left arm.
12. At the above time and place, Defendant was personally negligent in operating the drilling rig in that he violated his job duty in operating the drilling rig [winch] by lifting the 500-pound pipe without еnsuring that the cable was tight.
IS. At the above time and place, Defendant was independently negligent in operating the drilling rig in that he violated his job duty in operating the drilling rig winch by lifting the 500-pound pipe without ensuring that the cable was tight.
14. In lifting the 500-pound pipe with a loose cable, Defendant created a dangerous and hazardous condition in that he lifted the 500-pound pipe without ensuring that the cable was tight.
15. A 500-pound pipe falling from a Schramm drilling rig is not a normal risk of operating and working on a Schramm drilling rig and as a result, the Plaintiff was subjected to a risk which was something more than the normal risk of operating and working on a Schramm drilling rig.
16. At the above time and place, Defendant failed to use that degree of care, skill and knowledge customarily used by a drilling rig operator and in doing so*482 violated his job duties and responsibilities as set forth-above and subjected the Plaintiff to a risk that was something more than the normal risk associated with the work of the Plaintiff.
17. At the above time and place, Defendant failed to exercise ordinary care and was thereby negligent in, including but not limited to, one or more of the following respects:
a. Defendant failed to operate the drilling rig in a safe manner.
b. Defendant failed to check to ensure the cable was tight before lifting the 500-pound pipe.
c. Defendant lifted the 500-pound pipe with a loose cable.
18. The acts of Defendant were affirmative negligent acts and were something more than simply failing to provide a safe work place and therefore constituted a breach of personal duty of care [owed] to Plaintiff.
19. The affirmative negligent acts of Defendant violated a duty more than just providing a safe work place and increased the risk of harm to Plaintiff.
(Emphasis added.)
Asmus filed a motion to dismiss the amended petition. Asmus again argued that he did not owe Leeper a personal duty of care to perform his. job duties independent of the employer’s nondelega-ble duty to provide a safe workplace. Specifically, Asmus argued that the amended petition failed to satisfy the “something more” test because it did not allege a purposeful, affirmative act directed at Leeper. The trial court dismissed the amended petition and gave Leeper thirty days in which to further plead. No further amendment was filed. The trial court entered its judgment dismissing Leeper’s suit with prejudice.
Leeper appeals.
Standard of Review
The trial court did not specify its reason for dismissing Leeper’s amended petition. “When the circuit court does not provide reasons for dismissing a petition, we must presume the decision was based on the grounds stated in the motion to dismiss.” Robinson,
We review the trial court’s grant of Asmus’s motion to dismiss de novo. Id. at 205 “ ‘In reviewing the dismissal of a petition, the sole issue to be decided is whether, after allowing the pleading its broadest intendment, treating all facts alleged as true and construing all allegations favorably to the plaintiff, the plaintiff is entitled to relief.’ ” Id. (quoting Stabler v. Stabler,
Analysis
Leeper raises a single point on appeal. Leeper argues that the trial court erred in
The Legislature’s 2005 Amendment to Section 287.800 Restored the Common Law of Co-Employee Negligence
The 2005 amendment to section 287.800 required the Act to be strictly construed.
Many misread Robinson as creating a carte blanche right to pursue claims of co-employee negligence for all workplace injuries. Hansen clarified that Robinson did not create an otherwise non-existent remedy against co-employees. Hansen,
[A]t common law, a co-employee who has violated an independent duty to an injured emрloyee will be “answerable to such person for the consequences of his negligence.” ... However, a co-employee’s independent duties owed to fellow employees do not include the duty to perform the employer’s nondelegable duties, as those duties necessarily derive from, and are not independent of, the master-servant relationship.
Id. at 213-14 (citation omitted) (emphasis in original). Thus, for workplace injuries subject to the 2005 amendment of the Act, injured employees could separately pursue a cause of action against negligent co-employees so long as the co-employee owed the injured employee a duty of care at common law. “[U]nder the common law, a co-employee’s personal duties to fellow employees do not encompass a legal duty to perform the employer’s nondelega-ble duties.” Carman v. Wieland,
Hansen did not “definitively determine the precise parameters of a co-employee’s personal duties to a fellow employee sufficient to support an actionable claim of negligence.” Hansen,
At Common Law, it Must First be Determined Whether a Workplace Injury is Attributable to a Breach of The Employer’s Nondeleyable Duties, a Question of Fact
At common law, employers could be sued in negligence for workplace injuries. Employers owed employees the general duty to exercise ordinary care to protect employees from the foreseeable risks and perils of employment. Kelso v. W.A. Ross Constr. Co.,
1. The duty to provide a safe place to work.
2. The duty to provide safe appliances, tools and equipment for the work.
3. The duty to give warning of dangers of which the employee might reasonably be expected to remain ignorant.
4. The duty to provide a sufficient number of suitable fellow employees.
5. The duty to promulgate and enforce rules for the conduct of employees which would make the work safe.
W. Prosser, LAW OF TORTS, section 80, p. 526 (4th ed.1971); see also Hansen,
The employer’s nondelegable duties are continuing in nature. Bender v. Kroger Grocery & Baking Co.,
Though the employer’s nondelegable duties are expansive and continuing in nature, they are not unlimited. At common law, “[e]mployers are not insurers of the safety of employees.” Graczak v. City of St Louis,
In Gimmarro v. Kansas City,
In Bender, an employee ordered an employee to detach and move a tractor from the trailer it had been hauling, but failed to warn a third employee inside the trailer.
■ The outcomes in Gimmarro and Bender are illustrative of the broad expanse of the employer’s nondelegable duties. An employer must create a safe work environment, and must take precautions to protect against foreseeable risks and perils in the work environment, as in Gimmarro. And because the nondelegable duties are continuing, tasks necessarily attendant to the employer’s work and performed at the employer’s direction are normally chargeable to the employer’s nondelegable duties if negligently performed, as in Bender.
However, because employers are not insurers against workplace injuries at common law, some workplace injuries cannot be attributed to a breach of the employer’s nondelegable duties. In Marshall v. Kansas City,
The employer, here the city, owes to its employees the nondelegable duty to furnish safe tools and appliances and a reasonably safe place to work and failing in these respects is subject to liability for injury resulting to its employees. There were kinks in the hose and it was necessary to get them out before attaching the hose to the jackhammer, but there is no evidence or claim by the appellant that the hose was defective; [Plaintiff’s] injury came about by reason of [co-employee’s] negligent use of the hose and not because it was defective. Likewise the place of work was not unsafe and the hazard was not brought about by the manner in which the work was being done; the danger came about by reason of the manner in which [co-employee] handled the hose.... [Co-employee’s] suddenly and unexpectedly jerking the hose and tripping [Plaintiff] was not, of course, the exercise of due care on his part, but it does not' support the inference or demonstrate negligence on the part of the city with respect to either the tools furnished, place of work or the manner in which the work was being done. In the particular circumstances it. can only be said ... that [Plaintiff’s] injuries resulted from the negligent act of his fellow employee and not be reason of the breach of any nondelegable duty owed by the city.
Id. at 3 (internal citations and quotations omitted) (emphasis added). The court contrasted its holdings in other cases, including Gimmarro, noting particularly that Gimmarro “is a typical illustration of injury and liability resulting from a hazardous condition and an unsafe place to work due to the method or manner in which work was being done.” Id.
Marshall’s emphasis on the fact that its holding was dependent upon the “particular circumstances” before it is significant. Id. Had the facts in Marshall supported the inference that the employer knew or should have known of its employee’s careless conduct and failed to take measures to remediate the risk or peril, then a fact finder could have concluded that the workplace injury was the result of a breach of the employer’s nondelegable duties. Or, had the co-employee in Marshall been directed by a supervisor to shake the hose to removе kinks, the workplace injury would have been attributable to the employer’s non-delegable duties as the co-employee would have been performing his work as directed, albeit negligently. The salient point is that at common law, before assessing whether a co-employee owed an independent duty of care, it was first required to determine whether the workplace injury was attributable to a breach of the employer’s nondelegable duties, a question of fact.
The Supreme Court clearly articulated this point in Kelso:
Since negligence in a master and servant case depends upon the existence of a duty on the part of the master, the ultimate question to be first determined in every case is whether the master is guilty of a breach of duty to the servant who brings the action.
The determination of an employer’s breach of its non-delegable duties is a question of fact. See Luallen v. Reid,
The general standard of care, by which the duty of an employer is determined, is that required оf every one in all relations with others; namely the reasonable care of the average prudent person under similar circumstances. The more specific duties which arise from the general duty of an employer to use reasonable care are: To see that the place of work is reasonably safe; to see that suitable instrumentalities are provided; and to see that those instrumentalities are safely used. These nondelegable duties are duties of the employer to his employees and not of fellow servants to each other. These duties are all closely related, and often concern matters beyond the control of individual employees.... [T]he place in which the work is done cannot always be separated from the instrumentalities with which the work is done and it is often difficult, if not impossible, to say with confidence which of these two conceptions is appropriate to the facts in evidence. For example, a locomotive, which is clearly a piece of machinery so far as the engineer and fireman are concerned, is just as clearly something which makes the place of work unsаfe as regards a track-man who is run down by it. Thus, the manner in which instrumentalities are used may make a place safe or unsafe as a place of work, and, therefore, the duty to see that instrumentalities are safely used may become the most important element in the safety of a workman in his place of work.... A safe method of doing the work is something that the employer can provide to safeguard his employees from some risks of the shifting and changing of physical surroundings of the place of work, and the use of the required instrumentalities therein; and when it is necessary for their protection, in the exercise of reasonable care, it should be held to be a part of his duty to them and his failure to perform it is negligence. In other words, the employer’s duty is not merely safety of the place of work of his employee, but also his safety in his place of work; in short, a safe environment as well as a safe place.
This duty is performed by providing a safe method of work, and it properly arises from circumstances where an employee cannot safely look out for himself because of the complexity of the operations under way. One who emplоys servants in complex and dangerous business ought to prescribe rules sufficient for its orderly and safe management. The chief circumstance on which the*488 duty to do this depends is that the business is an intricate and complex one in which different workmen or groups of workmen have distinct tasks, and one group in the performance of its tasks is hable to endanger the safety of some other groups engaged in different tasks. The distinctive characteristic elements of the duty to see that instrumentalities are safely used are obviously: (1) General orders issued for the guidance of servants; (2) particular orders with reference to the details of the work during its progress. As regards general orders, the master may be conceived to-be subject to three obligations: (1) To frame suitable rules and regulations (2) To bring those rules and regulations to the knowledge of the servants for whose benefit they are framed (3) To carry out those rules and regulations in such a manner that the objects for which they are framed may be attained.... Except in cases in which the master is himself directing the work in hand, his obligation to protect his servants does not extend to protecting them from the transitorg risks which are creаted by the negligence of the servants themselves in carrying out the details of that work. In other words, the rule that the master is bound to see that the environment in which a servant performs his duties is kept in a reasonably safe condition is not applicable where that environment becomes unsafe solely through the default of that servant himself, or of his fellow employees....
However, an obligation of the employer to warn employees of certain transitory dangers, under some circumstances does arise out of his duty to conduct the business on a safe system.... A master’s duty does not end with prescribing rules calculated to secure the safety of employees. It is equally binding on him honestly and faithfully to require their observance.
Id. at 584-36 (internal citations omitted) (emphasis added). See also, Gunnett v. Girardier Building and Realty Co.,
Thus, before a court can determine whether a co-employee owes a duty in negligence at common law (a question of law), it must first be determined whether the workplace injury is attributable to the employer’s breach of a nondelegable duty, a question of fact unique to the workplace, and influenced by, among other things: the nature of the employer’s work; the risks and perils attendant to doing the employer’s work as directed; whether the instrumentalities of the work are safe; whether a co-employee causing injury was acting as directed by the employer; whether the methods for performing the work are safe; the competency of the employees hired to perform the work; the training of employees; the rules and regulations of the workplace adopted by the employer to protect workers from the risks and perils of the work about which the employer should have known; the communication and enforcement of these rules and regulations; and other facts or circumstances which might tend to establish the existence of a risk or peril that, through the exercise of ordinary care, the employer could reasonably have acted to prevent. If, after considering all relevant facts and circumstances, an employee’s workplace injury can be attributed to the employer’s breach of a nondelegable duty, then a negligent co-employee owes no duty in negligence to the injured employee as a matter of law. Conversely, if an employee’s workplace injury is not attributable to
The “Something More” Test Determines whether a Co-Employee owes an Actionable Duty of Care in Negligence Based on the Nature and Attributes of the Co-Employee’s Conduct
The Act became effective in 1927. See Bethel v. Sunlight Janitor Service,
However, the Act did not prohibit injured employees from pursuing common-law actions against negligent third-parties, including co-employees. Schumacher v. Leslie,
It was in this environment that the “something more” test was announced in Badami,
For example, in Craft v. Seaman,
In State ex rel. Taylor v. Wallace,
The post-Badami refinements of the “something more” test operated to immunize co-employees from liability for ordinary negligence by narrowing recovery outside the exclusivity of the Act to outrageous or reckless conduct directed at a particular employee. See, e.g., Bums,
The posl-Badami refinements of the “something more” test were fashioned at a time when section 287.800 rеquired our courts tó liberally construe the Act “with a view to the public welfare.”
We observed in Hansen that because the “something more” test as originally announced in Badami “did nothing more than restate the common law” of co-employee liability, the test was not necessarily rendered obsolete by the 2005 amendment of the Act.
The “something more” requirement that a co-employee only and always owes an actionable duty in negligence if the co-employee commits a “purposeful, affirmative act directed at a fellow employee” has no common lаw origin. In fact, Taylor held as much, as it held “mere allegations of negligence” are insufficient to establish “something more.”
In Gimmarro, the foreman purposefully and affirmatively directed an employee to work in an area that was not protected by barriers from falling rock.
In Logsdon v. Duncan,
[T]he competency and methоd of work by [co-employee] is not questioned-The steam hammer was in proper condition. Plaintiffs injury was not the result of any fault of plan, or construction, or defect, or lack of repair, or want of safety in defendant’s place of work or the machinery used therefor, or in the manner ordinarily used. Plaintiffs injury is attributable to ... the negligence of a competent fellow employee in an operative detail of the work they were engaged in at the time.
Id. at 780. As such, the employer’s non-delegable duties were not breached, and any actionable duty was owed by the co-employee, notwithstanding that the co-employee was merely negligent.
In Groh v. Kohler, 148 S.W.Sd 11, 16 (Mo.App.W.D.2004) (abrogated on other grounds by Bums,
Our courts have acknowledged that the common law and the refined “something more” test are not aligned. In Workman v. Voder,
We need not ascertain whether the outcomes reached in every “something more” case would be different had the common law been applied. For our purposes, it only matters that a different result can be, and in some cases has been, reached. The refined “something more” test can impose on a co-employee a duty in negligence when no duty would have been imposed at common law, and can fail to impose a duty when a duty would have been imposed at common law.
We are thus required to conclude that for workplace injuries occurring between the effective dates of the 2005 and 2012 amendments of the Act, the common law, and not the refined “something more” test, must be applied to determine whether a co-employee owes a duty of care in negli
In light of this conclusion, we decline to follow two Eastern District decisions which addressed workplace injuries subject to the 2005 amendment of the Act. Both cases relied on the refined “something more” test to determine whether a co-employee owed a duty in negligence. In Amesquita v. Gilster-Mary Lee Corp.,
Similarly, we decline to follow Carman, where the Eastern District held that the trial court erred in failing to grant summary judgment in favor of a co-employee in a co-employee negligence case.
[A] co-employee owes to a fellow employee no common-law duty to exercise ordinary care and safety requiring the co-employee to refrain from operating a vehicle in a negligent manner when driving in the course of his work. As a matter of law, that responsibility is subsumed within an employer’s non-delegable duty to provide a safe working environment.
Id. (emphasis added). The absolute nature of this holding abrogates co-employee negligence in all motor vehicle cases, (and arguably in all cases involving the operation of any instrumentality of the employer’s work). At common law, it is possible that a co-employee’s operation of a motor vehicle (or other instrumentality of the work) will support a personal duty of care independent of the employer’s nondelega-ble duties. See, e.g., Marshall,
The Sufficiency of the Allegations in Leeper’s Amended Petition at Common Law
Applying the common law, we turn to Leeper’s amended petition. Leeper alleges that it was Asmus’s job duty to “ensure that the cable is tight as the 500-pound pipe is lifted, otherwise the 500-pound pipe will become. unseсure and fail.” Leeper alleges that Asmus was “personally negligent in operating the drilling rig in that he violated his job duty ... by lifting the 500-pound pipe without ensuring that the cable was tight.” Leeper alleges that Asmus “was independently negligent ... in that he violated his job duty in operating the drilling rig. winch by lifting the
These facts, taken as true, establish a duty owed by Asmus to Leeper independent of the employer’s nondelegable duties. The amended petition alleges that Asmus failed to perform his job as he had been instructed, and that as a result he made what was otherwise a safe workplace and safe instrumentality of work unsafe.
It will remain Leeper’s obligation to prove that the employer performed all of its nondelegable duties such that a reasonably safe workplace, a safe instrumentality of work, and safe methods of work, became unsafe solely through the fault of Asmus,
Leeper’s amended petition alleges sufficient facts to establish an independent duty of care owed by a co-employee at common law. The trial court erred in dismissing the amended petition with prejudice for failure to state a claim.
Point is granted.
Conclusion
The trial court’s judgment is reversed. This matter is remanded to the trial court for further proceedings consistent with this opinion.
All concur.
Notes
. Leeper filed a notice of appeal from the initial dismissal of the amended petition which was subsequently dismissed by this court upon Leeper's motion. Asmus then sought a final judgment of dismissal with prejudice from the trial court which was entered on August 14, 2013.
.In 2005, section 287.800 of the Act was amended to provide that: "Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, the division of workers’ compensation, and any reviewing court shall construe the provisions of this chapter strictly-”
. Section 287.030.1 defines the term "employer."
. Section 287.120.1 is the exclusivity provision in the Act.
. If a workplace injury is not attributable to a breach of the employer’s nondelegable duties, the existence of a duty of care owed by a co-employee cannot be automatically assumed, and remains subject to proof. "The question of whether a duty exists ‘depends upon a calculus of policy considerations.’ Among these considerations, ‘[fjoreseeability is the paramount factor in determining existence of a duty, but a relationship between the parties where one is acting for the benefit of another also plays a role.’ As such, foreseeability alone is not enough to establish a duty. In this respect, there must also be some right or obligation to control the activity, which presents the danger of injury.” Stitt by Stitt v. Raytown Sports Ass’n, Inc.,
. See Gunnett v. Girardier Building and Realty Co.,
. This often double-exposed employers for a workplace injury, as the nature of a co-employee's negligence often obliged an employer, practically or legally, to provide a defense or indemnity to the co-employee.
. Overruled on other grounds by McCracken v. Wal-Mart Stores East, LP,
. Prior to its amendment in 2005, section 287.800 directed that “[a]ll provisions of [the Act] shall be liberally construed with a view to the public welfare, and a substantial compliance therewith shall be sufficient to give effect to rules, regulations, requirements, awards, orders, or decisions of the division and the commission_” Section 287.800 (RSMo 2000).
. See footnote number 2.
.The relevant amendment to section 287.120.1 of the Act in 2012 is addressed, supra. In 2012, the legislature extended exclusivity to co-employees except for “affirmative negligent acts that purposefully and dangerously caused or increased the risk of injury.” We express no opinion about the extent to which the post-Badami refined "something more” test will be relevant to construing this new statutory standard. We do observe that there is a strong trend toward co-employee immunity, and that by "1998, only Arkansas, Missouri, Maryland and Vermont permitted such suits.” Gan-nett,
. Our discussion regarding the common law of co-employee negligence applies only to remedies in negligence. The common law for determining whether a co-employee owes a duty of care in negligence based on whether the employer has breached non-delegable duties has never been applied, based on our research, to constrain a cause of action against a co-employee sounding in intentional tort.
. See footnote number 5.
. See, e.g., Kelso,
. Though the factual allegations in the amended petition are sufficient to overcome a motion to dismiss, the allegations understandably attempted to comport with the refined "something more” test, and thus are not model allegations for establishing the existence of an actionable co-employee duty at common law, in light of our conclusion that the "something more” test does not align with the common law of co-employee negligence.
. "Solely" refers to responsibility as between the employer and the co-employee. If a workplace injury is attributable in any manner to the employer’s breach of its non-dele-gable duties, then a co-employee can owe no duty of care in negligence and the co-employee’s negligence is chargeable to the employer. Conversely, if a workplace injury is in no way attributable to the employer’s breach of its non-delegable duties, then a co-employee may owe a duty of care in negligence. The reference to “solely” clarifies that an employer and a co-employee cannot be jointly and severally liable in negligence for a workplace injury.