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MO Supreme Court All But Eliminates Co-Employee Liability

Update on Missouri Comp/Liability law

Less than two years after leaving open a narrow window for injured employees to sue their co-workers for injuries sustained at work, the Missouri Supreme Court may have all but closed it.

On March 6, 2018, the Missouri Supreme Court issued three opinions in cases involving four injured workers who alleged that fellow employees, rather than their employers, were responsible for their injuries ( click here to read Fogerty v. Armstrong). Such an argument would have allowed them to sue the co-workers in court, rather than resolve their claims through the otherwise mandatory workers’ compensation system.

The cases decided on March 6 included those of a man who became a quadriplegic after fellow employees falsely assured him power had been cut to a high-voltage line; a driver who died when supervisors ordered him to stay on the road in bad weather; and two cases in which men were injured in separate forklift accidents.

The Court in Fogerty offered a new clarification on co-employee liability: “Employers (and therefore the workers’ compensation system) are responsible for injuries from workplace hazards that are “reasonably foreseeable.” A “transitory risk” is less about the details of the incident than whether or not the employer could have foreseen it happening.

“What matters, and the only thing that matters for purposes of (co-employee liability), is whether the duty the co-employee breached was part of the employer’s duty to protect employees from reasonably foreseeable risks in the workplace. If so, the claim is barred. If not, the suit against the co-employee can proceed,” Judge Paul C. Wilson wrote for the court’s majority.


These cases demonstrate a shift of focus from what the co-worker may have done to what the incident was and whether the employer could have foreseen it. The Missouri Supreme Court has effectively eliminated most, if not all civil liability by co-employees if the injury arose from an incident that was foreseeable in any way.

The Court of Appeals first opened the door on co-employee liability in 2010 with Robinson v. Hooker. Now, the Supreme Court has finally closed the door on this liability loophole.

If you would like to discuss how this decision might apply to any specific circumstances, please let me know.