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Employee may sue colleague for work accident, court rules


A Missouri restaurant worker can sue her colleague for injuries she suffered on the job because workers compensation exclusive remedy rules in the state don’t apply to co-workers, a Missouri appellate court has ruled.

Sheri Bierman worked for Chesterfield, Missouri-based Espino’s Mexican Bar and Grill, where she was injured in June 2009 after she climbed an A-frame ladder into a lofted space at the restaurant, according to the ruling from the Missouri Court of Appeals on Tuesday.

While Ms. Bierman was in the lofted area, her co-worker, Kimmie Violette, unlocked, folded and moved the ladder. While Ms. Violette later returned the ladder so Ms. Bierman could climb down, she failed to fully open and lock the ladder, which collapsed when Ms. Bierman stepped on it, court records show.

Ms. Bierman fell to the ground after striking a concrete countertop, injuring her hand, elbow and shoulder. The appellate court ruling did not specify whether Ms. Bierman filed for or received workers comp benefits.

The St. Louis County, Missouri Circuit Court dismissed a negligence lawsuit filed by Ms. Bierman against her co-worker, saying her lawsuit failed to establish an independent duty of care owed by Ms. Violette, which is separate and distinct from the employer’s duty to provide a safe workplace, according to the ruling. Ms. Bierman appealed but then filed a motion to stay oral argument while the Missouri Supreme Court considered similar cases dealing with co-employee liability, the ruling said.

A three-judge panel of the Missouri appellate court unanimously found that the circuit court erred in dismissing Ms. Bierman’s lawsuit. The court likened the case to the 1956 case, Marshall vs. Kansas City, in which the plaintiff was injured when his co-employee shook a compressor hose to remove kinks from it, causing the plaintiff to trip. The Missouri Supreme Court held that the plaintiff’s injuries resulted from the co-employee’s negligence and not the employer’s breach of its duty to provide a safe workplace.

The appellate court also noted that a 2005 amendment to Missouri's workers comp law "only gives employers immunity against tort claims for work-related injuries and does not afford such immunity to co-employees."

“The defendant’s alleged failure to lock and properly secure the ladder after moving it while she knew or should have known defendant was in the loft was not the exercise of due care on her part and does not support the inference of negligence on the part of the employer with respect to the tools furnished, the place of work or the manner in which work was being done,” the court said. “The employer’s non-delegable duties are not unlimited. Except in the cases in which the employer is itself directing the work in hand, its obligation to protect its employees does not extend to protecting them from the transitory risks which are created by the negligence of a co-employee carrying out the details of that work.”

The court remanded the case to the circuit court for further consideration.





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