In 2016 I wrote that Recent Decisions may Caution Supervisors. That post discusses cases on supervisor liability, one from Oregon and one from Missouri, McComb v. Norfus and Cheese. The court there concluded the law in Missouri was unsettled regarding supervisor liability. The facts of that case involved icy roads and a supervisor's instructions to a driver who died on the job.
The Missouri Court of Appeals recently published an interesting opinion in Brock v. Dunne (as representative for Edwards), Case ED105739 (September 11, 2018). The decision helps our understanding of workers' compensation immunity and the remaining potential of liability. In most instances, the statutory immunity that employers enjoy from the "grand bargain" extends to an injured workers' co-employees as well. But in that regard, Brock is an interesting decision.
Mr. Brock was injured at work when he was asked to clean a laminating machine "while it was still running," and from which his supervisor, Mr. Edwards, had removed a safety guard. By the time the case got to trial, Mr. Edwards had passed away, and the trial court had named a substitute to stand in for him, a "defendant ad litem." The jury found for Mr. Brock. The "ad litem," Mr. Dunne, sought review by the appellate court. He claimed that Edwards was "immune from liability pursuant to
. . . the Workers’ Compensation Act."
In Missouri, the statute expressly includes "employees in the immunity statute." But, the court concluded that "Edwards committed affirmative negligent acts that purposefully and
dangerously caused Brock’s injury." The incident arose because Edwards perceived some glue leakage within a laminating machine. He removed "the safety guard while the machine was still powered on" and instructed Brock "to grab a wet rag" and then "squeeze water" onto the glue and "to scrape the glue off of the" roller.
As an aside, the court noted that the design of the machine resulted in a "pinch point." This is a term we hear often from safety professionals, referring to a place where injury can occur because of the proximity and movements of machine parts. It is common in safety manuals and procedures to recommend that machines are "de-energized" before people perform maintenance or adjustment around such pinch points. Over my career, I have heard much about pinch points, de-energizing, and a safety practice called "lock out/tag out" (a method for preventing unexpected or accidental re-energizing of equipment during maintenance or repair).
Brock cleaned as instructed, and he testified that Edwards "was standing right next to
him during the process." He said he was never told his actions were unsafe or provided alternate instructions. Eventually, the machine caught the wet rag and pulled it in, and with it Brock's thumb. The thumb was crushed and Brock sued both Edwards and the company that manufactured the laminating machine. He settled with the manufacturer and proceeded to trial against Edwards,' "ad litem." Brock prevailed, and after various calculations, a jury verdict of $1,050,000 resulted in a "verdict in the amount of
$873,000" against Edwards' estate.
The Court noted that the Missouri immunity statute provides co-employees with “immunity under the workmen’s compensation law, but that “he does not
have immunity where he does an affirmative act causing or increasing the risk of injury.” An employee must show that the co-worker somehow proceeded beyond merely "a breach of his duty of general supervision and safety.” It referred to this as the "something more test." The Court noted that in the early part of this century, Missouri courts had concluded that immunity provided supervisors no protection. But, that interpretation was changed when the legislature amended the statute in 2012.
The Court held that "the 2012 amendment to §287.120.1 provides immunity to co-employees." That immunity is abrogated however "when the employee engaged in an affirmative negligent act that purposefully and dangerously caused
or increased the risk of injury.” This choice of language, according to the Court, returns Missouri to a posture of protecting co-workers from liability in a variety of circumstances, but not all. This is similar to the logic applied by the courts in the "something more test" before this statutory amendment.
Noting the similarity, the Court concluded the statutory amendment however is not "a wholesale adoption
of the 'something more' test." The Court discussed recent authority on supervisor liability, earlier in 2018. It concluded that
It is likely that the outcome in such a situation could be different under laws of various state workers' compensation laws. It should be of interest to supervisors in any setting however, The supervisor should be wary of safety risks to employees. The removal of safety devices, ignoring safety rules, and engaging in dangerous activities should be carefully monitored and quickly corrected. While it is probable that Edwards' actions would not have resulted in liability in some states, in Missouri it did. And, that liability is substantial, impacting the supervisor or in this case his estate (and thus any surviving family).
Such liability may place a supervisor in a difficult position in the day-to-day of work. A business owner or general manager may place time or production demands upon a shift, crew, or department. It may be that such constraint led Edwards to instruct Brock to work near the pinch point while the machine was energized. That may have been quicker than de-energizing (turning off) and locking the machine out (unplugging at least, but really somehow physically preventing re-connection of power without Brock's knowledge). And quicker may meet production goals or demands.
A supervisor facing personal financial liability is perhaps encouraged to place safety concerns above those more mundane production or performance demands. It should certainly be enough to give a supervisor pause.
"the actions of Edwards, (a properly trained and experienced supervisor), particularly, removing a piece of equipment specifically intended to make the machine safer (thereby creating the danger that an employer has actively taken measures to prevent) and directing Brock to clean the rollers of the machine near the unguarded pinch point while the machine is running is not reasonably foreseeable to an employer"It concluded that Edwards' removal of the safety guard was "against both logic and an employer’s instructions and the machine’s warnings" and was thus beyond what the employer could expect. As such, Edwards’ "actions were not reasonably foreseeable to" the employer, and thus the employer retained its statutory immunity. The Court concluded, "Edwards’s actions constituted a breach of an independent duty that he personally owed to Brock." The verdict was therefore affirmed.
It is likely that the outcome in such a situation could be different under laws of various state workers' compensation laws. It should be of interest to supervisors in any setting however, The supervisor should be wary of safety risks to employees. The removal of safety devices, ignoring safety rules, and engaging in dangerous activities should be carefully monitored and quickly corrected. While it is probable that Edwards' actions would not have resulted in liability in some states, in Missouri it did. And, that liability is substantial, impacting the supervisor or in this case his estate (and thus any surviving family).
Such liability may place a supervisor in a difficult position in the day-to-day of work. A business owner or general manager may place time or production demands upon a shift, crew, or department. It may be that such constraint led Edwards to instruct Brock to work near the pinch point while the machine was energized. That may have been quicker than de-energizing (turning off) and locking the machine out (unplugging at least, but really somehow physically preventing re-connection of power without Brock's knowledge). And quicker may meet production goals or demands.
A supervisor facing personal financial liability is perhaps encouraged to place safety concerns above those more mundane production or performance demands. It should certainly be enough to give a supervisor pause.
