Monday, January 18, 2021


Amesquita was an employee of the popcorn factory run by Gilster-Mary Lee Corporation. He contracted a disease in his lungs from the chemical that was used to produce the butter flavoring in popcorn. Amesquita sued the employer and several co-employees under common law theories. Employer moved to dismiss based on the exclusivity provision of § 287.120.2. The co-employees moved to dismiss because Amesquita did not allege any duty on the part of the co-employees to Amesquita and because Amesquita did not allege sufficient facts to show that the co-employees had done “something more.” The circuit court granted all of the motions to dismiss.

The issues before the court, then, were 1) whether the exclusivity provision barred Amesquita’s claim for civil damages based on an occupational disease, 2) whether Amesquita had failed to establish that his co-employees owed him a duty beyond the employers duty to provide a safe work environment, and 3) whether the co-employee had done “something more” which established a personal duty of care to Amesquita. The Court of Appeals reversed on the first issue, but affirmed both issues involving the co-employees.

The Court essentially adopted the opinion of the Western District Court of Appeals in State ex rel. KCP&L Greater Mo. Operations Co. v. Cook. In that case, the Western District found that, due to the 2005 amendment of strict construction, the definition of “accident” in the exclusivity provision did not include occupational diseases. Further, the Court agreed with the Western District as well that the workers’ compensation provisions did allow for a remedy against employers for occupational diseases and suggested that an employee could pursue both workers’ compensation benefits and common law claims.

As to the co-employees, the Court again agreed with a Western District case that had previously looked at the issue, Hansen v. Ritter. As stated by the Western District, the Court held that even though co-employees no longer enjoyed the immunity provided by the exclusivity provision after the 2005 amendment, co-employees still must have some independent duty beyond the employer’s duty to provide a safe work-environment. The court found in this case that Amesquita neither alleged that co-employees had an independent duty to him nor did he allege sufficient information to show that the co-employees had done something more to harm Amesquita beyond the harm sustained by the employer’s failure to provide a safe work environment. The co-employees did nothing to increase the levels of the toxic chemical inhaled by Amesquita beyond those levels he was exposed to as a result of his employ by the company.