Christopher T. Tucker
Attorneys at Law
Barbour, Sokolowski & Tucker, L.L.C.

474 HWY P
O'Fallon, MO 63366
Office: (636) 294-8181
Facsimile: (636) 294-6001
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Missouri Case Law

The Missouri Supreme Court held in McCracken v. Wal-Mart Stores East, L. P. 298 S.W. 3rd 473 (Mo. Banc 2009) that an employee of Interstate Bakeries (IBC) was not the statutory employee of Wal-Mart thus allowing a civil cause of action to be pursued against Wal-Mart. On November 19, 2004 McCracken, an employee of IBC, was delivering bread to Wal-Mart and his duties included unloading full bread racks in the receiving area and then after other IBC employees stocked IBC’s bread products on Wal-Mart’s shelves, he would place the empty bread racks back in the truck. While in the receiving area, McCracken was injured when a Wal-Mart employee shoved an empty bread rack weighing 650 pounds into him as he was lining up empty bread racks to be placed back into the IBC truck. McCracken sustained injuries to his shoulder and arm and filed a workers’ compensation claim. The workers’ compensation claim was settled and then McCracken filed a personal injury suit against Wal-Mart in Greene County, Missouri Circuit Court alleging he was injured due to the negligence of the Wal-Mart employee shoving the bread rack into him. The trial court determined McCracken was a statutory employee of Wal-Mart and that the exclusivity provisions of the workers’ compensation Act limited him to recovering workers’ compensation benefits only and thereby ordered dismissal of his civil cause of action. The case was appealed and ultimately made its way to the Missouri Supreme Court. The Supreme Court reversed the trial court’s dismissal of McCracken’s personal injury case ruling that he was not a statutory employee of Wal-Mart.

The Supreme Court determined the issue in these cases is the real role and relationship between the injured individual and the alleged statutory employer. They concluded McCracken was a delivery driver for a supplier IBC, and that Wal-Mart was a buyer. By delivering a product, McCracken’s role was to equip Wal-Mart for business, but not to engage in its business himself. Delivering product was a regular part of McCracken’s employer IBC, but not Wal-Mart. The court concluded the record made it clear Wal-Mart was not McCracken’s statutory employer. It reversed and remanded McCracken’s civil case against Wal-Mart for trial. The court also noted the Legislature amended the workers’ compensation Act in 2005 eliminating giving the Act a liberal reading and deciding close cases in favor of workers’ compensation coverage. The 2005 amendments replaced liberal construction of the Act with strict construction, and the Supreme Court indicated construing the Act’s provisions strictly confirmed the conclusion that the trial court erred in holding that McCracken was a statutory employee of Wal-Mart.

The practical effect of this Supreme Court holding is essentially that an employee may have another avenue of recovery in a civil court when the pertinent sections of the workers’ compensation Act are construed strictly.

Personal Injury
Asbestos Exposure/Mesothelioma
workers compensation