Can I sue my co-employee for negligence that caused my work injury?

By Rocky McElhaney | April 17, 2014

Rocky McElhaney Law Firm has helped hundreds of workers who have been hurt on the job. The ways they have been hurt vary from a saw malfunctioning and cutting them, slipping on spilled liquids in a warehouse, to wrecks on the interstate.

One common situation we’ve seen is that the worker is injured because a co-employee has done something stupid that caused the injury to occur. For example, in an example where a fellow worker throws a hammer on a roofing job that goes off course and hits and seriously injures our client, our client wants to know if we have the option to go after the negligent co-employee that threw the hammer in the first place. The short answer to this question is “no.”

The work comp system was developed as deal between employers and employees in situations where employees are injured on the job. In exchange for certain guaranteed benefits (including future medical care, and compensation for missed work), employees gave up the right to take direct action against employers and to make a recovery for certain types of damages like pain and suffering.

In other words, when you are hurt on the job you don’t have to show that your employer did anything wrong that caused your injury. In exchange for this agreement, you give up the right to sue your employer for negligence. The inability to sue your employer is known as preemption.

Under Tennessee law, work comp preemption doesn’t stop with the employer. It extends to co-employees as well. As a result, you cannot sue your co-employee for negligence that caused you an injury.

It’s important to keep in mind that though preemption does extend to co-employees, it does not typically extend to people who work for third parties who are working on the same job site or in the same warehouse you are.

For example, right now we have a case where our client was working in a manufacturing plant. He was hit by a towmotor being driven by a guy that worked for a different company that also did business in the plant. Because the guy driving the towmotor worked for a different company, we were able to make a worker’s compensation claim against our client’s employer and make a claim against the company that the towmotor driver worked for.

The key takeaway: If it’s an employee of the same company that did something negligent that caused your injury, work comp will likely be your only avenue of recovery. If the person worked for a different company, you may have both a work comp claim and a personal injury claim.

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