In Brown v. Gaydos[1], the Pennsylvania Supreme Court made clear that workers’ compensation co-employee immunity may not apply to protect an owner or co-employee of the direct employer from personal liability where the alleged negligence involves personally owned equipment or activities outside the employer’s formal business operations.
“Co-employee immunity” is derived from Section 72 of the Workers’ Compensation Act (“WCA”) which states:
"If disability or death is compensable under this act, a person shall not be liable to anyone at common law or otherwise on account of such disability or death for any act or omission occurring while such person was in the same employ as the person disabled or killed, except for intentional wrong."[2]
In generalities, this means that an employee whose acts or omissions cause or contribute to injury or death to another employee during the course of their employment cannot be held liable for the injury or death, except when the injury or death is caused by intentional wrongdoing.
The Court in Brown held that co-employee immunity does not automatically apply simply because the injured worker and defendant share the same employer. Instead, the analysis turns on whether the alleged negligence was an act or omission undertaken in the course of the defendant’s employment with same employer as the injured worker. For construction companies, that distinction could be particularly important where owners, supervisors, or affiliated entities provide and maintain equipment, tools, or vehicles outside formal company controlled and defined channels.
In Brown, an employee suffered serious injuries on his first day of work when a skid steer malfunctioned. Although the employee received workers’ compensation benefits without contest from the direct employer, he also pursued a negligence claim against one of the company’s owners personally, alleging negligent maintenance and failure to warn of known defects in relation to the skid steer. Because the company owner allegedly owned, stored, insured, and maintained the skid steer personally without any formal structure or agreement with the employer company, the Court found that there were facts in dispute over whether the company owner acted as a co-employee or in a separate personal capacity when maintaining the skid steer. If the negligent act – i.e. the alleged failure to properly maintain the skid steer – was performed in the employ of the employer construction company, co-employee immunity will bar the action. However, if the maintenance of the skid steer was performed in a separate or personal capacity, co-employee immunity will not apply and the company owner may be liable.
Why it matters for construction businesses: Contractors and closely held construction companies may rely on personally or separately owned machinery, shared equipment, or informal maintenance practices. Brown highlights the risk that those informal arrangements can create personal or expanded liability exposure outside the workers’ compensation system. Brown clearly demonstrates the importance of formalizing agreements and policies governing ownership, leasing, use, inspection, and maintenance of machinery and equipment to fit the unique circumstances of a contractor’s business. Further, Brown shows the importance of new employee training and robust safety protocols. Avoiding injury in the first place should always be the top priority of every construction industry employer.
[1] Brown v. Gaydos, 351 A.3d 669 (Pa. 2026)
[2] 77 P.S. § 72.