(dissenting).
I respectfully dissent. First, I disagree with the conclusion of the majority on the “personal duty” prong of Wicken v. Morris, 527 N.W.2d 95, 98 (Minn.1995). I would conclude that the evidence establishes as a matter of law that Paul Oster-man and Fred Zamberletti owed a personal duty to Korey Stringer. As foundation for that conclusion, I would hold that, under our precedent interpreting Minnesota’s law of “personal duty” and absent directions to the contrary from the legislature, the plaintiff need not prove that the coemployee was acting outside the course and scope of his employment, but only that the coemployee’s acts were taken directly toward the injured employee and were not general actions taken in the performance of the employer’s nondelegable duty to provide a safe workplace. Second, I would reach the gross negligence prong of Wick-en. On that prong, I would conclude that Stringer has presented sufficient evidence to create genuine issues of material fact and that summary judgment was inappropriate.
A. Personal Duty
1. Policy Considerations
I find that there are competing public policy concerns relating to the scope of coemployee liability. This suggests that any further restrictions on coemployee liability should be addressed by the legislature, not by this court.
On the one hand, I share the concerns expressed by the majority that unlimited coemployee liability might intrude on the compromise reached in the workers’ compensation laws between employer and employees, and could erode the benefit of the immunity from tort liability that is provided to employers. The policy arguments in favor of narrowing, or even eliminating, the window for coemployee liability include these: coemployees could risk serious personal liability on a daily basis; the employer may be required to provide a defense to the coemployee, thereby diminishing the benefit of the employer’s immunity; the employer may see increases in liability insurance premiums; and coemployee liability might provide the employer with a sub-rogation claim against the coemployee, shifting the burden for compensating workplace injuries from the employer to the employee. See, e.g., McCluskey v. Thompson, 363 So.2d 256, 259 (Miss.1978) (observing that permitting plaintiff to recover “would effectively transfer the ultimate burden of providing compensation *764from the industry, where it belongs, to fellow servants, where it does not belong.”); 6 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law, § 111.03[2] (2004); William E. Hanna, Coemployee Immunity: What Does It Take to Plead “Something More?,” 53 J. Mo. Bar 77, 82 (March/April 1997).
But there are competing concerns with restricting coemployee liability. The policy arguments against narrowing or eliminating coemployee liability are these: the injured employee is entitled to be fully compensated for his injuries by all but the employer; the coemployee tortfeasor should not be relieved of the consequences of his wrongdoing; extending immunity to the coemployee would encourage fellow employees to neglect their duties; and the coemployee, who was not part of the workers’ compensation compromise, did not provide any quid pro quo to support the abrogation of the injured employee’s right to sue at common law. See, e.g., Grantham v. Denke, 359 So.2d 785, 787 (Ala.1978) (observing that the “quid pro quo is solely between employer and employee”); Rehn v. Bingaman, 151 Neb. 196, 36 N.W.2d 856, 859 (1949); and Larson, § 111.02[2].
Because the workers’ compensation laws are a creature of the legislature, which has regularly refined the elements of the compromise since the original enactment in 1913, I believe that we should look to the legislature to determine the scope of coem-ployee tort liability and decline any attempt to imply legislative intent from these competing policy concerns.
2. Legislative Action
This reluctance to imply legislative intent where none has been expressed is reinforced by the legal presumption that statutes should not be construed as abrogating common law rights unless they do so expressly. Ly v. Nystrom, 615 N.W.2d 302, 314 (Minn.2000) (declining to construe legislative intent to abrogate common law in absence of clear purpose to do so). Therefore, we need to consider whether Minnesota’s workers’ compensation laws expressly eliminate or restrict coemployee liability.
Minnesota Statutes § 176.031 (2004) provides immunity from tort liability to employers as follows:
The liability of an employer prescribed by this chapter is exclusive and in the place of any other liability to such employee, personal representative, surviving spouse, parent, any child, dependent, next of kin, or other person entitled to recover damages on account of such injury or death.
From its inception, that immunity has been understood to apply only to the employer and not coemployees. See, e.g., Behr v. Soth, 170 Minn. 278, 283, 212 N.W. 461, 463 (1927). No one argues to the contrary here.
By contrast, when other states have extended workers’ compensation immunity to coemployees, they have done so expressly. See, e.g., Kan. Stat. Ann. § 44-501(b) (2005) (stating that “no employer, or other employee of such employer, shall be liable for any injury for which compensation is recoverable under the workers compensation act”); N.J. Stat. Ann. § 34:15-8 (2005) (stating that “[i]f an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong”); N.Y. Workers’ Comp. Law § 29, subd. 6 (2005) (workers’ compensation “shall be the exclusive remedy to an employee * * * when such employee is injured or killed by the negligence or wrong of another in the same employ”); *765see also Ind.Code § 23-3-2-13 (2004) (injured employee “may commence legal proceedings” as long as alleged wrongdoer is “some other person than the employer and not in the same employ”).1 The failure of the Minnesota legislature to amend section 176.031 to similarly extend the employer’s immunity to coemployees demonstrates the absence of any intent to abrogate common law coemployee liability.
To the contrary, Minnesota’s workers’ compensation laws expressly preserve coemployee liability. Minnesota Statutes § 176.061 (2004) preserves the liability of a “third party” to injured employees. It provides, as relevant here:
Subd. 5. Cumulative remedies. If an injury or death for which benefits are payable is caused under circumstances which created a legal liability for damages on the part of a party other than the employer, * * * [and] the party other than the employer is not then insured or self-insured as provided by this chapter, legal proceedings may be taken by the employee or the employee’s dependents * * * against the other party to recover damages, notwithstanding the payment of benefits by the employer or the special compensation fund or their liability to pay benefits.
(Emphasis added). Again, from the inception of the third party liability provision, a “third party” has been held to include coemployees. Behr, 170 Minn, at 283, 212 N.W. at 463. And, prior to the 1979 amendments to the third-party liability provisions, coemployee liability was based on ordinary negligence. Id.
In 1979, section 176.061 was amended to add the following restriction of third-party liability for a coemployee:
A coemployee working for the same employer is not liable for a personal injury incurred by another employee unless the injury resulted from the gross negligence of the coemployee or was intentionally inflicted by the coemployee.
Act of June 7, 1979, ch. 3, § 31 (extra session 1979), 1979 Minn. Laws 1256, 1272 (codified at Minn.Stat. § 176.061, subd. 5(c) (2004)). This amendment confirms that a “third party” includes a coemployee and that coemployees are not covered by the employer’s immunity from tort liability. Otherwise this amendment would have no purpose. Thus, if we look solely.to legislative action to determine the scope of coemployee liability, we would conclude that there is no immunity and the only restriction is the heightened standard of gross negligence. The statute makes no mention of personal duty.
3. Case Law
The concept of personal duty originated with this court and not the legislature. But, because the legislature has apparently acquiesced in this court’s recognition of a personal-duty restriction by implication, neither codifying nor eliminating it, I agree that the personal-duty prong of coemployee liability is applicable. The relevant question concerns the scope of that prong. For the reasons discussed above, I would read the judicially implied personal-duty prong narrowly, limiting our prior cases to their facts. I read the majority opinion to expand the personal-duty prong, *766and quite broadly, when it adds the requirement that the coemployee’s acts must be outside the course and scope of employment. Such a requirement is not supported by any legislative action; is not required by prjor case law; it would create immunity for coemployees that is virtually coextensive with that of employers, which the statute does not do; and it would be difficult to apply. To conclude that the legislature acquiesced in the court’s en-grafting of a scope of employment requirement to the personal duty prong is to assume that the legislature could divine what this court might think in 2005 when these unusual facts were presented — the court has never before used the words “scope of employment” in describing the personal duty prong.
Some state legislatures have expressly restricted coemployee liability, as the majority proposes, to acts outside of the course and scope of employment. See, e.g., Iowa Code § 85.20 (2005) (stating that workers’ compensation remedy is exclusive right when injury caused by coemployee “arises out of and in the course of such employment and is not caused by the [coemployee’s] gross negligence amounting to such lack of care as to amount to wanton neglect for the safety of another”); Ohio Rev.Code. Ann. § 4123.741 (2005) (stating that no employee may be held liable for injury “received or contracted by any other employee of such employer in the course of and arising out of the latter employee’s employment”). The Minnesota Legislature has not followed the lead of these states. This legislative inaction can only be interpreted as a rejection of this type of restriction.
Our case law likewise does not support this expansion of the personal-duty prong. In fact, our decision in Behr is directly contrary to any restriction based on the course and scope of employment. 170 Minn. at 283, 212 N.W. at 463. Although the statutory framework of third party liability that was before this court in Behr is considerably different from that presented today, two aspects of Behr remain fully applicable: (1) Behr viewed a “third party” to include coemployees and (2) Behr determined that the fact that the coem-ployee was acting within the course and scope of his employment did not limit the coemployee’s liability. Behr, 170 Minn. at 281-83, 212 N.W. at 462-63. In Behr, we specifically rejected the argument that the coemployee fire chief was acting outside the scope of his employment (which would have taken the ease completely outside the workers’ compensation laws) when his car collided with a fire truck, injuring the plaintiff fireman. Id. Yet, we concluded that the fire chief was a “party other than the employer” who had legal liability for any negligence in causing the plaintiffs injuries. Id., 170 Minn, at 283, 212 N.W. at 463.
This holding is significant because, years later, when we first mentioned “personal duty” in Dawley v. Thisius, we grounded our recognition of the right to sue a coem-ployee for negligence on what the majority now calls a “tangential analysis” in Behr. Dawley, 304 Minn. 453, 456, 231 N.W.2d 555, 557 (1975). Then, when we went on to consider how coemployee liability is affected “by the policy behind the [workers’] compensation statute,” we implied a much narrower restriction than that proposed by the majority — that the act of the coem-ployee must constitute “direct negligence toward the plaintiff.” Id. at 455-56, 231 N.W.2d at 557. And, in this context, our further statement — that coemployees’ liability will not be imposed “because of his general administrative responsibility for some function of his employment”, see id. at 456, 231 N.W.2d at 557 — cannot reasonably be read not to incorporate any course and scope of employment standard, which had been rejected in Behr, but only to *767emphasize that the negligence must be direct, not indirect or vicarious. This was necessary in Dawley because the claim was made against a manager for negligence in the performance of certain general, administrative functions. The discussion of administration is not relevant here because these coemployees were not managers and were not performing administrative functions.
Limiting Dawley to its facts, where the claim was based solely on the failure of a supervising coemployee to provide a safe place to work, the “personal duty” rule that emerges is that liability must be based on a coemployee’s direct acts toward the injured employee and not on general actions taken in performance of the employer’s nondelegable duty to provide a safe workplace.2
When we revisited coemployee liability in Wicken v. Moms, 527 N.W.2d 95, 98-99 (Minn.1995), we did not expand on Dawley, but merely identified the personal-duty test of Dawley as one prong of liability, the other being the legislature’s intervening enactment of the gross negligence prong. As to personal duty, we repeated the words of Dawley, adding only that the duty may include acts of omission as well as commission — “The personal duty to coemployees contemplated in Dawley is no different than the duty any individual owes another arising from normal daily social contact — the duty to refrain from conduct that might reasonably be foreseen to cause injury to another.” Id. at 98. And, as in Dawley, our ultimate decision in Wicken was that a supervisory coemployee could not be held liable for breach of the employer’s nondelegable duty to provide a safe workplace. Id. at 98-99.
The majority’s restriction of coemployee liability to acts outside the course and scope of employment would have the effect, perhaps unintended, of providing immunity to coemployees that is essentially coextensive with that of the employer. Generally, an employer’s respondeat superior liability turns on whether the employee was acting within the scope of his employment. See, e.g., Hagen v. Burmeister & Assocs., 633 N.W.2d 497, 504 (Minn.2001) (observing that “we will not impose [respondeat superior] liability unless there is some connection between the tort and the business”). Thus, the immunity given to employers essentially applies to acts of its employees performed within the cause and scope of their employment. Had the legislature intended to provide such broad and equivalent immunity to coemployees, it presumably would have done so directly by amending section 176.031 to extend the employer’s immunity to its employees.
Finally, I doubt that a scope of employment test is workable in a case such as this where the coemployee’s job is to provide care directly to employees. Accordingly, I would decline to broaden the test as the majority proposes and, instead, read narrowly the test already announced in Daw-ley and Wicken.
Given this narrower test for personal duty, I would agree with the court of appeals that the undisputed facts show Osterman and Zamberletti had a personal duty toward Korey Stringer. Stringer v. *768Minn. Vikings Football Club, LLC, 686 N.W.2d 545, 551 (Minn.App.2004).
B. Gross Negligence
The concept of gross negligence, as used in other contexts, has often been referred to as a range of conduct, from great negligence to the absence of scant care. See, e.g., State v. Bolsinger, 221 Minn. 154,158-60, 21 N.W.2d 480, 485 (1946); State v. Al-Naseer, 690 N.W.2d 744, 752 (Minn.2005). But I would conclude that one end of that range — the “want of even scant care” — is not applicable to coemployee liability because of its incompatibility with the personal-duty prong for that liability.
We have no cases establishing the standard for gross negligence for coemployee liability under the workers’ compensation laws. The cases that describe gross negligence as a range that includes the want of scant care arise in contexts not particularly relevant to coemployee liability. See, e.g., Al-Naseer, 690 N.W.2d at 752 (discussing gross negligence in the context of the crime of vehicular homicide); State v. Chambers, 589 N.W.2d 466, 478 (Minn.1999) (examining gross negligence in criminal vehicular homicide context); Bolsinger, 221 Minn. 154, 159, 21 N.W.2d 480, 485 (1946) (defining gross negligence in criminal context). What is unique about eoem-ployee liability, as discussed above, is that we do not even reach the gross negligence question unless a personal duty has been established — some act of direct negligence toward the injured employee. When the personal-duty prong is coupled with the gross-negligence prong, the notion of scant care appears to have no place.
As applied to the claims before us, Stringer alleges 25 acts of commission and omission that amount to gross negligence and she supports those allegations with expert affidavits. The use of a scant-care standard would focus not on those acts where the care was negligently performed or was negligently not performed, but on what other care was given. The fact that a caregiver performed some acts that were not themselves negligent (i.e. bringing Ko-rey Stringer to the air conditioned trailer for evaluation, offering water) should not be considered to excuse the negligent performance or failure to perform the other acts that are alleged to have been required by due care.
Accordingly, I would describe the gross negligence standard for coemployee liability in terms of what it is — negligence of a high degree, great negligence, more than ordinary negligence but less than wanton and willful conduct — and not in terms of what it is not — the provision of scant care. And under that standard, Stringer has presented sufficient evidence to create genuine issues of material fact that the conduct of Osterman and Zamberletti was grossly negligent. Accordingly, summary judgment should be reversed and the matter remanded for trial.
. Alabama is among states that have struggled with the question of whether coemployee immunity violates state constitutional guarantees that injured persons have a due process right to a legal remedy against their wrongdoers. See Grantham v. Denke, 359 So.2d at 789 (holding that workers' compensation law that bars negligence actions for damages by coemployee violated state constitution), overruled by Reed v. Brunson, 527 So.2d 102, 117 (Ala.1988) (holding immunity law not unconstitutional "insofar as it abolishes suits against co-employees for negligence or wantonness”).
. Although not binding on us, the court of appeals has interpreted Dawley in this manner. Stringer v. Minn. Vikings Football Club, LLC, 686 N.W.2d 545, 550 (Minn.App.2004). The court of appeals observed that "Dawley and Wicken have been consistently interpreted to provide immunity from negligence actions * * * pursuant to the employer's nondelega-ble duty to provide a safe workplace.” Id. (citing Buck v. Freeman, 619 N.W.2d 793, 795-96 (Minn.App.2000), review denied (Minn. Feb. 21, 2001); Wood v. Korn, 503 N.W.2d 523, 525 (Minn.App.1993), review denied (Minn. Aug. 24, 1993)).