 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
LaDew v. Cundiff11/8/2000
other employee's gross negligence amounting to such lack of care as to amount to wanton neglect for the safety of another." Iowa Code § 85.20(2) (1997). To prevail in a claim of gross negligence there are three elements that must be proved by a plaintiff to establish that level of negligence on the part of a co-employee-defendant: (1) knowledge of the peril to be apprehended; (2) knowledge that injury is a probable, as opposed to a possible, result of the danger; and (3) a conscious failure to avoid the peril. Henrich v. Lorenz, 448 N.W.2d 327, 332 (Iowa 1989). Cases have "severely restricted" co-employee gross negligence claims, "particularly by adding the requirement of wantonness in defining gross negligence." Woodruff Constr. Co. v. Mains, 406 N.W.2d 787, 789 (Iowa 1987).
The LaDews claim a factual dispute exists as to all three elements described above. They argue there were several similar accidents over a period of years, so the co-employees must have had knowledge of the peril. The co-employees respond that there has never been an accident where the male fitting blew out of the female fitting in the cylinder. They argue the prior incidents involved hoses coming loose or leaks in installation of the female fitting, not a worn male fitting blowing out of a female fitting. The co-employees also assert the incidents in question were revealed in answers to interrogatories which were not filed and not before the district court when it considered the motion for summary judgment. Assuming, without deciding that the evidence is before us on appeal, it is insufficient to raise a genuine issue of material fact concerning the co-employees' alleged gross negligence.
The LaDews next argue the co-employees must have had knowledge because they required employees to wear safety glasses and they held safety meetings between employees and management. They also argue that, because their expert witness opined that safety screens should have been installed on the test benches, the potential of injury must have been obvious to the co-employees. The test requires knowledge that injury is probable, not that there is a potential for injury. Henrich, 448 N.W.2d at 332. The wantonness requirement necessitates a "realization of imminent danger." Walker v. Mlakar, 489 N.W.2d 401, 404 (Iowa 1992). The company's requirement that its employees wear safety equipment and participate in safety meetings is insufficient evidence the co-employees knew of this particular danger, the probability of injury, or that they consciously failed to avoid the peril. The expert's opinion, at most, suggests that safety screens might have prevented or lessened the injury. It does not prove the co-employees had a "realization of imminent danger," the probability of injury, or that they consciously failed to avoid the peril.
Finally, the LaDews argue the lack of safety shields and the insufficient training of employees constitutes a conscious failure to avoid the peril. Because the evidence does not reveal any previous incident where a worn male fitting blew out during testing, the LaDews cannot show the co-employees had knowledge. We do not impute knowledge; it must be actual for a defendant to fail to avoid the peril consciously. See id. ("one cannot 'consciously fail to avoid' a peril of which one only 'should have been aware'").
Having considered the evidence set forth in the record in the light most favorable to the LaDews, we determine it raises no genuine issue of material fact. With no genuine issue of material fact at issue, summary judgment was proper. We therefore affirm the district court's grant of summary judgment.
AFFIRMED.
|