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Nelson v. Winnebago Industries11/16/2000
ng, six men carried Nelson, who at the time weighed 220 pounds, while he—Lamping—supported Nelson's legs. The evidence would also support a finding that the defendants carried Nelson twenty to thirty feet to the shower. From the injuries sustained and from Nelson's testimony, a fact finder could reasonably find that Nelson fell on his face. The evidence shows he also sustained injuries to his head, neck, back, and shoulders. The injuries were apparently serious, because Winnebago paid medical benefits totaling $23,268.77.
Viewing this evidence in the light most favorable to Nelson, I think a fact finder could piece together the following scenario. Six men, bent on a mission to carry a fellow employee to a shower some thirty feet away, taped the struggling 220-pound employee around his arms, leaving his legs free with which he could and did struggle. Before reaching the shower, one of the men warned the others to pick up the struggling employee at a better angle before they dropped him and hurt him. In fact, the men did drop the struggling man face first to the ground, injuring him seriously.
I think at the point of warning, it became evident to all, as a matter of common sense, that unless they ceased in their efforts to carry out the prank, the pranksters would injure the victim by dropping him. Notwithstanding the warning and the obvious danger that injury was a probable consequence of their actions, the pranksters continued in their prank until the obvious became a reality.
In Allen v. Genie Industries, two employees were painting light poles using the employer's manlift. 475 N.W.2d 1, 1 (Iowa 1991). The employees' supervisor told them to continue painting even though one of them warned the supervisor it was too windy to use the manlift. Id. The manlift collapsed while the two employees were painting the light poles, causing one of them to fall to his death. Id. We focused on the warning as generating a genuine issue of material fact on whether the supervisor knew that the fall was a probable, as opposed to a possible, result of danger. Id. at 3.
Likewise, in Swanson v. McGraw, warning played a key role in generating a genuine issue of material fact on this element of a section 85.20 gross negligence case. 447 N.W.2d 541, 545 (Iowa 1989). In Swanson, the injured employee was working with a soap that contained highly caustic chemicals such as lye, which could cause severe chemical burns. Id. The fact that the employee told his supervisor twice of a tear in his protective suit and the supervisor told him to protect himself the best he could was significant on the probability-of-injury element. Id.
Contrary to the majority, I would hold that Nelson generated a genuine issue of material fact on the probability-of-injury element and would therefore reverse and remand for further proceedings on the gross-negligence claim.
Carter and Neuman, JJ., join this concurrence in part and dissent in part.
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