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Iddings v. Mee-Lee6/20/1996
e of the peril to be apprehended, (b) has knowledge that the injury is a probable, as opposed to a possible, result of the danger, and (c) consciously fails to avoid the peril. As noted by the Iowa Supreme Court's decision in Swanson v. McGraw, 447 N.W.2d 541, 543 (Iowa 1989), the above-delineated standard for wanton conduct is "difficult to prove."
In order to plead and prove a case based on wilful and wanton misconduct, therefore, allegations and proof are required for either an actual intent to injure on the part of the tortfeasor co-employee, or all three of the elements of "wanton" conduct, including a conscious failure to avoid the peril. The Dissent's concerns over the proliferation of suits is therefore diminished when placed in its proper perspective: it remains the plaintiff's burden to prove all the elements of a suit based on wilful and wanton misconduct.
5. Public Policy and Social Costs
Finally, the net effect of adoption of the Dissent's position may lead to disturbing results. Under the Dissent's position, a supervisory employee ostensibly would be absolutely immune from any suit, either because of his or her "supervisory" status or responsibilities or because the employee was carrying out a "nondelegable duty" to his or her employer. Therefore, no matter how intentional, wilful, malicious, culpable, or wanton, the employee's breach of the duty to provide a safe place to work might be, he or she would be absolutely immune from co-employee suits.
Consider an extreme, yet simple example: the supervisor on a renovation project, whose responsibility it is to discharge the employer's duty to provide a safe place to work, orders the excavation of a large portion of the floor immediately outside a co-employee's office door on the second floor of a building, leaving a gaping hole to the floor below. Carrying out her duty to provide a safe place to work, the supervisor orders the hole covered with paper-thin balsa wood. The unfortunate employee, whose office immediately abuts the hole, strolls out, falls through the hole, and is severely injured. Under the Dissent's position, because the supervisor is either a "supervisory employee" or is discharging the employer's nondelegable duty to provide a safe place to work, the supervisor would be absolutely immune from co-employee suits, even if she had covered twenty holes with balsa wood in the past, through which twenty people had fallen and were injured.
E. Genuine Issues of Material Fact Exist Regarding Whether Dr. Mee-Lee Engaged in "Wilful and Wanton Misconduct."
In the present case, Iddings asserts that, because Dr. Mee-Lee was aware of the risk of injury stemming from crowded patient and furniture conditions in the CMC's Intensive Care Module and yet failed to reduce the patient population, and, thus, the amount of furniture necessary to accommodate the patients, Dr. Mee-Lee engaged in "wilful and wanton misconduct." Iddings's affidavit, submitted in support of her memorandum in opposition to Dr. Mee-Lee's motion for summary judgment, avers in pertinent part:
5. For more than one year prior to my accident, the nursing management personnel in the Human Services Unit had been extremely concerned with the overcrowded conditions within the unit in general and within the Intensive Care Module in particular.
6. As early as August 15, 1990, Defendant Mee-Lee was advised that an unsafe physical environment existed within the Human Services Unit as a result of overcrowding.
7. Patients within the Intensive Care Module frequently are violent. Overcrowding increases the likelihood of violent responses among the patients. In addition, overcrowding resu
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