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GERACE v. 3-D MFG. CO.6/28/1994
Apache Hose and Belting Inc. is a supplier of hose and belting with processing and distribution centers in Cedar Rapids, Kansas City, and St. Louis. Charles Gerace was employed as a belt splicer at the Cedar Rapids center.
In 1988, Apache started to order larger rolls of belting from suppliers. These larger rolls could not be moved with the fork lifts Apache owned. The president of the corporation, William Nissen, and the fabrication manager, John McHugh, worked on developing a belt mover. They contacted Dennis Best, operator of 3-D Manufacturing Co., Inc., about designing and constructing the belt mover.
The first design lifted from the core of the belt and was unstable. Best expressed concerns [522 NW2d Page 315]
about the safety of the design. The core-lift design was rejected. Best submitted an alternative bottom-lift design that had no handle and would not require a worker to be in front of the moving roll. Nissen allegedly rejected this design and instructed 3-D to build a bottom-lift design with a steering handle in front of the moving roll.
3-D followed these instructions and delivered a bottom-lift mover to each of the three production centers. These movers were used frequently over a period of time at all three plants without injury.
On May 24, 1989, Gerace was injured after he slipped and fell while operating the handle in the front of the bottom-lift mover and the driver did not see Gerace had fallen. Apache Hose paid Gerace workers' compensation benefits.
Gerace and his family filed suit against 3-D seeking damages under strict liability, express warranty, and negligence theories. They subsequently amended their petition to add allegations of gross negligence against coemployees Nissen and McHugh.
The jury returned a defendant's verdict for 3-D. The jury found Nissen and McHugh were liable and allocated sixty percent of the fault to Nissen and forty percent to McHugh. Charles Gerace was awarded $236,822 in damages and his children were each awarded $1200 for loss of consortium.
Plaintiffs filed a conditional motion for new trial and Nissen and McHugh filed combined motions for J.N.O.V. and new trial. The district court denied the motions for new trial but granted Nissen and McHugh J.N.O.V. The court found gross negligence had not been established for three reasons: (1) there was no showing the defendants had actual knowledge of the danger because there was no showing the defendants knew of the bad terrain or debris which caused Gerace to fall; (2) there was no showing defendants knew there was a high probability of injury in operating the belt mover; and (3) there was insufficient evidence to establish a conscious failure on the part of either defendant to avoid Gerace's injury.
Plaintiffs appeal. We affirm the district court.
I. The Grant of Judgment Notwithstanding the Verdict.
Geraces first assert the district court erred in granting Nissen's and McHugh's motion for J.N.O.V. We disagree. We review the grant or denial of J.N.O.V. for correction of errors of law. Iowa R. App. P. 4. We view the evidence in the light most favorable to the party against whom the motion was made, taking every legitimate inference which may fairly and reasonably be made. Smith v. Smithway Motor Xpress, Inc., 464 N.W.2d 682, 684 (Iowa 1990); see Iowa R. App. P. 14(f)(2), (3). If each element of the claim is supported by substantial evidence, the motion should be denied. Smithway, 464 N.W.2d at 684. The standard is whether there is sufficient evidence to justify submitting the question to the jury. Slocum v. Hammond, 346 N.W.2d 485, 493 (Iowa 1984).
Iowa's sta
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