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IN THE COURT OF APPEALS OF IOWA
No. 2-052 / 00-1625
Filed April 24, 2002
SARA SIMMONS,
Plaintiff-Appellant,
vs.
ACROMARK, INC., JERRY YADON, DOUG SUMMERS, and JEFF SHRIVER,
Defendants-Appellees.
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Appeal from the Iowa District Court for Appanoose County, Daniel P. Wilson, Judge.
Plaintiff appeals from directed verdict for co-employees in industrial accident case. AFFIRMED.
James Carney and George Appleby, Des Moines, for appellant.
Roger Lathrop and Peter Thill, Davenport, and Mark Thomas, Des Moines, for appellees.
Considered by Hayden, Peterson, and Snell, Senior Judges. *
*Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
PER CURIAM
This is a case arising out of an industrial accident that injured plaintiff, Sara Simmons. She and the three individual defendants were co-employees of Rubbermaid Specialty Products, Inc. of Centerville, Iowa. Defendant Acromark manufactured the hot stamp press machine that plaintiff was operating when injured.
Plaintiff sued the defendants for damages flowing from her injury. The case was tried to a jury. Following completion of the evidence presentation, all defendants filed motions for a directed verdict. The court granted the motion on all claims against Acromark, excepting a claim based on a failure to warn the intended user of the machine of the danger of two persons operating the machine simultaneously. That claim was submitted to the jury. The jury returned its verdict in favor of defendant Acromark. No appeal is taken from that result.
Regarding the dependant co-employees, the court sustained their motions for directed verdict. The court held that there was not enough evidence of gross negligence by any of the defendant co-employees to permit the submission of the issue to the jury. The gross negligence standard applied by the court was deemed correct and is not challenged by the plaintiff. Plaintiff appeals, claiming the quantum of evidence of gross negligence by each co-defendant is sufficient under the law, and that refusal to submit these issues constituted error by the trial court. On our review, we affirm.
Plaintiff was employed by Rubbermaid as an hourly production employee operating a hot stamp machine. The machine was designed to be used in the production of a farm cart. When the accident occurred, the machine was being used to produce a larger part for a tractor cart. The larger part was more difficult to keep in place while the machine stamped the part.
The machine was designed for use by one operator who used both hands to press buttons to cycle the machine. Rubbermaid trained its employees to operate it in this fashion. Attached to the machine was a fixturing that was designed to hold a tractor cart part in place to be stamped by the machine with the Rubbermaid logo. A fellow employee, not a defendant here, was assigned to work at the machine with plaintiff. He had never worked at the machine. As plaintiff was going to activate the machine, the tractor part moved. Plaintiff reached into the machine with her right hand to grab the part and reset it. At the same time, her fellow employee reached over her shoulder and pressed one of the buttons activating the machine. The machine cycled and crushed her fingers. Plaintiff testified this was the first time to her knowledge that two persons pressed the two buttons at the same time to cycle the machine.
Our review of the district court’s grant of defendants’ motions to dismiss is for correction of errors at law. Top of Iowa Coop. v. Sime Farms, Inc., 608 N.W.2d 454, 466 (Iowa 2000). We must decide if insufficient evidence has been submitted by plaintiff to submit the issue of gross negligence to the jury. Hasselmen v. Hasselman, 596 N.W.2d 541, 545 (Iowa 1999). If reasonable minds can differ on an issue, then a directed verdict is not appropriate. Dickenson v. Mertz, 547 N.W.2d 208, 212 (Iowa 1996); Boehm v. Allen, 506 N.W.2d 781, 784 (Iowa Ct. App. 1993). In deciding this issue, we view the evidence in the light most favorable to the non-moving party. Top of Iowa Coop., 608 N.W.2d at 466.
If plaintiff’s evidence is not substantial on each element of a gross negligence claim, a directed verdict is appropriate. Balmer v. Hawkeye Steel, 604 N.W.2d 639, 641 (Iowa 2000). We have stated that in order to constitute substantial evidence, circumstances must have sufficient probative force to constitute the basis for a legal inference, and not for mere speculation. Willey v. Riley, 541 N.W.2d 521, 527 (Iowa 1995).
Workers’ compensation rights are governed by the provisions of Iowa Code chapter 85. Under Iowa Code section 85.20 (1999), an employee may sue a co-employee for an injury in the course of and arising out of the employment if the injury is caused by the co-employee’s gross negligence. “Gross negligence” is such a lack of care as to amount to wanton neglect for the safety of another. See Iowa Code § 85.20(2).
Plaintiff claims defendants Jerry Yadon, Doug Summers, and Jeff Shriver were guilty of gross negligence that caused her injury. The negligence claims apply separately to each defendant.
Jerry Yadon was a back-up supervisor on plaintiff’s work shift. He was walking in the area within eighty feet of the machine at the time of the accident. He stated he had never known of a tractor part to be run on the machine. He had observed earlier in the shift that another worker was having trouble with the machine. He also stated that he knew the work was a rush order and no other machine was available. Jeff Shriver was a technical services manager with safety responsibilities in the plant. He knew that the hot stamp press was designed for only one person to operate the buttons in order to keep the operator’s hands away from the moving press. He also knew the press was not designed for use in stamping a tractor part.
Douglas Summers was an assistant supervisor in the maintenance department. His duties included making sure the equipment would operate without harm to the operator. He had not checked to see if the fixturing on the press actually worked to accommodate tractor parts.
The parties basically agree on the applicable case law but differ on whether the factual circumstances here constitute gross negligence. The salient case is Walker v. Mlakar, 489 N.W.2d 401, 404 (Iowa 1992). In Walker the supreme court said there are three elements necessary to establish a co-employee’s gross negligence under section 85.20. The elements are:
(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.
Walker, 489 N.W.2d at 403; see Thompson v. Bohlken, 312 N.W.2d 501, 505 (Iowa 1981). In Walker, our supreme court affirmed a directed verdict in favor of co-defendants in a gross negligence case. The trial court found as a matter of law that there was no evidence that co-employees had actual knowledge of an unguarded drop off at the end of a tunnel where plaintiff worked. Actual knowledge can be proved by circumstantial evidence as well as direct evidence. Johnson v. Farmer, 537 N.W.2d 770, 773 (Iowa 1995); Larkin v. Bierman, 213 N.W.2d 487, 488 (Iowa 1973); see also Bremster v. United States, 542 N.W.2d 524, 528 (Iowa 1996).
Other cases resulting in a directed verdict or summary judgment for defendant co-employees include Nelson v. Winnebago Industry Inc., 619 N.W.2d 385 (Iowa 2000); Johnson v. Farmer, 537 N.W.2d 770 (Iowa 1995); and Hernandez v. Midwest Gas Co., 523 N.W.2d 300 (Iowa Ct. App. 1994).
The trial court concluded that regarding the claim of gross negligence by co-employee Shriver, the plaintiff failed to prove that Shriver had knowledge of the peril in question and consciously failed to avoid the peril. The same finding was made as to defendant Summers. With regard to defendant Yadon, the court found the evidence insufficient to establish knowledge of peril in the fixturing at the machine or in its operation by two employees. Failing actual knowledge of peril, the court also found the evidence insufficient to show that defendant failed to avoid the peril.
On the basis of these findings, the defendants’ motions for directed verdicts were sustained. Our examination of the record satisfies us that the trial court’s rulings were correct.
AFFIRMED.