Opinion
No. C95-3087
June 23, 1999.
ORDER
This matter comes before the court pursuant to third-party defendant James Schleisman's May 10, 1999 motion for summary judgment (docket number 93). Third-party plaintiff Synatel Instrumentation, Ltd. resisted Schleisman's motion on May 20, 1999 (docket number 96). For the reasons set forth below, Schleisman's motion is granted.
Schleisman, a co-worker of Vandelune's at the time of the explosion, claims that summary judgment is appropriate because there exists no genuine issue of material fact and Synatel cannot show, as a matter of law, that Vandelune's injuries were caused by his "gross negligence." Synatel argues not only that summary judgment is inappropriate, but also that deciding this issue is premature because discovery on material issues has not been completed.
Summary Judgment
A motion for summary judgment may be granted only if, after examining all of the evidence in the light most favorable to the nonmoving party, the court finds that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Kegel v. Runnels, 793 F.2d 924, 926 (8th Cir. 1986). Once the movant has properly supported its motion, the nonmovant "may not rest upon the mere allegations or denials of [its] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "To preclude the entry of summary judgment, the nonmovant must show that, on an element essential to [its] case and on which [it] will bear the burden of proof at trial, there are genuine issues of material fact." Noll v. Petrovsky, 828 F.2d 461, 462 (8th Cir. 1987), cert. denied, 484 U.S. 1014 (1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). Although "direct proof is not required to create a jury question, . . . to avoid summary judgment, `the facts and circumstances relied upon must attain the dignity of substantial evidence and must not be such as merely to create a suspicion.'" Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985), cert. denied, 474 U.S. 1057 (1986) (quoting Impro Prod., Inc. v. Herrick, 715 F.2d 1267, 1272 (8th Cir. 1983), cert. denied, 465 U.S. 1026 (1984)).
Statement of Material Facts Not in Dispute
James Schleisman was employed as the Personnel Director and Safety Manager at the Gowrie facility as of October, 1994, when there was an explosion that injured Mark Vandelune. Schleisman and Vandelune were co-workers. In 1992 the Gowrie facility had a sensor installed in the leg of the elevator to monitor belt speed. If an elevator leg becomes clogged with grain, the belt can slip causing heat and friction, which can ignite grain dust. The sensor can be wired so that an alarm sounds if the belt slows down by 10% and shuts down if the slowdown reaches 20%. Mr. Jim Faltison's company, Fire Burglary Security Systems, installed the sensor. The 20% shutdown feature was not connected. In his affidavit, Faltison stated it was his belief that the 20% shutdown feature was bypassed because an "authorized representative" of the Gowrie facility instructed his employee not to do so. The Occupational Safety and Health Act (OSHA) requires that the 20% shutdown feature be connected. In early 1994, Keith Pfrimmer was hired by the Gowrie facility to replace the old sensor with a new one. Pfrimmer did not connect the 20% shutdown feature because it had not been connected on the sensor he was replacing. In September of 1994, approximately one month before the explosion, two housekeeping inspections were conducted at the Gowrie facility. These inspections looked for visually apparent unsafe working conditions. Neither inspection discovered any problems. Checking the wiring of the sensor was not included in either inspection.
CONCLUSIONS OF LAW Gross Negligence
Synatel claims that Vandelune's injuries were caused by the grossly negligent acts of his co-worker, James Schleisman. At the time of the explosion, Schleisman was the Personnel Director and Safety Manager of the Gowrie facility. Specifically, Synatel points to Schleisman's involvement in the decision to install the motion sensor without connecting the 20% shutdown feature. Schleisman argues that summary judgment is appropriate because there exists no genuine issue of material fact and Synatel cannot establish the requisite showing that Schleisman's actions and/or omissions constituted gross negligence. Schleisman also argues that OSHA regulations and violations are inadmissible in an action brought against a coworker under Iowa Code § 85.20 and should not be considered by the court in ruling on his motion for summary judgment. Synatel claims that evidence of OSHA regulations and violations should be considered due to Schleisman's actual knowledge of the violation.
OSHA regulations mandated that the 20% bypass feature be operative. Schleisman was at least partially responsible for ensuring that the Gowrie facility complied with OSHA regulations. As previously noted, the 20% bypass feature was not connected at the Gowrie facility prior to the explosion.
Iowa's workers' compensation statute is an injured worker's exclusive remedy against a co-worker. Iowa Code § 85.20. The only exception relates to a co-worker's "gross negligence." Id.
The rights and remedies provided in this chapter . . . for an employee on account of injury . . . for which benefits under this chapter . . . are recoverable, shall be the exclusive and only rights and remedies of such employee, the employee's personal or legal representatives, dependents, or next of kin, at common law or otherwise, on account of such injury . . . against:
2. any other employee of such employer, provided that such injury . . . arises out of and in the course of such employment and is not caused by the other employee's gross negligence amounting to such lack of care as to amount to wanton neglect for the safety of another.Id. As this section has been interpreted by Iowa courts, it is extremely difficult to prove a case of gross negligence under § 85.20.
The three elements necessary to establish a co-worker's gross negligence are: "(1) knowledge of the peril to be apprehended; (2) knowledge that the injury is a probable, as opposed to a possible, result of the danger; and (3) a conscious failure to avoid the peril." Alden v. Genie Indus., 475 N.W.2d 1, 2 (Iowa 1991). "Element two requires more than a showing of the defendant's actual or constructive knowledge of the `actuarial foreseeability' that accidents will happen." Hernandez v. Midwest Gas Co., 523 N.W.2d 300, 305 (Iowa Ct.App. 1994) (quoting Henrich, 448 N.W.2d at 334 n. 3). The plaintiff must demonstrate that the co-worker knew or should have known that his actions would place the plaintiff in a "zone of imminent danger." Alden, 475 N.W.2d at 2; Hernandez, 448 N.W.2d at 305.
Showing of a "zone of imminent danger" can be made either by "(1) proving defendant's actual or constructive knowledge of a history of accidents under similar circumstances or, (2) showing a high probability of harm is manifest even in the absence of a history of accidents or injury." Id. Without actual knowledge, "there cannot be a conscious failure on the coemployee's part to avoid the peril or hazard and thereby prevent the injured worker's injury." Walker, 489 N.W.2d at 404. "[G]ross negligence contemplates an actual realization of imminent danger, coupled with a reckless disregard or lack of concern for the probable consequences of the act." Johnson v. Farmer, 537 N.W.2d 770, 773 (Iowa 1995).
Even assuming that Schleisman was responsible for the decision to bypass the 20% shutdown feature, Synatel cannot establish a prima facie case of Schleisman's gross negligence. The bypass feature had been unconnected for years prior to the explosion with no prior incidents. See Henrich, 448 N.W.2d at 333 (finding that injury was the possible, not the probable, result of the conditions in light of the fact that there were only 4 similar injuries in the prior year compared to 3.1 million potential incidents). Therefore, it cannot be said that Schleisman had actual or constructive knowledge of a history of accidents under similar circumstances. Nor has it been shown that a high probability of harm was manifest even in the absence of a history of accidents or injury. Moreover, there had been no complaints and there has been no showing that Schleisman knew that the injury was probable to Vandelune. See Swanson v. McGraw, 447 N.W.2d 541, 545 (Iowa 1989) (noting that defendants knew that the injury was probable to the plaintiff in light of fact that plaintiff had complained on two prior occasions about the unsafe condition). Vandelune was employed by the Gowrie co-op to drive trucks, not to operate the elevator leg system. Schleisman was not even present at the Gowrie facility at the time of the explosion. Moreover, assuming that Schleisman did have actual knowledge that the sensor did not comply with OSHA regulations, this failure does not meet the test for a finding of gross negligence. At best, Schleisman's assumed knowledge of the unconnected 20% bypass feature raises a possibility of injury, not a probability.
Upon the foregoing,
IT IS ORDERED
Third-party defendant James G. Schleisman's motion for summary judgment against Synatel is granted.