Craven v. Oggero

• Decision Date: 19 December 1973
• Docket Number: No. 55582,55582
• Citation: 213 N.W.2d 678
• Parties: Theodore H. CRAVEN, Sr., Executor of the Estate of Ralph H. Craven, Deceased, Appellant, v. Richard OGGERO, a/k/a Dick Oggero and David Reeves, Appellees.
• Court: Iowa Supreme Court

Page 678

213 N.W.2d 678

Theodore H. CRAVEN, Sr., Executor of the Estate of Ralph H. Craven, Deceased, Appellant, v. Richard OGGERO, a/k/a Dick Oggero and David Reeves, Appellees.

No. 55582.

Supreme Court of Iowa.

Dec. 19, 1973.

Rehearing Denied Feb. 14, 1974.

George A. LaMarca and Louis A. Lavorato, Williams & Hart, Des Moines, for appellant.

H. Richard Smith, Ahlers, Cooney, Dorweiler, Allbee & Haynie, Des Moines, for appellees.

Considered en banc.

McCORMICK, Justice.

This is an appeal from directed verdicts for two defendants in a wrongful death action. Plaintiff's decedent was fatally injured in a fall at a construction site. This action was brought against two supervisory coemployees. Trial court sustained defendants' motion for directed verdicts on grounds the action is barred by the Iowa Workmen's Compensation Act and the evidence is insufficient on the issues of negligence and proximate cause. We reverse and remand.

The accident happened December 3, 1968. Plaintiff's decedent, Ralph H. Craven and defendants Richard Oggero and David Reeves were employed by The Weitz Company, Inc. on a project to construct an addition to the library on the campus of Iowa State University in Ames. Decedent was a laborer, Oggero was safety director, and Reeves was job superintendent.

A hoist had been in use for about 60 days to take material to and from the upper stories of the structure. It could not be placed closer than about three feet to the building because of protruding stonework. A plain sheet of three-quarter inch plywood approximately three feet by four feet was cut by carpenters on the job for use as a landing platform to bridge the space between the hoist shaftway and the building. It was not anchored and had to be taken out while the hoist was raised and lowered.

Decedent and another employee were assigned to remove debris from the second floor. The hoist was placed near a second story window. There was a ramp from the floor to the window sill. Wheelbarrows full of debris were taken up the ramp, across the bridging device to the hoist cage, and left there to be lowered to the ground the emptied. The worker had to go back into the building and remove the bridge so the hoist could be lowered and put the bridge in place again when the hoist returned with the empty wheelbarrows.

During the loading and unloading process the hoist cage would sway, and the plywood sheet would deflect from the weight upon it.

Decedent and the other laborer worked at their assigned duty all morning on the day involved. The accident occurred about 1:30 p.m. just after decedent put a loaded wheelbarrow in the cage. The plywood bridge pulled loose while he was on it, and decedent fell to his death.

Four questions are presented: (1) is plaintiff's action barred by the workmen's compensation statute? (2) is the evidence sufficient to generate a jury issue on the issue of defendants' negligence? (3) is there sufficient evidence on the issue of proximate cause? and (4) does the evidence establish the defense of contributory negligence as a matter of law?

I. The statute. Trial court held coemployees are immunized from liability under the Iowa Workmen's Compensation Act in an employee's action when the duties they are alleged to have breached have been assigned to them in implementation of the employer's duty to provide his employees a safe place to work. We do not agree.

Code § 85.22 expressly authorizes employee actions against 'some person other than the employer' when the circumstances show legal liability of such third party. The effect of this section and Code § 85.20 which grants immunity from suit to the employer was squarely decided in Price v. King, 259 Iowa 921, 146 N.W.2d 328 (1966). The sole issue in that case was whether the employer's statutory immunity extends to employees. We held it does not. The employer alone is immune from suit. ('We are satisfied our workmen's compensation act was not intended to and does not relieve anyone other than the employer from liability imposed by that law.' 259 Iowa at 924, 146 N.W.2d at 330. 'It is to us apparent the Iowa Workmen's Compensation Act does not extend immunity from suit as a third party tort-feasor to a co-employee or fellow worker of an injured workman.' 259 Iowa at 926, 146 N.W.2d at 331. 'We hold that under the provisions of chapter 85, Code, 1962, a fellow employee is not immune to a suit by an injured employee. To do otherwise would require us to assume the prerogative of the legislature.' 259 Iowa at 927, 146 N.W.2d at 331.)

The statute does not permit any exception based upon the official position or representative capacity of the fellow employee against whom suit is brought. The legislature made the status of employer and employee mutually exclusive, with immunity cloaking the former but not the latter. And the term 'employee' encompasses 'every executive officer * * *, including a person holding an official position, or standing in a representative capacity of the employer * * *.' § 85.61(2), The Code; cf. § 85.61(3)(c) (excepting partners and corporate directors who are not employees).

Therefore the fact defendants hold supervisory positions and are alleged to have breached duties assigned them in a representative capacity does not immunize them from liability. Trial court erred in holding plaintiff's action against them is barred by the workmen's compensation statute.

II. Negligence. Trial court held plaintiff failed to offer sufficient evidence to generate a jury issue that either defendant breached a personal duty owed plaintiff's decedent.

In deciding this question we view the evidence in its light most favorable to plaintiff since the verdicts were directed against him.

The jury could find the plywood sheet used as a landing platform did not have any safety features. It did not have guard rails, toe boards or cleats, nor was it secured to the building. Scaffolding could have been built to the level of the window sill to support a landing platform, or the platform could have been anchored to the building. There was evidence from which the jury could find the landing platform used was not reasonably safe and that employment of standard safety devices or a different structure would have made it safe.

As company safety director defendant Oggero had a duty to tour job sites to inspect for safety hazards and to ensure safety rules and procedures were followed. He testified, 'It was my job to see that the men on the job sites had the benefit of these rules * * * in the work situation. It was my job to protect the workers.' He would order the job superintendent to remedy unsafe conditions. As job superintendent defendant Reeves had the authority and duty to eliminate unsafe conditions. He would order the carpenter foreman to have necessary carpenter work done and the labor foreman to use the devices thus produced.

Both men were aware of the use of the plywood sheet as a bridging device. Both knew the terms of rule 3.6(1) (then applicable but now superseded) of the Iowa Employment Safety Commission prescribing standards for devices used to bridge space between hoists and buildings. It provides:

'Where landing platforms connect the shaftway to the building, such platforms shall be constructed of sound material capable of sustaining maximum possible load. Standard guard rails and toe boards shall be provided.' Iowa Departmental Rules (1971) at 235.

Oggero acknowledged this is a minimum safety standard and greater precautions may be required. He admitted the use of a bridging device is the kind of situation he would be obliged to inspect but said he was satisfied in this case when told before the accident by the carpenter foreman he had constructed a platform with cleats on it. Cleats are two by four's fastened to the bottom of a platform near its edges to stabilize it. He did not inspect to see what device was actually used.

Reeves said he knew the platform did not have either guard rails or toe boards but did not know whether it had cleats. He admitted he had the opportunity and duty to correct the situation if the platform was unsafe but did nothing in this case. He said, 'You get to running these jobs and you've got so much that you kind of leave it to the foreman and it gets right down to the man to use the proper pieces (sic) that is provided for him.' An employee testified Reeves confiscated the platform after the accident in an effort to conceal its inadequacy.

This evidence shows the duties defendants are alleged to have breached were assigned to them in their supervisory capacities by their employer to implement its obligation to provide employees a safe place to work. Plaintiff maintains this assignment created personal duties of defendants to his decedent which were negligently breached in this case. It is well established that 'a servant may render himself liable for injuries negligently inflicted by him on a fellow servant in the transaction of the master's business.' 57 C.J.S. Master and Servant § 578 at 348. Origin of the obligation in an assignment from the employer does not make it any less a personal duty. Graham v. Worthington, 259 Iowa 845, 866, 146 N.W.2d 626, 640 (1966); cf. Giarratano v. Weitz Company, 259 Iowa 1292, 147 N.W.2d 824 (1967).

The principle relied upon by plaintiff is expressed in Restatement of Torts, Second, § 324A.:

'One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as...