Davis v. Crook

• Decision Date: 18 January 1978
• Docket Number: No. 59217,59217
• Citation: 261 N.W.2d 500
• Parties: 1978 O.S.H.D. (CCH) P 22,500 Albert L. DAVIS, Appellee, v. Kenneth CROOK and William Briggs, Appellants.
• Court: Iowa Supreme Court

Page 500

261 N.W.2d 500

1978 O.S.H.D. (CCH) P 22,500

Albert L. DAVIS, Appellee, v. Kenneth CROOK and William Briggs, Appellants.

No. 59217.

Supreme Court of Iowa.

Jan. 18, 1978.

Roy W. Meadows, of Whitfield, Musgrave, Selvy, Kelly & Eddy, Des Moines, for appellants.

Lewis M. Girdner, of Brierly, McCall, Girdner & Chalupa, Newton, for appellee.

Heard by MOORE, C. J., and MASON, LeGRAND, REYNOLDSON and HARRIS, JJ.

REYNOLDSON, Justice.

June 1, 1971, while working for Newton Sheet Metal, Inc., plaintiff suffered an amputation of his fingers and a portion of both thumbs in an unshielded metal shear machine. He brought this action against defendants Briggs and Crook, president and vice president of the company. These defendants were also principal stockholders and chief operating officers of this small corporation employing approximately ten persons.

Plaintiff asserted and sought to prove Briggs and Crook, as co-employees, had accepted and breached a company-imposed duty relating to the safety of other employees, and specifically in negligently failing to provide a safe and suitable shear machine and safe conditions around it. Plaintiff also claimed defendants were negligent in failing to provide this machine with guards as required by § 88.6, The Code, 1971.

From the evidence the jury could have found plaintiff was approaching the shear machine carrying a piece of metal to be cut. He tripped over accumulated metal pieces on the floor and fell into the machine, tripping an exposed foot-operated lever which activated the blade when plaintiff's hands were beneath it.

The jury returned a verdict of $140,000 against both defendants. Upon their appeal, we affirm.

Other relevant evidence will be referred to in the following divisions.

I. Motions for directed verdict.

Defendants contend plaintiff failed to generate a jury issue that either of them owed him a duty to provide a shear shield or clean up around the machine, and therefore the court should have sustained their separate motions for directed verdict.

The basic applicable common law was identified in Craven v. Oggero, 213 N.W.2d 678, 682 (Iowa 1973). A mere relationship of co-employees imposed no duty on one to act for the safety of the other. Only where the common employer has placed a safety-related duty on an employee, either expressly "or by clear implication," which he or she has accepted, does the latter have a personal duty to act for the safety of other employees.

In Kerrigan v. Errett, 256 N.W.2d 394, 397 (Iowa 1977), we adopted four criteria for determining whether a co-employee is liable under common-law standards for injuries received in work-related accidents. We now apply these four factors to conclude whether plaintiff produced sufficient evidence to support a necessary and underlying jury finding that common-law personal duties for plaintiff's safety were assigned to and accepted by defendants.

In considering a motion for directed verdict the court views the evidence in the light most favorable to the party against whom the motion was made. Rule 14(f)(2), Rules of Appellate Procedure. Every legitimate inference which may reasonably be derived therefrom must be carried to the aid of the evidence. If reasonable minds can differ on the issue it is for the jury. Becker v. D & E Distributing Co., 247 N.W.2d 727, 729-730 (Iowa 1976), and citations.

The first criterion identified by Kerrigan requires a finding the employer owed a duty, breach of which caused the damage for which recovery is sought. The record before us adequately meets this test. The company owed plaintiff a duty to provide him a reasonably safe work area and equipment. There was abundant evidence this unguarded machine violated industrial standards and was dangerous. From other evidence the jury could have found the work area was littered and unsafe. The jury was justified in finding these conditions combined in proximately causing plaintiff's injury.

Evidence to meet the other criteria is less satisfactory, but minimally sufficient to generate a jury question.

No formal corporate action is disclosed which would prove the company's duty was delegated to Briggs and Crook. This is not surprising in so small a corporation. There is no indication plaintiff ever took the depositions of these defendants. Except for brief and carefully restricted testimony by Briggs on an unrelated subject, neither took the witness stand. Plaintiff thus was unable to support his case through cross-examination.

On the other hand, there is a clear implication each of these defendants, as an employee of the corporation, was delegated and assumed the duty to provide for safety of the other employees.

Crook was in charge of the shop activity more than Briggs, and directly supervised the work there. He used the shear machine. We already have referred to the evidence scrap metal would accumulate around this machine. Briggs testified Crook ordinarily would be the person who "designated the cleanup duty on a particular day." The last reported cleanup was about one week before plaintiff's injury. Loy, safety officer with the Iowa state bureau of labor, testified without objection it was Crook with whom he dealt in plant safety inspections shortly after June 1, 1971, and who signed two safety inspection reports.

Briggs usually did the hiring, firing, and assignment of work. He was the person to whom employees ordinarily made complaints concerning safety hazards or problems. He gave instructions on wearing hard hats. Briggs briefly instructed plaintiff in operating the shear machine and told him "to keep my damned fingers out of there or it would cut them off." Briggs apparently also took occasional responsibility to direct an employee to clean up scraps and debris, including the area of the shear machine.

There is not a scintilla of evidence that Crook or Briggs as operating officers ever delegated a duty of overseeing safety to any other person or persons. We also deem it significant no foremen or other supervisory personnel were interposed between these defendants and their co-employees. See Miller v. Muscarelle, 67 N.J.Super. 305, 170 A.2d 437 (1961). Both Crook and Briggs obviously had knowledge of the unguarded blade on the shear machine. Both occasionally, but too infrequently, carried out a responsibility for cleanup so as to provide a safe place to work around the machine.

In this jurisdiction, liability of a co-employee may be grounded on "nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty." Kerrigan, supra, 256 N.W.2d at 397. In our judgment the evidence creates a jury question whether these operating officers had personally charged themselves with responsibility for safety measures to protect their fellow employees. See Moose v. Rich, 253 N.W.2d 565, 571 (Iowa 1977); Restatement of Agency 2d, § 350, pp. 119-121 (1958).

The second branch of defendants' motions for directed verdict related to defendants' liability under § 88.6, The Code, 1971:

"It shall be the duty of the owner, agent, superintendent, or other person in charge of any workshop, manufacturing or other industrial establishment * * * to * * * protect, by guards or housing, all * * * saws, planes, and other machinery, when so located or used that employees may receive injury thereby."

This section was later repealed by Acts 64 G.A. ch. 1028, § 1 (1972).

Each defendant's motion asserted there was no showing he was in charge of the shop or the machine, and in any event civil liability could not be grounded on the statute because a violation subjected the violator to a criminal penalty.

We hold the jury could have found from the evidence both defendants were in charge of the plant. Upon such finding, both had a statutory responsibility to provide a guard for the shear machine. We conclude in division II, infra, that § 88.6 is an applicable standard of care despite the criminal penalty for its violation.

Finally, defendants' motions asserted plaintiff was contributorily negligent as a matter of law. Generally questions of contributory negligence and proximate cause are for the jury; it is only in exceptional cases that they may be decided as a matter of law. Rule 14(f)(10), R.Ap.P. Whether negligence, once proven, was a proximate cause is an issue which only in exceptional cases may be decided as a matter of law. See Rubel v. Hoffman, 229 N.W.2d 261, 264 (Iowa 1975); Osterfoss v. Illinois Central Railroad, 215 N.W.2d 233, 238 (Iowa 1974); Kastler v. Iowa Methodist Hospital, 193 N.W.2d 98, 103 (Iowa 1971).

We find no exceptional circumstances in this record which would permit the court to decide, as a matter of law, the issues of plaintiff's negligence and proximate cause.

Trial court was right in overruling the motions for directed verdict.

II. Instructions.

Defendants excepted to certain instructions submitted by trial court, and excepted to the court's failure to give their requested instructions.

Read together, we find the submitted instructions adequately explain the standards for determination of individual liability of co-employees for work-related injuries as laid down in Kerrigan, supra, 256 N.W.2d at 397, and Craven, supra, 213 N.W.2d at 682-683. Matters raised in defendants' requested instructions were substantially incorporated in the instructions which were given. No error results from a failure to submit the issues in the form requested. See Porter v. Iowa Power and Light Company, 217 N.W.2d 221, 235 (Iowa 1974).

Defendants vigorously contend trial court erred in permitting the jury to determine their liability based on § 88.6, The Code, 1971, quoted in division I. They argued plaintiff's petition originally alleged only a common-law theory of recovery based on defendants' failure to provide guards for the shear...