Johnson v. Interstate Power Co.

• Decision Date: 19 February 1992
• Docket Number: No. 90-1092,90-1092
• Citation: 481 N.W.2d 310
• Parties: James E. JOHNSON, Appellee, v. INTERSTATE POWER COMPANY, Appellant. INTERSTATE POWER COMPANY, Appellant, v. D & J FEED SERVICE, INC., and Dale Jones, Appellees.
• Court: Iowa Supreme Court

Page 310

481 N.W.2d 310

James E. JOHNSON, Appellee, v. INTERSTATE POWER COMPANY, Appellant.

INTERSTATE POWER COMPANY, Appellant, v. D & J FEED SERVICE, INC., and Dale Jones, Appellees.

No. 90-1092.

Supreme Court of Iowa.

Feb. 19, 1992.

David L. Hammer and Angela C. Simon of Hammer, Simon & Jensen, Dubuque, for appellant.

James E. Thomson of Jacobson, Bristol, Thomson, Garrett & Swartz, Waukon, for appellee Johnson.

Richard J. Howes and Ronald L. Anderson of Howes & Anderson, P.C., Des Moines, and Jeanne K. Johnson, Des Moines, for appellees D & J Feed and Jones.

Considered en banc.

LAVORATO, Justice.

In this personal injury action, a feed mill employee sued a power company for injuries he sustained when working close to the power company's high voltage electrical lines. Before this suit, the employee received workers' compensation benefits because of these injuries. After the suit was filed, the power company filed a cross petition against the employee's employer and the employee's coemployee for indemnity.

The power company appeals from a jury verdict against it. On appeal the power company challenges several evidentiary rulings, a ruling directing a verdict against the power company on the indemnity claims, a ruling denying the power company's motion for directed verdict as to the employee's claim, and numerous instructions. The power company also claims the verdict was contrary to the law and to the evidence. We affirm.

I. Background Facts.

Interstate Power Company distributes electricity in parts of Minnesota, Illinois, and Iowa. In 1963 Interstate erected high voltage lines to furnish electricity to a feed mill now known as D & J Feed Service, Inc. The mill is located near Postville. In 1975 Interstate increased the voltage on the lines.

In 1976 D & J constructed a large grain processing machine--called a jetsploder--which cooks, rolls, and flattens grain fed from a cylindrical overhead bin. The jetsploder was positioned close to the northern most line closest to the plant, which carried 8000 volts after the 1975 upgrade.

The jetsploder was fully operational in 1977. A factory representative trained Dale Jones--a D & J employee--to operate the jetsploder. Jones then became the jetsploder's primary operator.

In 1983 Jones taught a new employee--James E. Johnson--to operate the jetsploder when Jones was gone. During Jones' 1983 vacation, Johnson ran the jetsploder without incident.

When Jones took his 1984 vacation, the task of running the jetsploder again fell to Johnson. While Jones was on vacation, D & J received a large feed order that required Johnson to start the jetsploder. After processing grain for a short time, Johnson noticed the grain flow into the jetsploder was decreasing. Johnson first thought the speed of flow might be too slow. He set the speed higher, but that made no difference. His next thought was that something was stopping the grain from coming into the jetsploder. Johnson then climbed several ladders and eventually reached a metal platform that was next to the upper "doghouse." Doghouse is a term Jones coined to describe various openings allowing inspection and maintenance of the machinery.

Once there, Johnson discovered the doghouse cover was off and to the backside of the doghouse. Johnson looked inside and saw that the auger and screen scalper were moving, but the grain was not.

Johnson thought there was something in the bottom of the doghouse that was blocking the flow of grain. At the bottom of the doghouse, there is an air gate that controls the flow of grain. Johnson thought that something might have been clogging the air gate.

Johnson noticed a metal pole lying nearby. The pole was about ten feet long. He picked the pole up and inserted it into the doghouse in an effort to break loose whatever he thought was causing the clogging. The next thing Johnson remembers is lying on a "catwalk" below where he had been standing.

From the physical evidence, the jury could find that, in withdrawing the pole, Johnson caused it to touch the 8000 volt line that was behind him. The accident left Johnson with several injuries: (1) initial cardiac arrhythmia, (2) a broken neck, (3) electrical burns to his hands and feet, (4) skull and facial fractures, and (5) facial lacerations.

We set out additional facts in our discussion of the issues to which these facts are relevant.

II. Background Proceedings.

Johnson sued Interstate for injuries arising out of this incident. In one division, he alleged negligent positioning, maintenance, insulation, and inspection of the electrical lines. In addition he alleged a failure to warn those working in close proximity to the lines of the danger in doing so.

In another division Johnson relied on Iowa Code section 478.16 (1983), which provided for a rebuttable presumption of negligence on the part of persons operating electrical transmission lines for injuries to person or property. See 1986 Iowa Acts, ch. 1198 (repealing section 478.16). Interstate answered, denying liability. Interstate later filed a third-party petition against D & J and Jones as third-party defendants, seeking indemnity from them.

D & J and Jones answered the third-party petition, denying liability. D & J's workers' compensation insurer filed a lien on all the proceeds of Johnson's suit for recovery of workers' compensation payments to Johnson because of the injuries he had suffered in this accident. See Iowa Code § 85.22 (notice of lien).

Following the district court's denial of D & J's and Jones' motion for summary judgment, the case proceeded to trial.

At the close of Johnson's evidence, Interstate moved for a directed verdict, which the district court denied. Interstate renewed its motion at the close of its evidence. The district court sustained the motion as to one division of Johnson's petition but denied it as to the other.

D & J and Jones also moved for directed verdict, and their motion was sustained.

The district court then submitted to the jury Johnson's claim against Interstate. The jury assessed seventy-five percent fault to Interstate and twenty-five percent fault to Johnson. The district court entered judgment for $156,000 and interest.

Later, Interstate filed motions for judgment notwithstanding the verdict and for a new trial. The district court denied both motions.

Interstate appealed, and we transferred the case to the court of appeals. In a three-to-three decision, the court of appeals affirmed.

Interstate applied to us for further review, and we granted its application. See Iowa R.App.P. 402.

Interstate raises numerous issues, which we consider in the following order.

III. Evidentiary Rulings.

Interstate challenges three evidentiary rulings. The first challenge involves the district court's refusal to admit evidence of Federal and Iowa Occupational Safety and Health Act (OSHA) standards. The second challenge centers on the district court's admission of an industry standard that Interstate claims did not apply to the case. The last challenge focuses on the district court's limitation on Interstate's cross-examination of Johnson's treating doctor.

A. The admissibility of the OSHA standards. Shortly before trial, D & J and Jones filed a motion in limine asking the court, among other things, to exclude evidence about whether the mill was in compliance with the OSHA standards or with industry working standards. Following selection of the jury, the district court sustained the motion as to this request. The court concluded that any such violations were not relevant.

Following opening statements, counsel for Interstate raised a new argument: OSHA regulations impose a duty upon an employer to instruct employees as to electrical safety. Counsel for Johnson countered that an ordinary employer outside of the construction industry has no such duty. The court asked for a copy of the specific regulation, giving counsel until the following morning to find it. The court made it plain that its ruling would not be changed if the regulation pertained only to the construction industry.

The following morning the court refused to change its original ruling. The specific OSHA regulation that the court had requested had not been produced. The court repeated its earlier ruling that the OSHA regulations were not relevant to the case.

We think for two reasons the district court was correct.

First, in their argument to the district court, counsel for Interstate made specific reference to the OSHA regulations found in 29 C.F.R. 1926 dealing with safety training and education. Those regulations expressly relate to the construction industry and not to feed mills. Clearly, these regulations were not relevant.

Second, we have held that violation of an OSHA standard by an employer is negligence per se as to the employer's employee. Koll v. Manatt's Transp. Co., 253 N.W.2d 265, 270 (Iowa 1977). We have also held that such a violation is evidence of negligence "as to all persons who are likely to be exposed to injury as a result of the violation." Id. But we have never held that the OSHA creates a duty in an employer that extends to a third party under an indemnity claim. We see nothing in the OSHA that suggests such an extension, and we refuse to do so.

We think our reasoning in Reese v. Werts Corp., 379 N.W.2d 1, 5 (Iowa 1985) supports our decision not to extend the duty here. In Reese the plaintiff sued the installer of an elevator she had used because of injuries she suffered when the elevator fell from the first floor to the basement. The installer cross-petitioned against the plaintiff's employer for indemnity. We reversed the district court's ruling denying plaintiff's summary judgment motion as to the indemnity claim. The indemnity claim was based on state statutes requiring the employer to have the elevator registered for inspection by the state and to keep it in safe operating condition. We held that these statutes do not create an independent...