Keller v. State, 90-901
| Decision Date | 18 September 1991 |
| Docket Number | No. 90-901,90-901 |
| Citation | 475 N.W.2d 174 |
| Parties | 15 O.S.H. Cas. (BNA) 1297, 1991 O.S.H.D. (CCH) P 29,490 Larry KELLER, Appellant, v. STATE of Iowa, Appellee. |
| Court | Iowa Supreme Court |
James P. Hoffman, Keokuk, for appellant.
Thomas J. Miller, Atty. Gen., and Robert D. Wilson, Asst. Atty. Gen., for appellee.
Considered by McGIVERIN, C.J., and LARSON, CARTER, SNELL, and ANDREASEN, JJ.
Plaintiff, Larry Keller, appeals from a summary judgment ruling dismissing his tort action against the State. He contends that summary judgment was inappropriately granted because fact issues exist concerning whether the State or its employees acted negligently during an OSHA visitation and consultation. Upon considering the arguments presented, we affirm the judgment of the district court.
Plaintiff was employed as a janitor for the Morse Rubber Company in Keokuk. As part of this employment, he occasionally did some spray painting. On August 21, 1985, his employer instructed him to spray a primer coat on the metal fabrication to be used in one of Morse Rubber Company's products. This was in preparation for eventually coating the structure with an epoxy resin. This job was to be performed in a spraying booth enclosed on three sides. The product to be applied was known as Koppers 654 Epoxy Primer, a lead silico chromate substance. It contained a high concentration of lead.
On the day the primer was applied by plaintiff, representatives of the Labor Services Section of the Iowa Bureau of Labor (now the Department of Employment Services) were on the premises of the Morse Rubber Company. They were there to counsel plaintiff's employer with respect to that company's obligations under the Iowa Occupational Safety and Health Act (Iowa Code chapter 88 (1989)). 1 Prior to plaintiff's undertaking his assigned spraying task, at least two of the bureau's employees examined the lead silico chromate primer material and the manufacturer's technical data sheet for that product. They also examined the spray booth and the mask plaintiff intended to wear. These examinations took place prior to the spraying activity. There is no indication that any bureau of labor employee was present when the spraying took place.
The two bureau of labor employees who examined the primer material state in depositions that safe application of this lead-base substance in the three-sided spray booth mandated the use of a respirator mask with special canisters to trap toxic vapors. Although it appears that respirator masks were available at the work site at this time, plaintiff wore a simple dust mask while spraying the primer. That type of mask does not protect against inhalation of toxic vapors. In the process of applying the primer spray, plaintiff inhaled toxic fumes that produced a serious and permanent injury.
The motion papers in the summary judgment proceeding include deposition testimony of other employees of Morse Rubber Company allegedly present prior to and at the time of plaintiff's injury. Their testimony suggests that bureau of labor employees gave affirmative approval to plaintiff's use of the dust mask. The State employees in question deny that this occurred.
Plaintiff contends that this contradiction in the evidence was sufficient to preclude summary judgment. In addition, he urges that, even if the agents of the State did not affirmatively advise him that the mask was adequate, these persons were negligent in not warning him concerning the mask's inadequacy to protect against inhalation of toxic vapors.
In considering the State's summary judgment motion, the district court distilled plaintiff's broad and overlapping specifications of negligence into five basic claims of negligence. These are: (1) failure of the State to adequately train, equip, and supervise the bureau of labor employees; (2) failure of bureau of labor employees to warn plaintiff of the dangers of toxic vapors emanating from the substance being sprayed; (3) failure of bureau of labor employees to instruct plaintiff concerning the appropriate protective mask; (4) failure of the bureau of labor employees to supervise plaintiff in his performance of the spraying; and (5) affirmatively misadvising plaintiff on the protective qualities of the dust mask worn by him. Based on the allegations of the petition and plaintiff's answers to the State's interrogatories, we agree that this characterization of plaintiff's claims was correct.
After condensing the claims to the foregoing five specifications of negligence, the district court concluded that (a) a prerequisite of negligence liability is a duty owed by the actor which requires conformity to a standard of conduct for the protection of the victim; (b) the State or its employees owed plaintiff no duty to conform their conduct for his protection as to the first four specifications of negligence; and (c) with respect to any duty owed plaintiff under specification (5), the State and its employees were immunized from liability by the misrepresentation exception to tort liability contained in Iowa Code section 25A.14(4). The district court also expressed the view that some or all of plaintiff's claims of negligence fell within the discretionary function exception contained in Iowa Code section 25A.14(1).
In arguing for reversal, plaintiff urges that neither the misrepresentation exception nor the discretionary function exception is applicable to the facts of the present case. In addition, he contends that the bureau of labor employees owed him a duty of reasonable care under the agency's own regulations and by reason of their voluntary acceptance of responsibility in advising him about the mask.
The State argues that activities relating to the bureau of labor's educational and training function under Iowa Code section 88.16(3) are, by their very nature, discretionary functions for which immunity is provided under section 25A.14(1). It also contends that, if any improper assurances were given concerning the safety of plaintiff's mask, this conduct would fall within the misrepresentation exception to tort liability contained in Iowa Code section 25A.14(4) (1989). Finally, the State urges that the district court was correct in its conclusions limiting the extent of the State's duty to plaintiff.
The State contends that its position is buttressed by the applicable statutes and regulations. In designating the agency's educational function, section 88.16(3) provides:
The commissioner shall provide for the establishment and supervision of programs for the education and training of employers and employees in the recognition, avoidance, and prevention of unsafe or unhealthful working conditions in employments covered by this chapter, and consult with and advise employers, employees, and organizations representing employers and employees, as to effective means of preventing occupational injuries and illnesses.
Id. The bureau of labor has promulgated regulations governing the activities of those employees who perform on-site consultative services to employers. These include the following:
[T]he consultation and education bureau is responsible for developing and directing an on-site consultative service program for employers in the private sector (nongovernmental employers). The section conducts consultations at workplaces to assist employers in the recognition and correction of workplace hazards and potential violations of the Iowa Occupational Safety and Health Act and the Hazardous Chemicals Risks Right to Know Act, division II.
347 Iowa Admin.Code 2.4 (emphasis added).
The chapter contains procedures under which the division of labor services, bureau of consultation and education provides on-site consultative services to employers.
The service is available at no cost to employers to assist them in establishing effective occupational safety and health programs for providing their employees employment and a place of employment which is safe and healthful. The overall goal is to prevent the occurrence of injuries and illnesses which may result from exposure to hazardous working conditions and from hazardous work practices. The principal assistance will be provided at the employer's worksite, but off-site assistance may also be provided by telephone and correspondence, and at locations other than the employer's worksite, such as the offices of the division of labor services. At the worksite, the consultant will, within the scope of the employer's request, evaluate the employer's program for providing employment and a place of employment which is safe and healthful, as well as identify specific hazards in the workplace, and will provide appropriate advice and assistance in establishing or improving the employer's safety and health program and in correcting hazardous conditions identified.
... [T]he discovery of hazards shall not mandate citations or penalties, the employer remains under the statutory obligation to protect employees, and, in certain instances, the employer shall be required to take necessary protective action. Employer correction of hazards identified by the consultant during a comprehensive workplace survey, and implementation of certain core elements of an effective safety and health program and commitment to the completion of others may serve as the basis for employer exemption from certain enforcement activities....
347 Iowa Admin.Code 8.1 (emphasis added).
An initial on-site consultative visit shall consist of an opening conference where the employer shall be advised as to the responsibilities under state law, an examination of those aspects of the employer's safety and health program which relate to the scope of the visit, a walk through the workplace and a closing conference where the employer shall be informed of hazards and the recommended corrective measures. An initial visit may include training and education for employers and employees, if the employers request the...
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