Thompson v. Bohlken

• Decision Date: 25 November 1981
• Docket Number: No. 64595,64595
• Citation: 312 N.W.2d 501
• Parties: Kelly THOMPSON, Appellee, v. Jack BOHLKEN, Defendant, Daniel Long and Travelers Insurance Companies, Appellants.
• Court: Iowa Supreme Court

Page 501

312 N.W.2d 501

Kelly THOMPSON, Appellee, v. Jack BOHLKEN, Defendant Daniel Long and Travelers Insurance Companies, Appellants.

No. 64595.

Supreme Court of Iowa.

Nov. 25, 1981.

Dennis M. Gray, of Peters Law Firm, Council Bluffs, for appellant long.

Emmet Tinley, of Stuart, Tinley, Peters, Thorn, Smits & Sens, Council Bluffs, for appellant Travelers Ins. Companies.

Robert F. Leonard, of Leonard & Johnson, Sidney, for appellee.

Considered en banc.

LARSON, Justice.

Kelly Thompson, an employee of Farmaster Products, a manufacturing company in Shenandoah, lost the fingers of his left hand while operating a press for his employer. He sought damages against two co-employees, Jack Bohlken, and Daniel Long, the plant manager, asserting gross negligence in failing to provide him with a safe machine (section 85.20, The Code 1977). He also sued Travelers Insurance Companies, the employer's worker's compensation insurance carrier, alleging negligence in its safety inspections preceding the accident. ¹ The trial court dismissed the claim against Bohlken but overruled motions for directed verdict by Travelers and Long. The jury returned a verdict against both remaining defendants.

On appeal, Long asserts error by the trial court in submitting the case to the jury because he owed no duty to Thompson and because there was no substantial evidence upon which the jury could find the "gross negligence amounting ... to wanton neglect" required by section 85.20 for a suit against a co-employee. He also claims errors in respect to several evidentiary rulings by the court. Travelers, in its separate appeal, argues that its "accident prevention surveys" were not inspections which would raise a duty of care under section 324A of the Restatement (Second) of Torts (1965), that insufficient evidence as to the condition of the press was introduced at trial, that the requisite elements for liability for negligent inspection under section 324A had not been established, and that the court erred in several evidentiary rulings. We reverse on Long's appeal; we affirm in part and reverse in part on Travelers' appeal.

The evidence at trial established that Thompson had worked for Farmaster for approximately a year at the time of the accident. He was usually employed in another department but on the day before the accident was transferred to the press department because of a shortage of work in his own area. His new assignment was to operate a seventy-ton press to make components for Farmaster's gates. These "slide latch bodies" were constructed of sheet metal and were formed in a four-stage process by the press, which used a ram and die. The metal was automatically fed from a coil into the press and advanced each time the machine was engaged. However, when the coil of metal was nearly expended, the operator was required to manually advance the metal through the machine, stage by stage, using a screwdriver, and then stroking the press at each stage of the punching and forming process. A control box with key, separately mounted on the side of the press, allowed for the selection of the machine's mode of operation, by either foot or hand control. The hand controls consisted of two separate push buttons, one on each side of the press; in order to engage the machine it was necessary to depress the buttons simultaneously. Use of these buttons would virtually foreclose the possibility of the operator inserting his hands into the die area. The foot control, which could also activate the press, was housed in a small metal box on the floor. Access to the control box was restricted by a spring-release door; in order to engage the press it was only necessary to pull down on the door by foot, slide the foot inside the box, and depress a small pedal. If this mode of operation were used by the operator, vertical metal bars, located in front of the press' die area, theoretically guarded against the insertion of objects into the moving parts. These metal guards could be raised and lowered, the height determined by the particular die used in the press.

Although he had previously operated a press at Farmaster "quite a few times," Thompson was instructed on the day before his accident by Ray Hockenberry, an employee in Farmaster's tool-and-die department, on how to operate a press using a latch-body die. After receiving these instructions, Thompson operated the punch press for the remainder of the afternoon. Thompson testified that when he arrived for work the next morning, the key to the selector switch was turned to the foot-control method of operation, and the door to the control's housing was propped open with a heavy metal bar, allowing the operator to directly insert his foot into the box and to activate the press. In addition, the metal guards on the press were either removed or raised to a height of about one foot, exposing the die area, and allowing room to insert a hand into it. Thompson sat on a stool in front of the press and worked for one to two hours before he reached the end of the coil of sheet metal. He had been operating the machine by foot control because "that's the way it was .... it was set up for that operation and here it is .... run it." While attempting to remove the last portion of metal from the press with his left hand, the machine was activated and Thompson's fingers were severed.

I. Liability of co-employee Long.

As an employee covered by worker's compensation, Thompson's right to maintain an action against Long, as a co-employee, is governed by section 85.20, The Code. That statute provides that worker's compensation is the exclusive remedy against a co-employee, "provided that such injury ... 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." (Emphasis added.) The emphasized portion of the statute was added in 1974, apparently in response to a decision of this court recognizing the right to sue co-employees based upon acts of "simple" negligence in breaching safety-related duties owed to co-employees. Craven v. Oggero, 213 N.W.2d 678, 682 (Iowa 1973); accord, Davis v. Crook, 261 N.W.2d 500, 503 (Iowa 1978) (injury predating 1974 amendment; prior law applicable); Kerrigan v. Errett, 256 N.W.2d 394, 396-97 (Iowa 1977) (same). This case presents the first opportunity for this court to interpret the amendment restricting the right to maintain such suits.

The term "gross negligence" is said to be nebulous, without a generally-accepted meaning: It implies conduct which, while more culpable than ordinary inadvertence or unattention, differs from ordinary negligence only in degree, not kind. W. Prosser, Handbook of the Law of Torts § 34, at 183-84 (4th ed. 1971). However, the legislature added a new dimension and a certain amount of refinement to the term "gross negligence" in section 85.20 by providing it must "amount to wanton neglect for the safety of another." (Emphasis added.)

Similar to wilful or reckless conduct, "wanton" conduct lies somewhere between the mere unreasonable risk of harm in ordinary negligence and intent to harm. Prosser, supra, at 184-85. The author further explains the concept:

The usual meaning assigned to "wilful," "wanton" or "reckless," according to taste as to the word used, is that the actor has intentionally done an act of an unreasonable character in disregard of a risk known to or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.

Id. at 185 (emphasis added). It is said that the concept involves the combination of attitudes: a realization of imminent danger, coupled with a reckless disregard or lack of concern for the probable consequences of the act. Friesen v. Chicago, R.I. & Pacific R.R., 215 Kan. 316, 524 P.2d 1141, 1147 (1974) (railroad aware of prior accidents at same crossing and of safety recommendations for improvements failed to make crossing changes; held not wanton neglect). Another authority labels both "wanton" and "wilful" misconduct as "reckless disregard for the safety of another," Restatement, supra § 500, at 587, and distinguishes it from intentional misconduct only in that it requires a realization of a strong probability of harm to another rather than the substantial certainty accompanying an intentional act, id. § 500(f), at 590.

Other authorities distinguish between wilfulness, characterized by intent to injure, and wantonness, which merely implies an indifference as to whether the act will injure another. E. g., 57 Am.Jur.2d Negligence § 102, at 452-53 (1971). The difference is illustrated by comparing the throwing of an object with intent to strike another and throwing it without such intent, but believing that it will, in fact, strike another, and proceeding with indifference as to whether it does not. See Siesseger v. Puth, 213 Iowa 164, 172, 239 N.W. 46, 50 (1931). Wantonness is said to be less blameworthy than an intentional wrong only in that instead of affirmatively wishing to injure another, the actor is merely willing to do so. Id.

We conclude, in view of the foregoing, that there are three elements necessary to establish "gross negligence amounting to such lack of care as to amount to wanton neglect" under section 85.20: (1) knowledge of the peril to be apprehended; (2) knowledge that injury is a probable, as opposed to a possible, result of the danger; and (3) a conscious failure to avoid the peril. See Friesen, 215 Kan. at 322-23, 524 P.2d at 1146-49; Prosser, supra at 184-86.

Much of Thompson's evidence on the issue of wantonness was disputed; however, when viewed in the light most favorable to him, it showed that Long knew the guard on the press in question was maintained at a height sufficient to allow entry of the operator's hand, that the key for changing the operational mode was usually left in the press, and that the access door to the foot control switch was...