Walker v. Mlakar, 91-352

• Decision Date: 22 July 1992
• Docket Number: No. 91-352,91-352
• Citation: 489 N.W.2d 401
• Parties: Mary Alice WALKER, Administrator of the Estate of Clifton Walker, Deceased, Appellant, v. Gary MLAKAR and George Pratt, Jr., Appellees.
• Court: Iowa Supreme Court

Page 401

489 N.W.2d 401

Mary Alice WALKER, Administrator of the Estate of Clifton Walker, Deceased, Appellant, v. Gary MLAKAR and George Pratt, Jr., Appellees.

No. 91-352.

Supreme Court of Iowa.

July 22, 1992.

Michael K. Bush and John J. Carlin of Carlin, Hellstrom & Bittner, Davenport, for appellant.

Carole J. Anderson and Thomas N. Kamp of Lane & Waterman, Davenport, for appellees.

Considered en banc.

McGIVERIN, Chief Justice.

Plaintiff Mary Alice Walker, administrator of the estate of her husband, Clifton Walker, appeals from a district court judgment directing a verdict for the defendants in plaintiff's coemployee gross negligence action. We affirm the court of appeals decision and the district court judgment.

I. Background facts and proceedings. Clifton Walker was employed as a facilities servicer by the Aluminum Company of America (ALCOA) at its Davenport plant. As of the mid-1980's, the physical plant was made up of over 120 buildings covering 107 acres located on 445 acres of ground. These facilities had the capacity to produce over 700 million pounds of aluminum per year. By 1988, the Davenport plant employed approximately 2200 employees.

One of the duties which facilities servicers such as Clifton periodically performed at the Davenport plant was to clean and scrape tunnels located under the plant's numerous aluminum rolling mills. In January 1988, at the direction of his unit supervisor, Clifton and a coworker were performing this task in a dark tunnel under the 144-inch mill when Clifton fell approximately eleven feet into an unguarded drop-off. Clifton died six months later as a result of the injuries he sustained in the fall.

Mary Walker, as administrator in behalf of Clifton's estate, thereafter brought this gross negligence action for his injuries and death against defendants George Pratt and Gary Mlakar. See Iowa Code § 85.20 (1989). At the time of Clifton's fall, George Pratt was employed by ALCOA as the manager of safety, health, and environment; Gary Mlakar worked for Pratt as a safety engineer. Mary claimed that defendants Pratt and Mlakar had an independent duty to Clifton and other workers to provide a safe place to work, a duty established by defendants' job descriptions. Those job descriptions required each defendant to, among other things, be familiar with all aspects of the Davenport plant and to identify and remedy potential safety hazards. Mary claimed that defendants knew or should have known of the poor lighting and unguarded drop-off under the 144-inch mill, and that defendants' failure to identify and remedy the situation amounted to coemployee gross negligence.

At trial, the parties presented extensive testimonial and documentary evidence of the numerous and elaborate safety programs which ALCOA maintained at its Davenport plant. Plaintiff Mary Walker also presented the testimony of several facilities servicers which indicated that there had been numerous complaints about poor lighting under ALCOA's various rolling mills. However, these witnesses conceded that they never told defendants Pratt or Mlakar of the conditions under the mills. Also, it is apparent that none of these witnesses ever utilized any of ALCOA's other injury prevention programs in order to alert defendants or other coworkers of the witness' concerns.

Furthermore, defendants Pratt and Mlakar testified that they did not know an unguarded drop-off existed under the 144-inch mill; Pratt was not aware of any drop-offs under any mills, and Mlakar had never been in any of the tunnels under the plant's mills. The condition under the 144-inch mill had apparently existed for forty years, and plaintiff presented no evidence that any worker had sustained any injury as a result of the condition causing Clifton's injury.

At the close of plaintiff's evidence, defendants moved for a directed verdict in their favor. See Iowa R.Civ.P. 216. Defendants contended that because no evidence established that either defendant was actually aware of the unguarded drop-off where Clifton sustained his injuries, plaintiffs had failed as a matter of law to establish gross negligence pursuant to Iowa Code section 85.20. Plaintiff countered that she did not have to prove that defendants actually knew of the conditions under the 144-inch mill; she asserted that defendants' job descriptions provided constructive knowledge of the condition which was sufficient to avoid a directed verdict. However, the district court agreed with defendants' assertions, sustained their directed verdict motions, and entered judgment for defendants.

Upon plaintiff's appeal, we transferred the case to the court of appeals. See Iowa R.App.P. 401. That court affirmed the district court's judgment by operation of law. See Iowa Code § 602.5106(1).

We granted plaintiff's application for further review and now consider the issues raised. See Iowa R.App.P. 402. We consider the evidence in the light most favorable to plaintiff Mary Walker. See Swanson v. McGraw, 447 N.W.2d 541, 543 (Iowa 1989); Iowa R.App.P. 14(f)(2). If no reasonable mind could differ on the directed verdict issue, we must affirm the directed verdict in favor of defendants. See Swanson, 447 N.W.2d at 543.

II. Coemployee gross negligence. Our workers' compensation statute is an injured worker's exclusive remedy against an employer or coemployee, thereby providing the employer and coemployee immunity from common law tort liability. See Iowa Code § 85.20. Although an employer is always immune from common law tort liability, an injured worker may maintain a common law tort action against a coemployee to recover for injuries only if the employee can establish that his or her injuries were caused by the coemployee's "gross negligence amounting to such lack of care as to amount to wanton neglect for the safety of another." See id.

Starting with Thompson v. Bohlken, 312 N.W.2d 501, 505 (Iowa 1981), we have held that there are three elements necessary to establish a coemployee's "gross negligence" under Iowa Code 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. We have stringently maintained that an injured worker must prove all of the elements of the Thompson test in order to establish a coworker's "gross negligence" for purposes of section 85.20. See Dudley v. Ellis, 486 N.W.2d 281, 283 (Iowa 1992); Henrich v. Lorenz, 448 N.W.2d 327, 332 (Iowa 1989); Swanson, 447 N.W.2d at 543; Eister v. Hahn 420 N.W.2d 443, 446 (Iowa 1988); Woodruff Const. Co. v. Mains, 406 N.W.2d 787, 789 (Iowa 1987); Taylor v. Peck, 382 N.W.2d 123, 126 (Iowa 1986); see also Larson v. Massey-Ferguson, Inc., 328 N.W.2d 343, 346 (Iowa App.1982).

The result we reach in this case depends upon the interpretation given to these three criteria for the particular brand of "gross negligence" required under section 85.20. More specifically, this case presents the question of whether plaintiff properly established the first and third elements under the Thompson test. Thus, we must determine whether a coemployee's mere constructive knowledge of a condition may constitute "knowledge of the peril to be apprehended," or whether a plaintiff is required to prove that a coemployee actually knew of a peril before the coemployee may be exposed to common law tort liability. Correspondingly, we must determine whether plaintiff properly proved that defendants Pratt and Mlakar "consciously failed to avoid" the peril which caused Clifton's injuries.

A. We agree with the statements of the district court directing the verdict in favor of defendants:

[T]here isn't a scintilla of evidence, ... not a breath of evidence, that these two fellows [defendants] knew that this drop-off existed under that mill.

....

The issue in this case is nothing more than an ordinary negligence action. That's all I've heard, that's all the evidence is. A duty--a failure to comply with the duty.

What makes it something more than an ordinary negligence action is what the Supreme Court has defined as--it isn't just knowledge of the peril, it's a knowledge that the condition exists. It's a knowledge that there is a drop-off there. And without that, there can't be a conscious failure to do something about it.

(Emphasis supplied.)

In other words, plaintiff presented no evidence that defendants Pratt or Mlakar actually knew of the drop-off under the 144-inch mill, and without that, defendants could not have consciously failed to do something about it.

However, we indicated in Thompson that a coemployee such as Pratt or Mlakar cannot be found grossly negligent unless the employee "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." 312 N.W.2d at 504-05 (quoting W. Prosser, Law of Torts § 34, at 185 (4th ed. 1971)) (emphasis supplied). For the reasons that follow, we therefore conclude that an injured worker must prove, in a coemployee "gross negligence" action under Iowa Code section 85.20, that a coemployee actually knew of a peril or hazard; otherwise, there cannot be a conscious failure on the coemployee's part to avoid the peril or hazard and thereby prevent the injured worker's injury. See Riessen v. Neville, 425 N.W.2d 665, 668 (Iowa App.1988) (affirming directed verdict for defendant-coemployee where he was not at site of injury, "nor did he have knowledge the project [causing plaintiff's injury] had been commenced").

Plaintiff nevertheless quotes several passages from the Restatement (Second) of Torts which generally support her assertion that a coemployee's mere constructive knowledge may constitute "knowledge of the peril to be apprehended." See Restatement (Second) of Torts §§ 12, 500, at 19, 587 (1965); see also Prosser & Keeton, The Law of...