Iowa Employee’s Tort Action Against Co-Employees Alleging Gross Negligence Fails

Construing Iowa's special co-employee immunity statute [Iowa Code § 85.20(2)], pursuant to which a coemployee is not immune from tort liability if his or her gross negligence causes injury to a co-worker, a state appellate court affirmed a trial court's decision granting summary judgment to five co-workers sued by a Department of Transportation employee who sustained serious injuries while operating a truck-mounted drill and auger [Oppedahl v. Various Employees of the Iowa DOT, 2021 Iowa App. LEXIS 84 (Jan. 21, 2021)]. The appellate court held that the plaintiff failed to show, in relevant part, that the defendants had knowledge that injury was a probable, as opposed to a possible, result of the dangers of the workplace.

Background

Oppedahl worked for the Iowa Department of Transportation (DOT) as "soils party chief," a job that required him to drill for soil samples. Oppedahl was severely injured while operating a truck-mounted drill and auger on a platform located approximately eighteen inches from the drilling mechanism. Oppedahl, individually and on behalf of his wife and minor children (collectively, Oppedahl) sued DOT employees John Chester, Robert Stanley, Kent Nicholson, Michael Kennerly, and Jim Peters. He alleged co-employee gross negligence pursuant to Iowa Code § 85.20(2) (2017).

The trial court granted the defendants motion for summary judgment.

Generally speaking, Iowa's workers' compensation system is the exclusive remedy against an employer and another employee for workplace injuries. An exception to that rule exists when the injury is "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" [Iowa Code § 85.20(2)].

Proof of Three Elements

The appellate court noted that in order to prevail, the plaintiff must prove:

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 [citing Thompson v. Bohlken, 312 N.W.2d 501, 505 (Iowa 1981).

The appellate court concentrated on the second element, observing that it was usually determinative since it was exceptionally difficult for plaintiffs to prove that a defendant had the requisite knowledge that an injury was probable, rather than merely possible, under the circumstances.

More Than "Actuarial Foreseeability" That Accidents Will Happen

The court stressed that here, Oppedahl was required to shore more than the defendant's actual or constructive knowledge of the actuarial foreseeability–even certainty–that "accidents will happen." To satisfy element two, the plaintiff must show not only the existence of a zone of imminent danger, but that the defendants knew or should have known that their conduct caused the plaintiff to be in that zone.

Zone of Imminent Danger

The court also stressed that even assuming–without deciding–that there was a genuine issue of material fact as to whether the area immediately surrounding the auger was "a zone of imminent danger," the court could discern no genuine issue of material fact on the question of whether the defendants knew or should have known that their conduct on the date of the accident caused Oppedahl to be in that zone [emphasis mine]. The court pointed out that the operative two words on that score were "their conduct."

The court noted that it was undisputed that none of the named defendants were at the job site when Oppedahl was injured and none had personal knowledge of the nature or circumstances surrounding the accident. Indeed, said the court, four of the five employees were far removed from the day-to-day activities of the drillers.

3600 Borings Without Incident

Also fatal to Oppendahl's tort action against the coemployees was the fact that, as one testified, there had been more than 900 borings per year in the four calendar years preceding Oppendahl's accident, yet he was not aware of any injuries or accidents during that period with a rotating auger like the one in use at the time of Oppendahl's accident. There was some evidence that many years before Oppendahl's accident, there had been several injuries. On the other hand, Oppendahl's supervisor testified that he had personally completed some 14,000 borings with similar equipment without adverse incidents.

In short, there was no evidence that Oppendahl's accident was probable, certainly no evidence that the defendants knew that the accident was probable. Summary judgment, said the appellate court, was appropriate.