$7 Million Verdict Against Iowa Co-Employee Cannot Stand
Construing Iowa’s co-employee immunity statute, Iowa Code § 85.20(2), which allows a co-employee to be sued for injuries caused by the co-employee’s “gross negligence amounting to such lack of care as to amount to wanton neglect for the safety of another,” a state appellate court recently affirmed a decision by a state trial court that granted the defendant co-employee judgment NOV, following a jury verdict that had awarded $7 million in damages to the estate of a deceased worker [Ganka v. Clark, 2019 Iowa App. LEXIS 1062 (Nov. 27, 2019)]. Reviewing the state’s three-part Thompson test for assigning liability to a co-employee, the appellate court agreed that there was nothing in the record to suggest that the defendant co-employee had “knowledge” that his actions would make an injury “probable.”
Background
Defendant Clark worked for a property management business owned by his parents. While it appeared he had no actual title, Clark was responsible for assigning tasks to a co-employee, Bronson, and Bronson’s crew. On the day of the fatal incident, Clark tasked Bronson’s crew with drilling vent holes in the front of a building. The holes needed to be drilled above an awning at a height of approximately twelve to thirteen feet. Bronson asked Clark if the crew could use a telehandler (a telescoping forklift). Clark denied the request because use of the telehandler would have blocked the street and, therefore, would have required a permit. It was undisputed that Bronson’s crew had access to a number of pieces of equipment, including a scissor lift, scaffolding, and multiple ladders to assist them in the work.
Ultimately, Bronson chose not to use the scissor lift or scaffolding. Instead, Bronson chose a specific ladder, climbed up that ladder, and began to drill. His brother, Weston, held the ladder. Something went wrong. Bronson fell from the ladder, landing on the pavement below. He died days later.
Trial Court
Bronson’s widow filed a gross negligence suit against Clark. As noted above, a co-employee (or his/her estate) may sue a co-employee in tort if gross negligence can be established. At the end of the widow’s evidence and at the end of all evidence, Clark moved for a directed verdict. The trial court reserved ruling on the motions. The jury found Clark was grossly negligent, that he was 80 percent at fault, and awarded total damages of $7 million dollars. In a detailed ruling, the trial court concluded the evidence was insufficient to establish gross negligence under Iowa law. Accordingly, the court granted Clark’s motion for JNOV.
Appellate Court Opinion
Initially, the appellate court noted the “narrow” exception to exclusivity carved out by the terms of Iowa Code § 85.20(2). The court also noted that beginning with Thompson v. Bohlken, 312 N.W.2d 501, 505 (Iowa 1981), Iowa courts had held three elements must be proven to establish a gross negligence claim:
- Knowledge of the peril to be apprehended;
- Knowledge that injury is a probable, as opposed to a possible, result of danger; and
- A conscious failure to avoid the peril.
The court stressed that allegations of gross negligence carried a high burden of proof, and a plaintiff must satisfy all three elements before liability could attach.
Like the trial court, the appellate court assumed the widow’s evidence was sufficient to meet the first Thompson element. The appellate court said the second element was usually determinative in co-employee liability suits, because it is exceptionally difficult for plaintiffs to prove that a defendant had the requisite knowledge an injury was probable, as opposed to possible, under the circumstances.
There was evidence that Clark knew the task assigned that day was not risk-free; he knew accidents can happen when people work at heights. Even so, stressed the court, the record did not suggest Clark had “knowledge” that his actions would make an injury “probable.” The court reasoned that while Clark assigned the job, he left the details to his trusted crew. He did not go with them to supervise. He did not tell them how to complete their work. His only guidance was to not use the telehandler. He knew there were many other pieces of equipment available to them, including various ladders, scaffolding, and a scissor lift—the same scissor lift that was safely used to complete the job following the accident.
Clark did not, however, know which piece of equipment they would choose. He did not know the crew would choose to use a ladder over any other piece of equipment. And there was no evidence, said the court, that Clark knew, or should have known, that using a ladder would “probably” result in injury to Bronson.
The court concluded that because the evidence did not satisfy the second Thompson element, the verdict could not stand. The district court had no choice but to grant Clark’s motion for judgment notwithstanding the verdict.