Justus v. Anderson
400 N.W.2d 66
Iowa Ct. App.
1986
Check Treatment

*1 showing was made that defend- Huhn. No assignment by

ant received notice plaintiff.

Fritz and Sons to Defendant fol- logical prac- course of

lowed the business premium

tice when it made the refund Walkup-Huhn. The

check to total refund $6,220; defendant returned

due was

$5,442.50 Walkup-Huhn and the remain- was unearned commission owed $777.50

by Walkup-Huhn. The most reasonable

procedure was for defendant to send the premium Walkup-Huhn

unearned so the refund, premium,

full commission and president,

could be made. Plaintiffs Ken- Pruden, proce-

neth testified that the usual plaintiff

dure for on the cancellation of an policy go producing

insurance towas

agent producing for the refund. Here the

agent Walkup-Huhn. Remsburg, Edward W. Patricia J. Mar-

AFFIRMED. tin, Ahlers, Hoyman and Susan E. Coo- Dorweiler, ney, Haynie, Allbee, Smith & Moines, defendant-appellant Des for Mar- vick. R. Phillip

John Ward and Vonderhaar of Ward, Tan, Hedberg, Owens & Vonderh- aar, Moines, plaintiff-appellee. Des OXBERGER, C.J., Heard JUSTUS, Plaintiff-Appellee, Steven C. SACKETT, JJ., SNELL and but considered en banc. ANDERSON, Foltz, Larry Gene Dick SNELL, Judge. O’Brien, Alverson, John C. Ottis N. Dahle, Schmidt, Defendants, Gary 14,1980, plaintiff, On October Steven Justus, Stores, employed by Super C. Valu Marvick, Defendant-Appellant. Duane supervisor, Inc. as a warehouse was in- jured No. 85-1469. when boxes fell on supervising hourly him while he was em- Appeals Court of of Iowa. Urbandale, ployees in a warehouse in Iowa. Pursuant to Iowa Code Jus- 26, Nov. 1986. petition alleging tus filed a gence against co-employ- seven defendant allegedly designed ees who and directed prod- the manner and method of ucts in the warehouse. The case was bifur- liability begin- cated trial on the issue ning September During liability, trial on issue the court sustained a motion for a directed respect verdict with to five of seven findings As of its defendants. *2 67 1984, 28, on November mean three elements necessary entered that are to conclusions dismissed a sixth defendant. The degree the court establish the of defendant, remaining found then the court employee that allows an to a suit maintain here, grossly neg- Marvick appellant Duane against co-employee a under section 85.20. failing provide ligent in to Justus with a (1) knowledge elements are Those of the reasonably place Following safe to work. peril apprehended; (2) to be damages, issue of to the court on the trial probable, that a is to a 12, 1984, court, September on awarded the possible, (3) danger; result of the a $253,- amount judgment the of Justus peril. conscious failure to avoid Id. at the 582.79, together interest and with costs. 505. recently These elements were re- appeal This followed. guide in affirmed as our section 85.20 cases argues first that the such as present Marvick district the one. v. grossly negli- him (Iowa 1986). court erred 382 N.W.2d 123 to the gent. As this case was tried court at present we think that law, findings the district court’s of fact is insufficient evidence in record to special have the effect of a verdict. Iowa support findings the trial court’s findings 4. The R.App.P. court’s are there- defendant should have foreseen that his binding supported they by fore us if are conduct would Township Brown substantial evidence. employee. a warehouse Kress, v. Mutual Insurance Association The facts of this viewed when 291, 1983). (Iowa A 330 N.W.2d 293 find- light most favorable to the district by fact is supported of substantial evi- following. judgment, court’s establish the finding may reasonably if the be dence charge Defendant was in of the Marvick from the evidence even inferred redesign, “resetting,” or of the warehouse differently. would have decided the case injured. in which A of this Justus was sufficiency evaluating Id. of evi- redesign paper called for the dence, light we view it in the most favor- products pallets high. in floor stacks four sustaining judg- able to the district court’s redesign This occurred between October only We ment. Id. need consider evidence April During period of 1979 and whether judgment, favorable or not reset, spent good Marvick a deal of evidence is contradicted. v. Grefe at Moines time the Des warehouse Boss, 863, 1975). 231 N.W.2d 865 opera- became familiar with warehouse however, bound, by We are not the trial tions. that warehouse workers He knew applications court’s conclusions and 334, were in the aisles between Berkoski, oftentimes Miller v. 297 N.W.2d law. products many of (Iowa 1980). paper stacks of and that 337-38 unprotected from fall- these workers were Bohlken, N.W.2d ing objects. had stacks Marvick observed (Iowa 1981), supreme our state’s court leaning four-high tilting, knew a that presented the task inter- was first likely stack of was more preting a 1974 amendment section stack, three-high if a tilt than a and that Code, which an employee’s restricted enough something stack far without leans against right to maintain an action a co-em- supporting stack will He knew it the fall. ployee under That that section. by person seriously that a could be hurt compensation states worker’s is being 40-pound falling 20 feet by hit a box remedy against co-employee exclusive through possible the air and it was “provided not such ... working stacks people around the employee’s gross negli- caused the other degree of injured. would be Whatever gence amounting to such lack care as negligence said may this evidence be neglect to amount wanton safe- demonstrate, opinion we are (emphasis added indi- ty another.” showing amendment). falls of a short cate 1974 Code term is used in Iowa gence as that Thompson interpreted the amendment particular, the record er section 85.20. accidents had occurred under similar circumstances, evidence to contains insufficient Thompson, 312 N.W.2d at findings that Marvick the district court’s 505; Taylor, 382 N.W.2d at and that had, had, knowledge that in or should have placed defendant had not been on notice probable, op- this situation safety inspections probable. *3 possible. posed to Thompson, 505; 312 N.W.2d at Taylor, Similarly, present 382 N.W.2d at 128. Justus maintains that this case is more Inc., any previ- record is devoid of instances of Massey-Ferguson, like Larson v. (Iowa Ct.App.1982), N.W.2d 343 in which injuries warnings ous similar or other required this court held elements argues injury Justus that a similar satisfied, Thompson were than it is like Monsma, employee, occurred to an when a Taylor v. N.W.2d 123 four-high stack of fell on 1986), Thompson, and where the Iowa Su- discloses, however, him. The record preme Court held the elements were not the incident in which Monsma was involved disagree. Larson, plaintiffs met. We In striking occurred as a result of Monsma supervisor immediate had instructed his ultimately the stack which fell while at- “put weight” operat- crew to on an [their] tempting neighboring to move a stack with post-hole digger, plaintiff ing and became Consequently, agree a forklift. we do not unshielded, entangled rotating in the shaft accident, that this earlier even if known to auger. of the This court held the evidence Marvick, would constitute evidence that he although sufficient show that the de- present injury probable, knew the was danger fendant of the knew associated possible, when the stacks were injury with the unshielded shaft and that jolted by large machinery not and Justus order, probable was a result of his he simply proceeding was down an aisle. Like consciously disregarded nevertheless Thompson present those in and Taylor, the peril by ordering put the crew to their record any fails disclose evidence of weight auger. on the Id. at 346. That the inspections or critical of the method studies defendant in injury Larson knew the was involved here. probable working whenever near unshield- moving parts ed court, was evident that he had finding The district Marvick lia- previously stay warned the crew to clear of ble under section concluded that moving portions post-hole dig- of the product, falling nature of the “[t]he ger. Id. weight size and the and the distance fall- ing, injury probable.” make the We be- case, however, present In the we find seriously lieve that this statement oversim- nothing in the record to a similar plifies inquiry involved in section 85.20 knew, or should Marvick have known, Thompson Taylor cases. Both in- injury was a result of large redesign injury his volved inflicted industrial warehouse. Marvick know, trial, presses, dangerous did and conceded at obviously instrumental- possibility was a as a result of the stack- given proper ities set of circumstances. This, however, paper products. however, inquiry, Our does not end there. plaintiff pro- is insufficient to a enable nature, instrumentality’s Given the we ceed under section 85.20. order to show must determine whether the evidence dis- section, a cause of action under that closes a set of circumstances sufficient to plaintiff or must show defendant’s actual support a conclusion that knowledge constructive known, knew, or should have probable. This Justus has failed to do'. probable result of those circum- was the proper A stances. set of circumstances respect, this this case is akin Larson; shown in it was not shown Thompson of those Taylor. both and, think, cases, or significant has the court noted as on the present in the case. issue of that no oth- not been shown defendant’s hold evidence to be insuffi- defendant’s this As we case since Mons- gross negligence within sec- was attempting to find ma cient move a stack of Marvick, we part products on the do not paper tion 85.20 awith whereas the forklift damages issue. reach the engaged. defendant major- was not so also ity believes that the trial court over- REVERSED. simplified inquiry when its the trial court falling OXBERGER, concluded that the “nature Judges except All concur SCHLEGEL, J., product, weight the size and the C.J., who dissent. and the falling, the injury probable.” distance make SCHLEGEL, (dissenting). Judge fact, analysis the trial court’s not as majority concludes evidence simple majority depicts. as the The trial insufficient to find and, previous looked to the in its Marvick, on the within section 85.20 Monsma; judgment, found sufficient the trial court even *4 design trial court considered the of reset that the defendant should have evidence paper products; the it fail- considered the probably that would foreseen his conduct expensive ure to use more but safer stack- plaintiff. injury in the result to ing equipment; methods and it considered conclusion I must dissent to this for two engineer; the of Marvick as an First, I the does reasons. believe record prior it Mar- considered the observations of was in that the trial court correct show in vick the warehouse to locations of finding sufficient evidence the and, employees; ad- considered Marvick’s negligence finding on that there was of The possibility injury. mission the of majority the The the of defendant. looking court said it was at all of these that the agree the trial court crux of and factors when it reached its conclusion that injury prob- the was a this case whether should have that foreseen result possible to a able probably result defendant’s conduct would amply The illustrates danger. record that injury employee. I in to an do not believe the fully court was aware of correct the weigh- should here substitute our cites apply. The court section standard complex of analysis of the facts for the statutory the for this action. 85.20 as basis by the trial the same facts court. Bahlken, Thompson cites v. 312 court I The second reason must dissent is that (Iowa 1981) as the first case N.W.2d unwittingly, majority opinion, perhaps the interpreting the amended section 85.20. unjustifiably narrows the factors which Jury cites The court Uniform Instruction analyzed must to find that an be gross negli- No. and 31.2 which define 31.1 probable of a result co-worker’s explain gence co-employee of a the Tay- gence. looking In recovery against employ- the essentials 1986), 382 N.W.2d 123 lor similarity ee. The court examines the of over-emphasizes criteria majority the two Inc., 328 Massey-Ferguson, Larson v. finding gross cases for set out in those (Iowa Ct.App.1982) Thomp- N.W.2d 343 had negligence: no other accidents son, specifically and the states it is court circumstances, and occurred under similar in two relying holdings on the these on placed had not been that the defendant listening to all the evi- 85.20 cases. After injury was by safety inspections notice dence, credibility the weighing after the of comparing Thompson and probable. witnesses, proper applying after the stan- case, majority the finds this dards, the court that the found “defendant (after its no occurred since that his should have foreseen conduct injury was finding of that the Monsma fact probably to some would result defendant’s) since really not like the employee disagreeing at time.” In some critical inspections or studies there were no says findings, majority the court’s the storage in this of of method employee caused to the gross neg- to find insufficient evidence sufficiently akin the was Monsma was not I ligence safety inspections. within section 85.20. must em- I would also look to phasize that our cases do not reduce our factors such expe- as the observations and these analysis to a search for two factors. defendant, rience of peril the obvious instance, Thompson, For situation, particularized and the facts prior court did look to the elements and circumstances of the case. The district circumstances and injuries under similar court looked to all these factors and safety inspections which would lack of gross negligence. majority found notice, employee put have the court only looks to two factors and concludes experi- to the observation and also looked plaintiff’s injury only possible ence of the defendant as factors be and not the result of the defend- Bohlken, Thompson v. considered. looking ant’s conduct. the entire at Thompson, N.W.2d at 505. factors, complex I see no reason to dis- was not aware found that the defendant gross negli- turb the trial court’s experience observation or gence since there is substantial evidence probable. In the instant judgment. the record to sustain its examining court in the evidence before it found that the defendant should have been OXBERGER, C.J., joins this dissent. experience aware his observation and that his conduct would Larson, emphasized the court peril” “obvious situation find-

ing gross negligence. Massey- Larson v. Inc.,

Ferguson, 328 N.W.2d at 346. In the inju-

instant the court found that the

ry “waiting happen,”

no doubt that the material would fall. Iowa, Plaintiff-Appellee, STATE of Taylor, supreme emphasized gross negligence it would not find when was shown that the did not co-worker know RICHARDSON, Jr., Reuben Warren opposed as Defendant-Appellant. possible when a stopped “machine was or ” [emphasis not operating original]. No. 85-1128. Taylor v. 382 N.W.2d at 128. There- Appeals Court of of Iowa. fore the court made a determination of precise what facts were within the ken of Nov. given the circumstances that prevailed at the time of the accident. Id. at

127-28. In the instant trial court particular

looked to the circumstances

which existed at the time of the accident accident,

and found that at the time of the of the defendant was such

that he should have his conduct known

could The time could occur this case was

diachronic, period a condition over a

time, synchronic on and peculiarity functioning

off of a machine’s in Taylor.

I analy- would therefore not restrict our

sis of co-worker cases to injuries prior

a search for prior or