Walker v. Mlakar

determinations, course, making Of guided by statutory factors

the court is 598.21(3). section

listed in Iowa Code

We, and the like the district court appeals, find Janel should Considering length alimony.

awarded obligations child marriage, property

support, the division of debts, statutory all relevant

factors, modify district court decree per Dwight pay month $100

and order alimony. alimony payments as

Janel Such upon remarriage

shall cease Janel’s party. death of either provisions

All decree of dissolution ex- marriage except are affirmed par-

pressly opinion. Each modified this appeal.

ty pay shall one-half of the cost of appellate own party pay

Each shall

attorney fees. OF OF APPEALS

DECISION COURT

VACATED; COURT JUDG- DISTRICT

MENT AFFIRMED AS MODIFIED. WALKER,

Mary Administrator Alice Walker, Estate of Clifton

Deceased, Appellant, George

Gary MLAKAR and

Pratt, Jr., Appellees.

No. 91-352.

Supreme of Iowa. Court

July

McGIVERIN, Chief Justice. Walker, Mary Plaintiff Alice administra- husband, tor of the estate of her Clifton Walker, appeals judg- from a district court directing ment a verdict for the defendants plaintiff’s coemployee gross negligence appeals action. We affirm the court of judgment. decision and the district court Background proceedings. I. and facts employed Clifton Walker was as a facilities by Company the Aluminum servicer (ALCOA) Davenport plant. America at its mid-1980’s, physical plant As of the up buildings was made of over 120 cover- ing 107 acres located on 445 acres of ground. capacity These facilities had the produce pounds over 700 million of alu- per year. By Davenport minum plant employed approximately employ- ees.

One the duties which facilities servi- periodically performed cers such as Clifton Davenport plant at the was to clean and scrape plant’s tunnels located under the rolling aluminum numerous mills. Janu- ary super- at the direction of his unit visor, per- Clifton and a coworker were forming this task in a dark tunnel under approxi- the 144-inch mill when Clifton fell mately unguarded drop- eleven feet into an off. Clifton died six months later as a , injuries result of the he sustained fall.

Mary Walker, as administrator behalf estate, brought of Clifton’s thereafter this gross negligence injuries action for his and against George death defendants Pratt and Gary Mlakar. 85.20 Code § fall, (1989). At the time of Clifton’s employed by George Pratt was ALCOA as health, manager safety, and environ- ment; Gary Mlakar worked for Pratt as safety engineer. Mary claimed that defen- independent dants Pratt and Mlakar had an Michael K. Bush and John J. Carlin of pro- duty to Clifton and other workers to Carlin, Bittner, Davenport, Hellstrom for & work, place duty vide a safe estab- appellant. job descriptions. defendants’ lished Kamp Anderson and Thomas N. Carole J. descriptions required job Those each defen- Waterman, Davenport, ap- of Lane & for to, among things, dant be familiar pellees. aspects Davenport plant and with all identify remedy potential safety haz- and knew Mary ards. claimed that defendants tions, judgment lighting poor entered defen- or should have known 144-inch dants. unguarded drop-off under the mill, that defendants’ failure to identi- appeal, plaintiff’s Upon transferred remedy amounted to fy and the situation appeals. to the court of the case See Iowa gross negligence. R.App.P. That affirmed the dis- trial, judgment by operation court’s parties presented extensive trict

At the law. 602.5106(1). Iowa Code documentary and evidence testimonial § safety pro- the numerous and elaborate granted plaintiff’s application We for its at grams which ALCOA maintained review further and now the consider issues Mary Walker Davenport plant. Plaintiff R.App.P. raised. See Iowa 402. We con- several fa- testimony presented also light sider the in the most evidence favor- that there which indicated cilities servicers plaintiff Mary able to Walker. See Swan- poor complaints about had numerous been 541, McGraw, (Iowa son v. 447 N.W.2d 543 rolling various lighting under ALCOA’s 1989); 14(f)(2). R.App.P. If rea- no However, conceded these witnesses mills. sonable mind could differ on the directed Pratt or they never told defendants that issue, must affirm the directed verdict we the mills. the conditions under Mlakar of verdict favor of defendants. See Swan- Also, apparent that none of these it is son, 447 at 548. N.W.2d any of ever utilized ALCOA’s witnesses gross negligence. Our Coemployee II. prevention programs order injury compensation injured is an workers’ statute or other to alert defendants coworkers against em- remedy worker’s exclusive an concerns. witness’ thereby providing ployer coemployee, Furthermore, defendants Pratt Mla- employer coemployee immunity they kar that did not know testified liability. from common law tort See Iowa drop-off the 144- unguarded existed under Although 85.20. Code § any mill; drop- Pratt inch aware from common law tort lia- always immune mills, any and Mlakar had never offs under bility, an worker maintain plant’s any of the tunnels under been in against a common law action coem- tort the 144-inch mills. The condition under injuries only if the for ployee recover forty years, apparently mill existed for had inju- can that his or her employee establish presented that no evidence coemployee’s were caused ries any injury any had sustained as amounting worker lack “gross negligence causing neglect of the condition Clifton’s result for of care as to amount wanton id. of another.” See evidence, plaintiff’s At close of defen- v. Bohlk Starting Thompson with 1981), for a directed verdict en, 501, (Iowa dants moved 312 N.W.2d 505 R.Civ.P. 216. Defendants favor. See Iowa three elements held that there are have that no evidence estab- coemployee’s because necessary contended to establish a actually sec negligence” either defendant was under Iowa Code “gross lished that drop-off (1) knowledge peril to be unguarded where aware of tion 85.20: injuries, plaintiffs (2) knowledge had apprehended; Clifton sustained result probable, opposed possible, to a matter of law to establish failed as a (3) a failure danger; and conscious pursuant to Iowa Code section of the stringently We have peril. she did not Plaintiff countered that avoid 85.20. must injured worker that an defendants maintained prove have Thompson prove of the elements of 144-inch all under the of the conditions knew a coworker’s to establish mill; job test in order de- asserted that defendants’ she of section negligence” purposes “gross scriptions provided constructive Ellis, 486 N.W.2d Dudley v. 85.20. See which was sufficient of the condition Lorenz, (Iowa 1992); v. However, 281, 283 Henrich the dis- avoid a directed verdict. (Iowa 1989); 327, Swan 332 448 N.W.2d agreed defendants’ asser- trict court Hahn, 543; v. son, Eister 447 N.W.2d mo- tions, their directed verdict sustained 404 (Iowa 1988);

420 that, N.W.2d And Wood without there can’t be a con- Mains, something Const. scious to do Co. about it. ruff failure (Iowa 1987); Peck, Taylor v. 382 (Emphasis supplied.) (Iowa 1986); see also Lar words, In other plaintiff presented no evi- Inc., Massey-Ferguson, son v. 328 N.W.2d dence that defendants Pratt or Mlakar ac- (Iowa App.1982). tually knew the under the 144- mill, that, inch and without defendants depends result we reach this case could not consciously failed to do interpretation given to these three something about it. particular “gross criteria for the brand of However, negligence” Thomp we indicated in required under section 85.20. coemployee son that a such as Pratt or specifically, presents More this case Mlakar grossly negligent cannot be found question plaintiff properly of whether es- employee unless the intentionally “has tablished the first and third elements under done an act of an unreasonable character in Thus, Thompson test. we must deter- disregard of a risk known to or so obvious eoemployee’s mine whether a mere con- that he must be taken to have been aware knowledge structive of a condition it, great of and so highly as to make it n “knowledge peril constitute of the to be probable that harm would follow.” 312 apprehended,” or whether a is re- Prosser, (quoting N.W.2d at 504-05 W. quired prove coemployee to that a (4th 1971)) Law Torts at 185 ed. § of peril knew of a coemployee may before the (emphasis supplied). For the reasons that exposed to common law tort liability. follow, we therefore conclude that an in Correspondingly, we must determine jured prove, worker coemployee must a plaintiff properly proved whether that de- “gross negligence” action under Iowa Code fendants Pratt and Mlakar “consciously 85.20, section coemployee actually that a peril failed to avoid” the which caused Clif- hazard; peril otherwise, knew of a or there injuries. ton’s cannot be a conscious failure on the coem- agree A. We statements ployee’s part peril to avoid the or hazard district directing the verdict in favor thereby prevent worker’s of defendants: Neville, See Riessen v. (Iowa App.1988) (affirming direct [Tjhere evidence, isn’t a scintilla of ... ed verdict for defendant-coemployee where evidence, anot breath of that these two injury, he was not at site of “nor did he fellows drop- knew that this [defendants] knowledge project [causing plain have off existed under that mill. injury] commenced”). tiff’s had been quotes Plaintiff pas- nevertheless several The issue in nothing this case is more sages (Second) from the Restatement of ordinary negligence than an action. Torts generally support which her asser- heard, That’s all I’ve that’s all the evi- tion that coemployee’s a mere constructive dutyA dence is. failure to comply —a knowledge may “knowledge constitute of duty. with the peril apprehended.” to be Restate- something What makes it more than (Second) 12, 500, ment of Torts §§ ordinary negligence an action is (1965); what the Keeton, see also Prosser & Supreme Court has defined as—it isn’t (5th Law Torts at 213-14 ed. § just knowledge peril, 1984).1 However, a it’s knowl- adopt plaintiff’s to asser- edge that the condition exists. It’s a inconsistency tions would result in an be- knowledge that there is a there. tween the first and third elements of compensation juris Coemployee Liability Despite 1. Workers’ cases from other as Ground Bar Law, provide guidance Compensation dictions little in our resolution Workers’ 57 A.L.R.4th 888 Annotation, presently (1987); Right of the issue before us because of the to Maintain Direct employed Against Employee Injury different standards in other workers’ Action Fellow compensation generally by Compensation, statutes. See Annota Death Covered Workmen’s tion, Wanton, Willful, (1968). or Reckless Conduct A.L.R.3d 845 gence necessarily a tripartite stringent This is one Thompson’s, test. be- be- mere employee’s consequences con- re- cause to allow an cause undesirable could satisfy holding a improvidently of hazard sult from structive co-em- Thompson element of would be ployee employee. the first liable to a fellow As requirement under the third eviscerate some commentators and courts have not- coemployee must ed, also employee element an when is held liable to “consciously peril” fail avoid the order the main cost another to an grossly negligent. to be found employee of a business could unrea- words, theoretically factually im- it sonably employer, shifted from the employee “consciously possible for compensation where the workers’ act peril employee if did not fail to avoid” a it, places employee, a fellow where the it, i.e., cannot “con- actually know of one place does not it. If the act fellow em- of which one sciously fail avoid” ployee who held to a co-em- was liable have aware.” “should been ployee indemnified or her employer, could be require To damages with common law be- burdened expos a hazard before actual yond statutory employer’s workers’ liability is ing him or her to tort more liability compensation or with the ex- language of plain with the sec consistent pense carrying insurance to cover the pro specifically tion Section 85.20 85.20. personal liability per- of all supervisory may coemployee be vides that before a Therefore, in to sonnel. order establish exposed liability, tort or her gross negligence substantial evidence negligence must “such lack of constitute 85.20, requirements section all under neglect amount to for care as to wanton Thompson test listed in must be met. sup safety (Emphasis of another.” (citations Taylor, 382 at n. plied.) have said that “wanton” con We omitted). involves, among things, other a real duct danger. Thompson, ization of imminent Thus, in- employer if an reimburses or course, such a 505. Of safety manager engineer against or sures a possible realization not without actual litigation, employer must coworker of a or hazard and awareness certain expenses burden of which bear the disregard an almost intentional thereof. de- compensation statute was workers’ However, if signed the em- to eliminate. important pre B. More than the reimburse or insure ployer does not wording of 85.20 and the cise section persons manager engineer, then safety or elements, however, plaintiffs Thompson continually have positions in will those contrary policies are to the un assertions by in jeopardy virtue personal their assets interpretation of derlying a strict job descrip- in language used their exception the exclu “gross negligence” tions. say For remedy provision. us sive knowledge or coemployee’s sum, a constructive legisla- In believe that C. hazard, of a coemployee constructive “consciousness” 85.20 intended the section ture thereof, any actual exception without common law gross negligence coemployee’s adequate to establish An immunity a narrow one. tort to be require “gross negligence,” would be entitled to injured generally is worker safety managers engi plant compensation injuries for without workers’ worker, other em the insurers of employ- neers to become regard to the fault of the potential peril, real or ployees every er, for ex- coemployees. the worker’s otherwise, course, plant. coemployees within the Of are change, the injured ways could at a workers law tort lia- given immunity various from common Davenport plant plant However, as ALCOA’s a worker such in where bility. cases “gross negli- coemployee’s could be endless. a care as to amounting gence lack Thompson to The test we articulated safety of neglect to wanton gross negli- amount co-employee’s establish another,” the worker is allowed a tort ac- Plaintiff nevertheless asserts that there against coemployee. tion See was other circumstantial evidence of Pratt Furthermore, Code 85.20. § and Mlakar’s of the condition negligent” may “grossly under deemed under the 144-inch mill sufficient to avoid employee section 85.20 when the inten- verdict, including a directed the defen- tionally highly does an act of a unreason- job descriptions testimony dants’ and the Thompson, able character. certain facilities servicers that there had N.W.2d at 504-05. previous complaints been about the lack of lighting Davenport plant’s under the nu- Plaintiff here could have established However, rolling merous mills. as we said gross negligence only by defendants’ show II, job descriptions division defendants’ ing that defendants actually knew insufficient, alone, are standing to consti- drop-off but ordered nevertheless or other knowledge” tute “actual of the conditions Liability wise forced Clifton confront it. Furthermore, under the 144-inch mill. also could have attached if defendants ac testifying none of the facilities servicers tually drop-off knew of the and conscious complained to Pratt or Mlakar about the ly failed to have it covered or fenced-off. mills, situation under the and apparently The record reveals that neither of the fore going any none of them occurred this case. Defendants ever utilized of ALCOA’s injury prevention did not programs know of the under in order the 144-inch mill and therefore could not to alert defendants or other coworkers of consciously something failed to do their concerns.2 about it. It be that defendants were evidence, Based this we conclude negligent properly doing jobs, in directing the district was correct compensation but the workers’ statute was verdict for defendants because the evi- designed provide plaintiff benefits to for wholly dence failed to establish that either event, just any such a case. In defendants' “intentionally defendant had done an act of alleged fully perform job failure to disregard unreasonable character in of a gross negligence duties cannot constitute risk known to or so obvious that he must without a consideration of the factors out it;” be taken to have been aware of it lined above. simply cannot be claimed that defendants III. Circumstantial evidence actual of experience were or “aware observation knowledge. alternatively Plaintiff con- injury probable that such would be a conse- tends that the district court erred in direct- quence operational practices of the of ing a verdict in defendants’ favor because [they which claimed to be aware.” were] there was circumstantial evidence of defen- Thompson, (empha- 312 N.W.2d at 504-05 knowledge drop-off dants’ actual the of supplied). sis disagree. under the 144-inch mill. We As Finally, Evidentiary rulings. IV. previous outlined our recitation of the plaintiff claims that the district court erred case, facts of this defendants Pratt and excluding plain- certain evidence which they Mlakar testified that did not tiff asserts demonstrated that defendants unguarded drop-off know an existed under knowledge Furthermore, either had “actual” of the condi- the 144-inch mill. plaintiff mill, that presented any no tion under the 144-inch or defen- evidence that worker had any injury to avoid” the haz- “consciously sustained as a result of the dants failed causing condition drop-off presented Clifton’s ard to work- which the imply by unpersuasive plaintiffs argu- 2. We do not mean to these statements find We also superior duty imposed upon there "job safety analysis” that ment that the on file for the safety to ensure the of their workers own work- procedure 144-inch mill washdown should have However, ing foregoing environments. anyone unguarded drop-off; alerted to the no- establishing facts are relevant defendants’ analysis any where in the is there indication (the lack of actual of a condition even that this condition existed. drop-off) which existed in an obscure and not- often-encountered location below the floor level Davenport plant. right See plaintiff. We discuss stantial of ers as Clifton Walker. they 103(a), 401, on R.Evid. 402.3 issues insofar as bear these “gross negli- plaintiffs failure establish prevention B. Other mea of gence” in with the elements accordance sures. sought Plaintiff also to introduce at of Thompson. Our review is for abuse report prevention trial the of “fall team” discretion. composed including of employees, ALCOA trial, regulation. At A. OSHA report pre defendant Mlakar. The was sought plaintiff regulation to introduce pared subsequent to Clifton’s fall and lists promulgated by occupational several hundred Davenport areas (OSHA) as evi and health administration plant projects where could be undertaken Pratt dence of defendants prevent apparently inju falls or other that regulation provided The and Mlakar. report ries. Plaintiff offered as evi open platform 4 feet “[ejvery sided floor or disregard” dence of defendants’ “conscious adjacent ground floor or or more above responsibilities. their job The district guarded by a standard rail level shall court excluded this evidence. ing....” district court excluded agree with We the district court’s deci- regulation. excluding report basically the sion this court’s deci- agree We with district agree its same reasons decision be- argument sion and defendants’ excluding regulation. the OSHA Because no other or circum- cause there was direct no or circumstan- presented direct that either defendant had stantial evidence tial evidence defendants’ actual knowl- actual drop-off under edge inju- causing Clifton’s they consciously failed 144-inch mill ries, plaintiff precluded from introduc- it, proffered regula- remedy OSHA ing report to establish a “conscious effect that element of tion could no on disregard” job thereof or defendants’ Indeed, specifi- plaintiff’s claim. we have Indeed, responsibilities. plaintiff concedes recognized every cally that “not violation if application in her for further review that regulation of an OSHA amounts case, negligence” “simple this were a can negligence” “person because a violate fail see report be irrelevant. We would consciously regulation without OSHA it relevant how should somehow become Hahn, 420 v. so.” See Eister doing negli- coemployee “gross is a because this 443, 1988) (Iowa (affirming dis- N.W.2d 445 gence” case. are ruling that OSHA standards trict court Furthermore, in division brought against as we indicated applicable in an action II, report prevention that fall 85.- the fact the under Iowa Code section Garrett, did not 20). may 486 demonstrate that defendants Wiersgalla v. Cf. (evidence responsibilities is of 290, (Iowa 1992) fully perform job of N.W.2d 293 case; any in this consequence in no issue regulations admissible coworker OSHA Davenport at other areas of the litigation arising outside of Iowa Code conditions establishing defen- 85). chapter regulation plant was therefore were irrelevant disre- knowledge or conscious no sub- and exclusion affected dants’ actual irrelevant its right recognizing authority proposition in our decision Craven 3. Plaintiff cites simple neg- upon delegated coemployees acts of duty safety sue based that of from safety-related 312 employee ligence breaching duties. employee if the in to an Furthermore, duty neither Craven personal accepts delegation, a to his or N.W.2d at 504. by this court Ogge ever been cited coemployees may v. nor subsequent has exist. See Craven her ro, Zazza 1973); foregoing prop- 678, (Iowa Thompson for the also 682 see 213 N.W.2d 43, policies Zazza, (Iowa apparent under- from the osition. As 45-46 Pease v. 295 N.W.2d negli- "gross interpretation lying a of the 1980) regulations strict (admitting OSHA evidence of 85.20, Taylor, 382 gence” exception section against supervi injured employee's his in action 126, 2, sor). However, n. Craven specifically our statements N.W.2d at we stated conjunc- only in must be considered Thompson, after both Craven and decided Zaz- Zazza liability established za, "gross negli scheme legislature tion with the that the added Thompson. exception response to gence” to section 85.20 408

gard McGraw, 541, (Iowa under the 144-inch v. 447 N.W.2d 542 401, 1989) mill. Iowa R.Evid. (coemployees rip See in injured knew of clothing); Hahn, worker’s Eister v. 420 sum, Disposition. V. we conclude (Iowa 1988) 444 N.W.2d (coemployee plaintiff failed to because establish working injured on same combine as work- Pratt defendants or Mlakar er); Mains, Constr. Co. v. 406 consciously disregarded knew of Woodruff or the con- (Iowa 1987) (coemployee mill, ditions under 144-inch district working worker); on same roof injured properly court directed a verdict favor of Peck, Taylor (Iowa v. 382 N.W.2d We agree defendants. also with the dis- 1986) (coemployee asked if worker trict court that failed to adduce had perform specific act, been directed to any substantial circumstantial evidence of which done injury); when caused the drop- defendants’ actual Bohlken, Thompson agree off. Finally, district (Iowa 1981) (coemployee knew about excluding of decisions evidence protection machine). specific devices on regulation prevention OSHA and the fall report. majority notes, As the the thrust of

Accordingly, we affirm that, the decision argument of Walker’s because we appeals the court of and the district court have relied section 500 of the Restate judgment. (Second) (1965) ment majori Torts in the ty cases, gross negligence of our we have DECISION OF COURT OF APPEALS implicitly adopted a constructive AND DISTRICT COURT JUDGMENT AF- standard as to the first Thompson element. FIRMED. Henrich, 333; 448 N.W.2d at Wood ruff, 790; Thompson, All concur 406 N.W.2d at except Justices ANDREASEN, J., joined N.W.2d at 505. by LAVORATO NEUMAN, JJ., who dissent. I agree argument with Walker’s that sec- ANDREASEN, Justice, dissenting. provides tion 500 itself for a constructive knowledge standard. 500 of Section respectfully I dissent. provides: Restatement premised Walker’s suit was on the theo- Disregard Safety Reckless Defined ry that assigned ALCOA has to the defen- The actor’s conduct is in dant reckless disre- coemployees safety imple- duties gard if another he does menting employer’s provide duty an act intentionally or to do an workplace. safe fails act The basis the claim duty do, which it to the other to poor lighting centered around the in the knowing having unguarded tunnel reason know of pit and the that Walker facts would which lead a reasonable alleged man the defendants knew about and realize, to not that his conduct cre- prior should have corrected to Walker’s ates an physical unreasonable risk of injury. Walker claimed that the failure to another, harm to but also that such identify rectify the risk situation amounts substantially is greater gross than that which coemployee negligence. necessary negli- make his conduct I. Negligence Gross and Con- —Actual gent. Knowledge. structive added.) (Emphasis Section 12 of the Re- many In coemployee gross negli- of our statement defines the term reason know: gence cases, coemployees the person- have ally the dangerous observed condition lead- denote the fact that the actor has [t]o ing Ellis, to the Dudley person 486 information from which a of rea- (Iowa 281, 1992) (coemployees N.W.2d 282 intelligence superior the sonable or of working together on pro- intelligence same electrical of the actor would infer that ject); Lorenz, 327, exists, Henrich v. question 448 N.W.2d the fact in or that such (Iowa 1989) (many 333 coemployees person govern would his conduct skinner); operated had the butt assumption Swanson the that such fact exists. See, “gross negligence. e.g., tions Clearly, Restatement’s reason-to-know the 518, May, stan- is a constructive Krell v. 260 Iowa 149 N.W.2d definition (1967), (discuss- and cases cited therein dard. ing gross negligence in the context of the support for a constructive Further statute). guest automobile Krell we coemployee gross in standard necessary defined the elements for recov- Page in negligence cases is to be found W. ery guest in case statute much the same al., et and Keeton on the Keeton Prosser way necessary the we describe elements 34, (5th 1984) at 213 ed. Law Torts § gross prove coemployee negligence case. & Keeton We Prosser [hereinafter ]. 520, impor- at 149 N.W.2d at 836. Id. Most previously approval the follow- cited with however, tantly, specifically in Krell we set many coemployee in ing language our forth a standard both actual and con- gross negligence cases: knowledge. “There structive We said: “willful,” assigned meaning The usual must evidence of be defendant’s knowl- “wanton,” “reckless,” according edge, chargeable.... actual or There used, is that taste as to word awareness, must be an actual or con- an intentionally an act of actor has done danger present- structive the unusual disregard in unreasonable character of circumstances_” (empha- ed Id. great risk that was so known or obvious added) cases). (citing sis highly probable it that harm as to make follow, usually would and which thus conclusion, My that constructive knowl- accompanied by indifference a conscious edge in coemployee gross neg- is sufficient consequences. to the cases, ligence development not a in new supported It is in the in the law. authorities at cited Prosser & Keeton § 332-33; Swanson, it Henrich, subject, recognized on the and we have at 543; Eister, highly similar contexts. at 447 N.W.2d at 445-46; 790; at Woodruff, 406 N.W.2d Further, recognized con- we have Thompson, 312 N.W.2d at 504-05. knowledge may be used to structive estab- continues: & Keeton citation Prosser second element of lish the See,

Since, however, under section 85.20. it is almost never admit- Indus., 475 N.W.2d only by e.g., con- Alden v. Genie proved and can be ted 1991)(“In (Iowa short, plaintiff circumstances, must objective duct and the defendant knew or should necessity practice show that must of standard placed that his conduct requirement, have known applied. The “willful” danger.”); in a of imminent therefore, at zone down and receives breaks (“there at 505-06 service, Thompson, 312 N.W.2d lip it is clear from the best where facts defendant, evidence that under his was no whatever facts that have been known mind, known or which should disregard proceeded has state probable.”). degree ... such of dan- high of a excessive apparent to him or ger, either known buy majority’s assertion I do into the person position. a reasonable knowledge in the first without actual (empha- 213-14 Keeton con- Prosser & could no Thompson element there § added). Again, emphasized lan- sis avoid the under scious failure to support is in of a constructive guage requirement I believe the third element. knowledge standard. prove a failure to conscious that Walker objective It peril an standard. is avoid the and the Restatement I think it clear from circum- proved by conduct and be Keeton, Prosser & stances. can either actual peril apprehended to be reliance these

or constructive. Our manager defendants, safety and The as and incorporates both the actual authorities identify and engineer, required to were knowledge standard. constructive Defen- safety hazards. remedy potential employed as AL- Mlakar had been dant is in line with some This conclusion years. engineer eight safety regarding COA’s determina- other decisions our 410

Apparently, the hazard in the tunnel exist- negligence evidence of persons ‘as to all eight-year period. ed for this likely who are exposed to be as a ” result of the violation.’ 481 N.W.2d at It is not an absolute defense for the 315. Wiersgalla, See also 486 N.W.2d at they defendants to assert could not con- position 293. This is the argued by Walker sciously peril they fail to avoid the because today, one which is different from the one were not aware of the hazard. decided in Eister. The responsi- defendants cannot avoid the bility by intentionally avoiding discovery Eister, As we said in “[c]learly every peril. Their failure inspect conscious violation of an regulation OSHA amounts plant operations identify remedy and gross negligence.” 420 N.W.2d at 445. in may satisfy obvious the tunnel This plainly open statement leaves pos- requirement of the third sibility element. that some regu- violations of OSHA by lations a coemployee may amount to II. Evidentiary Rulings. gross negligence. prove To gross negli- A. Regulations. Exclusion of OSHA gence, the employee prove must negli- both attempted Walker reg- to have an OSHA gence willful, wanton, or reckless con- ulation during entered as evidence the trial. Thompson, duct. See N.W.2d regulation, plaintiffs The exhibit was There, we said: ‘gross negli- “The term “Guarding entitled openings floor and wall gence’ nebulous, is said to be without a provided, “(1) Every open holes” and generally-accepted meaning: implies It con- platform sided floor or 4 feet or more which, culpable duct while more than ordi- adjacent ground above floor or level shall nary unattention, inadvertence or differs guarded by railing a standard ... on all ordinary negligence from only degree, in ” open regulation sides.... The was of- not kind.” Id. negligence Gross is an negligence. fered as evidence of aggravated negligence. form of Since we previously held A “violation of an by OSHA standard an degree negligence, different negligence per se as to the regulations evidence of OSHA should be employer’s employee.” Johnson v. Inter- as negligence. admissible evidence of I Co., state Power would hold that the district court abused (Iowa 1992) (citing Roll v. Manatt’s its discretion in excluding regu- the OSHA Co., Transp. (Iowa 1977)). 253 N.W.2d 265 lation. Evidence negli- of the defendants’ Garrett, See also Wiersgalla v. gent conduct should have been admitted. (1992), general for a dis- The court’s exclusion of the offered evi- regarding cussion our rules of admission of prejudicial dence was to Walker. regulations. OSHA The coemployees ar- gue this should inquiry be the end of the Reports Safety B. Hazards. they are employer. support, not the they Eister, cite 420 N.W.2d at Apparently, response to Walker’s fall which we said: “The correctly trial court injury, compre- ALCOA undertook a holding concluded that our workplace Roll does not hensive review in its apply brought against to claims plant. a coem- The review was conducted ployee.” support prevention Eister clear for the “fall team” that included Mla- proposition coemployee’s that a violation of in-depth report. kar and culminated in an regulation negligence per OSHA is not report The documented over two thou- se as to the coemployee. worker’s places plant sand at the where there was question, however, pres- Id. was not potential for a fall because of lack of a ented in as to Eister whether the violation safety device or because of a defect or could be used gross negli- as evidence of problem in existing safety device. gence part coemployee. on the places These identified were as hazards Johnson,

In long-stand- we restated our report. apparent many It of ing corollary to the per dangerous se rule places these and conditions ex- that “a violation regulations] OSHA isted at the time of Walker’s The [of

report listed hazards and the various JOHNSON, taken. of corrective measures Plaintiff-Appellee, status Bruce report, attempted to have the Walker v. urged He admitted evidence. exhibit Edward M. MITCHELL and Maxine L. defendants’ proof exhibit was Mitchell, Defendants-Appellants. identify appreciate failure to conscious district court dangerous The condition. Edward M. MITCHELL and Maxine L. report grounds on the to admit the refused Mitchell, Plaintiffs-Appellants, subsequent reme- of a that it was evidence un- thus excludable v. dial measure and was 407. of Evidence der Iowa Rule JOHNSON, Bruce L. Defendant- terms, ex- rule 407 acts to By its own Appellee. subsequent remedial mea- evidence of clude No. 91-178. prove negli- they are used to sures when excep- gence. The also contains listed rule Appeals Court Iowa. excep- list application. its tions to May illustrative, not exclusive. 7 J. tions Kincaid, Practice, K.& Evi- Adams (1988). 407.2, I at 158 believe that

dence § report

allowing such a into evidence would many purposes the same as the

serve

specific exceptions. listed

Accordingly, report I believe the could be purposes if

properly admitted offered proving negligence. ad-

other than Such accompanied by properly

mission would be directing report

an instruction of the defen- solely used as evidence knowledge or awareness

dants’ identify, recti- failure to

or their conscious

fy peril. avoid the Direct

III. Verdict. district court to error for the

It was for the defendants. When

direct a verdict gross negligence are cor- elements the offered evidence

rectly defined and fail- negligence and conscious

defendants’ considered, peril is reason-

ure to avoid the on the defen- minds can differ whether

able negligent. determin- grossly were

dants verdict, we

ing propriety of the directed question deal of what

need find, jury should not what the

jury could Massey-Ferguson,

find. See Osborn (Iowa 1980). I

Inc., for a new trial. reverse and remand

would

Case Details

Case Name: Walker v. Mlakar

Court Name: Supreme Court of Iowa

Date Published: Jul 22, 1992

Citation: 489 N.W.2d 401

Docket Number: 91-352

Court Abbreviation: Iowa