BRUCE LAFLEUR, Plaintiff-Appellant, vs. SANDRA CAMPOS, Defendant-Appellee.

Download as DOC IN THE COURT OF APPEALS OF IOWA No. 5-393 / 04-1204 Filed July 13, 2005 BRUCE LAFLEUR, Plaintiff-Appellant, vs. SANDRA CAMPOS, Defendant-Appellee. Appeal from the Iowa District Court for Woodbury County, Dewie J. Gaul, Judge. A plaintiff appeals from an adverse judgment in his action against a co-employee under Iowa Code section 85.20(2) (1999). REVERSED AND REMANDED WITH DIRECTIONS. Daniel Galvin of O'Brien, Galvin & Moeller, Sioux City, and Joe Cosgrove, Sioux City, for appellant. Debra Hulett of Nyemaster, Goode, West, Hansell & O'Brien, P.C., Des Moines, for appellee. Considered by Vogel, P.J., and Miller and Hecht, JJ. MILLER, J. Plaintiff Bruce LaFleur appeals from a district court judgment entered in favor of defendant Sandra Campos. LaFluer contends the district court applied an incorrect legal standard in determining he failed to establish a claim against Campos under Iowa Code section 85.20(2) (1999). We review this matter for the correction of errors at law, Iowa R. App. P. 6.4, and are bound by the district court's fact findings if they are supported by substantial evidence in the record, Larson v. Massey-Ferguson, Inc., 328 N.W.2d 343, 345 (Iowa 1982). Upon such review, we agree the court did apply an incorrect legal standard in assessing one of the elements LaFleur was required to establish under section 85.20(2). Accordingly, we reverse the district court judgment and remand for further proceedings based on the existing record. On November 8, 1999, LaFleur obtained a job as a laborer with Curly's Foods. LaFleur was injured at work on December 8, 1999, when his hand was caught in an auger located in a meat-grinding machine that he was operating. LaFleur sued his co-employee, Sandra Campos, asserting his injury was proximately caused by Campos's gross negligence. LaFluer's claim was brought under Iowa Code section 85.20(2), which allows an injured worker to pursue common law damages against a co-employee when his or her work-related injury is 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." To establish such a cause of action, the injured employee must demonstrate the following on the part of the co- employee: "(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." Thompson v. Bohlken, 312 N.W.2d 501, 505 (Iowa 1981). After a non-jury trial the district court made the following factual findings, all of which find substantial support in the record: On December 8, 1999, the plaintiff came to work about 6:30 a.m. He was moved sometime after 8 a.m. to a machine where his job was to take coarsely-ground meat from a combo, and cause the meat to go down a chute where an auger ground the meat more finely. When plaintiff was moved to that job, the defendant, a line leader, spent 20 or 25 minutes showing the plaintiff how to do the job. He was instructed to drop bunches of meat into the chute. The plaintiff proceeded to the work. The defendant then noted that he was using his hand to push the meat down into the chute. The defendant stopped the line and told the plaintiff he should not use his hand inside the chute, pointing out to him the auger some eleven inches below the tray on which the meat was deposited, and that the auger was dangerous if one's hand got into it. After this admonishment the defendant noted the plaintiff put the meat into the chute correctly, avoiding using his hand to push meat within the chute. . . . At about 2 p.m. the plaintiff put his hand into the chute, and was seriously injured, losing his right hand. The machine at which the plaintiff was working was dangerous to one who placed his hand into the chute or who so placed his hand that it could be drawn so as to come in contact with the auger. Defendant knew of the danger of having a hand get into the chute and warned the plaintiff of that danger. It does not appear, however, that defendant knew that plaintiff was in danger if he avoided having his hand get into the chute. The court then further found that, because Campos was unaware LaFleur could be injured even he performed his work as instructed, she "did not know that injury was a probable result of the situation as it existed at and prior to the injury." Based upon the foregoing, the court concluded LaFluer was not entitled to recover against Campos. [1] LaFleur appeals. He asserts that to prove Campos's "knowledge of the peril to be apprehended," he needed to prove only that Campos "knew of the danger of having a hand get into the chute," a fact which the district court affirmatively found. LaFleur contends the district court erroneously required him to further prove Campos knew the machine was dangerous even if the operator took the precaution of attempting to keep his or her hand out of the chute. In reviewing the district court's decision, it appears the court did require LaFleur to demonstrate Campos knew not only that the auger presented a danger to the machine's operator, but that it presented a danger to the operator even if known precautions were taken. We agree this goes beyond what is contemplated by the "the peril to be apprehended," and that the district court erred when it required LaFleur to make the additional showing. The district court found Campos knew the auger presented a danger to the operator of the machine. This is sufficient to meet LaFleur's burden under the first element of section 85.20. Campos's knowledge regarding the adequacy of the precautions she instructed LaFleur to take (to not push down on the meat and to avoid placing his hand in the chute) is relevant to whether LaFleur established the second and third elements: Campos's knowledge that injury was probable and Campos's conscious failure to avoid the peril. See, e.g., Swanson v. McGraw, 447 N.W.2d 541, 545 (Iowa 1989) (concluding evidence defendants knew chemical was caustic and caused burns was sufficient to demonstrate their knowledge of the peril, and evidence defendants knew plaintiff had a tear in his protective suit and that other precautions were inadequate was sufficient to demonstrate their knowledge injury was probable). Campos contends the district court's judgment may still be upheld, as even if LaFleur established her knowledge of the peril to be apprehended, he failed to establish either her knowledge that injury was probable or her conscious failure to avoid the peril. However, the structure of the court's decision indicates that its assessment of the second and third elements under section 85.20(2) was directly informed by its erroneous assessment of the first element. Accordingly, we find the proper remedy for the district court's error is to reverse its judgment and remand this matter for reconsideration of LaFleur's claim, based upon the existing record, and consistent with the standards articulated in this opinion. REVERSED AND REMANDED WITH DIRECTIONS. ----------------------- [1] The court also found that the meat-grinding machine had a guard and stomper which, if used, would have avoided injury or made injury at least unlikely. The court further found, however, that Campos did not know about the guard or stomper or that they should have been in place and used, and that because Campos "did not know of these items, she had no consciousness that the peril could have been avoided . . . ." LaFleur does not challenge these particular findings.