IN THE COURT OF APPEALS OF IOWA
No. 5-393 / 04-1204
Filed July 13, 2005
Appeal from the Iowa District Court for Woodbury County, Dewie J.
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
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.
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. 
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
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.
 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.