MARIA ESPINOSA, Plaintiff-Appellant, vs. KIRK J. COOK, RANDY ZORN, SILVANNA B. HEILMANN, SHAWN BAGLEY, KEVIN DVETON, RODNEY HOSELTON a nd DAVID ROACH, Defendants-Appellees.
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IN THE COURT OF APPEALS OF IOWA
No. 7-963 / 07-0726
Filed January 30, 2008
MARIA ESPINOSA,
Plaintiff-Appellant,
vs.
KIRK J. COOK, RANDY ZORN, SILVANNA B.
HEILMANN, SHAWN BAGLEY, KEVIN DVETON,
RODNEY HOSELTON and DAVID ROACH,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Wapello County, Daniel P. Wilson,
Judge.
Appeal from the district court’s grant of summary judgment in favor of
defendants. AFFIRMED.
Philip F. Miller, West Des Moines, and Roland Peddicord, Des Moines, for
appellant.
Brian C. Campbell and Christian S. Walker of Faegre & Benson, L.L.P.,
Des Moines, for appellees.
Considered by Sackett, C.J., Vaitheswaran and Baker, JJ.
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SACKETT, C.J.
Plaintiff-appellant, Maria Espinosa, was injured while working for Excel at
their packing plant in Ottumwa, Iowa.
She brought suit against co-workers
defendants-appellees Kirk J. Cook, Randy Zorn, Silvanna B. Heilmann, Shawn
Bagley, Kevin Kveton, Rodney Hoselton, and David Roach, contending their
gross negligence was a direct and proximate cause of her injury. The district
court, finding no evidence to establish a prima facie case of co-employee gross
negligence, sustained a motion for summary judgment filed by defendants and
dismissed the case.
Plaintiff on appeal contends the district court erred in
granting the summary judgment for she showed there was a genuine issue of
material fact as to whether defendants had (1) knowledge of the peril to be
apprehended, (2) injury was probable, and (3) whether defendants consciously
failed to avoid the risk or proceed despite the risk of probable injury. We affirm.
I.
Background Facts
Plaintiff’s injury occurred while working on a sirloin skinner machine. Her
hand was pulled into the machine and it cut her fingers. The machine plaintiff
was using at the time of the accident was a recent model that replaced another
skinner machine plaintiff had operated without incident for several months.
Defendants were supervisors or managers at the plant. The new machine had
the same basic design and operated in the same basic fashion as the old
machine.
II.
Scope and Standards of Review
The standard of review for summary judgment cases is well
settled. We review summary judgment motions for correction of
errors at law. Summary judgment is appropriate only when the
entire record demonstrates that no genuine issue of material fact
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exists and the moving party is entitled to judgment as a matter of
law. We review the evidence in the light most favorable to the
nonmoving party.
A party resisting a motion for summary judgment cannot rely
on the mere assertions in his pleadings but must come forward with
evidence to demonstrate that a genuine issue of fact is presented.
The record on summary judgment includes the pleadings,
depositions, affidavits, and exhibits presented.
Stevens v. Iowa Newspapers, Inc., 728 N.W.2d 823, 827 (Iowa 2007). “A fact is
material if the dispute over it might affect the outcome of the suit given applicable
governing law.” Grace Hodgson Trust v. McClannahan, 569 N.W.2d 397, 399400 (Iowa Ct. App. 1997).
III.
Analysis
Iowa’s workers’ compensation system provides a worker’s “exclusive and
only rights and remedies” for injury against another employee unless the injury is
“caused by the other employee’s gross negligence amounting to such lack of
care as to amount to wanton neglect for the safety of another.” Iowa Code §
85.20 (2003).
Plaintiff sued the appellees alleging gross negligence.
The
elements necessary to establish a coworker’s “gross negligence” within the
meaning of section 85.20 are (1) a knowledge of the peril to be apprehended, (2)
a knowledge that an injury is probable as opposed to possible, and (3) a
conscious failure to avoid the peril.
Nelson v. Winnebago Indus., Inc., 619
N.W.2d 385, 390 (Iowa 2000). Plaintiff argues she “has created a genuine issue
of material fact” as to each of the three elements.
A. Knowledge of the peril to be apprehended. Plaintiff points to other
accidents on other machines at the plant, the skinner-machine safety committee,
and a district court ruling in a different lawsuit as evidence the defendants had
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knowledge of the danger such machines present—especially if the operator is
not trained.
None of the previous accidents on other machines provide knowledge
about the machine involved in this case. There had been no previous accidents
on this machine. The fact that the plant had a safety group for skinner machines
because they can be dangerous to operate does not satisfy this element. The
lawsuit cited is inapposite and does not satisfy this element.
We conclude
plaintiff did not establish this element.
B. Knowledge injury is probable. In order to satisfy this element, plaintiff
had to prove the defendants “knew or should have known that [their] conduct
placed the plaintiff in a zone of imminent danger.” Alden v. Genie Indus., 475
N.W.2d 1, 2 (Iowa 1991).
Knowledge that skinner machines are inherently
dangerous and that eventually someone will be injured when using them is not
sufficient to satisfy this element. Heinrich v. Lorenz, 448 N.W.2d 327, 334 n.3
(Iowa 1989). Even knowledge “of the actuarial foreseeability—even certainty—
that ‘accidents will happen’ does not satisfy” this element. Id.; see Thompson v.
Bohlken, 312 N.W.2d 501, 504-05 (Iowa 1981).
The evidence shows plaintiff had been trained on and operated the
previous machine without incident. The new machine operated and functioned
the same as the old machine.
Plaintiff received some training on the new
machine. Although plaintiff claims the new machine was faster, there is nothing
in the record to establish this claim and no authority for concluding this claim,
even if true, would establish this element. We conclude plaintiff did not establish
this element.
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C. Conscious failure to avoid the peril. The district court concluded, and
we agree, that since defendants had no knowledge of the peril or that injury was
probable, they could not “consciously” fail to avoid the peril. See Thompson, 312
N.W.2d at 504-05.
IV.
Conclusion
“[W]e believe that the legislature intended the section 85.20 coemployee
gross negligence exception to common law tort immunity to be a narrow one.”
Walker v. Mlakar, 489 N.W.2d 401, 406 (Iowa 1992). A plaintiff must prove all
three elements set forth in Thompson to prevail. Id. at 403. Plaintiff failed to
establish any of the three elements, so the defendants were entitled to judgment
as a matter of law. The district court did not err in granting summary judgment in
favor of the defendants.
AFFIRMED.
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