Violating OSHA Regulations Does Not Equate to Gross Negligence
Recently, in Anderson v. Bushong, 829 N.W.2d 191 (Table), 2013 WL 530961 (Iowa Ct. App., Feb. 13, 2013)(hereinafter Anderson), the Iowa Court of Appeals clarified the standard of gross negligence; and in so doing, held liability did not extend to the co-employees even when certain employer-practices violated both Occupational Safety & Health Administration (OSHA) regulations, as well as the company’s own safety standards. See id.
In Anderson, Jesse Anderson worked as a general laborer for Bushong Construction Company until he ultimately was injured on the job. Plaintiff shattered both heel bones after falling eleven feet through a hole in the deck that had been used as a makeshift stairwell. Instructions from Plaintiff’s foreman were to keep the holes covered with plywood boards. “The plywood boards were unmarked and unsecured, and no warnings, guardrails, or barricades highlighted the location of the holes.” Id. at *1. Plaintiff filed both a workers’ compensation claim and a lawsuit for co-employee gross negligence in which he named five co-employees as defendants. See id. at *1-2. The district court granted summary judgment in favor of four out of the five defendants; whereas the fifth defendant went to trial and was found not grossly negligent by the jury. See id. Mr. Anderson appealed and argued the district court: 1) erred by granting summary judgment to some of the co-employees that were granted summary judgment; 2) erred in instructing the jury on comparative fault instructions; and 3) improperly excluded evidence of the foreman’s post-accident statements. Id.
On appeal, the court began by noting, “[o]ur workers’ compensation law provides an injured worker’s exclusive and sole remedy for employment-based injuries…” Id. at *3. The court further explained that the lone exception is where an injury has been caused by the gross negligence of a co-employee. Id. The gross negligence must “amount to such lack of care as to amount to wanton neglect for the safety of another.” Id. (citing Iowa Code § 85.20; Hernandez v. Midwest Gas Co., 523 N.W.2d 300, 305 (Iowa Ct. App. 1994). The court specifically stated, “[t]o prevail on a claim of gross negligence, the plaintiff must prove: (1) a 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.” Id. (citing Thompson v. Bohlken, 312 N.W.2d 501, 505 (Iowa 1981)). The court noted that all three elements must be satisfied before liability attaches to co-employees. Id. “Simple or ordinary negligence will not justify recovery.” Id. (citations omitted). Further, “wantonness” as found within Iowa Code § 85.20 (2) is “an act of an unreasonable character in disregard of a risk known to or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.” Id. at *4 (citations omitted). Conduct considered wanton “involves, among other things, a realization of imminent danger” and “falls somewhere between the mere unreasonable risk of harm in ordinary negligence and intent to harm.” Id. (citations omitted).
Following this rendition of Iowa law, the court addressed Plaintiff’s argument that “the extent of [the co-employees] knowledge, training, and experience with regard to [OSHA] standards and [employer] guidelines are factual questions to submit to a jury, and that evidence on record shows each [co-employee] knew the coverings did not comply with those regulations.” Id. The court disagreed with this argument; and stated violating OSHA regulations “can show negligence per se in ordinary negligence cases, [but] those same violations do not necessarily amount to gross negligence.” Id. Furthermore, if the defendant co-employees are not aware of potential injury or harm that a relatively common employer-practice creates, OSHA “regulations are irrelevant and have no effect on the claim of gross negligence.” Id. (citations omitted). The same applies to employer safety policies as well. See id. The court determined violations of both OSHA regulations and/or employer safety standards are admissible but not enough for Mr. Anderson to meet his heightened standard found in Iowa Code § 85.20. See id.
Moreover, the court stated “a plaintiff must show more than the defendant’s actual or constructive knowledge of the actuarial foreseeability or even certainty that accidents may happen.” Id. at *5 (citations omitted). Specifically, the co-employee defendants must have known their employment practice or conduct “would place a coworker in imminent danger, that an injury would probably-more likely than not-be a result of their conduct.” Id. (emphasis added). A zone of imminent danger can be proven by the plaintiff in two ways: “first, by proving the defendant’s actual or constructive awareness of a history of accidents under similar circumstances, or second, where the high probability of harm is manifest even in the absence of a history of accidents or injury.” Id. at *5 (citations omitted; emphasis added). Upon witness testimony, the court found the plywood boards in question to be a “typical manner in which holes were covered[;]” and evidence showed no prior employee injuries had occurred within 30 years of employer existence. Id. The court concluded the “failure of [the] coworkers to ensure workplace safety compliance” was not enough to place Mr. Anderson within the “zone of imminent danger”. Id. Since there was no history of falls, “Anderson must show the high probability of injury was obvious.” Id. (emphasis added). The court of appeals accordingly affirmed the district court’s grant of summary judgment. See id. at *7.