Case Reviews

Whitacre v. Brown, Clarey, Hoffman &Peton

Court of Appeals of Iowa

Case Citation: 808 N.W.2d 449 (Iowa Ct. App. 2011)

Background: In October 2008, Wiley Whitacre began working in Energy Panels Structures, Inc. (EPS) lamination department and was trained to use a roll coater machine (“the machine”) by his foreman, defendant Jason Peton.  Peton was trained to operate and clean the machine in approximately 1997 by his then foreman Kevin Kulow.  Kulow was trained to operate and clean the machine in approximately 1990 by his then foreman.  Regarding the cleaning of the machine, all employees were instructed to apply a solvent to the rollers and then they were to use a rag or industrial paper towel, while the machine and its rollers were running, to wipe the rollers clean.  These instructions were contrary to the manufacturer’s manual cleaning and safety instructions.  The cleaning instructions stated to “keep hands away from revolving rolls” and “do not wipe rolls while turning!” The instructions recommended a brush with a long handle be used for clean-up and noted “NEVER touch revolving rolls.” 

On April 13, 2009, Whitacre was cleaning the machine using a dry paper towel to remove dust from the rollers while the machine and the rollers were running. He was severely injured when the paper towel got stuck in the rollers and his hands and arms were pulled into the machine.  Whitacre sued asserting defendants’ gross negligence was a proximate cause of his injury because he was taught to clean the machine in a manner contrary to the manufacturer’s instructions.  The district court granted the defendant’s motion for summary judgment and Whitacre appeals.     

Issues: Whether Whitacre could establish the elements of gross negligence?

Analysis:  To establish a co-employee’s “gross negligence” under Iowa Code section 85.20(2), three elements must be proved: (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. Walker v. Mlakar, 489 N.W.2d 401, 403 (Iowa 1992) (citing Thompson, 312 N.W.2d at 504).  The court found it unnecessary to address the first or third elements because the material facts relating to the second element are undisputed and entitle defendants to judgment as a matter of law. 

The court stated two means by which Whitacre may demonstrate that defendants possessed knowledge that the existing danger would probably result in injury. First, a plaintiff may show that the defendants knew about prior injuries occurring under similar circumstances. Second, a plaintiff may prove a zone of imminent danger existed “where the high probability of harm is manifest even in the absence of a history of accidents or injury.” 

Whitacre failed to meet either of the two means because the cleaning procedure Whitacre was instructed to use had been utilized by EPS for some twenty years and produced no history of injuries.  Furthermore, both Hoffman and Peton had previously used and cleaned the machine using the same method as Whitacre. Had these defendants known this method would probably result in injury, they most likely would not have used it themselves.

Judgment: Affirmed

To see the Court's complete opinion, click here.