Court of Appeals Rejects Gross Negligence Claim

In another example of how difficult it is to successfully pursue a gross negligence claim, the Court of Appeals affirmed the dismissal of such a claim in Whitacre v. Brown, No. 1-509 (Iowa App. Oct. 19, 2011).  Plaintiff had been taught to clean the rollers on a machine in a certain manner, and this same technique for cleaning the machine had been used in the past without incident.  A Manual that was in proximity to the machine advised workers not to put their hands by the revolving rolls and not to wipe the rollers while they were turning.  The Manual's instructions were contrary to the method in which plaintiff was instructed, in which the rollers were cleaned while they were turning.  Mr. Whitacre was injured using the cleaning procedures he had been taught.

Whitacre filed against defendants based on gross negligence, and his claim was dismissed on summary judgment by the district court because he had not demonstrated any of the elements of gross negligence.  On appeal, the court noted that a plaintiff must prove "wanton neglect" on the part of the defendants.  This standard is "somewhere between mere unreasonable risk of harm in ordinary negligence and intent to harm."  According to the court, the "wantonness" standard severely restricted the reach of gross negligence actions.  Wantonness involved a "realization of imminent danger" along with "a reckless disregard or lack of concern for the probable consequences of the act."  A plaintiff must prove that injury is probable, not merely possible, and also must prove that there was a conscious decision to avoid the peril.

Against these standards, and the history of a lack of injuries while cleaning the machine, the court found that gross negligence had not been established.  The court note that in determining the "probable" consequences, the defendants must be aware of an imminent danger to plaintiff, such that plaintiff would more likely than not be injured.  Here, the cleaning procedure had been used for 20 years with no injuries.  The defendants themselves had used the same procedures without incident.  Because injury was not a probable consequence of the actions of plaintiff, gross negligence was not established.

Judge Doyle dissented.  He believed that a jury question was presented on the issue of gross negligence, and that the case should not have been dismissed on summary judgment.  He discussed the testimony of Whitacre's experts, who had stated that there was clearly a significant hazard involved in cleaning the rollers while they were running.  He also found it important that because the rollers were new, they were stickier than they would otherwise have been, and no special precautions were taken or training provided in this circumstance.  Although Judge Doyle indicates that the stringent gross negligence standard was something that Whitacre may not have met in any event, he believed that this was a question for the jury and was not appropriate for summary judgment.