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Jesse anderson v. Rex Bushong

February 13, 2013

JESSE ANDERSON, PLAINTIFF-APPELLANT,
v.
REX BUSHONG, JOHN BUSHONG, AND GREG LONG, DEFENDANTS-APPELLEES.



Appeal from the Iowa District Court for Poweshiek County, Lucy J. Gamon, Judge.

The opinion of the court was delivered by: Tabor, J.

Jesse Anderson appeals a partial grant of summary judgment and a defense verdict on his co-employee gross negligence claims. AFFIRMED.

Considered by Potterfield, P.J., and Danilson and Tabor, JJ.

This action involves Jesse Anderson's claims of co-employee gross negligence under Iowa Code section 85.20 (2009). Anderson shattered his heel bones after falling eleven feet from the deck of a construction site onto a concrete basement floor. He alleges his co-workers were liable for not following federal regulations or the construction company manual regarding safe practices for covering stairwell holes.

On appeal, Anderson contends the district court erred by granting summary judgment in favor of two co-workers, John Bushong and Greg Long, where material fact questions existed that would allow a jury to find each was grossly negligent. As for the trial of the sole remaining defendant, foreman Rex Bushong, Anderson challenges the court's submission of comparative fault instructions to the jury. Last, Anderson argues the court improperly excluded the foreman's statements regarding his post-accident conduct.

Because we find the two co-workers could not have known Anderson's injuries would be a probable, as opposed to a possible, result of the unmarked plywood hole covering-even when taking each contested fact in the light most favorable to Anderson-we affirm the summary judgment ruling. We also conclude the district court's submission of comparative fault instructions did not cause Anderson prejudice. Finally, because the foreman's statements that he would not change the manner in which he covered holes was not relevant to Anderson's co-employee gross negligence claim, the district court did not err in excluding them from the record. Finding no error, we decline to order a new trial.

I. Background Facts and Proceedings

Jesse Anderson began working as a general laborer for the Bushong Construction Company on September 2, 2009. The company was building a 39,000 square foot warehouse in Montezuma, Iowa, which included a concrete deck elevated approximately eleven feet above a concrete basement. Anderson worked full-time on the construction site and helped pour the concrete deck.

On November 2, 2009, the work crew cut two holes in the deck to be used for stairwells; each hole measured roughly four foot, three inches by fifteen foot, one-half inch. Foreman Rex Bushong directed workers to place several four-foot by eight-foot plywood boards over the holes. The plywood boards were unmarked and unsecured, and no warnings, guardrails, or barricades highlighted the location of the holes.

One week later, on November 9, 2009, the foreman instructed the workers to prepare the deck for application of a chemical sealer. Although parties dispute the language the foreman used and whether he meant for the crew to remove the hole coverings along with the deck debris, they agree the foreman did not specifically state whether the plywood should be removed or left in place. The foreman then left the jobsite.

Anderson lifted one of the plywood boards and, intending to push the wood off the edge of the deck to the ground below, stepped forward into the hole. He fell into the basement, shattering both heel bones. Anderson filed a workers' compensation claim.

On November 12, 2010, Anderson filed suit for co-employee gross negligence, naming Rex Bushong and "John Doe" as defendants. Anderson amended his petition on March 28, 2011 to include John Bushong. On June 10, 2011, he added Greg Long, Mike Bushong and John Van Roekel. John Bushong and Greg Long were responsible for devising and implementing safety practices and training for the construction company. John Bushong and Long each had visited the worksite and observed the covered holes before Anderson's fall, but were not on site at the time of the accident. Van Roekel and Mike Bushong were Anderson's co-workers who were designated as "foremen pro tem" when Rex Bushong was not on site. In his final amended petition filed on October 11, 2011, Anderson listed co-workers Rex Bushong, John Bushong, Mike Bushong, Greg Long, and John Van Roekel as defendants for his gross negligence claim. On October 24, 2011, the five defendants denied liability and asserted comparative fault as an affirmative defense.

Anderson filed a motion for summary judgment. His co-workers resisted and filed their own motion for summary judgment. After hearing arguments on both motions, the district court dismissed four of the five defendants, finding the summary judgment record did not support a material issue of fact on their alleged gross negligence. Because the court found material facts in dispute regarding Anderson's claim against foreman Rex Bushong, it denied the defense motion pertaining to him. The court denied Anderson's motion in full.

Trial began on January 24, 2012, and on February 1, 2012, the jury found Rex Bushong was not grossly negligent. Following the district court's denial of his post-trial motions, Anderson timely filed his notice of appeal.

II. Scope and Standard of Review

We review summary judgment rulings for correction of legal error.

Koeppel v. Speirs, 808 N.W.2d 177, 179 (Iowa 2011). Summary judgment is appropriate when no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law. Employers Mut. Cas. Co. v. Van Haaften, 815 N.W.2d 17, 22 (Iowa 2012). "An issue of fact is 'material' only when the dispute involves facts which might affect the outcome of the suit, given the applicable governing law." Wallace v. Des Moines Indep. Sch. Dist. Bd. of Dirs., 754 N.W.2d 854, 857 (Iowa 2008).

We review the record in the light most favorable to the nonmoving party to determine whether the movants have met their burden. C & J Vantage Leasing Co. v. Outlook Farm Golf Club, LLC, 784 N.W.2d 753, 756 (Iowa 2010). We allow all legitimate inferences that can be reasonably deduced from the record in favor of the non-movant. Feld v. Borkowski, 790 N.W.2d 72, 75 (Iowa 2010). If reasonable minds could differ on resolution of that fact, summary judgment should be denied. Id.

We review whether a comparative-fault defense was properly submitted to the jury for correction of errors at law. Mulhern v. Catholic Health Initiatives, 799 N.W.2d 104, 110 (Iowa 2011).

We typically use an abuse-of-discretion standard to review evidentiary rulings. Hall v. Jennie Edmonson Mem'l Hosp., 812 N.W.2d 681, 685 (Iowa 2012) (applying standard to subsequent-remedial-measure analysis). But where a challenge to an evidentiary ruling implicates the interpretation of a statute, our review is for errors at law. Keefe v. Bernard, 774 N.W.2d 663, 667 (Iowa 2009).

In this case, while section 85.20 is the subject of the litigation, that statute does not address the admissibility of evidence, and therefore a legal-error analysis would not be the proper standard of review. See State v. Stone, 764 N.W.2d 545, 548 (Iowa 2009) ("[W]hen the admission turns on the interpretation of a statute, this court reviews the district court decision for errors at law."); cf. Pavone v. Kirke, 801 N.W.2d 477, 491 (Iowa 2011) (reviewing admissibility under statute of frauds for legal error); Keefe, 774 N.W.2d at 667--76 (applying legal error review to statutorily-protected privileges). We review Anderson's evidentiary claim for an abuse of discretion. ...


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