Sewage worker cannot sue for negligence over known hazard

A municipal sewage worker using an apparatus that was a known hazard cannot sue his coworkers for negligence because they did not direct him to use the equipment, an Iowa appeals court ruled Wednesday.

Kevin Lancial, whose gross negligence suit was dismissed by a district court, was cleaning a drain in Des Moines when an attachment to a hose he was using “either exploded or became detached from the hose” and struck him in the head, according to documents in Kevin Lancial v. Charles Burrell and Matthew Van Dyke, filed in the Court of Appeals of Iowa in Des Moines.

Following his injury, Mr. Lancial sued Charles Burrell, his supervisor, and Matthew Van Dyke, the City of Des Moines’ safety consultant. Both men filed for summary judgment, claiming that Mr. Lancial “failed to state a claim upon which relief may be granted, as well as other defenses.”

In affirming the dismissal, the appellate court said workers compensation is the “only remedy available for workplace injuries. But an exception to that rule exists when 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.”

Under Iowa law, “to establish his co-employees were grossly negligent, Lancial must show the defendants had: (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,” according to documents.

The district court found the first element, knowledge of the peril, to have been met — a point on which the appeals court agreed.

Knowledge that the injury was probable was not met, however, because neither defendant knew Mr. Lancial was using the hose attachment that eventually struck him, nor did they direct him to use the attachment to complete the job, according to documents.

“With Lancial failing to meet the second element, discussion of the third, a conscience failure to avoid the peril, is unnecessary as all three elements must be proven,” the appeals court wrote in its decision.