Risky Business

Gross Negligence May Be the Workplace ‘Boogey Man’

Posted by Bruce Smith on Sep 28, 2016 9:40:43 AM

12173490_m.jpgMost business owners believe incorporation or creating limited liability companies, and the like, protects them from personal liability resulting from employee workplace accidents and injuries.  For the most part that is true.  In lieu of an employee’s right to sue the business in civil court for injuries sustained on the job, most states have created workers compensation systems that serve as an injured worker’s sole and exclusive remedy for compensation.  In Iowa, the law generally protects employers from claims outside of the context of workers’ compensation rights and remedies. 

There are, however, exceptions to this rule.  One such exception is the right to sue a co-worker for “gross negligence.”

Iowa Code §85.20(2) permits an injured worker (or the estate of a deceased worker) to file a lawsuit against “any other employee of such employer.”   But to do so, you must be able to prove that the injury or death was 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.”  Defining exactly what constitutes “gross negligence” depends upon the facts in each individual case.  

West's Encyclopedia of American Law, Edition 2, Copyright 2008, defines “gross negligence” as “An indifference to, and a blatant violation of, a legal duty with respect to the rights of others.”

Gross negligence is a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both. It is conduct that is extreme when compared with ordinary Negligence, which is a mere failure to exercise reasonable care. Ordinary negligence and gross negligence differ in degree of inattention, while both differ from willful and wanton conduct, which is conduct that is reasonably considered to cause injury. This distinction is important, since contributory negligence—a lack of care by the plaintiff that combines with the defendant's conduct to cause the plaintiff's injury and completely bar his or her action—is not a defense to willful and wanton conduct but is a defense to gross negligence. In addition, a finding of willful and wanton misconduct usually supports a recovery of Punitive Damages, whereas gross negligence does not.

We recently listened to FBI Director Comey describe former Secretary of State Clinton’s actions involving the alleged email scandal as constituting “extreme carelessness” on her part; and arguably “extreme careless” may be synonymous with the meaning of “gross negligence.” 

There is no limitation up the line of company management concerning who can potentially be sued for “gross negligence” under Iowa Code §85.20(2).  It may involve a fellow employee on the floor, or upper management including the owner/boss, depending upon the involvement of that upper management co-employee in acts linked to the harm suffered by the injured employee.  Distance away from a job site does not immunize upper management from potential personal liability for “gross negligence.”  Such a reality ought to motivate all employees in the workplace, including those at the highest levels of management responsibility, to make sure proper company policies and employee conduct is, in fact, implemented.

Arguably, conscious decisions by management to avoid compliance with environmental, health and safety regulations may very well constitute “gross negligence” should an accident or injury result from such decision making.  For instance, if a piece of manufacturing equipment has been identified through a safety audit as needing additional machine guarding, and it is decided not to spend the time or money to install such guarding, a subsequent employee injury causally linked to the lack of guarding may very well constitute “gross negligence” on the part of the decision makers.  If work is to be performed on a hazardous chemical line inside a facility, and management decides not to comply with EPA and OSHA process management regulations concerning such work, an injured employee exposed to the hazardous chemical may be able to allege “gross negligence” against his or her co-employees involved in a decision to proceed anyway with the hazardous chemical work.  Perhaps a floor supervisor asks a co-employee to work on a piece of equipment and the co-employee is not trained as an authorized employee in OSHA required lockout/tagout.  The employee then loses a finger or a hand by sticking his appendage into energized machine parts.  It may very well be that the conscious decision made by the supervisor requiring the untrained employee to work on machine equipment without having been previously qualified in lockout/tagout constitutes “gross negligence.”

In Smith v. Air Field, an Iowa Court of Appeals 1996 case decision, employee  Smith was injured when a Komatsu press Smith was working on cut off his hand.  Mr. Smith’s employer had modified the press machine, taking away the intended safety device.  The jury awarded Smith $278,000 finding a co-employee grossly negligent.  There are other cases in Iowa and in other jurisdictions reinforcing the fact that co-employee liability in the workplace resulting from acts of “gross negligence” can serve as an exception to the exclusive remedy protection provided by workers’ compensation mandated coverage.

A fundamental lesson to be learned by any business owner is to adopt and verifiably implement company policies designed to achieve compliance with local, state and federal laws, especially concerning environmental, health and safety.  Failing to do so can result in regulatory enforcement not only against the business itself, but also civil lawsuits filed by injured employees against co-employees when “gross negligence” may be involved.  Please govern yourself accordingly!!!

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Topics: Gross Negligence