Submitted: December 11, 2018
from United States District Court for the Southern District
of Iowa - Des Moines
LOKEN, MELLOY, and ERICKSON, Circuit Judges.
ERICKSON, CIRCUIT JUDGE.
Edwin Van Dorn worked as an apprentice electrical linesman
for PAR Electrical Contractors, Inc. On September 1, 2014,
Van Dorn's team was called into duty after high winds
knocked over three wooden utility poles. Appellee Scott
Hunter led a second team that was also sent to fix the poles.
well-known risk of line work is that a downed wire under
tension can break free and injure a line worker. To protect
against that risk, wires are normally secured with safety
ropes. The area encompassing the space where a free wire
might cause an injury is referred to as "the bite."
Linesmen are taught to stay out of the bite if possible.
Linesmen are also instructed to make sure that no fellow
employee is in the bite before releasing a wire.
Dorn was severely injured at the worksite when a wire that
Hunter's team disconnected from a downed pole snapped
free and struck Van Dorn in the face. Hunter had attempted to
secure the wire by attaching it to a taped-open winch latch
hook of a digger derrick truck, which he believed would be
safer than using a safety rope. The winch latch hook failed
to restrain the wire, which struck Van Dorn in the face and
caused serious injuries. As a result of his injuries, Van
Dorn required multiple surgeries and missed a substantial
amount of work.
Dorn filed this suit against Hunter, alleging that Hunter was
grossly negligent and that this negligence caused Van Dorn
substantial harm. The district court granted summary judgment in
favor of Hunter, concluding that Iowa's Workers'
Compensation Act provided the exclusive remedy because Van
Dorn was unable, as a matter of law, to establish gross
negligence on the part of Hunter. We affirm.
September 1, 2014, high winds downed three consecutive wooden
utility poles near Carroll, Iowa. The poles fell across the
adjacent roadway with power distribution wires still
attached. An overhead ground wire, or static wire, also
remained attached to the poles.
crews were promptly dispatched and arrived on scene. The
necessary repairs included removing the wires from the downed
poles, setting new poles, and remounting the wires on the new
poles. Hunter led a crew that began to work on one of the end
poles, while Van Dorn's crew focused on the middle pole.
Van Dorn's crew successfully disconnected four wires from
the middle pole. Van Dorn's supervisor then sent him to
remove arrestors from the middle pole so that they could be
reused on a replacement pole.
300 feet away from where Van Dorn was working, Hunter's
crew began to detach the static wire from the outer pole. The
static wire was under tension. Rather than secure the wire
with a safety rope, Hunter made the decision to jerry-rig an
improvised wire lip, believing it would be a safer option. A
wire lip is a device specifically designed to safely secure a
wire under tension. Hunter attached the winch latch hook of a
digger derrick to the wire, then taped the latch open in an
attempt to have it serve the same function as a wire lip.
Hunter had not personally used a winch latch hook to imitate
a wire lip before, but had witnessed others use that method
and had not observed any accidents. He later stated that he
discussed this approach with his crew and that they agreed it
would be the best way to secure the wire.
crew used a chainsaw to cut the pole and release the static
wire. Hunter testified that he had checked the bite and that
he had seen no one in the bite. However, Van Dorn was in the
bite removing arrestors from the middle pole. When the wire
came free, it pulled out of the winch latch hook and struck
Van Dorn across the face and head. Van Dorn suffered serious
injuries requiring surgical treatment and a prolonged absence
September 1, 2016, Van Dorn filed an action in the Iowa
District Court for Polk County. The case was removed to the
Southern District of Iowa. The district court granted summary
judgment in Hunter's favor, finding gross negligence
could not be established under Iowa law because the
undisputed evidence in the record demonstrated that Hunter
and his crew members were exposed to the same risk of injury
and thus Hunter ...