power line and besides the damage to his face that required surgeries he's lost abilities to taste and smell he brought a gross negligence case against the supervisor of another crew that was working on the downed power lines the district court granted summary judgment finding that under iowa law of gross negligence and the requirements of gross negligence there were no issues of material fact that would allow a jury to make a determination in favor of the plaintiff the appeal was brought in this particular case on the basis that the court resolved various just spewed issues of fact in making those determinations and in making those determinations therefore the jury was not allowed to be able to get to the issues that are involved in this particular case power lines come down the road our country all the time power crews are called out to take care of these power lines and the power lines come down in different directions but you can envision it being similar to the semicircle of this bench and those power lines are down and they are under pressure and this happens all the time so there are industry methods and procedures in order to accomplish keeping the workers safe as safe as possible as can be done and therefore this case is not about disputed industry issues it's an industry standard and what ended up happening here is when you have a downed power line it is essential to make sure everyone working on the power line is aware before lines are moved the power lines have the electric lines and then they have ground static lines but before those power lines can be moved issue of of the issue of whether or not there was a probability of injury in this particular case and in that case the testimony of the witness of the defendant's cases you've reminded repeated many times that you didn't want somebody to get hurt and i believe you i don't think anybody disputes that ok i just want to put out the fact don't you think the fact that eddie was not warned when you and your crew knew that there were people in the bite that you're taping open a piece of safety equipment that is not supposed to be taped open and that there's no backup safety rupe placed but it isn't that but isn't that the function your honor of the journey jury to decide shouldn't a jury be allowed to be i was the first question is really if you look at the case law they talk about something approaching actual or actuarial prosy ability to lay witness if you're standing there after something has happened they say it is certain to happen what was pretty much certain to happen the dude was standing right where the wire snapped right and then you want to extrapolate from that some admission that creates  a legal a fact question it's a jury should get that could be determined to this sort of actuarial certainty that i will requires but would be wrong your honor with having a jury make that determination what is bar your honor it is in fact consistent with i will work compensation law when you look at the the cases what the supreme court of iowa has basically  is whether or not you know someone in the bite is likely to be injured that's the standard likely to be injured in this particular case you have known methods of protecting that you know that big do not they'd they have people in the bite and mr van doren was at a pole working on the arrestors he's doing the actual work of removing the arresters were lines had been moved from one of the poles he is in the bite he is exactly where these wires are where these wires are under tension therefore he is in fact field yes three hundred feet from where the pole was being caught why is there also not responsibility on his brother who actually couple why isn't he charged with some responsibility when he gets up there with that chainsaw what down of three hundred feet away to see if anybody's in the the one who got injured whether it was his brother who engaged in the activity or someone else mr van doren was not why are you why are you putting all the blame on the foreman like ok let's say it wasn't his brother what say was some or other employee but this fist employee who was about to cut this boy with a chainsaw can look to three hundred feet the football field away and see if somebody is in the way does he not have some responsibility in this so he could possibly have been brought in for a lawsuit your honor yes he could have the supervisor was the one brought in because the supervisor was the one who was in charge of th or because the employer was in control of everything the soup the supervisor was the one who was in control of what actions were taken place at that time on that date your honor and the jury that the difficulty is we're on if we were on an appeal in which a jury had made a determination and this court was in fact deciding whether or not there was substantial evidence to support a verdict against the plaintiffs but in this particular case all the plaintiff is saying is since there is an admission since there are expert witnesses who are testifying about since there are factual issues that relate to this under the rulings of inference is being given to the support to the to the favor of the plaintiff why not allow the jury to make this determination rather than determine it as a matter of law in this particular case that will mean judge that will mean judge that in every case every defendant simply says in hindsight i would have done it this way because it would have been done that way they can say that in every case and plain should be given the opportunity your honor to present the issue to the judge to the jury and in the juries and the but the i will law allows for these issues to go yes and the jury then would need to make that determination so mr hunter says in answer to a question if you don't make sure everyone is in the clear somebody is going to get hurt is that fair or unfair i'd say that's fair and i understand your honor when people make jury we're asking for the right to go to a jury and let the jury tell us no this isn't going to be the case instead of the issue being we're going to make the decision as a matter of law and ignore these factual statements that are in the record there is a substantial record this is very this case is in fact very similar to the cases that the district court did distinguish the cases but these there was a direction to the employee easy to gauge in the conduct in this particular case there was direction and agreement by other people to engage in conduct that endangered m van doren who without notice was doing his job and without notice he was supposed to get all of those other crews relied on that notice and without that without that being understood all of these linemen who go out day by day to help us get our power back do not have the protection that we believe they are the law gives our reserve the rest of my time may please a court posing counsel i'm kevin driscoll i'm here on behalf of the apple e defendant scott hunter we're here requesting the court affirm the district court's summary judgment order that properly found that the undisputed facts in this case establish that mr hunter had no knowledge that mr van dorn's injury was probable or that mr hunter consciously disregarded facts are mr hunter did not know mr van doren was in the bike it said that the well i think your honor that that that it's not a disputed fact that the any material facts they don't cite to anything be there was no one he acted on the knowledge that no one is in the by but that goes to the fact of the movement of the wire there's a number of references that the wire was cut the wire was never cut mr hunter used this latch up taped it open to grab the wire to keep it under control and he believed that he was going to be able maintain control when they cut that telephone pole off it didn't when the pole got cut the wire snapped out it would have been used in the same fashion to to keep the wire from moving but the issue here is honner intended to warn when he was going to move on the wire they were going to move on the wire till they had it cut off of the pole but honner did not believe that the wire was going to jump out of the latch and move violently towards mr van dorn yet is now you know if you look at the trial judge's opinion the trial judge said that the facts didn't clearly establish that the defendant knew that the plaintiff w in the bite the however the defendant was aware of the risk that the wire could upon becoming disconnected could strike any worker who was in the byte and so he took specific steps that is the tape on the hook which he believed would take care of that that issue and so the negligence here if you look at it is that he believes that he has got this device in place that's going to accomplish exactly what the safety ropes are that he seen this wire loop that was used before that was similar in nature in that once that he'd done that he had done everything he needed to do and at this point what you've got to do is got to cut through the hole and then before you remove the  wire he's going to make another sweep through the bite make sure but it gets away from where it is and instead when they cut the pool the pressure on this tape exceeds its ability to hold this thing in place it snaps correct that was the facts right now as the person has a plan to cakes or that ever was unsafe at the at the initial stage plan fails because it's a bad plan now that sounds more like just sort of garden variety negligence to me like you said there and you look at it so you get there's a risk i'm going to try and take care of it what i've done is is trying to put something together in a way that i think is safer than safety ropes i think that's fair and  turns out not to be the case why was that grossly negligent as opposed to just merely making i think it's just mere negligence he's not intentionally trying to bypass a safety device he's trying to enhance safety his testimony is by using this latch hook i thought it was bigger s stronger than a safety rope so he's not consciously disregarding savery safety he doesn't realize that there's this zone of imminent danger because he doesn't know that hunters there and i think to the appellants point about this question that you know wasn't it almost inevitable you know what that that that's a hypothetical question that assumes facts not in evidence because basically that question is asking mr hunter if you knew everything did happen was going to happen when you agree you wouldn't do it that way when we all agree with that and that assumes facts not in evidence that he knew he was there that he knew the wire was going to jump out of the latch hook so  he's trying he was trying to approximate a device called a wire loop that holds the wire in it but will allow you to take the wire out once you remove it from the pole so he's trying to use it as a safety device and what happens is when that pull gets cut the wire bounces out of it because of the forces against the wire so it's not an instance where he removing the shield or removing a guard or directing someone to engage in unsafe practices he thinks he's  physically and undoing the hook and then exposing him to that danger but i think one other important thing is that hundred never directed vandoren into the bite hundred never directed vandoren to cut those  own supervisor did that dual without checking with han or what he was doing i mean there's a number of people that could have been sued in this case that weren't if they were going to try to create a gross negligence case and the law the gross negligence cases in iowa every one of  you have a supervisor who directs the employee to engage in work activities that he knows are risky the case where there we've got the rip personal protective suit the supervisor knows that there's a leak rick rypien and he's going to be exposed to caustic vapors tells them to go do it anyway with the power p t o that's unguarded tells them to go do it anyway hundred never directs van dorn's activity hundred doesn't know what van dorn's doing so there's a i think there's a critical element here that's missing is the knowledge of hunter with respect to any danger he's creating for van dorn he doesn't realize that there's this zone of imminent danger that's being created egg breaking machine that we've cited in it's a court of appeals they address the swanson and heinrich cases and they talk about the fact that in those instances there were directives issued to these cohen ploys to continue performing operations the supervisors knew would place them in harm's way in the war as case there they did not instruct warres or any other employee to risk injury and they conclude that the injury occurred because of wars his own actions and not from performing duties in a manner prescribed by their supervisor van dorn's injury did not arise from engaging in duties that were prescribed by his supervisor the defendant in this case hunter and so we believe the undisputed evidence is that van dorn's injury did not result from profile performing duties as dictated by hit by his supervisor and i think that's a key element that's missing in this case we think that the the fact of the matter is that the district court correctly ruled based on the undisputed facts that there was not  substantial evidence of every element to support a gross negligence claim and as the courts noted the gross negligence claims are severely restricted by the i will work comp section eighty five twenty by including a wanton neglect for the safety of another and requires a combination of attitudes a realisation of imminent danger coupled with a reckless disregard for the probable consequences of those actions and there is no substantial evidence in this record to support either of those findings or to have a jury trial on those findings there just are insufficient material issues of fact for a trial in this case your  the worst cases cited on page twenty seven of our brief the court found the record industry court proceedings revealed no history of accidents yes right and in order to st yes and it does a fairly exhaustive analysis of the ok is there anything in the record that this hawk map and had been used by somebody  news he had seen that the latch being taped open to restrain a hook or restrain a wire but that's the that's the extent of it he'd never seen a wire jump out of it like this he'd never experienced an accident as a result of using the win hook taped open like happened in this instance so when you use ropes what do you do to tie the rope to the hole that's being caught and then tie the other end of the rope to some stationary object the rope gets tied to the wire itself and they tie that to their winch trucks mr van dorn's supervisor orders him into the bite to cut these arresters off they take the ropes off of that of that wire which they didn't need to do and mr i ask mr van doren wouldn't that have kept the wire under control and he said yes and i also asked mr van doren weren't wasn't mr hunter exposed to the same risk of injury of this wire snapping that you were he agreed with that plaintiff's expert agreed with that all the testimony the undisputed testimony is that mr hunter and his crew were exposed to the same risk of injury as was mr van dorn by using the windshield in this fashion and the courts in iowa have routinely said that where the supervisor himself is exposed to the same risk of injury gross negligence doesn't exist because it demonstrates there was no conscious awareness of the risk of injury that could result to the to the to the plaintiff or the defendant himself due to the manner in which the work methods were engaged  so i think that the three keep points are we didn't direct his activities we were exposed to the same risk of injury and there was no conscious disregard for mr van doren safety based on my client was hit by the static wire that was released by mr hunter had nothing to do with the wires that were disconnected at the other pole that's a fact that mr driscoll pointed out that has no relevan the really confuses the issue those are those are live wires that were disconnected but it is the static wire at mr hunter's location that flew back and hit mr mr  the wires are up there but the static wires there as well they're not in there they're on they were on the they were on the poles but they've been disconnected it was the disconnecting of the wires the static wire the ground wire at the hunter site that caused him to get hit by the wire i believe there was a slight decline if i recall correctly your honor about the actual ground that they may not have been able to see what exactly was going on which is why all of the teams work in a combination to protect each other from injury which is why there is communication before you disconnect the line and if you look at the court the district court's order on page two of the a then them the district court indicated the static wire was disconnected and that was the problem with the static wire being disconnected there was supposed to be a safety rope on it there was supposed to be a safety latch and there was supposed to be warning to the people because the entire group of people already in danger and that didn't happen and it was consciously not happening we asked the court allow the jury to decide this reversed the district court thank you