IN THE COURT OF APPEALS OF IOWA
No. 19-0673
Filed October 7, 2020
DEVON TISOR, Individually, and as the duly appointed administrator of the
Estate of Patrick Wayne Tisor, and as natural mother and next friend of
K.A.T., a minor, K.D.T., a minor, and K.P.T., a minor,
Plaintiffs-Appellants,
vs.
RICHARD HOLLERAUER, WILLIAM HUNTER, JOHN SCHMIDT, DENNIS
HEROD, MARK SCHWERDTFEGER, JOE MCCARTHY, AND YET UNNAMED
UNKNOWN CO-EMPLOYEES,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, John M. Wright,
Judge.
Devon Tisor appeals the denial of her motion to extend deadline and the
court’s grant of summary judgment in favor of defendants. AFFIRMED.
Steven J. Crowley and Edward J. Prill of Crowley & Prill, Burlington, for
appellants.
Troy A. Howell of Lane & Waterman LLP, Davenport, and W. Eric Baisden,
Joseph N. Gross, and Richard E. Hepp of Benesch, Friedlander, Coplan & Aronoff
LLP, Cleveland, Ohio, for appellees.
Heard by Bower, C.J., and May and Ahlers, JJ.
2
BOWER, Chief Judge.
Devon Tisor appeals the district court’s denial of her motion to extend the
deadline to resist summary judgment and the court’s subsequent grant of summary
judgment in favor of coemployees at her late husband’s work place.1 Because the
district court did not abuse its discretion in denying the motion to extend deadline
and properly granted summary judgment, we affirm.
I. Background Facts & Proceedings
Shearer’s Foods, LLC, is a manufacturer of snack foods. Shearer’s, which
is headquartered in Massillon, Ohio, purchased an existing facility in Burlington,
Iowa, in June 2014. The facility has been an operating bakery for over twenty-
eight years. Between 2014 and 2016, the facility operated thirteen production lines
making a variety of cookies and crackers. Each line had a dedicated team of
workers. The relevant production line for this case produced cookies.
On each production line, cookies or crackers are moved through the
production process on a metal conveyor band. Cookie dough is cut and then
moves through the oven and under a sizing roller to ensure uniform height. The
cookies cool down while on the belt, are iced if necessary, and then move to the
packaging area. The cookies have to be within a specific height range to fit
properly in the packaging, and the metal sizing roller is approximately half an inch
above the band. The sizing roller is supported by metal pillars on either side of the
conveyor band upon which the cookies travel and is powered by a stand-alone
1Devon Tisor brought suit on behalf of herself, her late husband Patrick’s estate,
and their children. We will refer to the plaintiffs collectively as “Tisor.”
3
motor. Both the band and roller average a speed of forty feet per minute. To turn
off the sizing roller, a disconnect point is located next to the roller.
Patrick Tisor had worked at the facility since April 2008.2 Beginning on
March 13, 2016, Patrick worked as an oven operator on Line 7, which made an
assortment of cookies.3 Patrick’s job duties required him to “monitor product
quality and make adjustments to temperatures, exhaust, band speed, sizing
rollers, and/or burners to ensure that quality and production standards are met,”
“perform daily cleaning of the brand brushes/rollers/oven knife and utensils,” and
“perform daily cleaning and weekly deep cleaning (when applicable).” Although
the line was shut down and cleaned in its entirety at the end of each week, if the
sizing roller was dirty for some reason on Monday morning, Patrick was expected
to clean it. 4
On December 5, 2016, before production started for the day, Patrick was at
work before the rest of his team to start up the line for the week. Patrick was found
unconscious with both arms pulled under the sizing roller. When Patrick was
found, production had not yet started—the conveyor band was not yet hot and no
cookies had been made. No tools, monitors, rags, or other work items were found
in the area around Tisor. On December 8, Patrick died as a result of the injuries
he suffered.
2 Between 2008 and 2016, the facility was owned by three different companies.
3 Line 7 had been in the plant for nineteen years.
4 Tisor’s team leader described the process to clean the roller: “[W]e would shut
the roller off and you’d have one person on one side and one person on the other
and you would wipe it and then move it and clean it until it was clean.”
4
Until Patrick’s accident, no employee had been injured by a sizing roller on
any of the thirteen production lines at the plant. In the summer of 2015, an
employee had been injured while working on the conveyor band on Line 7—the
same cookie line Patrick was working on when injured. That incident—which
injured two of the employee’s fingers—resulted in an inspection of the facility by
the Iowa Occupational Safety and Health Administration (IOSHA) for nip or pinch
points which could result in amputations.5 The inspection started with Line 7, then
expanded to the rest of the facility.
The 2015 IOSHA report cited Shearer’s with inadequate machine guarding,
in violation of Iowa Administrative Code rule 875-1910.212(a)(1). The report noted
specific locations presenting danger to operators, including some rollers in the
facility:
(j) Line #7, Lane Conveyor P17-045B—The conveyor did not
have the nip point guarded between two rollers. The nip point was
approximately [forty-five] inches from the floor. An employee was
performing maintenance on a machine that was operating.
(k) Line #10—The APV machine did not have the two pinch
points guarded between each of the rotating Stinals roller shafts and
the stationary part of the machine. The shafts were approximately
[thirty-four] inches from the floor and each had approximately [two]
inches on the end of each shaft that were not guarded.
(l) Line #9—The B19-020 Wire Cutter, had unguarded pinch
points on both ends of the cookie conveyor belt roller, between the
roller and fixed parts of the machine. The roller was approximately
[fifty] inches from the floor and [six] inches long. There was an
approximate [one-half] inch gap between the roller and stationary
metal.
The report did not pinpoint the sizing rollers on any line as presenting a dangerous
unguarded pinch point. Shearer’s abated the cited violations.
5A nip point or pinch point is a danger point where rotating or reciprocating parts
can pull clothing or body parts into a machine.
5
On May 23, 2017, Tisor brought a gross negligence suit against four of
Patrick’s coemployees.
In July 2018, the district court granted a motion by Tisor to continue trial.
On August 9, the parties filed a “Stipulated amended trial scheduling and discovery
plan.” As part of the stipulated plan, the last day to add parties was November 15.
Discovery was to be completed by January 8, 2019, with dispositive motions to be
filed no later than January 14, 2019, and plaintiffs’ resistance due February 14.
On November 14, 2018, after discovery which included depositions in mid-
August of the original defendants and fact witnesses, Tisor filed a motion to amend
the petition. The district court granted the motion, which dismissed two defendants
from the suit and added four higher-level managers as defendants. The
coemployee-defendants in the amended petition were Richard Hollerauer, the
plant’s safety, sustainability, wellness coordinator; William Hunter, maintenance
supervisor; Dennis Herod, production manager; John Schmidt, plant director; Mark
Schwerdtfeger, vice president of safety, sustainability, and wellness; and Joe
McCarthy, senior vice president of manufacturing. Hollerauer and Hunter, the
remaining original defendants, answered the amended petition on December 10.
On January 14, 2019, the newly-added defendants filed their answer and
all six named defendants filed a motion for summary judgment. As supporting
evidence, the defendants all stated in sworn affidavits they did not know of any
other employee injured by any sizing roller in the facility and Patrick had never
informed them the sizing roller was dangerous.
On January 29, Tisor filed a motion to extend the deadline to respond to the
summary judgment motion and requested time to take depositions of the new
6
defendants. The district court denied the motion to extend, noting Tisor waited
until “the last day possible” to add the new defendants, extending the deadline
would “provide[ ] the court less time to consider the motion,” and the stipulated
deadline “indicates [the parties] wanted the court to have sufficient time to
consider” dispositive motions. The court ordered Tisor’s response be filed by
February 14.
On February 25, the parties participated in an unreported hearing on the
summary judgment motion. On April 3, the district court ruled on the summary
judgment motion. The court determined that, although a question of material fact
existed regarding the defendants’ actual knowledge of the peril presented by the
unguarded sizing roller, nothing in the pleadings indicated injury was a probable
result or the defendants’ actions created a zone of imminent danger. The court
granted summary judgment to the defendants and dismissed the case.
Tisor appeals both the court’s denial of the motion to extend deadline and
grant of summary judgment.
II. Standard of Review
“When a party opposing a motion for summary judgment files a motion
requesting continuance to permit discovery, our review is for abuse of discretion.”
Bitner v. Ottumwa Cmty. Sch. Dist., 549 N.W.2d 295, 302 (Iowa 1996).
“[G]enerally a nonmoving party should have the opportunity to make discovery
prior to hearing and ruling on a motion for summary judgment.” Id.
We review summary judgment rulings for correction of errors at law. Alden
v. Genie Indus., 475 N.W.2d 1, 2 (Iowa 1991). Summary judgment is appropriate
when no genuine issues of material fact exist and the movant is entitled to
7
judgment as a matter of law. Emp’rs 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. Cmty. 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 nonmoving party. Feld v. Borkowski, 790 N.W.2d 72, 75 (Iowa 2010). If
reasonable minds could differ on resolution of a material fact issue, summary
judgment should be denied. Id.
III. Analysis
A. Motion to Extend Deadline. Tisor claims the district court abused its
discretion by denying a motion for extension of time for further discovery before
responding to the motion for summary judgment. In the motion’s required affidavit
attachment, Tisor stated the additional defendants were revealed at an August 23
deposition. In the motion, Tisor requested an open-ended extension pending the
completion of the depositions or, at minimum, an extension to March 15.
The court denied the motion, holding Tisor to the August 9, 2018 stipulated
trial scheduling and discovery plan. The stipulated scheduling and discovery plan
required new parties be added by November 15, discovery conclude by January
8, 2019, dispositive motions to be filed by January 14, and any response be due
February 14.
8
Tisor states she learned of the additional defendants on August 23, but she
did not seek to amend the petition until November 14—the day before the
stipulated deadline. On that final date to amend, Tisor filed a motion adding four
new defendants—Herod, Schmidt, Schwerdtfeger, and McCarthy.6 The motion
was granted on November 28, and Hollerauer and Hunter promptly filed their
amended answer on December 10. On January 14, the new defendants filed their
answer and all defendants filed a motion for summary judgment.7
The stipulated discovery plan required discovery—including depositions—
be completed by January 8, 2019. The stipulated plan also required any motion
for summary judgment be filed by January 14.8 Tisor did not file any motion to
continue the discovery deadline before that deadline had passed. Rather, it was
not until requesting additional time to respond to the summary judgment motion
that Tisor asked to reopen discovery.
Discovery had been underway in this case since September 2017. Tisor
knew the new defendants might have relevant information as early as August 2018
following the deposition of Hollerauer. Tisor could have asked to depose the new
defendants even before amending the petition. She could have ensured an earlier
answer by promptly serving the defendants with notice once the motion to amend
was granted. Instead, the record does not reveal any attempt to extend discovery
or depose any of the new defendants until the end of January—three weeks after
6 Hollerauer, Hunter, and the two dropped defendants did not resist the motion.
7 Tisor did not serve notice of the petition on the new defendants.
8 The defendants’ summary judgment motion was supported in part by affidavits of
the undeposed defendants.
9
discovery closed. In denying the motion, the court held Tisor to the deadlines to
which she stipulated.
Under these circumstances, the court did not abuse its discretion in denying
Tisor’s motion to extend the discovery deadlines.
B. Summary Judgment Ruling. Tisor asserts gross negligence by
Patrick’s coemployees caused his death.
Our workers’ compensation law provides an employee’s exclusive remedy
against the employer and any other employee for a work injury unless 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.” Iowa Code § 85.20(2)
(2016). This coemployee-gross-negligence exception to common-law tort
immunity is narrow. Walker v. Mlakar, 489 N.W.2d 401, 405 (Iowa 1992).
In Thompson v. Bohlken, 312 N.W.2d 501, 504 (Iowa 1981), our supreme
court noted the “wanton neglect” standard under the statute “involves the
combination of attitudes: a realization of imminent danger, coupled with a reckless
disregard or lack of concern for the probable consequences of the act.” “Wanton
neglect . . . arises when the actor is indifferent ‘as to whether the act will injure
another.’” T.H.E. Ins. Co. v. Glen, 944 N.W.2d 655, 664 (Iowa 2020) (citation
omitted). Indeed, “a coemployee may be deemed ‘grossly negligent’ under section
85.20 only when the employee intentionally does an act of a highly unreasonable
character.” Walker, 489 N.W.2d at 406.
The Thompson court determined three elements are necessary to establish
gross negligence amounting to wanton neglect: “(1) knowledge of the peril to be
apprehended; (2) knowledge that injury is a probable, as opposed to a possible,
10
result of the danger; and (3) a conscious failure to avoid the peril.” 312 N.W.2d at
505. Gross-negligence claims carry a high burden of proof, and “all three elements
must be proven before liability can attach.” Johnson v. Interstate Power Co., 481
N.W.2d 310, 321 (Iowa 1992).
(1) Knowledge of the peril. For the first element, the coemployee must have
actual knowledge of the potential peril, not just constructive knowledge. Walker,
489 N.W.2d at 405 (noting that allowing constructive knowledge to satisfy the first
element would “eviscerate the requirement under the third element that the
coemployee must also ‘consciously fail to avoid the peril’” (citation omitted)). For
the coemployee to exhibit wanton neglect, the coemployee must have a realization
of imminent danger, which “is not possible without actual awareness of a certain
peril or hazard and an almost intentional disregard thereof.” Id.
The district court concluded there was a genuine issue of material fact as
to whether all the defendants had knowledge of the peril posed by the nip point at
the sizing roller. Hollerauer and Hunter both discussed knowing about and having
training on nip points. Hollerauer accompanied the IOSHA officer in touring the
facility in 2015, and Schwerdtfeger was part of the citation and abatement process
for the IOSHA report. Whether Hollerauer, Hunter, and Schwerdtfeger had
knowledge the sizing roller presented a dangerous nip point was a fact question
for a jury.
With regard to Schmidt, Herod, and McCarthy, Tisor’s allegations do not
include specific evidence of actual knowledge of peril. Rather, the petition asserts
that part of their jobs was “to ensure employees were doing their jobs safely,” and
the defendants were present in the facility at some point.
11
Considering all the evidence and drawing inferences in favor of Tisor, we
agree that a question of fact exists regarding the actual knowledge of the potential
peril by at least some defendants.
(2) Knowledge that injury is a probable result. The second element requires
a showing the defendant knew their conduct would place their coemployees in
imminent danger and injury was more likely than not to be the result. Alden, 475
N.W.2d at 2. To meet the second element, “the plaintiff must show that the
defendant knew or should have known that his conduct placed the [the injured
party] in a zone of imminent danger.” Id. A “zone of imminent danger” can be
shown in two contexts: first, “by proving defendant’s actual or constructive
awareness of a history of accidents under similar circumstances”; second, “where
the high probability of harm is manifest even in the absence of a history of
accidents or injury.” Id. at 2–3. The plaintiff must also show the defendant “knew
or should have known” that the defendant’s conduct caused the injured party to be
in that zone. Id. at 3.
The defendants’ knowledge of the actuarial foreseeability—even
certainty—that “accidents will happen” does not satisfy Thompson.
Unless the defendants knew that their conduct would place their
coemployees in imminent danger, so that someone would
probably—more likely than not—be injured because of the conduct,
then the knowledge does not satisfy the essential elements of a
section 85.20 gross negligence action as set forth in Thompson.
Henrich v. Lorenz, 448 N.W.2d 327, 334 n.3 (Iowa 1989).
The district court concluded Tisor’s coemployees did not create the peril at
the sizing roller and “had no reason to believe that Tisor would be exposed to
imminent harm through his duties of starting Line 7 that day.” The court considered
the IOSHA report and whether a “zone of imminent danger” existed and decided
12
nothing about the report put defendants on notice that an unguarded nip point on
the sizing roller would “probably lead to injury, amputations, or death.” With no
issue of material fact on the second element, the court granted summary judgment
to the defendants.
It is unclear what task Patrick was doing while starting up Line 7 or how his
arms were pulled under the sizing roller. The record shows no history of injuries
caused by sizing rollers on any of the lines. Therefore, the question is whether the
sizing roller created a “zone of imminent danger” where the probability of harm was
manifest despite the lack of prior accidents. See Alden, 475 N.W.2d at 3.
Despite the thorough 2015 inspection by IOSHA of the facility—and Line 7
in particular—with numerous nip points itemized, Shearer’s was not notified the
sizing roller on any line presented an open and obvious danger to the employees.
None of the notes or the IOSHA report state the sizing roller should have additional
guarding added. Despite depositions of a number of Shearer’s employees, Tisor
could not provide a statement from any of the employees recognizing the sizing
roller as an open and obvious danger that would probably cause an injury before
Patrick’s accident, nor is there evidence that any employee had alerted any of the
defendants of concerns relating to a danger presented by the sizing roller. The
record does not support a conclusion the defendants had knowledge their conduct
presented a “probable” threat of injury. See Ganka v. Clark, No. 18-1397, 2019
WL 6358301, at *3 (Iowa Ct. App. Nov. 27, 2019).
Even drawing all reasonable inferences from the record in favor of Tisor, we
conclude the record fails to show any defendant knew their conduct would place
Patrick in imminent danger and injury was more likely than not to be the result.
13
Consequently, we find no error of law in the district court granting summary
judgement. We affirm.
AFFIRMED.