(dissenting).
The majority concludes that the evidence is insufficient to find gross negligence within section 85.20 on the part of Marvick, even though the trial court found sufficient evidence that the defendant should have foreseen that his conduct would probably result in injury to the plaintiff.
I must dissent to this conclusion for two reasons. First, I believe the record does show that the trial court was correct in finding sufficient evidence to support the finding that there was gross negligence on the part of the defendant. The majority and the trial court agree that the crux of this case is whether the injury was a probable as opposed to a possible result of the danger. The record amply illustrates that the court was fully aware of the correct standard to apply. The court cites section 85.20 as the statutory basis for this action. The court cites Thompson v. Bahlken, 312 N.W.2d 501 (Iowa 1981) as the first case interpreting the amended section 85.20. The court cites Uniform Jury Instruction No. 31.1 and 31.2 which define gross negligence of a co-employee and explain the essentials for recovery against the employee. The court examines the similarity of Larson v. Massey-Ferguson, Inc., 328 N.W.2d 343 (Iowa Ct.App.1982) to Thompson, and the court specifically states it is relying on the holdings in these two section 85.20 cases. After listening to all the evidence, after weighing the credibility of the witnesses, after applying the proper standards, the court found that the “defendant should have foreseen that his conduct would probably result in injury to some employee at some time.” In disagreeing with the court’s findings, the majority says that the injury caused to the employee Monsma was not sufficiently akin to the defendant’s injury in this case since Mons-ma was attempting to move a stack of paper products with a forklift whereas the defendant was not so engaged. The majority also believes that the trial court oversimplified its inquiry when the trial court concluded that the “nature of the falling product, the size and the weight and the distance falling, make the injury probable.” In fact, the trial court’s analysis was not as simple as the majority depicts. The trial court looked to the previous and, in its judgment, similar injury to Monsma; the trial court considered the reset design of the paper products; it considered the failure to use more expensive but safer stacking methods and equipment; it considered the knowledge of Marvick as an engineer; it considered the prior observations of Mar-vick in the warehouse as to locations of employees; and, it considered Marvick’s admission of the possibility of injury. The court said it was looking at all of these factors when it reached its conclusion that the defendant should have foreseen that defendant’s conduct would probably result in injury to an employee. I do not believe that we should here substitute our weighing of the facts for the complex analysis of the same facts by the trial court.
The second reason I must dissent is that the majority opinion, perhaps unwittingly, unjustifiably narrows the factors which must be analyzed to find that an injury was a probable result of a co-worker’s negligence. In looking to Thompson and Taylor v. Peck, 382 N.W.2d 123 (Iowa 1986), the majority over-emphasizes two criteria set out in those cases for finding gross negligence: that no other accidents had occurred under similar circumstances, and that the defendant had not been placed on notice by safety inspections that injury was probable. In comparing Thompson and Taylor to this case, the majority finds that since no similar injury occurred (after its finding of fact that the Monsma injury was really not like the defendant’s) and since there were no inspections or studies critical of the method of storage in this case, there was insufficient evidence to find gross neg*70ligence within section 85.20. I must emphasize that our cases do not reduce our analysis to a search for these two factors. For instance, in Thompson, though the court did look to the elements of prior injuries under similar circumstances and lack of safety inspections which would have put the employee on notice, the court also looked to the observation and experience of the defendant as factors to be considered. Thompson v. Bohlken, 312 N.W.2d at 505. In Thompson, the court found that the defendant was not aware by observation or experience that the injury was probable. In the instant case, the court in examining the evidence before it found that the defendant should have been aware by his observation and experience that his conduct would probably result in injury. In Larson, the court emphasized the “obvious peril” of the situation in finding gross negligence. Larson v. Massey-Ferguson, Inc., 328 N.W.2d at 346. In the instant case, the court found that the injury was “waiting to happen,” that there was no doubt that the material would fall. In Taylor, the supreme court emphasized that it would not find gross negligence when it was shown that the co-worker did not know that injury was probable as opposed to possible when a “machine was stopped or not operating ” [emphasis in original]. Taylor v. Peck, 382 N.W.2d at 128. Therefore the court made a determination of what precise facts were within the ken of the defendant given the circumstances that prevailed at the time of the accident. Id. at 127-28. In the instant case, the trial court looked to the particular circumstances which existed at the time of the accident and found that at the time of the accident, the knowledge of the defendant was such that he should have known his conduct could probably result in injury. The time the injury could occur in this case was diachronic, a condition over a period of time, as opposed to the synchronic on and off peculiarity of a machine’s functioning as in Taylor.
I would therefore not restrict our analysis of co-worker gross negligence cases to a search for similar prior injuries or prior safety inspections. I would also look to factors such as the observations and experience of the defendant, the obvious peril of the situation, and the particularized facts and circumstances of the case. The district court looked to all of these factors and found gross negligence. The majority looks only to two factors and concludes that plaintiff’s injury was only the possible and not the probable result of the defendant’s conduct. In looking at the entire complex of factors, I see no reason to disturb the trial court’s finding of gross negligence since there is substantial evidence in the record to sustain its judgment.
OXBERGER, C.J., joins this dissent.