dissenting.
I respectfully dissent.
Walker’s suit was premised on the theory that ALCOA has assigned to the defendant coemployees safety duties of implementing the employer’s duty to provide a safe workplace. The basis of the claim centered around the poor lighting in the tunnel and the unguarded pit that Walker alleged the defendants knew about and should have corrected prior to Walker’s injury. Walker claimed that the failure to identify and rectify the situation amounts to coemployee gross negligence.
I. Gross Negligence — Actual and Constructive Knowledge.
In many of our coemployee gross negligence cases, the coemployees have personally observed the dangerous condition leading to the injury. See Dudley v. Ellis, 486 N.W.2d 281, 282 (Iowa 1992) (coemployees working together on same electrical project); Henrich v. Lorenz, 448 N.W.2d 327, 333 (Iowa 1989) (many of the coemployees had operated the butt skinner); Swanson v. McGraw, 447 N.W.2d 541, 542 (Iowa 1989) (coemployees knew of rip in injured worker’s clothing); Eister v. Hahn, 420 N.W.2d 443, 444 (Iowa 1988) (coemployee working on same combine as injured worker); Woodruff Constr. Co. v. Mains, 406 N.W.2d 787, 789 (Iowa 1987) (coemployee working on same roof as injured worker); Taylor v. Peck, 382 N.W.2d 123, 124 (Iowa 1986) (coemployee asked if injured worker had been directed to perform specific act, which when done caused the injury); Thompson v. Bohlken, 312 N.W.2d 501, 505 (Iowa 1981) (coemployee knew about protection devices on specific machine).
As the majority notes, the thrust of Walker’s argument is that, because we have relied upon section 500 of the Restatement (Second) of Torts (1965) in the majority of our gross negligence cases, we have implicitly adopted a constructive knowledge standard as to the first Thompson element. See Henrich, 448 N.W.2d at 333; Woodruff, 406 N.W.2d at 790; Thompson, 312 N.W.2d at 505.
I agree with Walker’s argument that section 500 itself provides for a constructive knowledge standard. Section 500 of the Restatement provides:
Reckless Disregard of Safety Defined The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.
(Emphasis added.) Section 12 of the Restatement defines the term reason to know:
[t]o denote the fact that the actor has information from which a person of reasonable intelligence or of the superior intelligence of the actor would infer that the fact in question exists, or that such person would govern his conduct upon the assumption that such fact exists.
*409Clearly, the Restatement’s reason-to-know definition is a constructive knowledge standard.
Further support for a constructive knowledge standard in coemployee gross negligence cases is to be found in W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 34, at 213 (5th ed. 1984) [hereinafter Prosser & Keeton ]. We have previously cited with approval the following language in many of our coemployee gross negligence cases:
The usual meaning assigned to “willful,” “wanton,” or “reckless,” according to taste as to the word used, is that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences.
Prosser & Keeton § 34, at 213, cited in Henrich, 448 N.W.2d at 332-33; Swanson, 447 N.W.2d at 543; Eister, 420 N.W.2d at 445-46; Woodruff, 406 N.W.2d at 790; and Thompson, 312 N.W.2d at 504-05.
The Prosser & Keeton citation continues: Since, however, it is almost never admitted and can be proved only by the conduct and the circumstances, an objective standard must of necessity in practice be applied. The “willful” requirement, therefore, breaks down and receives at best lip service, where it is clear from the facts that the defendant, whatever his state of mind, has proceeded in disregard of a high and excessive degree of danger, either known to him or apparent to a reasonable person in his position.
Prosser & Keeton § 34, at 213-14 (emphasis added). Again, the emphasized language is in support of a constructive knowledge standard.
I think it clear from the Restatement and Prosser & Keeton, that knowledge of the peril to be apprehended can be either actual or constructive. Our reliance upon these authorities incorporates both the actual and constructive knowledge standard.
This conclusion is in line with some of our other decisions regarding determinations of “gross negligence. See, e.g., Krell v. May, 260 Iowa 518, 149 N.W.2d 834 (1967), and cases cited therein (discussing gross negligence in the context of the automobile guest statute). In Krell we defined the elements necessary for recovery in a guest statute case much the same way we describe the elements necessary to prove a coemployee gross negligence case. Id. at 520, 149 N.W.2d at 836. Most importantly, however, in Krell we specifically set forth a standard of both actual and constructive knowledge. We said: “There must be evidence of defendant’s knowledge, actual or chargeable.... There must be an awareness, actual or constructive of the unusual danger presented by the circumstances_” Id. (emphasis added) (citing cases).
My conclusion, that constructive knowledge is sufficient in coemployee gross negligence cases, is not a new development in the law. It is supported in the authorities on the subject, and we have recognized it in other highly similar contexts.
Further, we have recognized that constructive knowledge may be used to establish the second element of coemployee gross negligence under section 85.20. See, e.g., Alden v. Genie Indus., 475 N.W.2d 1, 2 (Iowa 1991) (“In short, the plaintiff must show that the defendant knew or should have known that his conduct placed the plaintiff in a zone of imminent danger.”); Thompson, 312 N.W.2d at 505-06 (“there was no evidence that under the facts known or which should have been known ... such an injury was probable.”).
I do not buy into the majority’s assertion that without actual knowledge in the first Thompson element there could be no conscious failure to avoid the peril under the third element. I believe the requirement that Walker prove a conscious failure to avoid the peril is an objective standard. It may be proved by conduct and circumstances.
The defendants, as safety manager and engineer, were required to identify and remedy potential safety hazards. Defendant Mlakar had been employed as ALCOA’s safety engineer for eight years. *410Apparently, the hazard in the tunnel existed for this eight-year period.
It is not an absolute defense for the defendants to assert they could not consciously fail to avoid the peril because they were not actually aware of the hazard. The defendants cannot avoid the responsibility by intentionally avoiding discovery of the peril. Their conscious failure to inspect the plant operations to identify and remedy the obvious peril in the tunnel may satisfy the requirement of the third element.
II. Evidentiary Rulings.
A. Exclusion of OSHA Regulations.
Walker attempted to have an OSHA regulation entered as evidence during the trial. The regulation, plaintiffs exhibit 21, was entitled “Guarding floor and wall openings and holes” and provided, “(1) Every open sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing ... on all open sides.... ” The regulation was offered as evidence of negligence.
A “violation of an OSHA standard by an employer is negligence per se as to the employer’s employee.” Johnson v. Interstate Power Co., 481 N.W.2d 310, 315 (Iowa 1992) (citing Roll v. Manatt’s Transp. Co., 253 N.W.2d 265 (Iowa 1977)). See also Wiersgalla v. Garrett, 486 N.W.2d 290, 293 (1992), for a general discussion regarding our rules of admission of OSHA regulations. The coemployees argue this should be the end of the inquiry as they are not the employer. In support, they cite Eister, 420 N.W.2d at 445, in which we said: “The trial court correctly concluded that our holding in Roll does not apply to claims brought against a coem-ployee.” Eister is clear support for the proposition that a coemployee’s violation of an OSHA regulation is not negligence per se as to the injured worker’s coemployee. Id. The question, however, was not presented in Eister as to whether the violation could be used as evidence of gross negligence on the part of the coemployee.
In Johnson, we restated our long-standing corollary to the negligence per se rule that “a violation [of OSHA regulations] is evidence of negligence ‘as to all persons who are likely to be exposed to injury as a result of the violation.’ ” 481 N.W.2d at 315. See also Wiersgalla, 486 N.W.2d at 293. This is the position argued by Walker today, one which is different from the one decided in Eister.
As we said in Eister, “[c]learly not every violation of an OSHA regulation amounts to gross negligence.” 420 N.W.2d at 445. This statement plainly leaves open the possibility that some violations of OSHA regulations by a coemployee may amount to gross negligence. To prove gross negligence, the employee must prove both negligence and willful, wanton, or reckless conduct. See Thompson, 312 N.W.2d at 504. There, we said: “The term ‘gross negligence’ is said to be nebulous, without a generally-accepted meaning: It implies conduct which, while more culpable than ordinary inadvertence or unattention, differs from ordinary negligence only in degree, not kind.” Id. Gross negligence is an aggravated form of negligence. Since we have previously held that gross negligence is only a different degree of negligence, evidence of OSHA regulations should be admissible as evidence of negligence. I would hold that the district court abused its discretion in excluding the OSHA regulation. Evidence of the defendants’ negligent conduct should have been admitted. The court’s exclusion of the offered evidence was prejudicial to Walker.
B. Reports of Safety Hazards.
Apparently, in response to Walker’s fall and injury, ALCOA undertook a comprehensive review of workplace safety in its plant. The review was conducted by a “fall prevention team” that included Mla-kar and culminated in an in-depth report.
The report documented over two thousand places at the plant where there was potential for a fall because of lack of a safety device or because of a defect or problem in an existing safety device. These places were identified as hazards in the report. It is apparent that many of these dangerous places and conditions existed at the time of Walker’s injury. The *411report listed the various hazards and the status of corrective measures to be taken.
Walker attempted to have the report, exhibit 32, admitted as evidence. He urged the exhibit was proof of the defendants’ conscious failure to identify and appreciate the dangerous condition. The district court refused to admit the report on the grounds that it was evidence of a subsequent remedial measure and was thus excludable under Iowa Rule of Evidence 407.
By its own terms, rule 407 acts to exclude evidence of subsequent remedial measures when they are used to prove negligence. The rule also contains listed exceptions to its application. The list of exceptions is illustrative, not exclusive. 7 J. Adams & K. Kincaid, Iowa Practice, Evidence § 407.2, at 158 (1988). I believe that allowing such a report into evidence would serve many of the same purposes as the specific listed exceptions.
Accordingly, I believe the report could be properly admitted if offered for purposes other than proving negligence. Such admission would be properly accompanied by an instruction directing that the report was to be used solely as evidence of the defendants’ knowledge or awareness of the peril or their conscious failure to identify, rectify or avoid the peril.
III. Direct Verdict.
It was error for the district court to direct a verdict for the defendants. When the elements of gross negligence are correctly defined and the offered evidence of defendants’ negligence and conscious failure to avoid the peril is considered, reasonable minds can differ on whether the defendants were grossly negligent. In determining the propriety of the directed verdict, we need only deal with the question of what a jury could find, not what the jury should find. See Osborn v. Massey-Ferguson, Inc., 290 N.W.2d 893, 902 (Iowa 1980). I would reverse and remand for a new trial.