                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-2053
                        ___________________________

                                Edwin Van Dorn

                                      Plaintiff - Appellant

                                        v.

                                  Scott Hunter

                                    Defendant - Appellee
                                 ____________

                    Appeal from United States District Court
                 for the Southern District of Iowa - Des Moines
                                 ____________

                         Submitted: December 11, 2018
                            Filed: March 21, 2019
                                ____________

Before LOKEN, MELLOY, and ERICKSON, Circuit Judges.
                           ____________

ERICKSON, Circuit Judge.

      Appellant 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.
       A 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.

      Van 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.

      Van Dorn filed this suit against Hunter, alleging that Hunter was grossly
negligent and that this negligence caused Van Dorn substantial harm. The district
court1 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.

      I.     Background

       On September 1, 2014, high winds downed three consecutive wooden utility
poles near Carroll, Iowa. The poles fell across the adjacent roadway with power



      1
      The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.

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distribution wires still attached. An overhead ground wire, or static wire, also
remained attached to the poles.

       Repair 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.

       Roughly 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.

       Hunter’s 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 from work.



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       On 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 could not have been readily aware of the imminence of the
danger and probability of injury. Van Dorn timely appeals.

      II.    Discussion

       “We review de novo the district court’s grant of summary judgment.”
Leonetti’s Frozen Foods, Inc. v. Rew Mktg., 887 F.3d 438, 442 (8th Cir. 2018) (citing
Banks v. Slay, 875 F.3d 876, 880 (8th Cir. 2017)). “Summary judgment is
appropriate ‘if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.’” Id. (quoting Arena Holdings
Charitable, LLC v. Harman Prof’l, Inc., 785 F.3d 292, 293 (8th Cir. 2015)). “In
ruling on a summary judgment motion, a court must view the facts in the light most
favorable to the non-moving party.” Id. (citing Wood v. SatCom Mktg., LLC, 705
F.3d 823, 828 (8th Cir. 2013)).

      Under Iowa law, workers’ compensation is the exclusive remedy for injuries
occurring during the course of employment 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). To establish a co-
employee’s gross negligence under Iowa law, a plaintiff must show that the
defendant: (1) knew of the peril to be apprehended; (2) knew that injury was a
probable, as opposed to a possible, result of the danger; and (3) consciously failed to
avoid the peril. Thompson v. Bohlken, 312 N.W.2d 501, 505 (Iowa 1981); see also
Whitacre v. Brown, No. 11–0088, 808 N.W.2d 449 (Table), 2011 WL 4950183, at *2

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(Iowa Ct. App. Oct. 18, 2011) (quoting Henrich v. Lorenz, 448 N.W.2d 327, 333
(Iowa 1989)) (“This concept of wantonness ‘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.’”). Thompson’s three-part test “is
necessarily a stringent one because undesirable consequences could result from
improvidently holding a co-employee liable to a fellow employee.” Walker v.
Mlakar, 489 N.W.2d 401, 405 (Iowa 1992) (quoting Taylor v. Peck, 382 N.W.2d 123,
126 n.2 (Iowa 1986)).

       Van Dorn has failed to satisfy the second element of Thompson’s test because
there is no genuine issue of material fact as to whether Hunter knew injury was a
probable result of his actions. Under Iowa law, evidence that the defendant exposed
himself to the same risk of injury as the plaintiff is a strong indication that the
defendant did not know that injury was a probable result of the danger. See Henrich,
448 N.W.2d at 333 (“Had the defendants known that these conditions and instructions
would probably result in injury to the butt skinner operator, we doubt that they would
have endangered themselves or Henrich.”); Hernandez v. Midwest Gas Co., 523
N.W.2d 300, 305–06 (Iowa Ct. App. 1994) (finding it significant that the defendants
had cut and capped gas lines under a driveway using the same method that injured the
plaintiff); see also Juarez v. Horstman, No. 0–990, 797 N.W.2d 624 (Table), 2011
WL 441523, at *4 (Iowa Ct. App. Feb. 9, 2011) (noting that the supervisors
performed the same tasks as the plaintiff and that it was difficult to believe that the
supervisor would put herself at risk of injury). The undisputed evidence in the record
shows that Hunter and his crew were exposed to the same risk of injury as Van Dorn.

      Van Dorn has failed to present evidence creating a factual dispute with regard
to Hunter’s awareness that injury was probable. It was undisputed that Hunter’s crew
members agreed with him that the jerry-rigged setup would be the best way to secure
the wire. While Van Dorn’s eventual injuries suggest that the setup may have been
negligent, mere negligence does not satisfy Iowa’s “stringent” requirements for

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allowing co-employee liability. See Henrich 448 N.W.2d at 332 (citing Taylor v.
Peck, 382 N.W.2d 123, 126 (Iowa 1986)) (“Simple or ordinary negligence will not
justify recovery.”).

      III.   Conclusion

      We affirm the district court’s grant of summary judgment.
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