Under § 85.20, The Code, as now amended, recovery against a co-employee is allowed only for acts of gross negligence amounting to wanton neglect of safety. At the time of this accident however recovery was governed by principles discussed in Craven v. Oggero, 213 N.W.2d 678, 680-681 (Iowa 1973); Moose v. Rich, 253 N.W.2d 565, 571-572 (Iowa 1977); Kerrigan v. Errett, 256 N.W.2d 394, 397 (Iowa 1977) and Davis v. Crook, 261 N.W.2d 500, 504 (Iowa 1978). It is clear the amendments, Acts of the 65th G.A., ch. 1111, § 1 (1974), were not retrospective. Moose v. Rich, supra, 253 N.W.2d at 571-572.
Only where the common employer has placed a safety-related duty on an employee, either expressly "or by clear implication," which he or she has accepted, does the latter have a personal duty to act for the safety of other employees. In Kerrigan v. Errett, 256 N.W.2d 394, 397 (Iowa 1977), we adopted four criteria for determining whether a co-employee is liable under common-law standards for injuries received in work-related accidents. We now apply these four factors to conclude whether plaintiff produced sufficient evidence to support a necessary and underlying jury finding that common-law personal duties for plaintiff's safety were assigned to and accepted by defendants.
(Citations omitted; emphasis added.)); Kerrigan v. Errett, 256 N.W.2d 394, 396 (Iowa 1977) ("It should be noted parenthetically that by statutory amendment enacted subsequent to both the . . . events of this case the legislature has provided a limited liability immunity for a co-employee"; predates the Thompson case relied upon above for the rule adopted in the present case); Athas v. Hill, 54 Md. App. 293, 458 A.2d 859, 864-65 (1983) ("The immunity granted the employer under our [workers' compensation] Act does not unqualifiedly extend to an employee whose negligence caused the injury. The Act 'excludes an action in tort by an employee against his employer, but does not exclude tort actions between co-employees.
Craven v. Oggero, 213 N.W.2d 678, 680-81 (Iowa 1974). An employee may be held individually liable for personal breach of a delegated personal responsibility for safety. Kerrigan v. Errett, 256 N.W.2d 394, 396-97 (Iowa 1977). Like Craven and Kerrigan, the present case is not affected by the statutory limitation on liability subsequently added to section 85.20, The Code. See Moose v. Rich, 253 N.W.2d 565, 571-72 (Iowa 1977).
We find the evidence is sufficient to support the trial court's conclusion on the issue of gross negligence. We also note defendant's claim the trial court committed reversible error by relying on the criteria in Kerrigan v. Errett, 256 N.W.2d 394 (Iowa 1977) is without merit. The Kerrigan court established the common law requirements to impose liability on a co-worker for a work-related accident.
Derby argues that when the employer is a corporation, the family members of the sole owner should be considered the employer’s family members. Cote, on the other hand, argues that because corporations are fictitious entities, see Kerrigan v. Errett , 256 N.W.2d 394, 396 (Iowa 1977), Derby cannot have family members. We conclude that as a matter of law, a corporation does not have "family members" for purposes of Iowa Code section 216.6(6)(a ).
Gabelmann argues that the evidence is substantial to establish that Grahn had such actual authority and did bind NFO to pay the housing allowance. For reasons that follow, we agree. I. Actual authority. NFO is a corporation and as such can only act through its agents and employees. Kerrigan v. Errett, 256 N.W.2d 394, 396 (Iowa 1977). No one contends that Grahn was not an agent or employee of NFO. Rather the issue is whether Grahn — as an agent — could have obligated NFO — his principal — to pay the housing allowance.
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 argues that a corporate employer, being a fictitious entity, necessarily acts only through the effort of its officers, agents and employees. Kerrigan v. Errett, 256 N.W.2d 394, 396 (Iowa 1977). From this she concludes that some or all of the defendants must be held responsible for the conditions she complains of here. But we have recognized that not all corporate officers, agents, and employees become liable for breach of a duty of the corporation.
As our own Neal and King cases, supra, illustrate, the courts have not uniformly adopted Larson's reasoning nor uniformly reached his recommended results. Nevertheless, with respect to the liability of supervisory employees the great majority of the decisions are in harmony with Larson's conclusions. Their reasoning has usually been that since an employer is immune under the statutes from a negligent failure to provide employees with a safe place to work, the same immunity protects supervisory employees when their general duties involve the overseeing and discharging of that same responsibility. Typical recent decisions include Vaughn v. Jernigan, 144 Ga. App. 745, 242 S.E.2d 482 (1978); Kerrigan v. Errett, 256 N.W.2d 394 (Iowa 1977); Athas v. Hill, 458 A.2d 859 (Md. Spec. App. 1983); Dawley v. Thisius, 231 N.W.2d 555 (Minn. 1975); Greco v. Farago, 477 A.2d 98 (R.I. 1984); Blumhardtr v. Hartung, 283 N.W.2d 229 (S.D. 1979); and Laffin v. Chemical Supply Co., 77 Wis.2d 353, 253 N.W.2d 51 (1977).
This agreement, standing alone, creates no contractual duty on the part of either F.O.S. or Rutland to write payment checks in a certain way. It merely authorizes Rutland to do so. Duty and authority are distinguished in that the term duty denotes an obligation that is compulsory while authority denotes capacity and is permissive, as in a matter of right. Kerrigan v. Errett, 256 N.W.2d 394, 399 (Iowa 1977). In a case involving a construction contract which gave a bank an election as to the manner of payment, the Pennsylvania Supreme Court held that "[t]he right to pay is vastly different from the duty to pay; only the latter can be enforced."