# Thompson v. Bohlken

> Supreme Court of Iowa · November 25, 1981 · 312 N.W.2d 501

URL: https://www.frixlaw.com/law-library/cases/9678437

## Case

- **Full name:** Kelly THOMPSON, Appellee, v. Jack BOHLKEN, Defendant, Daniel Long and Travelers Insurance Companies, Appellants
- **Court:** Supreme Court of Iowa
- **Decided:** November 25, 1981
- **Citations:** 312 N.W.2d 501; 1981 Iowa Sup. LEXIS 1072
- **Precedential status:** Published
- **Opinion:** Concurring in part by Allbee
- **Judges:** Larson, Allbee, McGiverin
- **Cited by:** 79 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9678437

## How later opinions describe it (automated extraction)

- holding that evidence was insufficient for jury to find that the defendant knew injury would be probable “even though other injuries had occurred in other [of the employer’s] presses” because “none had occurred under similar circumstances and no injuries had occurred with this…
- holding that the defendant could not have known machine press operated with guard improperly positioned and unsafe control switches would probably cause injury because “no injuries had occurred with this particular press in the several years [the company] had used it”
- holding that guard being placed “at a height sufficient to allow entry of the operator’s hand” into the press was insufficient evidence of probable harm— and thus implicitly, that it did not manifest harm too
- holding 11 that evidence was insufficient to support gross negligence when the most it established was “a want of ordinary care”
- holding that an objection failed to state “in what respect the foundation was lacking”

## Opinion text

ALLBEE, Justice
(concurring and dissenting).
Although I concur in Divisions I and III and much of Division II, I must dissent from Division II-C and that portion of the Division II result which remands the case for a new trial.
First, I find no substantial evidence in the record from which the jury could have found that the dangerous conditions which caused plaintiff’s injury existed at the time *510 Travelers made any of its inspections. But even assuming, arguendo, that the evidence was sufficient in that regard, I cannot agree with the court’s conclusion in Division II-C that there was sufficient evidence to submit the issue of Travelers’ liability to the jury under subsection (c) of the Restatement test. See Restatement (Second) of Torts § 324A(c) (1965).
Liability under subsection (c) must be predicated upon the “reliance” of either the plaintiff or his employer on Travelers’ inspections. There is no evidence that plaintiff was aware of Travelers’ inspections; thus, he himself could not have relied on them. As to Farmaster, even assuming it relied on the inspections, this reliance was clearly unjustifiable in light of Travelers’ repeated admonitions to the employer that its inspection reports did “not purport to list all hazards nor to indicate that other hazards do not exist.” Travelers also repeatedly informed Farmaster that the inspections were merely “advisory” and for the purpose of assisting the employer in maintaining the employer’s own safety program.
“Under the Restatement rule, . . . [t]he carrier may ... be liable if the employer so relied on the insurer’s undertaking that it neglected its own safety inspection program to [the employee’s] detriment.” Stacy v. Aetna Casualty & Surety Co., 484 F.2d 289, 295 (5th Cir. 1973). This reliance must be “reasonable.” See Tillman v. Travelers Indemnity Co., 506 F.2d 917, 920 . In the case at bar, there is no evidence from which a jury could find that Farmaster had a reasonable basis for relying on Travelers’ inspections to the point of neglecting its own duty to inspect for work hazards.
Because there was insufficient evidence of liability under either subsection (a) or (c) to generate a jury question, trial court should have granted Travelers’ motion for a directed verdict. Consequently, I would set aside the judgment against Travelers without remanding for a new trial.
McGIVERIN, J., joins this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9678437. Public record. Not legal advice.