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IN THE COURT OF APPEALS OF IOWA No. 7-963 / 07-0726 Filed January 30, 2008 MARIA ESPINOSA, Plaintiff-Appellant, vs. KIRK J. COOK, RANDY ZORN, SILVANNA B. HEILMANN, SHAWN BAGLEY, KEVIN DVETON, RODNEY HOSELTON and DAVID ROACH, Defendants-Appellees. ________________________________________________________________ Appeal from the Iowa District Court for Wapello County, Daniel P. Wilson, Judge.

Appeal from the district court's grant of summary judgment in favor of defendants. AFFIRMED.

Philip F. Miller, West Des Moines, and Roland Peddicord, Des Moines, for appellant. Brian C. Campbell and Christian S. Walker of Faegre & Benson, L.L.P., Des Moines, for appellees.

Considered by Sackett, C.J., Vaitheswaran and Baker, JJ.

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SACKETT, C.J. Plaintiff-appellant, Maria Espinosa, was injured while working for Excel at their packing plant in Ottumwa, Iowa. She brought suit against co-workers

defendants-appellees Kirk J. Cook, Randy Zorn, Silvanna B. Heilmann, Shawn Bagley, Kevin Kveton, Rodney Hoselton, and David Roach, contending their gross negligence was a direct and proximate cause of her injury. The district court, finding no evidence to establish a prima facie case of co-employee gross negligence, sustained a motion for summary judgment filed by defendants and dismissed the case. Plaintiff on appeal contends the district court erred in

granting the summary judgment for she showed there was a genuine issue of material fact as to whether defendants had (1) knowledge of the peril to be apprehended, (2) injury was probable, and (3) whether defendants consciously failed to avoid the risk or proceed despite the risk of probable injury. We affirm. I. Background Facts Plaintiff's injury occurred while working on a sirloin skinner machine. Her hand was pulled into the machine and it cut her fingers. The machine plaintiff was using at the time of the accident was a recent model that replaced another skinner machine plaintiff had operated without incident for several months. Defendants were supervisors or managers at the plant. The new machine had the same basic design and operated in the same basic fashion as the old machine. II. Scope and Standards of Review The standard of review for summary judgment cases is well settled. We review summary judgment motions for correction of errors at law. Summary judgment is appropriate only when the entire record demonstrates that no genuine issue of material fact

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exists and the moving party is entitled to judgment as a matter of law. We review the evidence in the light most favorable to the nonmoving party. A party resisting a motion for summary judgment cannot rely on the mere assertions in his pleadings but must come forward with evidence to demonstrate that a genuine issue of fact is presented. The record on summary judgment includes the pleadings, depositions, affidavits, and exhibits presented. Stevens v. Iowa Newspapers, Inc., 728 N.W.2d 823, 827 (Iowa 2007). "A fact is material if the dispute over it might affect the outcome of the suit given applicable governing law." Grace Hodgson Trust v. McClannahan, 569 N.W.2d 397, 399400 (Iowa Ct. App. 1997). III. Analysis Iowa's workers' compensation system provides a worker's "exclusive and only rights and remedies" for injury against another employee 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

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