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IN THE COURT OF APPEALS OF IOWA No. 1-287 / 10-1889 Filed June 15, 2011

TROY MCCORMICK and LYNN MCCORMICK, Plaintiffs-Appellants, vs. NIKKEL & ASSOCIATES, INC. d/b/a NAI ELECTRICAL CONTRACTORS, A Corporation, Defendant-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Cherokee County, Nancy L. Whittenburg, Judge.

Plaintiff appeals from summary judgment entered in favor of defendant. REVERSED AND REMANDED.

Steve Hamilton of Hamilton Law Firm, P.C., Storm Lake, for appellants. Ned A. Stockdale of Fitzgibbons Law Firm, L.L.C., Estherville, for appellee.

Heard by Vaitheswaran, P.J., and Danilson and Tabor, JJ.

2 DANILSON, J. Troy and Lynn McCormick appeal from entry of summary judgment in favor of the defendant, Nikkel & Associates (Nikkel). This is an action against a subcontractor by the employers employee. The employer, Little Sioux Corn

Processors (Sioux), hired Schoon Construction Company (Schoon) who in turn hired Nikkel & Associates (Nikkel) as a subcontractor. Troy McCormick, an

employee of Sioux, was electrocuted and contends an employee of Nikkel was negligent causing his severe injuries. The district court granted summary

judgment concluding Nikkel owed no duty to McCormick. Because we conclude a duty exists, we reverse. I. Background Facts. The following undisputed facts appear in the record: Troy McCormick was severely injured on November 13, 2006, while working for Sioux. Sioux operates an ethanol plant and was involved in an expansion project. Part of that expansion involved electrical upgrades and changes. Sioux hired Fagen Engineering, Inc. to design the new electrical loop and to specify the electrical equipment to be included in the loop. Sioux purchased the electrical equipment needed for the electrical loop from Graybar Electric. Sioux purchased numerous switchgears, a piece of electrical equipment that is wired to receive high voltage electricity and controls the flow of electricity within the distribution system. Sioux hired Schoon to bore-in and pull the electrical cables that

connected the components of the new electrical loop and to place and install the switchgears on their mounting basements. Schoon hired Nikkel to do

3 "terminations," which involved hooking up electrical cables to terminals on the switchgears. Sioux also purchased fault indicators, optional pieces of equipment that were to be mounted inside the switchgear cabinet. Ken (Buford) Peterson1 was an employee of Nikkel; he was an electrician with some specialized experience in terminations and worked on the Sioux job. On November 7, 2006, Peterson offered to mount the fault indicators inside the switchgears, but the mounting holes were not the correct size, and the mounting brackets had to be modified before they could be installed. Siouxs maintenance manager, Russell

Konwinski, told Peterson that Nikkel should not install the mounting brackets. Konwinski stated he would have Sioux employees modify the mounting brackets and install them in the switchgear cabinets. The switchgear cabinets were secured by a penta-head bolt that could only be removed with a penta-head socket wrench, which Sioux had ordered along with the electrical equipment. The purpose of the penta-head bolt and wrench was to prevent unauthorized access to the switchgear cabinet. It was Siouxs policy that all employees were to assume all electrical equipment was energized until the contrary was proven. It was also Siouxs policy that no work was to be commenced on electrical equipment until the equipment was de-energized, locked out, tagged, and the absence of energy verified.

Various spellings for Peterson appear in the record and the briefs. Mr. Peterson did not spell his name for his deposition, however, this is the spelling used in the deposition, and we therefore employ it.

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4 On November 13, 2006, Konwinski held a meeting with Siouxs maintenance employees and assigned Mike Jacobson, with the assistance of Troy McCormick and Jeff Sangwin, to remove, re-drill, and install the fault indicator mounting brackets in the switchgear cabinets. electrician. Jacobsen is an

Sangwin and McCormick are not electricians and do not have

training working with electrical equipment. Konwinski told the Sioux employees the electricity was not live, i.e., there was no electrical current flowing through the switchgears. However, the electrical circuit from the main panel to the

switchgear was in fact energized by Peterson on or before November 7, 2006.2 On November 13, 2006, no one de-energized, locked out, or tagged out any of the switchgear. Nor did anyone verify their electrical status. Konwinski gave the penta-head wrench required to open the switchgear to Jacobson on the morning McCormick was injured. After successfully completing work on two of the switchgear cabinets, Jacobson was called away to another part of the plant. Jacobson gave the

penta-head wrench to Sangwin and McCormick. After Jacobson left the area, Sangwin used the penta-head wrench to open the door of another switchgear cabinet. McCormick inserted a tool and was electrocuted. Troy McCormick and Lynn McCormick filed this negligence suit against Nikkel asserting Troy "was working on a switchgear box, which was under the

Sioux contends Konwinski instructed Peterson to alert him when the electricity to the new power loop was turned on. There is a dispute whether Peterson informed Konwinski the circuit was live. Peterson claims Konwinski and Jacobson were present when he energized the circuit. Konwinski and Jacobson deny they were present or were told the line was energized.

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5 control" of Nikkel, and Nikkel "failed to inform Troy McCormick the switchgear had power." Nikkel filed a motion for summary judgment, contending it owed McCormick no duty of care as it did not have control of the premises, the equipment, the power source, or the work that resulted in McCormicks injury. The district court concluded Nikkel had no duty to McCormick as a matter of law. Summary judgment was entered in favor of Nikkel, and the McCormicks appeal. II. Scope of Review. We review a trial courts grant of summary judgment for correction of errors at law. On motion for summary judgment, the court must: (1) view the facts in the light most favorable to the nonmoving party, and (2) consider on behalf of the nonmoving party every legitimate inference reasonably deduced from the record. Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." The existence of a legal duty is a question of law for the court to decide. Van Fossen v. MidAm. Energy Co., 777 N.W.2d 689, 692-93 (2009) (citation omitted). III. Did the Trial Court Err in Concluding Peterson Had No Duty to McCormick? In Van Fossen, 777 N.W.2d at 696, our supreme court discussed its recent ruling of Thompson v. Kaczinski, 774 N.W.2d 829, 834 (Iowa 2009), in which the court adopted the framework of Restatement (Third) of Torts for the determination of the existence of a general duty to exercise reasonable care. The court wrote: Under the Restatement (Third) framework adopted in Thompson, an actor owes a general "duty to exercise reasonable

6 care when the actors conduct creates a risk of physical harm." Restatement (Third)

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