Lead Opinion
Based on the alleged inadequacy of the damages awarded, Jack R. Bates II appeals from a judgment of the Dallas Circuit Court (“the trial court”), entered on a jury’s verdict, awarding him $10,000 on his claim against Robert Riley, his co-employee, asserting that Riley willfully and intentionally removed of a safety device from a machine, which removal resulted in injuries to Bates. Riley cross-appeals, asserting that the trial court erred in denying his motion for a judgment as a matter of law. Because we determine that Riley was entitled to a judgment as a matter of law, we reverse the trial court’s judgment.
Facts
The trial testimony reveals the following relevant facts. Riley testified
Riley testified that the magnets on the pocket feeders are cleaned “[m]aybe once a shift” and that the machines would also clog up sometimes two or three times a shift or more. Holtzapfel also testified that the machines clog routinely. He stated that Riley was experienced and good at cleaning the clogs and getting the maсhines running again. Ernest Shears, who had been both the safety director and a team leader for Dixie Pellets, testified that the Occupational Safety and Health Administration requires that, if you enter or break the plane of any moving equipment or remove a guard or go around, over, under, or through a guard, the machine has to be locked out and all the energy to the machine has to bе cut off. According to Shears, to lock out and tag out a pocket feeder, an operation lock would be placed on the pocket feeder, the person who had locked the feeder would try to start the pocket feeder from any and every point from which it could be started, and, once the feeder was disabled from operation, the. person who had locked it out would place their personal lock on it; thus, only the person who had locked out the pocket feeder could unlock it. Shears testified that, to clean the magnets or to place your hand in the pocket feeders to clean a bad jam, the lockout/tagout procedure was required to be followed. Riley testified that a limit switch is a safety device on the “magnet door” of the pocket feeder that, when the magnet door is opened, falls and shuts down the machine. Holtzapfel also testified that, when the magnet is removed from the pocket feeder, the limit switch is “tripped” and the machine is deactivated.
Bates testified that, on April 23, 2009, he received a call on the radio that there was a “pluggage” abоve Hammer Mill 8; he stated that, when he arrived at the site of the apparent clog, he asked John Brunson, who was in the control room, to give him a readout of the amps on the hammer mill so that he could determine whether the pocket feeder was clogged. Bates testified that the readout had indicated that there was low amperage, so he did not think there was any throughput, which indicated to him there was a clog somewhere. Bates stated that he began banging on the side of the hopper and on the area above the pocket feeder with a piece of conduit, or metal electrical pipe, in hopes of dislodging the material and getting the flow going back through the pocket feeder. He testified that he contacted Brunson in the control room and told him to power down the hammer mill and that he then pulled the magnet door open and began using a piece of angle iron, which is larger and heavier than the conduit, to knock loose the material that was clogging the pocket feeder. Bates testified that he vaguely recalled that someone else had been in the area, but, he said, he had bеen focused on his work. According to Bates, the angle iron did not clear all the blockage, so he had set it out of the way and had stepped back to grab a piece of conduit. He testified that he began using the conduit to unplug the clog but that there was more material clogging the machine that he could not get to with the conduit. Bates stated that he then stuck his hand into the maсhine to knock the material out of the way and that, when he did so, the pocket feeder activated and pulled his right hand into the machine, causing him serious injuries.
Riley testified that the pocket feeder had already been shut off by the time he
Procedural History
On March 17, 2010, Bates filed a complaint against Riley,
Discussion
Bates argues on appeal that the trial court erred in denying his motion for a new trial because, he says, the amount of damages awarded by the jury-was inadequate. In his cross-appeal, Riley argues that the trial court erred in denying his motion for a judgment as a matter of law because, he says, Bates failed to рrove each of the elements of § 25 — 5—11(c)(2), Ala.Code 1975. We first address the merits of the cross-appeal.
“In Delchamps, Inc. v. Bryant,738 So.2d 824 (Ala.1999), our supreme court explained the standard of review applicable to a trial court’s ruling on a motion for a judgment as a matter of law:
“ ‘When reviewing a ruling on a motion for a [judgment as a matter of*1229 law (“JML”) ], this Court uses the same standard the trial court used initially in granting or denying a JML. Palm Harbor Homes, Inc. v. Crawford,689 So.2d 8 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson,598 So.2d 1350 (Ala.1992). For actions filed after June 11, 1987, the nonmovant must present “substantial evidence” in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida,547 So.2d 870 , 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter,598 So.2d at 1353 . In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Motion Industries, Inc. v. Pate,678 So.2d 724 (Ala.1996). Regarding a question of law, however, this Court indulges no presumption of correсtness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co.,599 So.2d 1126 (Ala.1992).’
“738 So.2d at 830-31 .”
Leonard v. Cunningham,
Section 25-5-11, Ala.Code 1975, a part of the Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975, addresses actions against third parties for employment-related injuries resulting from willful conduct; “willful conduct” includes
“[t]he willful and intentional removal from a machine of a safety guard or safety device provided by the manufacturer of the machine with knowledge that injury or deаth would likely or probably result from the removal; provided, however, that removal of a guard or device shall not be willful conduct unless the removal did, in fact, increase the danger in the use of the machine and was not done for the purpose of repair of the machine or was not part of an improvement or modification of the machine which rendered the safety dеvice unnecessary or ineffective.”
Ala.Code 1975, § 25-5-11(c)(2).
In Harris v. Gill,
“1. The safety guard or device must have been provided by the manufacturer of the machine;
“2. The safety guard or device must have been removed from the machine;
“3. The removal of the safety guard or device must hаve occurred with knowledge that injury would probably or likely result from that removal; and
“4. The removal of the safety guard or device must not have been part of a modification or an improvement that rendered the safety guard or device unnecessary or ineffective.”
Riley argues that, because the limit switch was never physically removed from the pocket feeder and its functionality was unaffected, the second element outlined in Harris was not met and, therefore, as a matter of law, he is not liable under § 25-5-11(0(2).
In Bailey v. Hogg,
“By making the willful and intentional removal of a safety guard the basis for a cause of action without the higher burden of proof of ‘intent to injure’ found in subsection [25 — 5—1 l](a), the legislature acknowledged the important public policy of promoting safety in the workplace and the importance of such guards in providing such safety. The same dangers are present when an available safety guard is not installed as are present when the same guard has been removed. To say that an injury resulting from the willful and intentional removal of a safety guard is actionable but that an injury resulting from the willful and intentional failure to install the same guard is not contravenеs that important public policy. To hold that the willful and intentional failure to install an available safety guard is not actionable would allow supervisory employees to oversee assembly of new machinery, instruct their employees not to install the safety guards, and then, when an employee is injured due to the lack of a safety guard, claim immunity from suit.”
Id. at 499-500.
Relying on the reasoning in Bailey, the supreme court held in Harris, supra, that the “removal” of a safety device occurs when a machine is permanently altered to bypass that device and render it ineffective for its safety purposes. See also Cunningham v. Stern,
Citing Haddock, Bates argues that the “bypass” of the safety device by Riley falls within the definition of removal under § 25 — 5—11(c)(2). We disagree. Although Riley held down the limit switch, the safety device designed to prevent the pocket feeder from running while the magnet door was open, Riley did not “bypass” that safety device within the meaning of Harris, Cunningham, or Haddock. In аll of those cases, the co-employee had redesigned the machine at issue so as to render the safety device completely ineffective, essentially removing the safety device from the machine. In this case, the limit switch remained operational at all times; Riley simply held it up to keep the machine from shutting off. In Hallmark v. Duke,
Likewise, in Sharit v. Harkins,
“The critical distinction between Bailey [v. Hogg,547 So.2d 498 (Ala.1989),] and the present case is that in Bailey the defendant was provided with guards that werе a part of the equipment delivered with the machine and the defendant failed to put those guards in place. That simply is not the case before us. [The employee] alleges that [the co-employee] willfully disabled a safety device that was already in place on the equipment and had not been removed. We believe that the evidence establishes at most that [the co-employee] failed to correct a possibly unsafe practice of some of his employees.”
The circumstances in the present case are more akin to those in Sharit than those in Harris, Cunningham, and Haddock. Like in Sharit, Riley participated in the unsafe practice of manually and temporarily disabling the limit switch for a limited time while his task was being performed. We decline to expand the holdings in Harris, Haddock, and Bailey to include the temporary, manual disabling of a safety device that otherwise remains attached to the machine and operates as it was designed to perform. To do so would improperly expand the meaning of § 25-5-11(c)(2) to encompass something other than “removal.”
Because Bates failed to present substantial evidence creating a factual dispute as to whether Riley had “removed” a safety device, which action resulted in Bates’s injury, we conclude that the trial court erred in denying Riley’s motion for a judgment as a matter of law. We, therefore, reverse the trial court’s judgment on the jury’s verdict, and we remand the cause for the entry of a judgment consistent with this opinion. Because of our disposition of the cross-appeal, we need not discuss the merits of Bates’s arguments оn appeal.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Notes
. Excerpts of Riley's video-deposition testimony were played before the jury. Following the close of Bates’s case-in-chief, Riley also testified at the trial. We have cited his testimony from the video deposition and from the trial interchangeably to the extent that the testimony is consistent.
. Although Bates had originally named additional defendants in his complaint, those defendants were later dismissed on Bates’s motion.
Concurrence Opinion
concurring in the result.
Although I agree that the trial court in the present case erred by faffing to enter a judgment as a matter of law in favor of Robert Riley, I reach that conclusion under a different rationale than does the main opinion. I conclude that the evidence presented at trial was insufficient to estab
THOMPSON, P.J., concurs.