Opinion
No. 1040554.
Decided November 10, 2005.
Appeal from Marshall Circuit Court (CV-02-349), Tim Jolley, Judge.
Arlene M. Richardson of Richardson Legal Center, LLC, Hayneville; Michael Guy Holton, Pike Road; and Tommy Allen French of Robert B. French, Jr., P.C., Fort Payne, for Appellant.
Joseph H. Driver and Thomas S. Thornton III of Carr, Allison, Pugh, Howard, Oliver Sisson, P.C., Birmingham, for Carylon Corporation, Inc., and Chris Eady, for Appellees.
Terry Ford appeals from a summary judgment in favor of Carylon Corporation, Inc. ("Carylon"), Video Industrial Services, Inc. ("Video"), and Chris Eady (collectively "the defendants"). We affirm in part, reverse in part, and remand.
Facts and Procedural History
Video, a subsidiary of Carylon, provides industrial-scale environmental cleanup and maintenance services. Ford began his employment with Video on March 10, 2001.
On March 23, Ford and his supervisor, Eady, were assigned to clean a water-treatment tank located at the waterworks system of the Water and Sewer Board of the City of Guntersville. The assigned cleanup work entailed the use of an industrial vacuum to remove from the bottom of the tank charcoal that had been used to filter water processed through the tank.
The vacuum used is known as an SV-119. It is manufactured and sold by Clean Earth Manufacturing and is the most powerful vacuum Video uses in performing its cleanup services. Regardless of the strength of the particular vacuum used on a job, however, Video has instituted mandatory safety rules regarding the use of all vacuums. Among these is a rule that all individuals performing jobs for which a vacuum is necessary must have in place on the vacuum hose an "in-line relief valve," a device colloquially referred to as a "safety T." In shape, the safety T resembles the capital letter "T," and is used to connect two sections of a vacuum hose, allowing the user quickly to relieve accumulated pressure within the hose. The two hoses coupled with the safety T constitute a straight line, connected by the horizontal line at the top of the letter "T." The vertical line in the letter "T" represents the part of the device that juts out from the hose connection at a right angle and contains a valve that can be tripped open by pulling on a rope attached to the valve to relieve vacuum pressure in the hose line.
On the morning of March 23, Eady and Ford arrived at the waterworks system and proceeded to a building that housed two water-treatment tanks. Eady prepared to clean the first tank by removing a six-inch flexible hose from the vacuum truck, connecting it to the vacuum, and lowering the hose into the tank. Eady did not install a safety T anywhere along the length of the hose. He began vacuuming the charcoal, eventually entering the tank in order to reach the bottom layers. When he finished vacuuming the entire tank, he emerged, and he and Ford drove the vacuum truck to a remote location where they deposited the charcoal refuse.
The two returned to the waterworks, at which point Eady instructed Ford to clean the second tank. Ford had observed the vacuuming process, but he had never before manned the vacuum hose. Ford undertook to perform the task in a manner similar to the manner he had seen Eady use. After he had vacuumed the tank for approximately 30 minutes, and while he was inside it, a large chunk of solid charcoal entered the vacuum hose. The chunk collided with a bend in the hose, and the impact caused the hose to jerk suddenly out of Ford's hands, in turn causing the hose to flail about as Ford attempted to recapture it. The hose came within inches of Ford's hand and, given its strong suction power, drew Ford's hand into the hose and drew itself up Ford's arm, stopping only at Ford's shoulder. The tremendous force of the vacuum caused Ford's shirt sleeve to rip from his shirt and caused a significant amount of blood to be drawn into Ford's arm and hand, thus decreasing blood flow elsewhere in his body, and eventually causing Ford to collapse; Ford, however, did not lose consciousness.
When the hose initially attached to Ford's arm, Ford began screaming for Eady, but Eady did not respond. Only when Eady began to hear the machine "bog down" did he turn off the vacuum. At this point, Ford was able to free his arm from the hose, and he observed that his arm had at least tripled in size. Paramedics were called to the scene, and Ford was taken to Guntersville Hospital; he was soon transported via helicopter to a trauma center at the University of Alabama-Birmingham Medical Center ("UAB"). UAB surgeons operated on Ford's arm on three separate occasions, and Ford was required to undergo physical therapy and psychological treatment.
On December 10, 2001, nearly nine months after his injury, Ford returned to work at Video. For over a month, Ford performed work as assigned by Video, with the exception of one occasion soon after returning to work, when Ford was assigned to vacuum another tank, which he declared he was unable to do. He was last assigned to work for Video on January 16, 2002, and was told at the end of that day that there would be no work for him on January 17. In accordance with company policy, Ford telephoned Video each subsequent evening to determine whether there would be work for him to perform the following day.
Because Ford was the nonmovant at the summary-judgment stage, we are to view the facts in the light most favorable to him. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala. 1990). Ford was "written up" on at least two occasions after December 10 for allegedly failing to telephone Video to determine if there was work for him the following day. However, because Ford testified that he did "call in" on those two occasions, we must accept his account as true.
On January 25, Ford's mother telephoned Video on his behalf and spoke with Donnie Keith, a superintendent. It is undisputed, for purposes of this appeal, that Keith informed Ford's mother that there would be no work for Ford on January 26 and that "he would call [Ford] when he had something, otherwise not to worry about it." Consequently, Ford did not thereafter telephone Video about potential work.
On February 5, Ford received a letter dated February 4 from John Kulbitskas, the president of Video; that letter stated, in pertinent part:
"Dear Mr. Ford:
"As per our past discussion and memos to you, you have failed to contact this office regarding any availability for work. On January 25, 2002, your mother, not you[,] called to see if work was available. This was the last contact Video has had with `you.' Since you have not contacted this office for work this constitutes a voluntary resignation on your part."
On March 22, 2002, Ford sued the defendants and Wausau Insurance Company, Inc. ("Wausau"), in the Montgomery Circuit Court. He alleged against Wausau a workers' compensation claim and against the defendants claims of retaliatory discharge, intentional trespass, trespass, and the tort of outrage. The case was subsequently transferred to the Marshall Circuit Court. Wausau filed a motion, which the trial court granted, to bifurcate Ford's workers' compensation claim from his other claims. The workers' compensation claim against Wausau was subsequently resolved in Ford's favor. The defendants then filed a motion for a summary judgment as to all the remaining claims, which the trial court granted as to Ford's retaliatory-discharge and intentional-trespass claims. Ford filed a motion asking the court to alter, amend, or vacate its judgment, which motion was denied. The trial court later entered a summary judgment in favor of the defendants as to Ford's remaining claims. Ford appeals only as to his retaliatory-discharge and intentional-trespass claims.
Standard of Review
We review a summary judgment de novo, seeking to determine whether the evidence presents a genuine issue of material fact and whether the movant was entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P. If the movant makes a prima facie case that no genuine issue of material fact exists, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank, 538 So.2d 794, 798 (Ala. 1989). Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989). This Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala. 1990).
Analysis
Ford argues that the trial court erred in granting the defendants' motion for a summary judgment as to his retaliatory-discharge and intentional-trespass claims. First, he contends, he presented substantial evidence indicating that the termination of his employment was in retaliation for his filing a workers' compensation action. Second, he argues that the defendants are liable in trespass for Eady's "willful removal of a safety device." (Ford's brief, at 40.)
I. Retaliatory Discharge
At the outset, we note that Carylon is the parent corporation of Video. A parent corporation generally cannot be held liable for the acts of its subsidiary unless the latter's corporate veil can be pierced as a result of the parent's abuse of control. Environmental Waste Control, Inc. v. Browning-Ferris Indus., Inc., 711 So.2d 912, 914 (Ala. 1997). There is not the faintest suggestion that Carylon used Video as its "alter ego"; thus we affirm the summary judgment as to Carylon. Further, because the retaliatory-discharge statute, quoted below, refers to an employee's being terminated " by an employer," Ala. Code 1975, § 25-5-11.1, this claim could be brought only against Video, not against Eady. Therefore we will consider Ford's retaliatory-discharge claim only in relation to Video.
Generally, an employment contract for an indefinite period is terminable at will for any reason or no reason. Webb Wheel Prods., Inc. v. Hanvey, [Ms. 1030272, June 3, 2005] ___ So.2d ___, ___ (Ala. 2005); Tyson Foods, Inc. v. McCollum, 881 So.2d 976, 978 (Ala. 2003). Section 25-5-11.1, Ala. Code 1975, sets out an exception to the employment-at-will doctrine. It provides, in pertinent part:
"No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers' compensation benefits under this chapter. . . ."
(Emphasis added.)
Before a trial court, a plaintiff bears the initial burden of making a prima facie showing of the elements of retaliatory discharge. McCollum, 881 So.2d at 979. These elements are:
"1) an employment relationship, 2) an on-the-job injury, 3) knowledge on the part of the employer of the on-the-job injury, and 4) subsequent termination of employment based solely upon the employee's on-the-job injury and the filing of a workers' compensation claim."
Alabama Power Co. v. Aldridge, 854 So.2d 554, 563 (Ala. 2002) (emphasis added). Once this showing has been made and supported, the burden then shifts to the defendant, who must provide substantial evidence indicating a legitimate reason for the discharge, after which the burden shifts back to the plaintiff to demonstrate by substantial evidence that the defendant's reasons were pretextual. 854 So.2d at 567.
Typically, in an appeal in a retaliatory-discharge case, the employer/defendant offers nonretaliatory reasons to justify its decision to discharge the plaintiff/employee, thus attempting to dispel the notion that the plaintiff was discharged "solely" for filing a workers' compensation claim. See, e.g., Dunn v. Comcast Corp., 781 So.2d 940, 942 (Ala. 2000) (offering as a nonretaliatory reason that the employee was not "willing and able" to work because of his injury); Ex parte Usrey, 777 So.2d 66, 69 (Ala. 2000) (offering as a nonretaliatory reason that the employee sexually harassed a female coworker); and Culbreth v. Woodham Plumbing Co., 599 So.2d 1120, 1122 (Ala. 1992) (offering as a nonretaliatory reason that the employee's position had been filled in his absence). Here, however, Video argues that Ford's failure to telephone the company to check on the availability of work constituted a voluntary resignation, thus rendering § 25-5-11.1 inapplicable because it deals only with terminations. See, e.g., Kent Corp. v. Hale, 699 So.2d 954, 958 — 59 (Ala. 1997) (employee who chose to discontinue his employment could not maintain action for retaliatory discharge). Also, Video argues that, even if Ford's employment was terminated, Ford failed to make a prima facie showing that a retaliatory reason existed for the termination and Video successfully rebutted any prima facie case he might have made that his discharge was retaliatory.
A. Voluntary Resignation
In its brief, Video employs the term "voluntary resignation" to describe two separate incidents. Initially, the term is used to refer to Ford's failure to telephone Video to check on the availability of work beginning on January 25, or at the latest, January 26. Video later uses the same phrase to refer to Ford's failure to challenge in any way the content of the letter he received from Kulbitskas.
Regarding Ford's failure to telephone Video, the following evidence was presented: On January 25, Ford's mother telephoned Video and was told by Keith that there would be no work available for Ford on January 26 and that Video would telephone Ford when work became available. In support of their initial motion for a summary judgment, the defendants offered the "Third Affidavit of John Kulbitskas," the official at Video responsible for Ford's discharge, who stated:
"On or about February 4, I issued a letter to [Ford] regarding his voluntary resignation. When I wrote this letter, to the best of my knowledge, [Ford] had not called to report in as required from January 25, 2002, through February 4, 2002. Moreover, to the best of my knowledge, neither I, nor any other representative of [Video] had relieved [Ford] of this requirement."
Our standard of review compels us to view the facts most favorably to Ford. Hanners, 564 So.2d at 413. Kulbitskas's statement is inconsistent with adverse inferences that can reasonably be derived from Ford's evidence. Video and Ford disagree as to whether Kulbitskas would have known about the telephone call from Ford's mother to Donnie Keith without also knowing about the instructions Keith gave Ford's mother to pass on to Ford. There is no company record describing the telephone call, and, for all that appears, Kulbitskas could have had the knowledge of Ford's mother's call he acknowledged in his February 4 letter only by having been told about that call by Keith. Under our standard of review, which prohibits credibility judgments and requires merely that we resolve reasonable doubts in Ford's favor, we could reasonably infer from the evidence that when Kulbitskas learned of the telephone call placed by Ford's mother, he also learned what Keith told Ford's mother.
Video's second allusion to a voluntary resignation can be traced to the letter Ford received on February 5 informing him that his failure to telephone in to check on the availability of work constituted a voluntary resignation. Video argues that Ford's failure to respond to the letter from Kulbitskas indicated his agreement with the underlying premise of the letter — that he had, in fact, resigned. This argument is meritless, if for no other reason that it implies that Ford's failure to respond to the letter caused his actual termination. He has explained in opposition to the summary-judgment motion that, the letter having acknowledged the telephone call from his mother and declaring unconditionally that his subsequent failure to contact the office constituted his voluntary resignation, there was nothing to contest.
We therefore conclude that Ford has made a prima facie showing that his employment was, in fact, terminated; neither his failure to call in to check on the availability of work nor his failure to dispute a letter characterizing his termination as a voluntary resignation constituted a voluntary resignation.
B. Causal Connection
Ford next argues that he demonstrated a causal connection between his filing of a workers' compensation claim and his termination. In order to establish his prima facie case where, as here, no party disputes the existence of an employment relationship or an on-the-job injury and no one disputes that the employer knows that the employee has filed a workers' compensation claim, it is essential that a retaliatory-discharge plaintiff prove that filing his workers' compensation claim was the sole cause of his subsequent discharge. Aldridge, 854 So.2d at 563. In Aldridge, we first noted that a typical starting point in an analysis of whether the filing of a claim was the sole cause for the discharge is the temporal proximity between the filing of the claim and the termination of employment. 854 So.2d at 565. Second, looking to the analyses of other states, we made special note of the following factors used by the State of Texas in determining causation:
Kulbitskas acknowledged in deposition testimony that when he wrote his letter to Ford on February 4, 2002, he knew that Ford had filed a workers' compensation claim: "That was no big secret. I mean, you know, the guy was hurt pretty bad. He was on workman's comp."
"`1) knowledge of the compensation claim by those making the decision on termination, 2) expression of a negative attitude toward the employee's injured condition, 3) failure to adhere to established company policy, 4) discriminatory treatment in comparison to similarly situated employees, 5) sudden changes in an employee's work performance evaluations following a workers' compensation claim, and 6) evidence that the stated reason for the discharge was false.'"
854 So.2d at 564 — 65 (quoting Chhim v. University of Houston, 76 S.W.3d 210, 218 (Tex.Ct.App. 2002)).
In this action, Ford was discharged within three months of returning to work, after even fewer days of actual work, because of the number of days between Ford's last working day and the date he received the letter informing him that he had voluntarily "resigned." Thus there was a relatively small period of time between the filing and the firing.
Next, there was testimony before the trial court from Kulbitskas demonstrating that Video typically did not discipline an employee for failing to telephone to check on the availability of work until perhaps after two or three such failures. Despite this, however, Ford was twice given written reprimands for instances where Video claimed he failed to call in on a single day, the first being the second day after he reported back to work, although in both cases Ford asserts (and we must accept as true) that he did notify Video and had satisfactory reasons for his absences. These events clearly evidence Video's failure to adhere to its established discipline policy and allow an inference of Video's eagerness to "write up" Ford. They further indicate the possibility of "sudden changes" in how Ford was evaluated or perhaps even discriminatory treatment in comparison to that afforded other employees.
In addition, soon after returning to work Ford was instructed to again vacuum out a tank, the same work he was performing when he was seriously injured. Ford told his supervisor that "he could not put himself in another tank," for which he was also reprimanded in writing. This episode could be viewed as an "expression of [Video's] negative attitude toward [Ford's] injured condition" in that he was disciplined for expressing a perceived limitation in his abilities to perform work.
Video, as noted above, asserts that Ford failed to establish a prima facie case of retaliatory discharge. It cites from Aldridge our extensive discussion of the prima facie case a plaintiff must establish, 854 So.2d at 561 — 64, arguing that Ford has not presented substantial evidence indicating that his filing of workers' compensation claim was the "sole cause" of the termination of his employment. In that regard, it argues principally that Ford voluntarily resigned and thus that his workers' compensation claim could not have been the sole reason for his termination. The notion that Ford voluntarily resigned has been refuted above. The basis of Video's argument thus being meritless, its argument cannot stand.
Viewing the evidence in the light most favorable to Ford, we conclude that Ford has presented sufficient evidence indicating that he was terminated solely in retaliation for filing his workers' compensation claim. In short, then, we must conclude that Ford made a prima facie showing of retaliatory discharge. Specifically, we must conclude that Ford presented substantial evidence indicating that his employment was terminated and that his termination was solely in retaliation for his filing a workers' compensation claim. The burden thus shifted to Video, which propounded only an unsigned, unsworn "affidavit," the content of which did not eliminate genuine issues of material fact. Therefore, Video having presented no effectively countering evidence, we conclude that it failed to meet the burden that had shifted to it, and we hold that the trial court erred in entering a summary judgment for Video as to Ford's retaliatory-discharge claim.
II. Willful Removal of a Safety Device
Section 25-5-11, Ala. Code 1975, provides, in pertinent part:
"(b) If personal injury . . . to any employee results from the willful conduct, as defined in subsection (c) herein, of any . . . employee of the same employer . . ., the employee shall have a cause of action against the person. . . .
"(c) As used herein, `willful conduct' means any of the following:
". . . .
"(2) The willful and intentional removal from a machine of a . . . safety device provided by the manufacturer of the machine with knowledge that injury or death would likely or probably result from the removal. . . ."
Ford has consistently labeled the violation of this statute as "intentional trespass." Whatever the proper designation, § 25-5-11(b) clearly envisions an action against only a co-employee. Thus only Eady may be the subject of this claim.
This Court, in Harris v. Gill, 585 So.2d 831, 835 (Ala. 1991), broke § 25-5-11(c)(2) into four elements:
"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 have 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."
The failure to install a safety device is the equivalent of removing of that device. Bailey v. Hogg, 547 So.2d 498, 500 (Ala. 1989). In the instant action, although Ford charges Eady with removal of the safety T, it seems clear that his true allegation is that Eady never actually installed the safety T on the vacuum hose that caused Ford's injuries. This allegation, however, is functionally equivalent to the allegation of the removal of a safety device, as Hogg indicates.
In his motion for a summary judgment on this issue, Eady argued that the safety T was not "provided by the manufacturer of the machine" and thus that the failure to install the safety T could not constitute willful conduct under § 25-5-11(c)(2).
In Harris v. Simmons, 585 So.2d 906 (Ala. 1991), we held that there was no evidence of willful conduct because the safety guard alleged not to have been installed was not provided by the manufacturer. 585 So.2d at 907. Three distinct portions of Kulbitskas's deposition testimony, presented in chronological order, are relevant to the issue whether the safety T was provided by the manufacturer:
"Q. [Counsel for Ford:] . . . [W]ho is the manufacturer of the particular vacuum on this jetter truck?
"A. On the truck that we — which one?
"Q. The manufacturer of the vacuum.
"A. That was on this job here?
"Q. Yeah.
"A. That was Clean Earth —
"Q. Clean Earth?
"A. — Manufacturing, here in Birmingham.
"Q. Located here in Birmingham?
"A. Uh-huh. (Witness indicates affirmatively.)
"Q. Do they build them here in Birmingham?
"A. They build them.
"Q. Oh, really?
"A. They assemble them, yeah.
"Q. Do you have a rep that comes out to visit you, or do you just do direct —
"A. No. We've done business with them quite a while, and they're just pretty much — it's a corporate account."
Shortly thereafter, the following discussion transpired. Here, Kulbitskas is testifying regarding the hoses connected to the vacuum and used to vacuum material out of the water-treatment tanks:
"Q. Now, do you purchase those hoses? And would you purchase those at Home Depot [building supplies store], or wherever else —
"A. No, we get them from the — direct from the manufacturer.
"Q. Oh, okay, from the manufacturer of the —
"A. Of the plastic hose.
"Q. Okay. And that would be Clean Earth Manufacturing?
"A. No.
"Q. No. Okay.
"A. I'm trying to think of who sells that hose. I don't know."
Finally, counsel for Ford moved from a discussion of the vacuum and the hoses to the actual safety T:
"Q. . . . Could you explain to me what that safety T is for.
"A. That's if — if there's a problem of the hose getting stuck — something stuck, you know, to the floor, and you can't get it loose. You . . . stuck it into the material too far, and you can't get it out of it, you break the vacuum by allowing air to get into the hose and back to the truck —
"Q. Okay.
"A. — at some point along the line.
"Q. Okay. So that would be something that was in the hose, or would it be something in the — or the truck, or the back —
"A. It's on the hose.
"Q. On the hose?
"A. On the hose.
"Q. Okay. And is that something that you would purchase separately from the manufacturer or —
"A. Yes. There are people that sell that particular item.
"Q. Okay. Who are the people that sell that particular item?
"A. I can't think of the name of the company, but it's a safety equipment company that sells that type of stuff.
"Q. Okay. Now you — obviously, you purchased those, you know — is it called a safety switch?
"A. Safety T.
"Q. Safety T. And you purchased those direct from the company —
"A. The company, yeah.
"Q. — who manufactures the thing? And would it be — would you have purchase orders on those?
"A. It would be either that or bills, or something like that.
"Q. Okay. How often do those need to be replaced?
"A. That's hard to say. We will buy a number of them.
"Q. Uh-huh. (Counsel indicates affirmatively.)
"A. Let's say a dozen, just for a number —
"Q. Right.
"A. — and have them in stock. And they have a way of being used as wheel chalks and getting lost and strayed and stolen. And so then we'll — as they get up to the point where we don't have enough for the trucks in spare, then we'll order another batch."
These three segments of Kulbitskas's deposition testimony establish that Clean Earth Manufacturing was not the supplier of the safety T used by Video on the vacuum hoses. Kulbitskas's testimony demonstrates that he is quite familiar with Clean Earth Manufacturing and its products, that he is sure that Video does not purchase its hoses from Clean Earth Manufacturing, and that it purchases them from another company. He could not recall the name of that company. He likewise knows that Video obtains the safety T's it uses from "a safety equipment company," not Clean Earth Manufacturing, although, again, he could not recall the name of that company. Clearly, if Clean Earth Manufacturing was the supplier of the safety T, Kulbitskas would recall this fact. Therefore, we conclude that Eady has made a prima facie showing that Clean Earth Manufacturing, the manufacturer of the vacuum, did not "provide" the safety T at issue.
In response to this showing, Ford points first to a "Parts and Accessories Catalog" put out by the "Clean Earth Environmental Group." On page one of that catalogue is a "Disclaimer," which provides, in pertinent part, that "Clean Earth Environmental Group, Inc. does not manufacture or purport to own the product names and designs noted herein with a `,' but Clean Earth is proud to offer these quality products to its customers. . . ." On page 13 of the catalogue, a variety of sizes of "In-Line Relief Valves" is advertised. A safety T is, as noted, also known as an in-line relief valve. There is no "" designation associated with the advertisement for this item; therefore, it is a reasonable conclusion that Clean Earth Environmental Group, Inc., is the manufacturer of the safety T advertised in its catalogue.
Nonetheless, Kulbitskas was clear in his testimony that Video obtains safety T's not from Clean Earth, but from another source, and there is no evidence indicating that when Video purchased the SV-119 vacuum any hose that came with it was equipped with a safety T. Because Ford's burden is to present substantial evidence creating a genuine issue as to who manufactured the safety T at issue, and because the evidence proffered by Eady makes a prima facie showing that someone other than Clean Earth Manufacturing provided the safety T at issue, we conclude that Eady is entitled to a summary judgment as to this issue.
Conclusion
Because the defendants have met their burden of demonstrating that there is no genuine issue of material fact as to Ford's "trespass" claim, and because the defendants are consequently entitled to a judgment as a matter of law on this issue, we affirm the trial court's summary judgment as to that claim. Because Video has not met its burden with respect to Ford's retaliatory-discharge claim, we reverse the summary judgment as to that claim and remand the cause for proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Nabers, C.J., and See, Lyons, Woodall, Stuart, Smith, and Bolin, JJ., concur.
Parker, J., concurs specially, with opinion.
I concur with the main opinion solely because it correctly interprets § 25-5-11, Ala. Code 1975, thereby precluding recovery by Terry Ford for the injuries he suffered. I am writing specially because I believe that in this case the statute does not adequately fulfill its intended purpose of providing a cause of action for injury or death resulting from the willful conduct of a third party, and I call upon the Alabama Legislature to correct the wording of the statute so that equity may be served in future claims of this nature.
Section 25-5-11, Ala. Code 1975, provides a cause of action for an employee or the employee's estate to recover damages from a third party for personal injury or death that "results from the willful conduct, as defined in subsection (c) herein, of any . . . employee of the same employer. . . ." § 25-5-11(b), Ala. Code 1975. "[T]he willful and intentional failure to install an available safety guard equates to the willful and intentional removal of a safety guard for the purposes of Ala. Code 1975, § 25-5-11(c)(2)." Bailey v. Hogg, 547 So.2d 498, 500 (Ala. 1989).
Terry Ford was injured on the job that he had held for about two weeks when he lost control of a large vacuum hose into which his arm was drawn. An experienced coworker had set the machine up without using a "safety T," which some evidence indicates might have prevented, or substantially reduced the severity of, Ford's injuries. Testimony was presented that the employer kept a stock of the safety T's on hand, and the evidence established that the company required the use of the safety T for every job involving the use of a vacuum.
Ford's injuries required surgery and physical therapy. He also received psychological treatment and did not return to work for nearly nine months after the accident. Although it would seem that Ford could have a cause of action under subsection (c) as defined above and in Hogg, such is not to be, as evidenced by the main opinion, because an action for recovery for damages is precluded by subsection (c)(2), which provides an action for the "willful and intentional removal from a machine of a . . . safety device provided by the manufacturer of the machine. . . ." (Emphasis added.) In short, Terry Ford cannot recover for his injuries merely because the uninstalled safety T was not provided by the manufacturer of the vacuum machine.
I believe Terry Ford has suffered an injustice. Unfortunately, the statute as currently worded does not afford him a remedy for this injustice. As tempting as it might be to expand the statute beyond its plain meaning and afford him the remedy he rightfully deserves, by doing so we as judges would be usurping a role that does not belong to us. Judge Robert Bork wrote of just such a judicial temptation to engage in political activism:
"In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should."
Robert Bork, The Tempting of America: The Political Seduction of the Law 1 (McMillan, Inc., 1990). As Judge Bork warned, judges are to apply law, not make law. If we were to expand the statute in this case to produce the result we would like to see, we would usurp a power that the Framers of our constitutional system wisely reserved to the legislative branch of government. In fact, we are at the outer parameter of our authority when we interpret and apply the law as enacted by the legislature, call an unfortunate result to the legislators' attention, and urge them to take corrective action.