Intentional Injury Action Against Co-Employees Fails Under Alabama’s Substantially Certain Rule

Applying Alabama’s intentional injury exception to the exclusive remedy rule, the Supreme Court of Alabama affirmed a trial court’s decision granting two co-employee defendants summary judgment in a civil action filed against them (and others) by an employee who sustained severe burns when his employer initiated a new process that resulted in an explosion that splashed molten lead onto the plaintiff [Means v. Glover, 2021 Ala. LEXIS 55 (June 4, 2021)]. The court reasoned that the state’s co-employee willful conduct exception to exclusivity under Ala. Code § 25-5-11(b) did not apply because testimony that the co-employees knew a material safety data sheet existed cautioning against using the procedure was insufficient to prove that the co-employees were substantially certain under § 25-5-11(c)(1) that serious injury would result if they did not follow its guidance. Moreover, the co-employees’ failure to install a safety windshield on the plaintiff’s forklift did not constitute a removal of a safety guard under § 25-5-11(c)(2).

Background

Plaintiff, who worked for a company that recycled materials, particularly automobile batteries, was burned in a workplace accident when molten lead splashed out of a kettle following an explosion. At the time of the accident, the company was implementing a new method of processing aluminum dross by diluting the dross in a kettle of molten lead and then slowly adding sodium hydroxide to the mixture. During the process, the plaintiff used a forklift with a squeeze attachment to pour sodium hydroxide from 55-gallon barrels into the kettle. Apparently, the sodium hydroxide was added to the kettle too quickly. As it reacted with the aluminum in the mixture, flammable hydrogen gas began to build up. The hydrogen gas exploded, splashing molten lead out of the kettle and onto the plaintiff where he sat in the forklift, causing severe burns.

The plaintiff sought workers’ compensation benefits for his injuries, but also initiated a separate civil action against two co-employees, safety manager Donnie Glover and safety engineer Matt Brown alleging, among other things, that their conduct had been willful and had caused his accident and injuries. As later amended, the plaintiff specifically alleged (1) that Glover and Brown knew or should have known that pouring sodium hydroxide into a kettle of molten lead and aluminum had the potential to cause an explosion and serious injury or death, and that they therefore had a duty to stop the employer from implementing that process, and (2) that Glover and Brown had failed to install a safety windshield on the forklift he was operating at the time of his accident, which constituted willful conduct subjecting them to liability under Ala. Code § 25-5-11.

Trial Court Grants Summary Judgment

The trial court entered summary judgment in favor of the co-employees, holding in relevant part that the plaintiff had not produced substantial evidence that his injuries were caused by the willful conduct of his co-employees and, thus, any claims against them were barred by the Alabama Workers’ Compensation Act.

Appellate Court Affirms

The appellate court noted, in pertinent part, that Ala. Code § 25-5-11(b) provides that an injured employee shall have a cause of action against an “employee of the same employer” if his or her injury is the result of that co-employee’s “willful conduct, as defined in subsection (c).” Relevant to the plaintiff’s claims, citing Reed v. Brunson, 527 So. 2d 102 (Ala. 1988), the appellate court stressed that an injured employee bore the burden of establishing more than negligence or wantonness by a co-employee; rather, the injured employee must show either:

1. “The reason why the co-employee defendant would want to intentionally injure the plaintiff, or someone else,” or
2. That a reasonable person in the position of the defendant would have known that a particular result (i.e., injury or death) was substantially certain to follow from his actions.

Here, the plaintiff argued that Glover and Brown knew that injury or death was substantially certain to occur when sodium hydroxide was introduced into a mixture containing aluminum and that his suit against them was therefore permitted by § 25-5-11(c)(1). The appellate court stressed, however, that the plaintiff had brought forward no evidence—much less substantial evidence—to back up this allegation.

The Safety Data Sheet/Substantially Certain Doctrine

The plaintiff contended that the employee had possession of a safety data sheet for sodium hydroxide, that the documented noted, among other things, that sodium hydroxide was incompatible with aluminum and that contact between them “generates explosive hydrogen.” The court said, however, that such testimony that the employees were generally aware of the existence of a material safety data sheet for sodium hydroxide, even when viewed in the light most favorable to the plaintiff, was insufficient to support an inference that any of those employees—much less Glover or Brown—were substantially certain that serious injury would result if those materials were mixed.

Absence of Safety Windshield

Nor could the plaintiff take advantage of Ala. Code § 25-5-11(c)(2), which generally provides that the willful and intentional removal of a safety guard or safety device may be considered “willful conduct” for purposes of § 25-5-11, indicated the court. The evidence was undisputed that the forklift operated by the plaintiff was manufactured and sold to the employer without a safety windshield. By its very terms, § 25-5-11(c)(2) was only implicated when there had been a removal of a safety guard or device. The statute did not provide an employee with a cause of action against a co-employee simply because that co-employee failed to install a safety device that might be available. Summary judgment in favor of the Glover and Brown was appropriate, said the court. The trial court’s decision was affirmed.