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01/13/95 CHRIS KRUSZEWSKI v. LIBERTY MUTUAL

January 13, 1995

CHRIS KRUSZEWSKI
v.
LIBERTY MUTUAL INSURANCE COMPANY AND BOB CASON APPEAL FROM MOBILE CIRCUIT COURT



APPEALED FROM: Mobile Circuit Court. (CV-93-255). Edward B. McDermott, Trial Judge.

Released for Publication April 22, 1995.

Ingram, Maddox, Shores, Kennedy, and Cook, JJ., concur.

The opinion of the court was delivered by: Ingram

INGRAM, JUSTICE.

This appeal arises out of an on-the-job accident that occurred at a manufacturing plant operated by Mobile Paperboard Corporation in Mobile, Alabama. Chris Kruszewski, an employee of Mobile Paperboard, sued co-employee Bob Cason (the plant manager), and Liberty Mutual Insurance Company under the third-party provision of the Workers' Compensation Act ( § 25-5-11, Ala. Code 1975). This provision allows actions against third parties, but grants a limited immunity to co-employees and to workers' compensation insurance carriers. The trial court entered a summary judgment in favor of Cason and Liberty Mutual. Kruszewski appealed.

On January 8, 1992, Kruszewski was installing a shower system on a paper machine at his workplace. He was injured when his shirt became entangled in an unguarded rotating shaft as he reached across the shaft. The rotating shaft continuously flipped him over until another employee shut the machine off. Kruszewski's knees became dislocated and he had to undergo extensive surgery and other medical treatment. Kruszewski is now totally disabled because of his injuries. He filed a claim for workers' compensation benefits with Liberty Mutual, and he has received all of the workers' compensation benefits to which he is entitled.

The Co-Employee Claim

Kruszewski alleged that Cason, a co-employee, had failed to install a safety guard on the rotating shaft and that his failure to do so had resulted in Kruszewski's injuries.

Kruszewski relies on § 25-5-11(b), which provides that injured employees shall have a cause of action against co-employees for personal injuries resulting from "willful conduct." Section 25-5-11(c)(2) defines "willful conduct" to include:

"The 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 death 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 device unnecessary or ineffective."

The evidence shows that the shaft that caused Kruszewski's injury was manufactured and installed by Mobile Paperboard, and Kruszewski offered no evidence that any sort of safety device was ever manufactured for this shaft. We therefore hold that Kruszewski failed to present substantial evidence that a safety guard was "available" and that he was injured as a result of a willful and intentional failure on the part of Cason to install an available safety guard.

Kruszewski also cites us to Bailey v. Hogg, 547 So. 2d 498 (Ala. 1989), where this Court addressed a co-employee's liability under § 25-5-11. There, the employee was injured when his thumb was caught between a belt and a pulley while the employee was using a machine at a concrete plant. His employer had purchased and assembled the machine, but had failed to install the "guard" that covered the pulley. This Court held that the willful and intentional failure to install an available safety guard equates to the willful and intentional removal of a safety guard. The principal distinction between this case and Bailey is the unavailability of a safety guard.

Workers' Compensation Insurance Carrier Claim

Kruszewski alleged that Liberty Mutual, the workers' compensation insurance carrier, in performing safety inspections at Mobile Paperboard, had negligently or wantonly failed to discover the unguarded rotating shaft. He made no allegation that Liberty Mutual had "willfully" failed to discover the unguarded shaft. Consequently the trial court entered a summary judgment for Liberty Mutual, noting that ...


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