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03/08/96 EDDIE SCOTT AND PRIMM SCOTT v. ROBERT

March 8, 1996

EDDIE SCOTT AND PRIMM SCOTT
v.
ROBERT GOINS, ET AL.



Appeal from Mobile Circuit Court. (CV-92-130). Douglas I. Johnstone, TRIAL JUDGE.

Rehearing Denied May 24, 1996. Released for Publication August 26, 1996.

Ingram, Maddox, Houston, and Cook, JJ., concur. Hooper, C.j., concurs in the result.

The opinion of the court was delivered by: Ingram

INGRAM, JUSTICE.

Eddie Scott and his wife Primm Scott appeal from a summary judgment in a personal injury action filed against Mr. Scott's co-employees: Robert Goins, the mill manager; Mike DuPont, the safety director; Devon Jones, the maintenance manager; and Billy Edge and Gene Hinton, the maintenance supervisors. The action was filed pursuant to Ala. Code 1975, §§ 25-1-1 and 25-5-11(c)(4). *fn1

On a motion for summary judgment, the burden is initially on the movant to make a prima facie showing that there is no genuine issue of material fact (i.e., that there is no dispute as to any material fact) and that the movant is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P.; McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So. 2d 957 (Ala. 1992); Elgin v. Alfa Corp., 598 So. 2d 807 (Ala. 1992). "The burden does not shift to the opposing party to establish a genuine issue of material fact until the moving party has made a prima facie showing that there is no such issue of material fact." McClendon, at 958; Elgin, at 810-11.

Rule 56 must be read in conjunction with the "substantial evidence rule," § 12-21-12, Ala. Code 1975, for actions filed after June 11, 1987. See Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala. 1989). In order to defeat a defendant's properly supported motion for summary judgment, the plaintiff must present substantial evidence, i.e., "evidence 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). On an appeal from a summary judgment, this Court reviews the record in a light most favorable to the nonmovant and resolves all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, 613 So. 2d 359 (Ala. 1993).

On June 17, 1991, Mr. Scott was an employee of International Paper Company. On that date, while "changing out" cables on an overhead crane, as a part of his work for that employer, he fell 40 feet from the crane to a concrete floor. He suffered severe injuries and was determined to be totally disabled.

Mr. Scott brought this third-party action against his co-employees under § 25-1-1(a) and § 25-5-11(c)(4). He contends that his co-employees (1) willfully and intentionally failed to provide him and other employees with a safe place to work; see § 25-1-1(a); and (2) willfully and intentionally violated a written safety rule; see § 25-5-11(c)(4).

Section 25-1-1 establishes an employer's duty to provide a safe workplace for its employees. It provides, in pertinent part:

"(a) Every employer shall furnish employment which shall be reasonably safe for the employees engaged therein and shall furnish and use safety devices and safeguards and shall adopt and use methods and processes reasonably adequate to render such employment and the places where the employment is performed reasonably safe for his employees and others who are not trespassers, and he shall do everything reasonably necessary to protect the life, health and safety of his employees and others who are not trespassers."

Co-employee actions may be brought pursuant to § 25-1-1; however, the exclusivity provisions of § 25-5-11 have limited them to only those acts that are willful or intentional.

In Powell v. United States Fidelity & Guar. Co., 646 So. 2d 637 (Ala. 1994), citing Bean v. Craig, 557 So. 2d 1249 (Ala. 1990), this Court set out the principles of co-employee liability:

"'"A plaintiff suing a co-employee must show facts tending to prove that the co-employee set out purposefully, intentionally, or by design to injure someone; a showing of mere negligence is not enough. Evidence showing only a knowledge or an appreciation of a risk of injury will not entitle a plaintiff to a jury determination of whether the co-employee acted with a purpose, intent, or design to injure another. A co-employee must either have ...


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