Alabama Workers' Comp Blawg

  • 07
  • Feb
  • 2009

FIRE EXTINGUISHER HELD NOT TO BE A SAFETY DEVICE ON A MACHINE FOR PURPOSES OF SECTION 25-5-11(c)(2)

Darius Moore v. Larry Welch, Sid Sewell, and Frank James:

On February 6, 2009, the Alabama Court of Civil Appeals considered a case wherein the employee was injured when the paint thinner he was using to prepare a piece of machinery for painting was ignited by sparks from a metal grinder being used overhead by a co-employee. Two different fire extinguishers malfunctioned and his fellow employees finally dowsed the flames by rolling him in wet sand. As a result, he suffered third-degree burns to 25% of his body. the employee filed suit against the employer, the temporary agency, certain co-employees, and the manufacturer of the fire extinguishers for workers’ compensation, willful conduct, and negligence/wantonness. In support of his § 25-5-11 willful conduct claim, the employee asserted that the co-employees failed to properly inspect, maintain, and refill the fire extinguishers and also wilfully and intentionally removed a safety device or safety guard from the fire extinguishers. The co-employees failed to defend themselves and a default judgment was entered in favor of the plaintiff employee. The default was subsequently set aside and then the co-employees’ motion for summary judgment was granted. The employee appealed on the grounds that the default judgment should not have been set aside because the co-employees had no meritorious defense to the willful conduct claim. In response, the co-employees asserted that improper maintenance of the fire extinguishers could not be a basis for recovery under § 25-5-11(c)(2) because the fire extinguishers were safety devices in the workplace and not safety devices on a machine. In the alternative, the co-employees argued that, even if the failure to properly maintain the fire extinguishers were a basis for liability under § 25-5-11(c)(2), the co-employees were unaware of both the need for maintenance of the fire extinguishers and the type of maintenance required. As such, their conduct could not be considered willful and intentional as required by § 25-5-11(c)(2). The Court of Civil Appeals agreed that a meritorious defense was asserted and affirmed the trial court’s ruling. In affirming the trial court’s decision to set aside the default judgment, the Court also held that the co-employees’ failure to timely answer the complaint or appear at trial was not culpable conduct and that the plaintiff employee suffered no prejudice. Only one of the co-employees appealed the summary judgment of the§ 25-5-11(c)(1) claim. Although the Court agreed that the co-employee’s conduct in igniting the fire by operating the grinder near paint thinner was arguably negligent, it affirmed the summary judgment of the § 25-5-11(c)(1) claim because there was not enough evidence to prove the conduct was willful. The Court also affirmed the summary judgment of the § 25-5-11(c)(2) claim as to all the co-employees because the fire extinguishers were held not to be safety devices on a machine and were instead safety devices used within the workplace.

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