
    Nancy J. CRAWFORD v. John J. MARTIN. Joe Charles Rains v. John J. Martin. Linda Wilkerson v. John J. Martin. Connie Martin v. John J. Martin.
    2960284 to 2960287.
    Court of Civil Appeals of Alabama.
    Sept. 5, 1997.
    Rehearing Denied Oct. 24, 1997.
    Affirmed in part, reversed in part, and remanded.
    
      M. Clay Alspaugh of Hogan, Smith & Alspaugh, P.C., Birmingham; and Lanny S. Vines of Emond & Vines, Birmingham, for appellants.
    J. Glynn Tubb of Eyster, Key, Tubb, Weaver & Roth, Decatur; and Stanley Rodgers and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellee.
   YATES, Judge.

These appeals are from a summary judgment. In a previous appeal in this action, which appeal involved other defendants, our supreme court set forth some of the history of this case:

“On July 3, 1989, an explosion at the 3M Corporation chemical plant in Decatur killed John Crawford, Jerry Wilkerson, and James Michael Martin and injured Joe Charles Rains. The four men were attempting to repair a leak in vessel 403-A-23, a 500-gallon chemical-blending tank, when the tank exploded. On July 3, 1991, the widows of the thréé men killed filed separate actions, each seeking to recover damages for the death of her husband, alleging product liability claims against five corporate defendants, and alleging claims pursuant to § 25-5-11, Ala.Code 1975, against three co-employees [one of whom is defendant John J. Martin]. Joe Charles Rains brought an identical action, seeking to recover damages for the injuries he sustained as a result of the explosion. The complaints also alleged claims against an extensive list of fictitiously named defendants. The actions were consolidated for discovery.
“On June 25, 1993, Martin, Wilkerson, and Rains filed amendments to their complaints in which they substituted [several co-employees]. [They sought] damages, pursuant to § 25-5-11, for willfully failing to provide a safe workplace for the four men.
“The [substituted] defendants filed motions for summary judgment in each of the four actions, contending that the claims against them were barred by the statute of limitations.... The circuit court held a hearing on the motions, entered judgments for these six defendants, and certified the judgments as final pursuant to Rule 54(b), Ala. R. Civ. P.”

Crawford v. Sundback, 678 So.2d 1057, 1059 (Ala.1996) (affirming the trial court’s summary judgment as to the substituted defendants).

In 1980, 3M Corporation employed an outside consultant, Dr. Chester Grelecki, to perform certain tests on “CTFE,” the chemical stored within the tank. 3M Corporation was concerned that additional safeguards might be warranted in the handling and processing of CTFE. Specifically, Dr. Grelecki was to determine whether oxygen at certain levels would react with CTFE, and, if so, the reaction time. Dr. Grelecki’s report indicated that “in the presence of small concentrations of oxygen, [the CTFE] will be consumed slowly without ignition, whereas large concentrations of oxygen will cause spontaneous ignition.”

In November 1988, eight months before the explosion occurred, John J. Martin, plant manager, had signed a purchase order for materials necessary to upgrade and increase the size of the relief system on the tank. The purchase order indicated that the relief system on the tank was inadequate and that a “large release of high pressure monomer would probably rupture the tank.”

At the time of the July 1989 explosion, the tank was being used to store CTFE. After the explosion, 3M Corporation hired Dr. Grelecki to conduct an investigation. His investigation revealed that the explosion had occurred when oxygen from the atmosphere mixed with the CTFE, causing a reaction; he concluded that the explosion occurred because the relief system was inadequate to reheve the pressure fast enough. The relief systems referred to in the 1988 purchase order had not been installed on the tank at the time of the explosion. In connection with the explosion, OSHA issued a citation to 3M Corporation for a serious violation of regulations.

The plaintiffs filed this co-employee action against Martin, pursuant to § 25-5-11, Ala.Code 1975, which provides a cause of action for acts of a co-employee that are willful or intentional. On August 1, 1996, Martin moved for a summary judgment, arguing that he was not guilty of “willful conduct” as defined in § 25-5-11. The plaintiffs filed an opposition to Martin’s motion. The trial court, on November 13, 1996, granted Martin’s motion and entered a summary judgment. Each of the plaintiffs filed separate notices of appeal to our supreme court; that court transferred the appeals to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

In reviewing the disposition of a motion for summary judgment, we use the same standard the trial court used in determining whether the evidence before it presented a genuine issue of material fact and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the mov-ant makes a prima facie showing that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (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 (Ala.1990).

A co-employee can be hable for injuries caused by willful conduct. § 25-5-11, Ala. Code 1975. Section 25-5-ll(c)(l) defines “willful conduct” as “[a] purpose or intent or design to injure another; and if a person, with knowledge of the danger or peril to another, consciously pursues a course of conduct with a design, intent, and purpose of inflicting injury, then he or she is guilty of ‘willful conduct.’ ”

To be held liable under § 25-5-11, a co-employee “ ‘must either have actual knowledge that an injury will occur from his actions or have substantial certainty that injury will occur.”’ Scott v. Goins, 677 So.2d 1154, 1156 (Ala.1996) (emphasis in original) (quoting Powell v. United States Fidelity & Guaranty Co., 646 So.2d 637, 639 (Ala.1994)). To defeat a properly supported motion for summary judgment, the plaintiffs must present evidence that shows either (1) that Martin had a reason to want to intentionally hurt either the plaintiff Rains and the husbands of the other three plaintiffs, or another employee, or (2) that a reasonable person in Martin’s position would have known that a particular result (the explosion) was substantially certain to follow from his actions. Reed v. Brunson, 527 So.2d 102, 120 (Ala.1988). “Evidence showing only knowledge and an appreciation of the risk of injury or death, short of a substantial certainty that injury or death would occur, is insufficient for the purpose of showing willful conduct under [§ 25-5-ll(c)(1) ].” Layne v. Carr, 631 So.2d 978, 982 (Ala.1994).

The plaintiffs do not argue that Martin acted with a purpose or intent to injure; they argue that Martin, as the 3M Corporation plant manager at the time of the explosion, knew or should have known of the dangerous condition of the tank and that injury or death was “substantially certain to occur” as a result of that condition. They contend that a reasonable person in Martin’s position, after receiving Grelecki’s 1980 report and signing the purchase order indicating that the relief system on the tank was inadequate, would have known that injury or death was substantially certain to occur if the relief system on the tank was not replaced.

Martin has been employed with 3M Corporation since 1964. He has a bachelor’s degree and a master’s degree in chemical engineering. While employed by 3M Corporation, he has held a number of positions, including central research engineer; central research engineering supervisor; central research engineering manager; commercial chemical process development manager; chemical division quality manager; and chemical operations technical manager.

Martin became the 3M Corporation plant manager in Decatur in September 1987. As plant manager, Martin was responsible for the overall function of the plant, including safety issues and compliance with OSHA regulations. Martin testified that had he known of the inadequacies of the relief system on the tank, it would have been his responsibility to shut the tank down and remedy the problem. He stated that that was, in fact, what he would have done if he had known of the inadequate relief system, but that before the explosion he had no knowledge of the inadequacies of the relief system.

The record, however, indicates that Martin did have knowledge of the inadequate relief system at least eight months before the explosion. As previously mentioned, Martin had signed a purchase order requesting funds to upgrade and increase the size of the relief system on the tank. He testified that the primary reason for upgrading the capabilities of the relief system was the safety concerns of the employees. The purchase order indicated that the relief system was inadequate and that a “large release of high pressure monomer would probably rupture the tank.” Martin testified that a rupture or explosion of the tank would “certainly” be hazardous to the employees working around the tank. Further, Martin testified that he was aware of the reactivity of CTFE with oxygen. Martin had knowledge of the inadequate relief system and the danger it presented, eight months before the explosion occurred — yet, the system was not upgraded.

Viewing the evidence in a light most favorable to the nonmovant and given Martin’s background and employment history with 3M Corporation, we find substantial evidence that creates a genuine issue of material fact as to whether Martin was substantially certain that an explosion and injury would occur if the relief system on the tank failed. Accordingly, the summary judgment is reversed as to this issue.

The plaintiffs next contend that Martin’s failure to replace or repair the relief system constitutes a removal of a safety device, within the meaning of § 25-5 — 11(c)(2). In Bailey v. Hogg, 547 So.2d 498 (Ala.1989), our supreme court held that the failure to install an available safety guard provided by the manufacturer of the machine constituted the “willful and intentional removal” of a safety guard, within the meaning of § 25-5-ll(c)(2). That section defines “willful conduct” to include: “[t]he 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.” § 25 — 5—11(c)(2), Ala.Code 1975 (emphasis supplied). In Harris v. Gill, 585 So.2d 831, 835 (Ala.1991), our supreme court stated that an essential element of a prima facie case under § 25 — 5—11 (c)(2) is that “[t]he safety guard or device must have been provided by the manufacturer of the machine.” The plaintiffs failed to make a prima facie case under § 25 — 5—11(c)(2), because neither the relief system nor the replacement ordered for the tank was “provided by the manufacturer.” The summary judgment is affirmed as to this issue.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR FURTHER PROCEEDINGS.

ROBERTSON, P.J., and MONROE, J., concur.

CRAWLEY and THOMPSON, JJ., dissent.

THOMPSON, Judge,

dissenting.

I do not agree that the plaintiffs proffered substantial evidence that would defeat Martin’s motion for a summary judgment. Therefore, I respectfully dissent.

Under Alabama law, the knowledge of a potentially dangerous condition in the workplace will not support a co-employee action unless there is evidence that the defendant was substantially certain that injury or death could occur as a result of that condition. See Scott v. Goins, 677 So.2d 1154 (Ala.1996) (co-employee could not be said to be “substantially certain of injury or death” for failure to provide “fall protection” to an employee working in a crane); Bean v. Craig, 557 So.2d 1249 (Ala.1990) (no evidence that co-employee, who used a tire iron rather than a “safety pin” to secure an automobile lift under which worker was injured was substantially certain that his actions would cause injury or death); Reed v. Brunson, 527 So.2d 102 (Ala.1988) (no evidence, beyond that showing negligence or wantonness, where a co-employee ordered a worker to work near an unguarded section of a cement mixer and the worker injured his hand in the unguarded section of the machine).

The plaintiffs failed to provide the required substantial evidence that Martin ivas substantially certain that injury or death would occur as a result of the inadequacy of the relief system on the tank. Martin had worked at the facility for two years, and the tank had been in existence since 1962. It is not disputed that, before the explosion, there had been no problems with the tank in the years that the tank had been in operation at 3M.

The evidence presented by the plaintiffs would not support a finding that Martin was or would have been substantially certain that injury or death would result from his actions. The plaintiffs seem to argue that, because of the dangerous nature of the volatile chemicals contained in the tank, Martin should have been substantially certain that injury or death would occur as a result of the inadequate relief system on the tank. As noted by the trial court in its order, there is absolutely no evidence of any prior accidents or problems with the tank that exploded on July 3, 1989.

Viewing the evidence in a light most favorable to the plaintiffs, a jury might infer that Martin had notice and that he perceived the risk of injury created by the inadequate relief system. However, the perception of the risk of injury is not sufficient to create liability under § 25-5-11(c), Ala.Code 1975. “Evidence showing only knowledge and an appreciation of the risk of injury or death, short of a substantial certainty that injury or death would occur, is insufficient for the purpose of showing willful conduct under [§ 25-5-11(c)(1) ].” Layne v. Carr, 631 So.2d 978, 982 (Ala.1994).

The plaintiffs failed to present substantial evidence that Martin was substantially certain that injury or death would occur as a result of the inadequate relief system. There is no evidence that Martin had any indication that the relief system, which had functioned appropriately for more than 25 years, was in imminent danger of failing. “A co-employee must either have actual knowledge that an injury will occur from his actions or have substantial certainty that injury will occur.” Bean v. Craig, 557 So.2d 1249, 1252 (Ala.1990). I would affirm the ruling of the trial court, which I think was correct in stating: “[E]ven if this defendant were found to have ‘perceived a risk of injury’ based on [the evidence], such a perception does not rise to the level of ‘substantial certainty that injury would occur,’ as required by the Supreme Court of Alabama.” Therefore, I dissent.

CRAWLEY, J., concurs. 
      
      . That appeal did not involve John J. Martin or the same issues contained in this appeal; the other two co-employee defendants named in the original complaint are no longer parties in the case.
     
      
      . The record does not indicate that at the time of the explosion Martin knew of Dr. Grelecki’s 1980 report. Martin’s uncontra-dieted testimony is that he learned of the report only after the explosion had occurred.
     