
    Daniel R. SMITH, et al. v. Jim WALLACE, et al.
    1930608.
    Supreme Court of Alabama.
    March 24, 1995.
    Rehearing Denied May 12, 1995.
    Jay E. Emerson, Jr. of Higgs, Emerson & Dezenberg, Huntsville, for appellants.
    J. Michael Tanner and Benjamin H. Albrit-ton of Almon & McAlister, P.C., Tuseumbia, for appellees.
   INGRAM, Justice.

Daniel Smith, an employee of Reynolds Metals Company (“Reynolds”), was injured while operating a metal grinding machine. Pursuant to Ala.Code 1975, § 25-5-ll(b) and (c)(2), Smith and his wife, Libby Z. Smith, sued Smith’s co-employees Jim Wallace, Marion Rhodes, Carl Stumpe, and Charlie Wilson, alleging willful and intentional failure to maintain a safety device. The trial court entered a summary judgment in favor of the co-employees. The Smiths appeal.

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 he 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 creating a genuine issue of material fact; “substantial evidence” is “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). This Court reviews the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993).

Viewed in a light most favorable to the Smiths, Wilma Corp., supra, the record suggests the following facts:

Smith was an ironworker in Reynolds’s wire, rod, and bar facility and often operated an electric grinding machine (“grinder”) at work. Grinders such as the one used by Smith are used to shape or sharpen metal. The worker holds the metal against the machine’s abrasive wheel, which rotates at an extremely high rate of speed. A “tool rest” on the grinder steadies the worker’s hands as the metal piece is slowly forced into contact with the abrasive wheel. The tool rest is a small metal shelf attached to the grinder frame and is situated between the wheel and the worker’s hands. A very small space must be maintained between the tool rest and the abrasive wheel. The purpose of maintaining that space (or “tolerance”) at a minimum is to protect the worker’s hands from being drawn down into the wheel. It also allows the worker to grind (he metal piece with more precision. If the tolerance of the tool rest expands because of wear and tear on the grinding wheel, the possibility of finger and hand injury is significantly increased. The tool rest must be adjusted or replaced to restore the appropriate tolerance when the grinding wheel is reduced in size or shape by being worn down.

On May 30,1990, Smith was using a grinder to sharpen an iron pin that was to be placed into a large hinge. The required tolerance on Smith’s tool rest was ⅜ inch, according to safety guidelines established by the Occupational Safety and Health Administration, the American National Standards Institute, the National Safety Council, and Reynolds’s plant regulations. However, the tolerance on Smith’s machine at the time of his accident was between ½ inch and 1 inch, because deep furrows had been rutted into the wheel through long periods of use without its being “dressed,” i.e., reshaped so as to provide a smooth and balanced grinding surface. While Smith was attempting to grind the iron pin, his left hand was pulled into the wheel, and his thumb was severed.

This grinder was in place in the wire, rod, and bar facility when Smith began working' there in 1987. Smith stated that the grinder had not been serviced during the three years before the accident that he had worked in that area of the Reynolds plant. Smith further stated that in those three years his department had not had a monthly safety meeting at which one could turn in a formal complaint about the grinder’s condition. According to Smith, he had asked Carl Stumpe, the plant safety manager, to service the grinder, but Stumpe told him that “he wouldn’t guarantee ... that he could get it fixed”; Stumpe denies having this conversation. Marian Rhodes, the general field maintenance supervisor, stated that the grinder was not listed on Reynolds’s files before the accident. According to Rhodes, the grinder had been “bootlegged,” that is, obtained from a group of other Reynolds machines that had been taken out of service, placed in a salvage area, and then brought back into service. It is not clear who brought the grinder back into service. Because it was bootlegged, the grinder was not officially in service, according to Reynolds’s equipment records. It did not have an operating number, and a work order for repair on the grinder could not be made without an operating number.

In spite of the absence of an operating number for the grinder, Stumpe, on March 27,1990, sent a monthly safety report to Jim Wallace, the shop and field maintenance superintendent, with a copy also sent to others, including Charlie Wilson, the industrial relations manager; in that report Stumpe noted that the grinder’s wheel needed to be dressed. Rhodes, although he said he was unable to recall whether he had received a copy of the report, stated that he would normally receive a copy of a safety report and “possibly” did receive this report. However, no repairs were made. Approximately three days before the accident, a machinist came to Smith’s workstation and inspected the grinder, but no repairs were made. After Smith’s injury, Stumpe issued a report, which stated:

“There were several violations of our safety rules that contributed to the accident.
“The tool rest on the grinder was not properly dressed. This grinder had been written up for this violation during the March safety inspection of this area.... Apparently this grinder has been overlooked.
“The tool rest on the grinder was not properly adjusted. The spacing between the tool rest and the surface of the rock varied from ½" to 1". Tool rests should be kept within ⅜" of the rock. With this small gap there is little way that fingers or the piece being ground can be caught between the rock and the tool rest.
“During the investigation of this accident ... I was told that the portion of the [ironworker] crew that works in the [wire, rod, and bar] shops have not had a safety meeting in over 2 years. The employees in the crew that are assigned to Sheet Finishing were recently invited to a Sheet Finishing Maintenance meeting. They were shown a safety videotape on grinders.
“... Please assure that all safety rules are followed and that all maintenance employees are attending monthly safety meetings. ...”

(Emphasis in original.)

After Smith’s injury, the machine was taken out of service, assigned an operating number, and repaired.

The Smiths’ claims are based on § 25-5-11(b) and (c)(2), Ala.Code 1975; those subsections provide, in pertinent part, the following:

“(b) If personal injury or death to any employee results from the willful conduct, as defined in subsection (c) herein, of any ... employee of the same employer, ... the employee shall have a cause of action against the person....
“(c) As used herein, “willful conduct’ means any of the following:
“(2) 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.”

In Moore v. Reeves, 589 So.2d 173, 177 (Ala.1991), this Court defined “safety device,” as that term is used in § 25-5-11(c)(2):

“[T]hat which is provided, principally, but not exclusively, as protection to an employee, which provides some shield between the employee and danger so as to prevent the employee from incurring injury while he is engaged in the performance of the service required of him by the employer; it is not something that is a component part of the machine whose principal purpose is to facilitate or expedite the work.”

In Moore, this Court held that a co-employee’s failure to maintain or repair a safety device is the equivalent of the removal of that safety device, for purposes of § 25-5-11(c)(2). The Moore Court stated that “[t]o hold otherwise would allow supervisory employees to neglect the maintenance and repair of safety equipment provided to protect co-employees from injury, which by its very nature is a clear violation of public policy.” Moore, 589 So.2d at 178-79.

The first question to be determined is whether the tool rest on the grinder is a “safety device” under § 25-5-ll(c)(2), as the term is defined in Moore, supra. Wallace, Rhodes, Stumpe, and Wilson contend that the tool rest is not a safety device. We disagree.

The principal purpose of the tool rest is not only to “facilitate or expedite” the work; the purpose is two-fold, with the second purpose being to protect the worker’s hands from the grinding wheel while the machine is in use. The fact that the tool rest also helps the worker to steady the piece being ground does not detract from the safety purpose. The record indicates that, had the tolerance on the grinder been properly maintained by an adjustment of the tool rest, and had the grinder wheel been dressed, Smith’s injury probably would not have occurred. The regulations requiring a ⅜-inch tolerance serve to prevent accidents such as Smith suffered. The tool rest is provided, although not exclusively, for the safety of the worker; therefore, we hold that the tool rest is a safety device within the meaning of § 25-5-ll(c)(2). Moore, supra.

We further hold that the evidence was sufficient to create a genuine issue of material fact, and, therefore, the summary judgment for Wallace, Rhodes, Stumpe, and Wilson was inappropriate. We note that, according to Reynolds’s job descriptions, Wallace, by virtue of his position as the shop and field maintenance superintendent, was responsible for “[monitoring the plant] for unsafe conditions and potential hazards [and for directing] corrective action.” Rhodes, as the general field maintenance supervisor, had among his duties “[promoting] safety and housekeeping [and developing and coordinating the] safety program.” Stumpe, as plant safety manager, was responsible for “[investigating] safety complaints ... [and monitoring] the workplace for unsafe conditions.” Wilson, as industrial relations manager, was also responsible, in part, for “[promoting] ... safe work practices” and “[managing] the activities of the Safety [Department].”

As stated above, according to Smith, Stumpe inspected the grinder; Stumpe later indicated in his safety report that the grinder wheel needed dressing. As further noted above, notice of the needed repair had been given in copies of the safety report issued to Wallace and Wilson; Rhodes, although not listed on the report, testified that he “possibly” received a copy. The fact that the grinder wheel was in disrepair would necessarily alter the tolerance and thus the effectiveness of the tool rest in preventing Smith’s injury. Stumpe’s report made after the accident supports this conclusion. All of the co-employee defendants — Wallace, Rhodes, Stumpe, and Wilson — were in positions of safety responsibility. We hold that there are genuine issues of material fact regarding whether Wallace, Rhodes, Stumpe, and Wilson, as reasonable men, would have known that Smith’s injury was substantially certain to follow from a failure to repair the grinder. The evidence provides a sufficient basis from which a jury could conclude that, but for their failure to maintain the tool rest (as well as the grinding stone) so as to achieve the proper tolerance on the grinder, Smith would not have been injured. Therefore, the trial court erred in entering the summary judgment in favor of Stumpe, Wallace, Rhodes, and Wilson. That judgment is reversed.

REVERSED AND REMANDED.

ALMON, SHORES, HOUSTON, COOK and BUTTS, JJ., concur.

MADDOX, J., dissents.

MADDOX, Justice

(dissenting).

The majority holds that a tool rest on a grinding machine is a “safety device” as that term is used in § 25-5-ll(c)(2), Ala.Code 1975, and was for a two-fold purpose of protecting the employee’s hands while the machine was in use, and facilitating his work. I must respectfully dissent. I attach to this dissent a photograph of the machine, in order to show why I think the tool rest was not a “safety device” as contemplated by the Legislature when it adopted § 25-5-ll(c)(2).

I recognize that the tool rest, positioned as it is, does provide some safety to the operator, but providing safety is not its “principal purpose.” When the Legislature amended § 25 — 5—11(c)(2), it specifically provided for employees to be able to bring third-party actions, which could include actions against co-employees when the co-employees were guilty of willful or wanton conduct.

Section 25-5-11, as amended, and as applicable here, reads, in part, as follows:

“§ 25-5-11. Actions against third parties jointly liable with employers for injuries or death; actions for injury or death resulting from willful conduct; attorney’s fees in settlements with third parties.
“(b) If personal injury or death to any employee results from the willful conduct, as defined in subsection (c) herein, of any officer, director, agent, or employee of the same employer or any workers’ compensation insurance carrier of the employer or any person, firm, association, trust, fund, or corporation responsible for servicing any payment of workers’ compensation claims for the employer, or any officer, director, agent, or employee of the carrier, person, firm, association, trust, fund, or corporation, or of a labor union, or an official or representative thereof, the employee shall have a cause of action against the person, workers’ compensation carrier, or labor union.
“(c) As used herein, ‘willful conduct’ means any of the following:
“(2) 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.”

(Emphasis added.) Before the Legislature amended § 25-5-11, this Court had considered several cases in which guard rails or other safety devices had been removed from machines and employees had later been injured on those machines, and it is my opinion that the exception for the “willful and intentional removal from a machine of a safety guard or safety device” was specifically written to address situations far different from that present in this case. The history of co-employee actions in this State shows that the Legislature has repeatedly attempted to limit third-party actions against co-employees and others, rather than beneficently to provide for them, except when there is a showing of “willful conduct,” of course, one instance of such conduct occurring when there is a “willful and intentional removal of a safety guard or safety device.”

The legislative policy of exempting these persons from suit is a matter of legislative prerogative, and I believe that this Court, in liberally construing the tool rest in this case to be a “safety guard or safety device,” does exactly the opposite of what the Legislature attempted to accomplish. Rightly or wrongly, the Legislature clearly has not considered such actions as this one to be “beneficent,” but has considered them to be a “social evil.”

I believe that the tool rest in this case, although it provides for some safety, is similar to the “splitter box” in Hallmark v. Duke, 624 So.2d 1058 (Ala.1993). There, this Court held that the “splitter box,” the “transfer lines,” and the “ninety-degree elbow joint” were not safety devices within the purview of the statute. Id. at 1061. Rather, these integral parts of the clarifier system were necessary conduits through which the liquid must travel in the liquor processing system and were never intended to act as safety mechanisms. Id. at 1061.

The tool rest in the present case is an integral part of the grinding process, but it is not within the statutory term “safety guard or safety device.” The primary function of the tool rest is to allow the operator to hold the objects in the proper position to expedite work.

Based on the foregoing, I believe that Smith fails on his claim under § 25-5-11(c)(2), Ala.Code 1975, because I think the tool rest does not come within the term “safety device.” Therefore, I would affirm the summary judgment for the co-employee defendants. 
      
      . The history of co-employee lawsuits is well known, and such actions have received the attention of the Legislature and this Court, especially in the last two decades. Insofar as I can tell, the question of the right of an employee to sue a fellow employee in a third-party action had not been considered until the question was presented to this Court for resolution in United States Fire 
        
        Insurance Co. v. McCornick, 286 Ala. 531, 243 So.2d 367 (1970). In that case, by an opinion authored by Merrill, J., and joined by Lawson, Harwood, Maddox, and McCall, JJ., the Court held that the Legislature had not specifically mandated that co-employees could not be sued in third-party actions. The Legislature quickly reacted to this holding and passed legislation to immunize co-employees from such actions. Act 1062, Acts of Alabama 1973, at 1771-72. That immunizing legislation was promptly attacked as being unconstitutional on the ground that the act signed by the Governor materially differed from the bill passed by the Legislature. A divided Court held that the 1973 Act was valid and that the defendants were entitled to a summary judgment because the “plaintiff’s injuries resulted from an accident which arose out of and in the course of his employment, and that by virtue of Tit. 26, § 312 [Code of Alabama of 1940], co-employees are not third-party tortfeasors against whom an action such as this can be brought.” Childers v. Couey, 348 So.2d 1349, 1352 (Ala.1977) (Embry, J., joined by Torbert, C.J., and Bloodworth and Faulkner, JJ., with Almon, J., concurring in the result; Shore, J., dissenting with opinion, in which Maddox, J., joined; Jones and Beatty, JJ., dissenting with opinions); also see, Atchison v. Horton, 348 So.2d 1358 (Ala.1977). The Legislature, in 1975, amended § 312, Tit. 26 (which authorized the filing of third-party lawsuits), but continued to immunize co-employees from suit, as it had in the 1973 Act. See Act No. 86, 4th Ex.Sess. § 10, p. 2748, Acts of Alabama 1975. Even though the 1973 Act immunizing co-employees was upheld against the attack made upon it, an attack was made against the 1975 amendment in Grantham v. Denke, 359 So.2d 785 (Ala.1978), on the ground that the Legislature could not immunize co-employees from third-party lawsuits, because of the provisions of § 13, Ala. Const. 1901. A majority of this Court (opinion by Embry, J., with whom Bloodworth, Faulkner, Jones, Almon, Shores, and Beatty, JJ., joined; Maddox, J., dissenting, with opinion in which Torbert, C.J., concurred) held that the immunizing legislation was unconstitutional as violating § 13 of the Alabama Constitution.
      In 1984, the Legislature again amended what is now § 26-5-11, to provide for co-employee immunity, except when an injury has resulted from "willful conduct.” Ala.Acts 1984, 2d Ex. Sess., Act No. 85-41, p. 44, § 3. That amendment was the subject of an attack on the ground that § 13, Ala. Const. 1901, prohibited the Legislature from granting co-employees immunity. See Reed v. Brunson, 527 So.2d 102 (Ala.1988), in which this Court upheld the legislation now being construed.
     
      
      . In Reed v. Brunson, 527 So.2d 102 (Ala.1988), this Court said that “the Legislature does have the police power to eliminate such co-employee suits in an attempt to eradicate or ameliorate what it perceives to be a social evil." 527 So.2d at 116. In that case, this Court set out in its entirety Section 1 of the Act we construe today. 527 So.2d at 112-13. In its findings, the Legislature specifically stated that co-employee lawsuits were "contrary to the intent of the legislature in adopting a comprehensive worker's compensation scheme and are producing a debilitating and adverse effect upon efforts to retain existirlg, and to attract new industry to the state.”
     
      
      . The photographs of the grinding machine that appear in the record show the contrast between the tool rest and the spark shield located over the grinding wheel. The appearance of the machine suggests that the spark shield would be for the principal purpose of preventing sparks from causing injury to the operator or starting a fire.
     