Davis v. Liberty Mut. Ins. Co., 74--3825

• Decision Date: 19 January 1976
• Docket Number: No. 74--3825,74--3825
• Citation: 525 F.2d 1204
• Parties: Roy Griffin DAVIS, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, a Massachusetts Corporation, Defendant- Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1204

525 F.2d 1204

Roy Griffin DAVIS, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, a Massachusetts Corporation, Defendant- Appellee.

No. 74--3825.

United States Court of Appeals Fifth Circuit.

Jan. 19, 1976.

Rehearing and Rehearing En Banc Denied Feb. 23, 1976.

Philip H. Butler, Montgomery, Ala., for plaintiff-appellant.

William I. Hill, II, Montgomery, Ala., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before BROWN, Chief Judge, GOLDBERG and RONEY, Circuit Judges.

RONEY, Circuit Judge:

Plaintiff, Roy Griffin Davis, injured his hand while working at a corrugator machine as an employee of a company for which the defendant, Liberty Mutual Insurance Company, was the workmen's compensation carrier. Despite the fact that Davis had received workmen's compensation benefits from Liberty Mutual, he filed his Alabama diversity action to recover additional damages because of Liberty Mutual's alleged negligence in conducting certain safety inspections. He contends that had the inspections been conducted properly, the placement of a protective shield on the corrugator machine would have been corrected and that this would have prevented his being injured.

After discovery had been initiated, Liberty Mutual moved for summary judgment on the grounds that (1) plaintiff had assumed the risk of injury, and (2) plaintiff failed to establish all the necessary elements of a cause of action for negligent inspection. The district court granted the motion on the assumption of risk defense, thereby finding it unnecessary to decide whether plaintiff had established a cause of action for negligent inspection sufficient to withstand summary judgment. Although we disagree with the district court's basis for decision, as we find the evidence sufficiently conflicting for the assumption of risk defense to be submitted to a jury, we nevertheless affirm its decision since the plaintiff failed to establish the necessary elements of a cause of action for negligent inspection.

I.

At the time of his injury, Davis had been employed for approximately eight years by Brockway Glass Company in Montgomery, Alabama. He was thoroughly familiar with the corrugator machine, at which he was injured, and testified at his deposition that he was aware of the danger associated with the machine. He admitted that he knew that a co-worker had previously gotten his hand caught between the machine's rollers and that thereafter he was more careful in working with the machine.

The portion of the corrugator machine at which plaintiff was injured consisted of two contiguous rotating rollers. The corrugated paper is fed between the two rollers so that it can be fused with liner paper. In front of the top roller was a steel shield to protect persons who, while feeding the machine, might otherwise be exposed to danger. This guard was designed as a deflector, but was not intended to prevent a hand from going into the machine when corrugated paper is being fed into it by hand. At the time of the accident, the distance between the shield and the corrugated paper was approximately 3 1/2 inches.

Plaintiff's job on the day of his accident was to hand-feed the corrugated paper between the two rollers. When the paper would break, or when a new roll was started, the operator of the machine would have to reinsert the paper between the rollers. At the time of the accident, this procedure was customarily performed with the machine in operation. While Davis was refeeding the paper between the rollers, the paper lapped over his hand and pulled it under the protective shield and between the rollers. As a result of this accident, plaintiff's hand was badly crushed and scalded by steam from the machine.

II.

The district court granted Liberty Mutual's motion for summary judgment on the basis of the affirmative defense of assumption of risk, finding no genuine issue of fact concerning Davis' knowledge and appreciation of the dangers surrounding the operation of the corrugator machine.

Initially we note our concern as to whether the defense of assumption of risk is even available to a workmen's compensation insurer under the circumstances of this case. It can be argued that the risk which needed to be assumed was the risk of a negligent safety inspection. See generally W. Prosser, Law of Torts § 68, at 449 (4th ed. 1971). This type assumption seemingly relates to the question of reliance which, as will be further discussed below, is an element of the cause of action and not a matter of defense.

Under the rule of Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), we are, of course, obliged to apply Alabama law in this diversity case. The parties have not argued this question before us, however, and our own research has not revealed any relevant Alabama case. Resting our disposition of the issue on an alternative basis, we assume, without deciding, that the assumption of risk defense sought to be raised by Liberty Mutual is available to a workmen's compensation carrier defending against a claim of negligent inspection.

Generally, and in Alabama, the defense of assumption of risk requires that there be a knowing and understanding acceptance of the risk incurred.

The rule declared is, that it must be confined to cases where the plaintiff knew and appreciated the danger assumed, and with such knowledge and appreciation voluntarily put himself in the way of it.

Kemp v. Jackson, 274 Ala. 29, 145 So.2d 187, 191 (1962), quoting Edwards v. Southern Ry., 233 Ala. 65, 66, 169 So. 715 (1936). In the case sub judice, the record is clear that plaintiff was aware of the fact that the corrugator machine was dangerous and that he would be injured if he stuck his hands into the machine. Were this a case in which the injury resulted from plaintiff's own voluntary action in sticking his hand between the rollers, the applicability of the defense of assumption of risk defense would be apparent.

This case does not present that situation, however. Here plaintiff claims he was injured because the paper he was feeding into the machine lapped over his hand and pulled it between the rollers. Davis testified both at his deposition and by affidavit that he was not aware that his hands could be caught by the medium of the paper and pulled under the protective shield and into the rollers involuntarily. Although he admitted that he knew that a co-worker had previously had his hand caught in the machine by 'starting up another roll' of paper, he testified that he did not know whether the paper grabbed the co-worker's hand as it did his hand.

The district court recognized that the evidence was 'somewhat clouded as to exactly what danger the plaintiff acknowledged that he understood,' but, nevertheless, granted defendant's motion for summary judgment since it was 'obvious that plaintiff did appreciate and understand the dangers associated with having his hand in the proximity of the paper being fed into the machine and that this (was) the danger that he assumed the risk of . . ..' The court apparently viewed the fact of the paper lapping over and catching Davis' hand as being unrelated to the negligence complained of, i.e., the negligent safety inspection and the wrongful placing of the protective shield, and therefore not a matter to be considered in determining whether there was a genuine factual issue as to whether Davis assumed the risk of Liberty Mutual's negligence.

We disagree with the district court's analysis and hold that it erred in granting summary judgment in favor of defendant on this ground. The evidence did not...