Clements v. Webster

• Citation: 425 So.2d 1058
• Parties: Earl W. CLEMENTS, et al. v. Robert WEBSTER, et al. 81-206.
• Decision Date: 19 November 1982
• Court: Supreme Court of Alabama

Page 1058

425 So.2d 1058

Earl W. CLEMENTS, et al. v. Robert WEBSTER, et al.

81-206.

Supreme Court of Alabama.

Nov. 19, 1982.

Rehearing Denied Jan. 28, 1983.

John T. Roach, Jr., Birmingham, for appellants.

James L. Martin of Houston & Martin, Eufaula, for appellees.

PER CURIAM.

This appeal is from a judgment entered in a case brought under the third party provision of the Workmen's Compensation Act (§ 25-5-11, Code 1975) against four co-employees. We affirm.

Plaintiff Earl Clements was employed by Louisiana Pacific Corporation in Barbour County as a press board operator. In 1979, Louisiana Pacific was in the process of converting the facility where Clements was employed from a particle board plant to a medium density fiberboard plant. This required the dismantling of all the old equipment and installing new equipment, thus forcing the facility to shut down. Louisiana Pacific used their own employees to aid in dismantling the old and installing the new equipment.

On 3 May 1979, Clements, along with three other employees, was assigned to dismantle what is called the surge bin at the plant. Clements was injured when a plywood board that he was walking on gave way under him, causing Clements to fall approximately twenty-one feet onto a concrete slab. As a result, Clements suffered multiple fractures and internal injuries.

Clements filed this action against the following: Robert Webster, the process consultant for the plant conversion; C.B. Wesson, the plant manager; and Rodney Bowersox, the plant superintendent. The complaint alleged negligent and/or wanton conduct by the defendants in the following areas: supervising of work performed by Clements; failure to provide proper equipment or safety apparatus; plant inspection; failure to warn of known dangers; failure to provide proper safeguards, machinery or procedures; allowing work to progress in a dangerous or hazardous manner; failure to provide equipment and a safe place to work; and providing faulty or defective plans for the work to be performed. Clements claimed damages of $750,000. The complaint was later amended to add as a defendant, Dennis Green, the maintenance superintendent.

We note that Clements's wife Ann is also a plaintiff, claiming damages for loss of consortium.

The case was tried before a jury, and after all parties had rested, the trial judge granted a motion for a directed verdict in behalf of the defendant Webster. The jury returned a verdict in favor of the three remaining defendants; judgment was entered accordingly. Clements's motion for a new trial was denied.

Clements contends that the trial court committed error directing a verdict in favor of Webster when there was sufficient evidence to submit the case against him to the jury. Webster's job as process consultant required him to lay out equipment flow, purchase equipment, prepare drawings, and work out a time schedule for dismantling the old and installing the new equipment. Webster gave no personal instructions to anyone, including Clements, about dismantling the surge bin. Jack Sanders was directly in charge of the work crew who dismantled the surge bin and he received his instructions from R.B. Jones who worked directly under Green, the maintenance superintendent.

The test to determine if Webster is liable to Clements is whether or not Louisiana Pacific had delegated to Webster, as a part of his duties of employment, the duty to assure Clements a reasonably safe workplace. Fireman's Fund American Insurance Co. v. Coleman, 394 So.2d 334 (Ala.1980). There is no evidence to establish a personal duty owed by Webster to Clements, nor was any evidence presented showing Webster owing Clements a duty to provide him with a reasonably safe workplace. A co-employee cannot be held liable merely because he has a general administrative responsibility; the fact that a person is in an administrative or supervisory position alone does not make that person liable. It is the burden of the injured party to prove, with specificity, the co-employee's delegated or assumed duty, and the breach thereof, out of which the claim for recovery arises. This court addressed this issue in Carter v. Franklin, 234 Ala. 116, 173 So. 861 (1937):

"[I]t cannot be questioned that in tort actions all persons are jointly and severally liable for the proximate results of their negligence or wanton conduct. The relation of employer and employee excuses neither. In some jurisdictions a mere day laborer acting under superiors is not held liable for acts of mere nonfeasance. This court has not approved such distinction. Whether his failure of duty be one of commission or omission is unimportant. But he must be a wrongdoer in such sort that under the particular facts of the case his negligence or wrongful act was a proximate cause of an injury...."

In light of the evidence showing that Webster owed no duty to Clements to provide the latter with a reasonably safe workplace, we agree with the trial court that Webster was entitled to a directed verdict. Whether tested by the substantial evidence rule or the so-called scintilla rule, the record shows no evidence from which the jury could reasonably infer that Clements's injuries were proximately caused by the negligence or wantonness of Webster. The law in this regard is aptly summarized in Coburn v. American Liberty Insurance Co., 341 So.2d 717 (Ala.1977):

"[T]he trial Court must exercise extreme caution not to usurp the fact finding function of the jury; but it is the office of a directed verdict motion (Rule 50(a)) to test the sufficiency of the opponent's evidence. And where, as here, the strongest tendencies of all the evidence fall short of raising a reasonable inference of the movant's alleged liability, the motion is due to be granted...."

Clements also asserts that the trial court committed reversible error by refusing to admit portions of Webster's deposition concerning what could have been done to prevent the injury to Clements. Observations by Webster regarding that matter can only be made in retrospect. A Circuit Court of Appeals of the United States addressed this issue:

"... Foresight, not retrospect, is the standard of diligence. It is nearly always easy, after an accident has happened, to see how it could have been avoided. But negligence is not a matter to be judged after the occurrence...."

Carufel v. Chesapeake and Ohio Railway Co., 286 F.2d 193, 195 (6th Cir.1961). The trial court was correct in excluding those portions of the Webster deposition.

Clements maintains that error was committed when the trial court interrupted Clements's counsel on redirect examination of the witness Willie Wellbern and asked questions from the bench, and, after objection, making statements in the presence of jury about the weight and sufficiency of the evidence. The trial court asked that witness the following questions:

"THE COURT: For my information how wide--In Mr. Green's testimony yesterday he mentioned 'catwalk' and said that was a misnomer, it ought to be 'work platform', which would indicate to me a larger area than the catwalk.

"How big an area did you have up there that you call either the work area or the catwalk? How wide a place did you have?

"WITNESS: I wouldn't know for sure. I would estimate, maybe, that--

"THE COURT: Was the top of the bin from here to someplace in the courtroom? Was it a round type bin?

"WITNESS: No, square.

"THE COURT: Square. Well, how square was it, from here to someplace in the courtroom--?

"WITNESS: Maybe from here to that first bench.

"THE COURT: To the first bench. All right. It was that square?

"WITNESS: To the rail there--Maybe, from here to that rail. I would say, maybe, the rail.

"THE COURT: I believe I heard fifteen feet square--

"WITNESS: Yes.

"THE COURT: I thought I heard the other day fifteen or twenty feet square. But, anyway, it was approximately to the...