Ford v. Carylon Corp., Inc.
| Decision Date | 24 February 2006 |
| Docket Number | No. 1040554.,1040554. |
| Citation | 937 So.2d 491 |
| Parties | Terry FORD v. CARYLON CORPORATION, INC., et al. |
| Court | Alabama Supreme Court |
Arlene M. Richardson of Richardson Legal Center, LLC, Hayneville; Michael Guy Holton, Pike Road; and Tommy Allen French of Robert B. French, Jr., P.C., Fort Payne, for appellant.
Joseph H. Driver and Thomas S. Thornton III of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellees Carylon Corporation, Inc., and Chris Eady.
On Application for Rehearing
We overrule the application for a rehearing filed by Carylon Corporation, Inc. ("Carylon"), and Video Industrial Services ("Video"). However, in reviewing the original briefs of the parties in the process of considering that application, we noted material that persuades us to withdraw our original opinion and substitute one incorporating a different rationale at one point. Accordingly, the opinion released on November 10, 2005, is withdrawn and the following substituted therefor.
Terry Ford appeals from a summary judgment in favor of Carylon, Video, and Chris Eady (collectively "the defendants").
Ford sued the defendants alleging that he had been injured as a result of their willful conduct in removing a safety device from a machine he used as an employee of Video, referencing § 25-5-11(c)(2), Ala. Code 1975, and that they had subsequently discharged him from employment in retaliation for filing a workers' compensation claim, in violation of § 25-5-11.1. The trial court granted the defendants' motion for a summary judgment as to those claims, without expressing a rationale other than that there were no genuine issues of fact and the defendants were entitled to a judgment as a matter of law. Ford appeals only as to that ruling, although other claims he asserted against the defendants were eliminated by a subsequent summary judgment. We affirm in part, reverse in part, and remand.
We review a summary judgment de novo, seeking to determine whether the evidence presents a genuine issue of material fact and whether the movant was entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P. If the movant makes a prima facie case that no genuine issue of material fact exists, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank, 538 So.2d 794, 798 (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, 413 (Ala.1990).
Video, a subsidiary of Carylon, provides industrial-scale environmental-cleanup and maintenance services. Ford began his employment with Video on March 10, 2001.
On March 23, Ford and his supervisor, Eady, were assigned to clean a water-treatment tank located at the waterworks system of the Water and Sewer Board of the City of Guntersville. The assigned cleanup work entailed the use of an industrial vacuum to remove charcoal, which had been used to filter water processed through the tank, from the bottom of the tank.
The vacuum used is known as an SV-119. It is manufactured and sold by Clean Earth Manufacturing and is the most powerful vacuum Video uses in performing its cleanup services. Regardless of the strength of the particular vacuum used on a job, however, Video has mandatory safety rules regarding the use of all vacuums. Among these is a rule that all individuals performing jobs for which a vacuum is necessary must have in place on the vacuum hose an "in-line relief valve," a device colloquially referred to as a "safety T." In shape, the safety T resembles the capital letter "T" and is used to connect two sections of a vacuum hose, allowing the user quickly to relieve accumulated pressure within the hose. The two hoses joined by the safety T constitute a straight line, connected by the horizontal line at the top of the letter "T." The vertical line in the letter "T" represents the part of the device that juts out from the hose connection at a right angle and contains a valve that can be tripped open by pulling on a rope attached to the valve to relieve vacuum pressure in the hose.
On the morning of March 23, Eady and Ford arrived at the waterworks system and proceeded to a building that housed two water-treatment tanks. Eady prepared to clean the first tank by removing a six-inch diameter flexible hose from the vacuum truck, connecting it to the vacuum, and lowering the hose into the tank. Eady did not install a safety T anywhere along the length of the hose. He began vacuuming the charcoal, eventually entering the tank in order to reach the bottom layers of charcoal. When he finished vacuuming the entire tank, he emerged, and he and Ford drove the vacuum truck to a remote location where they deposited the charcoal refuse.
The two returned to the waterworks, at which point Eady instructed Ford to clean the second tank. Ford had observed the vacuuming process, but he had never before manned the vacuum hose. Ford undertook to perform the task in a manner similar to the manner in which he had seen Eady perform it. After he had been vacuuming the tank for approximately 30 minutes, and while he was inside it, a large chunk of solid charcoal entered the vacuum hose. The chunk stopped suddenly at a bend in the hose, and the impact caused the hose to jerk suddenly out of Ford's hands, in turn causing the hose to flail about as Ford attempted to recapture it. The hose came within inches of Ford's hand and, given its strong suction power, drew Ford's hand into the hose and drew itself up Ford's arm, stopping only at Ford's shoulder. The tremendous force of the vacuum caused Ford's shirt sleeve to rip from his shirt and caused a significant amount of blood to be drawn from other areas of Ford's body into his arm and hand, thus decreasing blood flow elsewhere in his body, and eventually causing Ford to collapse; Ford, however, did not lose consciousness.
When the hose initially attached to Ford's arm, Ford began screaming for Eady, but Eady did not respond. Only when Eady began to hear the machine "bog down" did he turn off the vacuum. At this point, Ford was able to free his arm from the hose, and he saw that his arm had at least tripled in size. Paramedics were called to the scene, and Ford was taken to Guntersville Hospital; he was soon transported via helicopter to a trauma center at the University of Alabama-Birmingham Medical Center ("UAB"). UAB surgeons operated on Ford's arm on three separate occasions, and Ford was required to undergo physical therapy and psychological treatment.
On Monday, December 10, 2001, nearly nine months after his injury, Ford returned to work at Video. On Monday, February 4, 2002, his employment was terminated. Because our evaluation of Ford's retaliatory-discharge claim requires, under the legal precedent hereinafter discussed, that we consider the totality of the facts leading up to that termination, we will set out the facts chronologically in all pertinent detail. In that regard, obedient to the controlling standard of review, we have accepted as true those facts in the record most favorable to Ford, resolving all reasonable doubts in his favor. Hanners, supra. Therefore, relying on Ford's version of events wherever there is any dispute between the parties as to what actually happened, we construe the relevant events to be as follows:
Ford reported to work on the morning of December 10, 2001, pursuant to instructions from Video's workers' compensation case manager. Upon returning to work, Ford first encountered Donnie Keith, a superintendent, who instructed him to wait in the office. Video's general superintendent, Don Tyler, then appeared and told Ford "to go stand out in the shop," which he did "for about three and a half hours." He was then dispatched to ride around in a truck driven by another employee, which he did for the remainder of the day. Before departing on that later assignment, however, Ford had informed Tyler that he had an appointment scheduled with his treating psychiatrist, Dr. McInteer, for the next day. Ford was well aware of the established company policy that required employees to telephone the office between 4:30 and 5:00 o'clock each afternoon to learn if they were being assigned to a job the next day, unless they had ascertained that information before leaving work for the day, either from a superintendent or from the posted work schedules. Employees were allowed time off for a doctor's appointment, however, and if an employee properly advised company personnel that he or she was going to a doctor on a particular date, the employee would not otherwise need to check in at the office concerning the availability of work.
Despite the fact that Ford had advised Tyler of his doctor's appointment scheduled for Tuesday, December 11, when Ford did not report to work that morning, Keith wrote up an "Employee Warning Notice," citing Ford for "disobedience" because he had not shown up for work or called in to advise that he would be off. A copy of the notice was placed in Ford's file, and Ford was suspended from work for Wednesday, December 12. Having telephoned the office that Wednesday afternoon, however, to check on the availability of work, Ford reported back to work the morning of Thursday, December 13. Keith called him into the office, told everybody else to leave the office, and handed Ford a copy of the warning notice. He told Ford that he was tired of all the other employees' complaining about Ford's being there and that those other employees were not going to do Ford's job for...
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