Hannah v. Gregg, Bland & Berry, Inc.

• Decision Date: 26 April 2002
• Citation: 840 So.2d 839
• Court: Alabama Supreme Court
• Parties: Judy HANNAH, dependent widow of Jerry W. Hannah, deceased v. GREGG, BLAND & BERRY, INC. Judy Hannah, dependent widow of Jerry W. Hannah, deceased v. Westinghouse Electric Corporation et al.

840 So.2d 839

Judy HANNAH, dependent widow of Jerry W. Hannah, deceased v. GREGG, BLAND & BERRY, INC.

Judy Hannah, dependent widow of Jerry W. Hannah, deceased v. Westinghouse Electric Corporation et al.

1095.

Supreme Court of Alabama.

April 26, 2002.

Opinion Overruling Applications for Rehearing September 6, 2002.

Steven D. Tipler and Patrick J. Ballard of Tipler Law Offices, Birmingham, for appellant.

John D. Gleissner of Rogers & Associates, Birmingham, for appellee Gregg, Bland & Berry, Inc.

James A. Harris, Jr., James A. Harris III, and G. Nicole Mapp of Harris & Harris, L.L.P., Birmingham, for appellees Westinghouse Electric Corporation; Electrical Systems Division of Westinghouse Electric Corporation; and Industrial Controls Division of Westinghouse Electric Corporation.

Amici curiae Alabama Branch of Associated General Contractors of America, Associated Builders & Contractors of Alabama, Inc., and Business Council of Alabama, in support of the application for rehearing filed by Gregg, Bland & Berry, Inc.; Matthew C. McDonald and Michael M. Shipper of Miller, Hamilton, Snider & Odom, L.L.C. Mobile.

LYONS, Justice.

Judy Hannah appeals from a summary judgment entered in favor of Gregg, Bland & Berry, Inc. ("GB & B"), and Westinghouse Electric Corporation ("Westinghouse") in a wrongful-death action. Hannah's claims are based upon the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD") and theories of negligence, wantonness, and breach of warranty. We reverse and remand the summary judgment on the AEMLD and negligence claims. Hannah has not argued that the trial court erred with respect to the summary judgment on the wantonness and breach-of-warranty claims. Therefore, those issues are not before us. See Boshell v. Keith, 418 So.2d 89, 92 (1982).

I. Facts

On May 23, 1996, Jerry Hannah was crushed to death between two large industrial machines at a plant operated by Reynolds Metals Company ("Reynolds"). The machines, a "belt wrapper" and a "recoiler," were located a few feet from each other, at the end of what Reynolds referred to as the continuous annealing line ("CAL"). The belt wrapper is used to wind long sheets of aluminum as the aluminum exits an "annealing oven." The belt wrapper moves toward the recoiler to start the process of winding the aluminum into rolls.

The belt wrapper and recoiler were manufactured in the mid-1960s by the McKay Machinery Company. As originally configured, the belt wrapper operated in an overwind direction; the aluminum wrapped over the top of the belt wrapper. In 1985 or 1986, the belt wrapper was modified to wind the aluminum in an under-wind direction. In May 1996, Reynolds hired GB & B to convert the belt wrapper to its original overwind configuration.

Carlos Gregg, a professionally licensed mechanical engineer, was the president of GB & B during the conversion process. GB & B reconfigured the belt wrapper in accordance with Reynolds's specifications. Reynolds's specifications did not include a barrier guard to protect persons working between the belt wrapper and the recoiler. GB & B did not suggest to Reynolds that it include a barrier guard in the specifications. When the conversion process was completed, Reynolds inspected the reconfigured belt wrapper and accepted GB & B's work.

Westinghouse supplied the electrical controls for the CAL, including the belt wrapper, in the 1960s. At that time, Reynolds provided Westinghouse with a full-scale layout of the control station it wanted. Reynolds also specified the types of devices that were to be included in the control stations. Westinghouse drew the schematic for the sequence of operations of the CAL. Westinghouse supplied the logic solenoid, logic relays, motors, operator stations, and control panel for the electrical controls of the CAL. During the design and construction of the control panels, Reynolds instructed Westinghouse to leave additional space on the panels. Reynolds has since used the additional space on the control panels for additional buttons. Reynolds has also removed one of the original operator stations provided by Westinghouse.

Jerry Hannah was a quality-control specialist. His duties included inspecting the recoiler to determine the cause of any scratches on the aluminum. On the day Hannah was killed he had been inspecting the recoiler to determine the source of the scratches that were appearing on the coils of aluminum on the recoiler. Roy Gieske, Peggy Gieske, and Joan Hancock, all Reynolds employees, witnessed the events that culminated with Hannah's becoming trapped between the belt wrapper and the recoiler.

Roy Gieske was operating the CAL when Jerry Hannah was killed. According to Gieske, Hannah had requested that he stop the recoiler so that Hannah could inspect the aluminum for defects. Roy Gieske stopped the recoiler from the control station and walked to the end of the CAL, where the belt wrapper and the recoiler were located. Reynolds employees were instructed to insert a safety or restraining pin into the belt wrapper to prevent its movement before entering the area between the belt wrapper and the recoiler. Roy Gieske noticed that when Hannah walked into the area between the belt wrapper and the recoiler the safety pin had been placed in the belt wrapper to prevent its movement. According to Gieske, Hannah was the only person in the area at the time, and, therefore, he must have inserted the safety pin. Gieske and Hannah walked between the belt wrapper and the recoiler to examine the aluminum. Hannah examined the recoiler at least once more without complication.

Near the end of his shift, Hannah decided to examine the recoiler for a third time. Roy Gieske, Peggy Gieske, and Joan Hancock had been in the operator station during Hannah's first two inspections. Before Hannah inspected the recoiler a third time, Peggy Gieske, Roy Gieske's wife, left the operator station to return to her work station. Joan Hancock also left the operator station but could still observe the area between the belt wrapper and the recoiler from her work station. According to Hancock, Hannah was standing on the right side of the coil, on the outer edge. Hancock stated that as Hannah examined the recoiler he would "stretch over," and look and feel to test for scratches. According to Roy Gieske, before Hannah motioned for him to start the recoiler, Hannah had leaned in to look at the recoiler and "may have had one foot in the area between the belt wrapper and the recoiler." Hannah signaled for Roy Gieske to stop the recoiler and then signaled for Gieske to turn the recoiler slowly. Gieske testified that he stopped the recoiler and that when he restarted it he intended to press the "# 4 bridle button"; however, Gieske said he was distracted and he turned away from the controls. Instead of pressing the "# 4 bridle button," Gieske pressed another button, which caused the belt wrapper to move forward. Although Gieske did not see which button he actually pressed, the general consensus is that Gieske pressed the "belt wrapper traverse in button." When Gieske saw the belt wrapper moving toward Hannah he immediately pressed the retract button; however, the belt wrapper did not retract.

Hancock also saw the belt wrapper as it moved toward Hannah. According to Hancock, the belt wrapper lifted Jerry Hannah and pushed him into the recoiler. Hancock stated in her deposition that the left side of Hannah's upper body was caught between the belt wrapper and recoiler. The right side of Hannah's body remained free. After the belt wrapper was stopped, Hancock attempted to resuscitate Hannah; however, Hannah died from his injuries.

Neither Roy Gieske nor Hancock noticed whether the safety pin was in place at the time of the accident. Roy Gieske and Peggy Gieske both testified that they did not see Hannah remove the belt wrapper's restraining pin after his first inspection of the recoiler. When Reynolds engineers inspected the accident site, they did not find the safety pin in place.

Judy Hannah, Jerry Hannah's widow, sued several defendants, including Danieli Corporation (formerly McKay Corporation), GB & B, and Westinghouse, alleging negligence and breach of warranty based upon the failure of those defendants to include a safety feature, such as a barrier guard, an interlocking device, or a presence-sensing device, in the area between the belt wrapper and the recoiler. Danieli Corporation, GB & B, and Westinghouse each moved for a summary judgment. The trial court entered a summary judgment in favor of GB & B, and Westinghouse; each moved for a summary judgment. The trial court entered a summary judgment in favor of GB & B and Westinghouse; it denied Danieli's motion for a summary judgment. The trial court certified the summary judgments for GB & B and Westinghouse as final. See Rule 54(b), Ala. R. Civ. P.¹ Hannah appeals the summary judgments in favor of GB & B and Westinghouse.

II. Standard of Review

In determining whether a summary judgment was proper, this Court applies the "substantial evidence" rule. Under this rule, once the movant makes a prima facie showing, required by Rule 56(c), Ala. R. Civ. P., that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law, the nonmovant must introduce substantial evidence creating a genuine issue of material fact. Warehouse Home Furnishing Distribs., Inc. v. Whitson, 709 So.2d 1144, 1151 (Ala.1997). 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). In reviewing a summary judgment, we examine the evidence in the light most favorable to the nonmovant, and we resolve all doubts against the movant. Cantrell v. North River Homes, Inc., 628 So.2d 551, 553 (Ala.1993).

III. Liability of...