Harris v. Hand

• Decision Date: 22 July 1988
• Citation: 530 So.2d 191
• Parties: Robert G. HARRIS, Jr. v. Danny HAND. 86-1032.
• Court: Alabama Supreme Court

Page 191

530 So.2d 191

Robert G. HARRIS, Jr. v. Danny HAND.

86-1032.

Supreme Court of Alabama.

July 22, 1988.

Rehearing Denied Aug. 19, 1988.

Oscar W. Adams III, Birmingham, for appellant.

Eugene D. Martenson and William G. Gantt of Huie, Fernambucq & Stewart, Birmingham, for appellee.

MADDOX, Justice.

This is an appeal by plaintiff, Robert G. Harris, Jr., from a summary judgment in favor of defendant, Danny Hand, in a co-employee suit brought under the third-party provisions of the Workmen's Compensation Act (Ala.Code 1975, § 25-5-11). We affirm.

Harris sustained personal injuries on August 5, 1981, when he fell from a ladder on the jobsite of his employer, Seyforth Roofing Company. Seyforth was engaged in reroofing a housing project. At the time of his fall, Harris was standing on a ladder talking with his supervisor, who was working on top of a two-story building. Harris injured his head, shoulder, and back. By amendment to his complaint, he substituted Danny Hand, president of Seyforth Roofing, for certain fictitiously described defendants, namely those defendants who "had a duty to issue warnings or instructions regarding the use of the ladder ..., who had the right to control the work being done at the time of the occurrence ..., who were co-employees of the plaintiff [and] negligent on the occasion ..., [and] who had any responsibility for safety with regard to the work done." The trial court granted Hand's motion for summary judgment and made the judgment final pursuant to Rule 54(b), Ala.R.Civ.P.

In order for a movant to be entitled to a summary judgment, he must show that there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P.; Smith v. American Cast Iron Pipe Co., 370 So.2d 283 (Ala.1979). The facts in the instant case are undisputed. The issue is whether those facts entitled Hand to a judgment as a matter of law.

Section 25-1-1 imposes on employers the duty to provide reasonably safe employment. A co-employee is not liable to another employee unless he (1) voluntarily assumed or (2) was delegated his employer's duty to provide a reasonably safe workplace. Fontenot v. Bramlett, 470 So.2d 669, 672 (Ala.1985). A plaintiff must also prove that his co-employee breached the assumed (or delegated) duty by failure to exercise reasonable care and that this breach proximately caused injury to the plaintiff. Clark v. Floyd, 514 So.2d 1309, 1316 (Ala.1987).

"[T]he fact that a [co-employee] is in an administrative or supervisory position alone does not make that person liable." Clements v. Webster, 425 So.2d 1058, 1060 (Ala.1982). Neither does "[t]he imposition of liability ... arise out of ... the amount of control ... which the co-employee exerts at the workplace," Clark, 514 So.2d at 1316, or "his overall role with regard to the jobsite," Welch v. Jones, 470 So.2d 1103, 1110 (Ala.1985). As this Court stated recently:

" 'Liability of a co-employee must be predicated upon the breach of a personal duty owed to the injured employee and not upon general administrative responsibilities of the third-party co-employee defendant. It is insufficient, for example, to merely allege and prove a generalized duty of a co-employee to provide the injured employee with a reasonably safe place to work. An employee is not liable for injuries to another employee because of the failure of the employer to furnish a safe place to work or suitable appliances or instrumentalities. 57 C.J.S. Master and Servant § 578 n. 33, and accompanying text at 350.

" 'The burden is upon the injured party to prove with specificity the defendant's delegated or assumed duty and its breach for which recovery is sought. The position he occupies, without more, cannot serve as a basis for a co-employee's liability.'

" Fireman's Fund American Insurance Co. v. Coleman, 394 So.2d 334, 347 (Ala.1980) (Jones, J., concurring in the result). See also Kennemer v. McFann, 470 So.2d 1113 (Ala.1985); Welch v. Jones, 470 So.2d 1103 (Ala.1985); Fontenot v. Bramlett, 470 So.2d 669 (Ala.1985)." Rice v. Deas, 504 So.2d 220, 221 (Ala.1986) ("employee" and "employer" emphasized in Rice; other emphasis added).

In the instant case, Hand supported...