In re Jenkins

Decision Date18 January 2001
Docket NumberBankruptcy No. 99-42952-JJS-7. Adversary No. 00-40005-JSS.
Citation258 BR 251
PartiesIn re Edward Dwight JENKINS, Debtor. Greg Fowler, Plaintiff, v. Edward Dwight Jenkins, Defendant.
CourtU.S. Bankruptcy Court — Northern District of Alabama



Daniel D. Sparks, Christian & Small, L.L.P., Birmingham, Alabama, for plaintiff-creditor.

Robert D. McWhorter, Jr., Inzer, Haney & McWhorter, P.A., Gadsden, Alabama, for defendant-debtor.

Rocco J. Leo, Birmingham, Alabama, Chapter 7 Panel Trustee.


JAMES S. SLEDGE, Bankruptcy Judge.

This Adversary Proceeding comes before this Court for trial for a determination of dischargeability of a debt for willful and malicious injury by the debtor under 11 U.S.C. § 523(a)(6). By consent, the parties have tried the issue of the preclusive effect of the state court judgment through briefed argument, together with the transcripts, depositions, and exhibits as evidence upon those issues not necessary to the state court action but required for adjudication under § 523(a)(6). With the close of all the evidence, this Court took the matter under advisement and now renders its findings of fact and conclusions of law as set forth in this Memorandum Opinion in accordance with Fed. R.Bankr.P. 7052, applying Fed.R.Civ.P. 52. This Court concludes that the willful conduct to bypass a safety guard, with the knowledge that the bypass would likely or probably cause injury, and which proximately caused injury, does not rise to the level of intentional tort to cause injury, which is required for the debt to be declared nondischargeable.


This Adversary Proceeding seeks this Court to determine the dischargeability of a willful and malicious injury allegedly caused by the Defendant-Debtor's act or omission. Pursuant to 28 U.S.C. §§ 157(a), 1334(a), 1334(e), and the Standing Order of Reference in the Northern District of Alabama (Ord.Ref.(N.D.Ala. July 17, 1984)), this Court has original and exclusive jurisdiction to hear and determine all cases under title 11. This Adversary Proceeding is brought under 11 U.S.C. §§ 523(a)(6), 523(c) and Fed. R.Bankr.P. 7001(6), and the order of reference in this case has not been withdrawn, thereby in accordance with 28 U.S.C. § 157(b)(1), this Court possesses original and exclusive jurisdiction to determine the dischargeability of this debt. In accordance with 28 U.S.C. § 157(b)(2)(I) this Adversary Proceeding constitutes a core proceeding in which this Court is empowered to enter appropriate orders and judgments. Venue of this Adversary Proceeding is proper and has not been challenged. See 28 U.S.C. § 1409(a); Bankr.L.R. 1070-1, and 1073-1(a). Thereby, this Court concludes, as the parties have jointly consented, that subject matter, in personam, and in rem jurisdiction is proper in this tribunal.


The Plaintiff-Creditor, Greg Fowler, was a meat department employee at the Gregerson's Grocery Store in Oneonta, Alabama. Mr. Fowler's immediate supervisor in the meat department was Mr. Tim Lyons, and Mr. Jenkins was the store manager. On Christmas Eve of 1996, while performing his duties as an employee, Mr. Fowler sustained injuries to his right hand while slicing hams with a meat saw at the store.

Mr. Fowler's injuries are permanent in nature and resulted in a complete loss of the end of one finger and an injury to a second. Mr. Fowler's index finger was amputated through the middle phalanx, and additional surgery was done on the flexor tendon and digital nerve of the middle finger, which was at the time of the initial surgery, left intact. After the initial middle finger surgery was unsuccessful, the Plaintiff's treating physician recommended the amputation of the middle finger at the dip joint.2

Mr. Fowler brought the state court action against Mr. Jenkins pursuant to Ala.Code § 25-5-11, which provides liability for injuries sustained by the willful conduct of a co-employee by removal of a safety guard which causes injury. Such action arises in the Workers Compensation Act as enacted by the Alabama State Legislature, although such action is not a claim for worker's compensation. Rather, the action is one in tort for damages by an exception to the qualified immunity of a co-employee under Ala.Code § 25-5-11(a). See Johnson v. Asphalt Hot Mix, 565 So.2d 219 (Ala.1990). The cause of action is one under joint liability of a third party (supervisory co-employee) with that of the employer. Such cause of action requires that there be willful conduct by the co-employee. Ala.Code § 25-5-11(b). Willful conduct in regards to a safety guard is defined as follows:

The willful and intentional removal from a machine of a safety guard or safety device provided by the manufacturer of the machine with knowledge that injury or death would likely or probably result from the removal; provided, however, that removal of a guard or device shall not be willful conduct unless the removal did, in fact, increase the danger in the use of the machine and was not done for the purpose of repair of the machine or was not part of an improvement or modification of the machine which rendered the safety device unnecessary or ineffective.

Ala.Code § 25-5-11(c)(2) (Michie, 1975).

The Alabama Supreme Court extended the definition to include that the failure to repair a safety device by a co-employee, who was responsible for the safe operation of the machine and was on notice that such device was malfunctioning, not installed, not operational, actually removed, or in need of maintenance or repair equated to the "intentional removal" of such safety feature. Bailey v. Hogg, 547 So.2d 498 (Ala.1989); Harris v. Simmons, 585 So.2d 906 (Ala.1991); Harris v. Gill, 585 So.2d 831 (Ala.1991); Moore v. Reeves, 589 So.2d 173 (Ala.1991). As a general rule, a co-employee does not owe a duty to provide a safe work environment to another employee and thereby cannot be liable for failing to provide a safe work environment. That duty rests squarely upon the employer. However, case law does permit recovery against a supervisory co-employee when he/she has voluntarily assumed or was delegated such employer's duty by his/her position, oversight, or control. Harris v. Hand, 530 So.2d 191 (Ala.1988); Kennemer v. McFann, 470 So.2d 1113 (Ala.1985).

At the time of his injury, Mr. Fowler was eighteen (18) years of age. His duties at Gregerson's Grocery Store included wrapping and packaging meat and cleaning the counter in the meat department. Mr. Fowler only occasionally used the meat saw that was the subject matter of the state court action and this Adversary Proceeding. Moreover, Mr. Fowler had limited instruction as to any particular safety hazards associated with the meat saw. At the time of this accident, as Mr. Fowler was cutting a bone-in ham the shank twisted up into the blade which threw Mr. Fowler's hand into an unguarded meat saw blade. Mr. Jenkins was the store manager at the Oneonta Gregerson's Grocery Store at the time of this incident. Mr. Jenkins testified at the state trial that he, as the store manager, was responsible for the safety of the employees. Mr. Jenkins further testified that at the time of this incident, Mr. Fowler, was an eighteen-year-old after school employee who was neither an authorized nor titled meat cutter. Although acknowledging that Mr. Fowler was not in fact a titled meat cutter, Mr. Jenkins also testified that at the time of this accident, he knew Mr. Fowler was cutting meat.

There was some dispute over the working mechanism of the meat saw guard. Employees described the guard as being one that would begin to slide downward and as not being able to stay in place. In response to this continuing condition of the meat saw guard, the guard was raised to its highest position and there, tied up with butcher twine. Mr. Fowler testified that the guard was tied up at the time of the accident. Mr. Fowler also testified that Mr. Jenkins knew the guard was tied up and knew that it was tied up on the day of his accident, this testimony being denied by Mr. Jenkins. Additionally, Mr. Tim Lyons, the meat department supervisor, testified that on the day of Mr. Fowler's accident, the meat saw guard was tied up and raised to its highest position. Mr. Lyons further testified that Mr. Jenkins absolutely knew that the meat saw guard was tied up, knowledge of which Mr. Jenkins wholly denied.

Mr. Fowler proceeded to a trial by jury alleging that Mr. Jenkins was on notice that the saw blade's safety guard was not operating properly and the Mr. Jenkins failed to have the guard properly maintained or repaired. On August 10, 1999, after a polling of the jury and a unanimous jury verdict being issued, the jury's verdict found Mr. Jenkins liable unto Mr. Fowler for the sum of $100,000.00 for the cause of action under Ala.Code § 25-5-11. To return a verdict in favor of Mr. Fowler and against Mr. Jenkins, the jury, by the jury charge, had to find the following:

(1) that the safety device existed on a machine used in the work place of the plaintiff;
(2) that the safety device on the machine was on the machine to prevent injury;
(3) that the safety device on the machine was
(A) intentionally, willfully, or deliberately removed;
(B) it was intentionally, or willfully bypassed which renders it removed; or
(C) there was a willful or intentional failure to maintain or repair that safety device so that it amounted to a removal;
(4) that the defendant, Mr. Jenkins, was in a supervisory position over the plaintiff with duties of providing the plaintiff with a safe place to work;
(5) that the defendant, knew or should have known that the safety device had been removed from the machine; and
(6) that the removal of the safety device, the intentional removal of the safety device proximately caused the injury that the plaintiff suffered in this case.

Jury Charge, Pl.Exh. 1....

To continue reading

Request your trial
1 cases
  • In re Polishuk, No. 98-02320-M.
    • United States
    • United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — Northern District of Oklahoma
    • January 31, 2001

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT