Kennemer v. McFann

• Decision Date: 15 March 1985
• Citation: 470 So.2d 1113
• Parties: Michael KENNEMER, J.W. Wallace, Charles Partain, and Ricke Jenkins v. Paul J. McFANN, Kathy McFann, and Curtis Broughton. 83-82.
• Court: Alabama Supreme Court

Page 1113

470 So.2d 1113

Michael KENNEMER, J.W. Wallace, Charles Partain, and Ricke Jenkins v. Paul J. McFANN, Kathy McFann, and Curtis Broughton.

83-82.

Supreme Court of Alabama.

March 15, 1985.

Rehearing Denied May 10, 1985.

William W. Sanderson, Jr. of Lanier, Shaver & Herring, Huntsville, for appellants.

John Plunk of Alexander, Corder & Plunk, Athens, for appellees.

JONES, Justice.

This co-employee suit, pursuant to Code 1975, § 25-5-11, presents three issues on appeal: Whether the trial court erred 1) in its oral instructions to the jury with respect to the duties owed to Plaintiffs by Defendants; 2) in its denial of Defendants' motions for a directed verdict and judgment notwithstanding the verdict; and 3) in instructing the jury on certain rules of the road.

Plaintiffs Paul J. McFann and Curtis Broughton ¹ suffered on-the-job injuries while passengers in a truck owned by their employer, Wright and Lopez, Inc., and operated by their immediate supervisor, Michael (Mike) Kennemer, one of the Defendants. Although the case was initiated against multiple third-party defendants, it was submitted to the jury against Mike Kennemer, J.W. Wallace, Charles Partain, and Ricke Jenkins, co-employees of the injured Plaintiffs.

The statement of Plaintiffs' claims may be summarized as follows: 1) the driver of the truck, Kennemer, was negligent in beginning descent of a mountain when he knew or should have known that the truck was overloaded and that it had a defective braking system; in descending the mountain in too high a gear; in descending with excessive speed; in failing to inspect the truck's and its trailer's braking systems; in failing to provide a safe place for Plaintiffs to work; and in failing to implement an effective safety program; 2) supervisors Jenkins, Partain, and Wallace were negligent in inspecting the truck's and its trailer's braking systems; in failing to properly train, instruct, and warn Defendant Kennemer in the use, operation, maintenance, and management of the truck; in failing to provide a reasonably safe place for Plaintiffs to work; in failing to implement an effective safety program; and in failing to warn Defendant Kennemer of the defective condition of the truck's and its trailer's braking systems.

Issue No. 1

Jury Charge re: Defendants' Duty

The jury instruction made the basis of this allegation of error reads:

"Now, the law also says that a person who, under the law, is an employer is required to furnish a reasonably safe place for the employee to work and to furnish safety devices and safeguards and shall adopt and use such methods in the process reasonably adequate to render such employment and places where the employment is performed safe for the employees and others who are not trespassers and he is to meet--he is to do everything reasonably necessary to protect the life, health and safety of his employees. Now, the question is presented then what is an employer and the law says that every person, firm, corporation, partnership, agent, manager, representative, foreman, or other person having control or custody of any employment, place of employment or of any employee is an employer, except for agricultural and domestic servants which does not apply in this case. So, then, the definition of an employer, that is a person who is under a duty legally to furnish a safe place to work and perform reasonably--to take all measures reasonably necessary to render the employment safe is any person, firm, corporation, partnership, agent, manager, representative, foreman or other person having control or custody of any employment or place of employment or any employee."

This instruction, say Appellants, left the jury with the erroneous impression that the law imposed upon co-employee defendants the same duty as that imposed by law upon employers. If the trial judge's instruction had ended here, we would not hesitate to reverse the judgments; however, the above-quoted language is but a portion of his entire charge relating to the co-employee Defendants' legal duty. It is not necessary to set out the whole of his instructions. Suffice it to quote the judge's comments in response to Defendants' objection:

"Well, in answer to that, I want to make it clear that I went over the basic outline of the charges there.... Then I went back and I thought I read the statute.... I just want to point out that I went through the statute and defined the duty. I was merely running through the whole--going over the whole thing to give an overview like an opening statement, and I went back and explained it."

The record supports the trial judge's own explanation that his reference to the "safe place" statute--a duty imposed upon the employer--was a mere background or overview approach from which he then detailed the requirement of assumption or delegation of that duty to or by the co-employee as a requisite for a finding of individual liability. Indeed, the trial court gave the Defendants' requested charges 10 and 13:

"10. The burden is on the plaintiffs in this case to prove with specificity each defendant's duty that was delegated to him by the employer or assumed by said defendant and to prove a breach of this duty before the plaintiffs may recover of said defendants. Plaintiffs may not recover of any defendant solely because of the job or position he occupied with the company at the time of the accident. Such position or job of the defendant, without more, cannot serve as a basis for a co-employee's liability."

"13. You are instructed that the named individual defendants, J.W. Wallace, Ricke Jenkins, Mike Kennemer, and Charles Partain, are the only defendants in this case. If you are reasonably satisfied from the evidence that the plaintiffs' injuries were due to an unknown or unproven cause or to the fault of their employer, Wright and Lopez, Inc., or by some person other than one or more of these named defendants, you may not return a verdict for the plaintiffs in this case."

The subject of co-employee liability has evoked scholarly comment in recent years in both the Alabama Lawyer and the Cumberland Law Review. We quote from J. Smith, Common Law Liability of Supervisory Employee to Subordinate, 40 Ala.Law. 230, 251 (1979):

"Alabama recognizes an employer's common law obligation to employees to provide a safe workplace, to provide safe equipment, to provide a sufficient number of competent fellow workers, to warn employees of danger, and to instruct. A corporate employer can act only through its agents.... Although the master-servant relation by itself imposes no safety duty upon a servant, a servant's undertaking to perform his employment imposes upon that servant a duty to act with reasonable care. Negligent performance by a servant of duties assigned by the employer will result in personal liability...."

In a law review note, Co-Employee and Workmen's Compensation Carrier Suits--Common-Law Assault Upon Workmen's Compensation Exclusivity in Alabama, 11 Cum.Law Rev. 639, 648 (1980), the following appears:

"Obviously, a co-employee must have breached a duty owed to the plaintiff if liability is to attach. Two basic types of duty must be considered. The first type is the common-law duty that every employee owes to his co-employee.... The second type of duty is the duty every employer owes his employees. At common law, this duty required that the employer (1) provide a safe place to work; (2) provide safe appliances, tools, and equipment; (3) warn of dangers of which the employee might reasonably be expected to remain in ignorance; ... (5) promulgate and enforce rules of employee conduct that promotes safety. The Alabama Supreme Court has ruled that the employer 'is held to that degree of care which reasonable and prudent men exercise in their own affairs, or the care and diligence which a man of ordinary care and prudence would exercise for his own protection, or the protection of his property.' Alabama, as well as most states, has codified the employer's duty in what is commonly referred to as a 'safe place' statute." ²

The analysis of these two legal articles, beginning with the employer's duty and then tracing that duty forward to the employee when it is delegated to or assumed by the employee, is in essence the analysis used by the trial judge in the instant jury instructions. Furthermore, his instructions left for the jury's determination all factual issues raised by the evidence.

The trial judge, by quoting portions of § 25-1-1, 1975 Code, when taken in concert with the entire charge, including giving Defendants' requested instructions, informed the jury that the employer is primarily responsible for providing employees a safe place to work, but that that duty may be assumed by or delegated to a co-employee, who may be liable for its breach. Furthermore, it was clear from the judge's instructions that without personal fault on the part of a co-employee defendant, regardless of the liability of some other person, the co-employee defendant must be absolved. We hold, therefore, that the trial judge's charge, when taken as a whole, did not constitute reversible error. Treadway v. Brantley, 437 So.2d 93 (Ala.1983). See, also, Welch v. Jones, 470 So.2d 1103 (Ala.1985).

Issue No. 2

Denial of Motions for Directed Verdict and JNOV

While Appellants/Defendants have argued each of the three issues presented vigorously and thoroughly, it is fair to observe that they treat the directed verdict issue as their major ground for reversal. We agree that this is the most troublesome of the three issues. Our analysis of this issue must encompass an individualized treatment of the evidence as it relates to each individual co-employee Defendant.

We begin with Defendant Partain, who at the time of the accident maintained an office in Cedartown, Georgia, and who had general, administrative responsibility for the company-wide safety program.

Appellees/Plaintiffs have invited our attention to the...