Landers v. O'Neal Steel, Inc.

• Decision Date: 22 June 1990
• Citation: 564 So.2d 925
• Parties: Ray LANDERS, as administrator of the estate of Gregory Glenn Landers, deceased v. O'NEAL STEEL, INC., et al. 88-971.
• Court: Alabama Supreme Court

Page 925

564 So.2d 925

Ray LANDERS, as administrator of the estate of Gregory Glenn Landers, deceased v. O'NEAL STEEL, INC., et al.

88-971.

Supreme Court of Alabama.

June 22, 1990.

Ray O. Noojin, Jr. of Hare, Wynn, Newell & Newton, Birmingham, for appellant.

R. Stan Morris of Harris, Evans & Downs, Birmingham, for appellees.

George Cocoris, Gen. Counsel, and Craig A. Donley, Asst. Gen. Counsel, Dept. of Indus. Relations, for the Atty. Gen.

ALMON, Justice.

This appeal is from a summary judgment for the defendants in a wrongful death action against the decedent's employer and five of his co-employees. Gregory Glenn Landers ("Greg") was killed when a mechanized drum in which he was working started turning. Greg's father, Ray Landers ("Landers"), brought this action as administrator and personal representative of Greg's estate. The evidence indicated that an electrical short caused the drum to start, but Landers argues that "willful conduct," as defined in Ala.Code 1975, § 25-5-11(c), by the five co-employee defendants, or some of them, proximately caused Greg's death. Landers also argues that the failure of the Alabama Workmen's Compensation Act to provide a remedy for the death of an employee with no dependents, such as Greg, is unconstitutional under § 13 of the Alabama Constitution and the equal protection clause of the 14th Amendment to the United States Constitution, and that, thus, there should be no bar to his action against his employer.

Landers contends that the application of the exclusive remedy provisions of the Workmen's Compensation Act, Ala.Code 1975, §§ 25-5-52 and -53, to his action against his employer, O'Neal Steel, Inc., is unconstitutional. He points out that the only compensation available to the estate of an employee with no dependents is $1000 in burial expenses, see § 25-5-67, whereas, if an employee is only injured or dies leaving dependents, far more compensation is available. The defendants answer that Landers did not raise this issue at trial and did not serve the attorney general with notice, pursuant to Ala.Code 1975, § 6-6-227, that he was challenging the constitutionality of a state statute.

When O'Neal Steel and the co-employee defendants supported their motions for summary judgment with prima facie showings that they were protected by the exclusive remedy provisions of the Workmen's Compensation Act and were entitled to a judgment as a matter of law, the burden shifted to Landers to rebut those showings. Horner v. First Nat'l Bank of Mobile, 473 So.2d 1025 (Ala.1985). At that stage, it became incumbent upon Landers to raise the argument he now asserts. Because he did not do so, the trial court was not presented with any basis on which to deny O'Neal Steel's motion for summary judgment. Therefore, the court did not err in entering the summary judgment for O'Neal Steel. This Court will not review an issue raised for the first time on appeal. Kemp Motor Sales, Inc. v. Lawrenz, 505 So.2d 377 (Ala.1987); Green v. Taylor, 437 So.2d 1259 (Ala.1983).

Furthermore, Landers did not serve the attorney general with notice of his challenge to the constitutionality of the exclusivity provision as applied to his action. Landers argues that § 6-6-227 applies only to declaratory judgment actions, but that contention has been answered in cases such as Fairhope Single Tax Corp. v. Rezner, 527 So.2d 1232 (Ala.1987); Wallace v. State, 507 So.2d 466 (Ala.1987); and Barger v. Barger, 410 So.2d 17 (Ala.1982). After the defendants raised this defense in their appellees' brief, Landers notified the attorney general of the constitutional challenge and served copies of the briefs on the attorney general. The attorney general has filed a motion to strike the constitutional challenge. That motion is due to be granted.

Resolution of the claims against the co-employees requires that we set forth the facts regarding the machine in which Greg was killed. O'Neal Steel designed and constructed the machine for use in its plant. The drum was five feet long and three feet in diameter. It was mounted horizontally and was used for polishing fabricated steel pieces. As the drum turned, rough pieces of slag would be knocked off the steel pieces as they tumbled against each other; the machine was called the "deslagger." The steel pieces were put into and removed from the drum by hand through a door midway along the side of the drum.

The entire drum mechanism was covered by a wooden sound insulating box seven and one-half feet long and five feet high. There were two doors in the box, one on the side for access to the loading door and the other on the end for access to the motor and drive mechanism at one end of the drum. Safety switches were installed in the openings of both of these doors to prevent the motor from operating with either door open. The safety switch on the end door had been taped down, however, so as to allow access to the motor and drive chain while they were in operation. On the outside of the box there was an on/off switch and a timer, both of which had to be engaged for the drum to turn.

The evidence presented on the summary judgment motions indicated that the doorway of the drum was accessible through the door in the box only if the drum stopped rotating with the two doors aligned. Thus, if the drum stopped in any other position, it was necessary to restart it briefly to align the doors. Landers insists that the design of the deslagger was defective because the alignment process could be accomplished only by pressing the safety switch with the door open and watching until the drum door turned into position. He asserts that this design amounts to "willful conduct" within the meaning of § 25-5-11(c), as we shall discuss below. The defendants counter with an argument that the operator did not have to bypass the safety switch, but could simply close the door in the box, engage the drum briefly, open the door to see if the drum door was aligned, and repeat the process until the drum stopped in the right position.

Greg was not killed while trying to align the doors, however. In fact, he had almost finished unloading the drum. To reach the last few pieces of steel, it was necessary for him to extend his head and shoulders into the drum until he could reach the ends. While he was thus inside the drum, it started turning and crushed him. An inspector with the Occupational Safety and Health Administration examined the site to determine the cause of the accident and concluded that a wire had rubbed against the drum until its insulation was worn away and that, at the moment of Greg's accident, it had created a short circuit and engaged the motor. Expert testimony offered by Landers also tended to establish these facts.

Other employees of O'Neal Steel gave depositions or affidavits indicating that the drum would sometimes operate by pressing the safety switch...