Noble v. McManus
| Citation | 504 So.2d 248 |
| Parties | Bernard J. NOBLE v. Glover McMANUS, et al. 85-1084. |
| Decision Date | 20 February 1987 |
| Court | Supreme Court of Alabama |
L. Thompson McMurtrie of Hess & McMurtrie, Huntsville, for appellant.
J. Glynn Tubb of Eyster, Key, Tubb, Weaver, & Roth, Decatur, for appellees.
Bernard J. Noble was injured in the line and scope of his employment in February 1984. He filed an action against his employer seeking workmen's compensation benefits; against co-employees seeking damages for negligence, wantonness, and failing to provide Noble a safe place to work; and against Fireman's Fund Insurance Companies, the workmen's compensation insurance carrier for Noble's employer, for negligence and wantonness in performing safety inspections. The trial court granted summary judgments to the co-employee defendants, Glover McManus, John Sivley, and Ronnie Joe Johnson ("co-employees"), and Fireman's Fund. Those summary were made final pursuant to Rule 54(b), Ala.R.Civ.P. Noble appealed. The appeal against Fireman's Fund has been dismissed. Under his "Statement of Issue" the following appears: "The sole issue presented herein is whether the trial court abused its discretion in granting summary judgments on behalf of the Defendants, instead of continuing the hearing until the defendants had complied with the court's outstanding discovery order."
Noble filed a motion to require each of the co-employees to give more definite answers to the following interrogatory: "Please state your job description as given to you by your employer, or in the alternative, attach a copy of it to your answers to these interrogatories." The trial court granted the motion and ordered the co-employees to respond within twenty days. Before this response was made, the trial court granted the co-employees' motion for summary judgment, which was based on "the deposition of the plaintiff and the interrogatory answers on file in this cause."
The co-employees contend that Noble failed to comply with Rule 56(e) and (f), Ala.R.Civ.P., in that he produced no evidence to negate or contradict the materials submitted by the co-employees and failed to file an affidavit to show specifically why a continuance should be granted and why that continuance would result in a showing of genuine issues of material fact.
The pertinent part of Rule 56(e) provides:
Rule 56(f) provides: "Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just." (Emphasis added.)
The co-employees contend that as field superintendent, general foreman, and project superintendent they had no personal duty to Noble and that they assumed no specific safety responsibility or function that was violated under the specific facts of this case. We cannot find where this contention is supported by the evidence before the trial...
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