Parker v. Thyssen Min. Const., Inc.

• Decision Date: 04 March 1983
• Citation: 428 So.2d 615
• Parties: D.L. PARKER v. THYSSEN MINING CONSTRUCTION, INC. 81-737.
• Court: Alabama Supreme Court

Page 615

428 So.2d 615

D.L. PARKER v. THYSSEN MINING CONSTRUCTION, INC.

81-737.

Supreme Court of Alabama.

March 4, 1983.

Stanley Jay Murphy of Murphy & Murphy and Paul E. Skidmore, Tuscaloosa, for appellant.

Robert B. Harwood, Jr. of Rosen, Harwood, Cook & Sledge, Tuscaloosa, for appellee.

SHORES, Justice.

The plaintiff, D.L. Parker, appeals from a summary judgment granted in favor of the defendant corporation, Thyssen Mining Construction, Inc. (TMCI). We affirm.

Parker was injured in the course of his employment with TMCI on November 28, 1979, while supervising the construction of a concrete block wall in Jim Walter Mine No. 4, an underground coal mine in Tuscaloosa County leased and operated by TMCI. Parker was standing on top of the wall, pouring cement into the gap between the wall and the rock facing of the mine, when the wall collapsed beneath him. He sustained various personal injuries and recovered workmen's compensation benefits in a separate action, as provided under Ala.Code 1975, § 25-5-1, et seq.

Following Parker's injury, officials of TMCI twice collected samples of the mortar mix used in constructing the wall for analysis to determine whether the mix was defective. After his return to work, Parker asked his superiors on several different occasions whether the samples had been tested; at one point, he offered to personally pay for the testing. His superiors told Parker only that the samples had been collected for analysis, and that TMCI's headquarters in Denver had ordered them not to discuss the matter any further with Parker. It is undisputed that Parker never received any mortar samples or test results from TMCI prior to the present action.

On July 30, 1980, Parker filed suit under the Alabama Extended Manufacturer's Liability Doctrine against TMCI and several other defendants, who either manufactured or distributed the mortar mix used in constructing the wall that collapsed. Parker's complaint alleged that the proportion of sand to cement in the mix was too great, resulting in insufficient adhesive strength to properly join the blocks together. In addition, Parker claimed that TMCI's actions following his injury damaged his claim against the manufacturer of the mortar mix. Parker later amended his original complaint to charge TMCI with fraudulent deceit and negligence in handling the mortar samples.

In February, 1981, the trial court ordered TMCI to deliver all mortar samples from the collapsed wall in its possession to the University of Alabama School of Engineering for testing and analysis. The results of this analysis proved inconclusive.

TMCI subsequently filed a motion for summary judgment, based on the pleadings, the supporting affidavit of its attorney, and the deposition of D.L. Parker. Parker filed a brief in opposition, urging the trial court to follow the lead of other jurisdictions in permitting such suits outside the Workmen's Compensation Act. The trial court, finding no genuine issue as to any material fact involved, granted TMCI's request for summary judgment. All other defendants were also dismissed, either by summary judgment or by plaintiff's motion. Parker appeals from only that judgment granted TMCI, and we affirm.

We note at the outset that Parker's suit does not seek compensation from TMCI for his physical injuries sustained in the course of his employment. It is well-settled that an action brought under our Workmen's Compensation Act is the exclusive remedy in situations where the employee sues his employer for injury in the course of his employment. Kilgore v. C.G. Canter, Jr. & Associates, Inc., 396 So.2d 60 (Ala.1981); Ala.Code 1975, §§ 25-5-51, 25-5-53. Rather, Parker claims economic injury as a result of TMCI's actions following his injury from the collapsed wall. Counsel summarizes his client's contentions:

"Parker contends that immediately after his injury TMCI became aware that one of the possible causes for the accident was improperly manufactured mortar mix. Acting upon this knowledge TMCI secured samples of the mortar mix for purposes of testing and evaluation. TMCI made a commitment to recover and test samples of the mortar mix. A short time after the injury TMCI further became aware that Parker intended to investigate and to pursue a products liability action against the manufacturer and distributor of the defective mortar mix. Parker relied upon TMCI's collection of the samples, and TMCI was aware of that reliance. These circumstances and TMCI's knowledge of them created the following legal duties on its part:

"1. TMCI had the duty to take reasonable care to insure that the mortar mix samples were procured and preserved.

"2. TMCI had the legal duty to make available the samples of mortar mix or test results based upon those samples to Parker or his counsel for evaluation of a potential products liability action.

"3. TMCI had the duty to take no action which would reduce the evidentiary value of the samples which it had secured at any products liability trial.

"Parker contends that TMCI breached each of these duties."

As a result, Parker claims that his chances of success in his third-party action against the manufacturer of the mortar mix have now been greatly diminished.

Parker argues that, by securing the samples of mortar mix, TMCI established the duty for itself to use reasonable care in the preservation of potential evidence. Alabama recognizes that one who volunteers to act, though under no duty to do so, is thereafter charged with the duty of acting with due care and is liable for negligence in...