Procter & Gamble Co. v. Staples

Decision Date30 June 1989
Citation551 So.2d 949
CourtAlabama Supreme Court
PartiesPROCTER & GAMBLE COMPANY v. Sandra Radford STAPLES, as administratrix of the Estate of Mark Steven Staples, deceased. 87-1090.

Oakley Melton, Jr. of Melton & Espy, Montgomery, and Glenn F. Manning of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, and Joseph E. Conley, Jr. of Dinsmore & Shohl, Cincinnati, Ohio, for appellant.

Shay Samples and James P. Rea of Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham, and Gary V. Conchin of Higgs & Conchin, Huntsville, and Marcia W. Pratt, Birmingham, for appellee.

PER CURIAM.

Plaintiff's decedent was killed in an industrial accident involving a finishing line compactor operated on the premises of his employer, Buckeye Cellulose Corporation ("Buckeye"), a separately incorporated, wholly owned subsidiary of Procter & Gamble Company ("P & G"). P & G appeals from a judgment based on a jury verdict in favor of the plaintiff.

The case went to trial on two theories. First, plaintiff alleged that P & G negligently performed safety inspections at Buckeye and that, as the result of the allegedly negligent inspections, plaintiff's decedent was killed. Second, plaintiff strenuously argues that the case was also tried on the theory that P & G, failed to provide plaintiff's decedent with a safe workplace; P & G, with similar tenacity, argues that the case was not tried on that theory.

As a threshold matter, we conclude that the case was, in fact, tried on both theories. Throughout the record, we find remarks by both parties' lawyers and by the trial court demonstrating uncertainty regarding whether the case was being tried on both theories, or only on the negligent inspection theory. At the pretrial conference, the plaintiff struck the count of her complaint that alleged that P & G owed, but breached, a duty to provide the plaintiff's decedent with a safe workplace. Despite at times agreeing that the case was strictly being tried on the negligent inspection theory and initially marking the requested instructions on the failure-to-provide-a-safe-workplace claim "Refused," the trial court at other times wavered, and eventually charged the jury on both theories. We are of the opinion that the jury, therefore, could have returned its verdict on either theory, and that the two theories are sufficiently different that a general verdict, in the context of this case, can not stand. Aspinwall v. Gowens, 405 So.2d 134 (Ala.1981).

P & G has raised nine issues for review. We need to address but two. We frame the first issue thusly: Can an entity not part of the corporate or business infrastructure of a worker's employer be charged with the duty to provide a safe workplace for the employer's worker?

The duty to provide a safe workplace is a duty imposed by statutory law on all employers. Code 1975, § 25-1-1(a), provides:

"Every employer shall furnish employment which shall be reasonably safe for the employees engaged therein and shall furnish and use safety devices and safeguards and shall adopt and use methods and processes reasonably adequate to render such employment and the places where the employment is performed reasonably safe for his employees and others who are not trespassers, and he shall do everything reasonably necessary to protect the life, health and safety of his employees and others who are not trespassers." (Emphasis added.)

"Employer" is defined as:

"[E]very person, firm, corporation, partnership, joint stock association, agent, manager, representative, foreman or other person having control or custody of any employment, place of employment or of any employee, but the terms of this section shall not be construed to cover the employment of agricultural workers or domestic servants."

Code 1975, § 25-1-1(c)(1). Reading these provisions together, we conclude that the duty to provide a safe workplace is imposed upon the one who has control or custody of the employment or place of employment.

Is that duty delegable? In Fontenot v. Bramlett, 470 So.2d 669 (Ala.1985), this Court observed the following regarding § 25-1-1:

"In accord with this statute, which is merely a codification of earlier common law, Foreman v. Dorsey Trailers, Inc., 256 Ala. 253, 54 So.2d 499 (1951), it has been recognized that, under proper facts, supervisory personnel, including corporate officers, may be held liable as employees for negligently failing to provide their subordinates with a reasonably safe place in which to work. Fireman's Fund American Insurance Co. v. Coleman, 394 So.2d 334 (Ala.1980); United States Fire Insurance Co. v. McCormick, 286 Ala. 531, 243 So.2d 367 (1970). Such liability may be imposed if it is proved that, as a part of their responsibilities, the defendant[§ who were] supervisory personnel were delegated or assumed their employer's duty to provide a safe work place or a material portion of that duty. Coleman, supra, at 336-38."

Fontenot, 470 So.2d at 672 (emphasis added). The defendant co-employee in Fontenot argued that "the employer's statutory duty under § 25-1-1 is non-delegable and, therefore, may not be the basis for co-employee liability." This court answered:

" While he is correct that § 25-1-1 imposes a duty to provide a safe work place upon an employer alone based solely upon his status, he apparently fails to perceive that the statute in no way prohibits the imposition of liability upon co-employees, including supervisors or corporate officers, where, as stated above, they are delegated or voluntarily assume the duty of maintaining a safe work place."

Id. at 673 (emphasis added).

Both the majority opinion and Justice Jones's concurrence in Fireman's Fund American Insurance Co. v. Coleman, 394 So.2d 334 (Ala.1980), shed light on this topic. The majority in Fireman's Fund held that supervisory employees and corporate officers, in an appropriate factual scenario, could be charged with the duty to provide a safe place to work. Id. at 336-37. Justice Jones likewise addressed the potential liability of co-employees for failing to provide a safe work place:

"Only where the employer, except for employer immunity, owes a duty of due care, the breach of which causes injury, and this duty is delegated by the employer to the co-employee defendant, or voluntarily assumed by him and the defendant breaches this duty through personal fault, can liability be imposed upon the co-employee. As in any negligence claim, the breach consists in the defendant's failure to discharge the delegated or assumed obligation with the degree of care required of a person of ordinary prudence under the same or similar circumstances.

"....

"The chief confusion concerning allowable defenses is focused upon the concept of the employer's 'nondelegable duty' to provide a safe place of employment. Historically, this concept had its inception in the context of the 'fellow servant' doctrine--an available defense under the common law in an employee's suit against his employer. Under the fellow servant doctrine, an employer could not be held liable for a violation of a duty owed to his employee if the performance of such duty was delegated by the master to a fellow employee of the injured plaintiff and the master had exercised due care and diligence in making the delegation. Tyson v. The South & North Alabama R. Co., 61 Ala. 554, 32 Am.Rep. 8 (1878); 53 Am.Jur.2d, Master and Servant, § 302, at 331. Such delegation, exercised with due care, absolved the master of the performance of the duty and, consequently, insulated him from personal liability for the breach thereof. Lovell v. DeBardelaben Coal & Iron Co., 90 Ala. 13, 7 So. 756 (1890).

"The harshness of this doctrine prompted the courts to carve out special sets of circumstances in which the employer could no longer escape responsibility by transposing to a fellow worker of the injured employee the exclusive fault resulting in the injury. It was held that the duty of a master to furnish a reasonably safe work place for his servants was a personal duty which could not be delegated. Foreman v. Dorsey Trailers, 256 Ala. 253, 54 So.2d 499 (1951); Woodward Iron Co. v. Nunn, 205 Ala. 543, 88 So. 659 (1921); Woodward Iron Co. v. Boswell, 199 Ala. 424, 75 So. 3 (1917); Chamberlain v. Southern Railway Co., 159 Ala. 171, 48 So. 703 (1909).

"The instant individual Defendants, with some supporting authority, contend that this concept prevents the employer's delegation of those very duties which they are charged here with failing to perform. Because this duty rests upon the employer and is nondelegable, the supervisory co-employee Defendants claim they cannot be charged with a breach thereof.

"This is a misconstruction of 'nondelegable duty.' This concept is grounded upon the notion that certain duties owed by an employer to his employees are so inherent and fundamental to the employer/employee relationship that the employer cannot escape liability to an injured employee resulting from its breach by delegating its performance to other employees and then seeking refuge in the 'fellow servant' defense. It does not mean the duty in fact cannot be delegated. Indeed, within the corporate employment structure, it can be discharged only through its delegation to persons other than the employer.

" 'Nondelegable duty,' then, means that duty for the breach of which the master, despite its delegation to others, is liable for resultant injuries to the employee. Otherwise, the 'fellow servant' rule charges the injured employee with his co-employee's negligent performance of this delegated duty, thus insulating the employer from liability. This 'nondelegable duty' concept, when applicable, imposes separate and several liability upon the employer and the tortfeasor employee in a claim by a co-employee whose injury results from the breach of such duty."

Fireman's Fund, 394 So.2d at 347-48 (Jones, J., concurring) (footnote omitted).

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    ...that the critical issue is whether the defendant has retained possession and control over the premises. Procter & Gamble Co. v. Staples, 551 So.2d 949, 953 (Ala.1989); Barron v. Construction One, 514 So.2d 1351, 1353 (Ala.1987); Elder v. E.I. DuPont De Nemours & Co., 479 So.2d at 1248; Pate......
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