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Cumbie v. L&A;Contracting Co.6/25/1999
REL:06/25/99CUMBIE
NOTICE: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 242-4621), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
OCTOBER TERM, 1998-99
The plaintiff Alice Cumbie appeals a summary judgment entered in favor of the defendants Mark Beisecker, Lee Sims, and Lynn Cox in a personal-injury action filed pursuant to Ala. Code 1975, § 25-5-11 (part of the Alabama Workers' Compensation Act). We affirm.
On August 13, 1994, Cumbie was working for L&A;Contracting Company, Inc. ("L&A;), on a bridge-construction project in Prichard. Beisecker, Sims, and Cox also worked for L&A; in supervisory positions (hereinafter they will be collectively referred to as "the supervisory co-employees"). L&A;uses a machine known as an electric screed, which is manufactured by Shugart Manufacturing Company, Inc. It is approximately 2 feet wide and 100 feet long and consists of two 3/4 -inch drills and three sheathed cables wound on a large drum/spool. According to the testimony, the screed "zigzags" back and forth across freshly poured concrete, producing a smooth finish. After the screed finishes zigzagging across the concrete, a large crane lifts the screed into the air and returns it to its original position so that the process can be repeated. Before the process is repeated, the screed must be reset by manually releasing the tension on the cables. In order to manually release the tension, the employees of L&A;used an emergency crank handle welded onto the drum of the screed.
Cumbie testified that on the day of the accident she and another co-employee, "Tex" French, were in the process of resetting the screed and that French instructed her to hold the crank handle while he let the tension off the cable. Cumbie testified that it was necessary to hold the crank handle in order to keep the cable from "bird nesting" on the drum. Cumbie testified that while she was attempting to reach for the crank handle with her right hand, the handle spun out of control, striking her under the right cheekbone and knocking her unconscious. Cumbie testified that none of the supervisory co-employees was present when the accident occurred and that she had no reason to believe that they intended to injure her. In fact, she stated that her fellow employees had always made a concerted effort to protect her from all harm. Cumbie stated that before the accident the crank handle had been welded onto the screed, but that she did not know who had welded it. Cumbie stated that other employees at L&A;had been injured by the crank handle and that employees were routinely cautioned to be careful around the crank handle. Cumbie filed for, and received, workers' compensation benefits.
Cumbie sued the three supervisory employees, pursuant to § 25-5-11(c)(1) and (c)(2), alleging that intentional and willful conduct on their part had proximately caused her injuries. The trial court entered a summary judgment in favor of the supervisory co-employees, and Cumbie appealed.
When reviewing the Disposition of a motion for a summary judgment, this Court uses the same standard of review the trial court uses "in determining whether the evidence before the court made out a genuine issue of material fact." Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala. 1988). When a party moving for a summary judgment makes a prima facie showing that there is no genuine issue of material fact and
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