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Pearson v. Brooks12/5/2003
duty regarding the safety and the maintenance of the neck-skinning machine.
Pearson attempts to distinguish Marsh on the basis that Marsh involved a medical-malpractice action. Pearson argues that her case is unlike a medical-malpractice action because a plaintiff in a medical-malpractice action is able obtain a complete set of medical records before the expiration of the limitations period. The definition of ignorance under Rule 9(h), however, is not stated in terms that would restrict it to medical-malpractice cases. If we limited Marsh to medical-malpractice actions, as Pearson's interpretation suggests we should, we would contradict the holding in Columbia Engineering, a negligence action against a construction company, the manufacturer of a scaffold, and fellow employees, that "Rule 9(h) was not meant to excuse ignorance of the identity of a cause of action, but only ignorance of the name of the party against whom a cause of action is stated." 429 So. 2d at 960. Therefore, to gain the protection of Rule 9(h), Pearson must show that she was ignorant of the existence of a relationship between her and her supervisors that might give rise to a duty on their part.
Pearson compares her case to Alexander v. Scott, 529 So. 2d 951 (Ala. 1988), in which the plaintiff claimed that she was ignorant of the existence of a relationship between her and two executives at her employer's company. Explaining why it was appropriate for her to substitute the executives for fictitiously named parties, the plaintiff in Alexander stated in her affidavit in opposition to the defendants' motion for a summary judgment:
"'2. At the time of my injury , I knew Mr. Gerald Cannon and Mr. Mike Scott by name. I knew that Mike Scott was an employee of Dexter Lock, but I did not know his title, his job description or any of his duties. I did not have knowledge of any facts which would give me cause to think or suspect that Mike Scott owed me a personal duty upon which liability could be predicated.
"'3. At the time of my injury , I knew that Gerald Cannon held a high managerial position with Dexter Lock. This is all I knew of Mr. Cannon's job or position. I did not know his job title, his job description, or any of his duties or responsibilities with Dexter Lock other than that he had a high managerial position.'"
Alexander, 529 So. 2d at 953 (emphasis added). In contrast to the plaintiff in Alexander, Pearson knew more than merely Brooks's and Black's names. As previously noted, Pearson knew that Brooks was superintendent of the sanitation department, and she also knew that Brooks would train people in properly cleaning the machines in the plant. Pearson knew that Black was her immediate supervisor in the sanitation department and that he was responsible for certain aspects of plant safety. Therefore, Pearson cannot claim that she was ignorant of any facts that would lead her to believe that she had a cause of action against Brooks and Black, as was the case with the plaintiff in Alexander.
Pearson attempted to minimize her knowledge of Brooks's and Black's identities in an affidavit sworn to on November 1, 2002. In the affidavit, Pearson asserts:
"As a result of the deposition of Mr. Hughes, I learned for the first time that the cause of my accident was the misconduct of Mr. Glenn Brooks and Mr. Michael Black as determined by Mr. Brian Hughes. I also learned for the first time as a result of Mr. Hughes deposition:
"(1) that, as a result of Mr. Hughes' Accident Investigation, it was determined that Glenn Brooks and Michael Black were the individuals responsible for locking out and tagging out the machine on which I was injured;
"(
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