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Pearson v. Brooks12/5/2003
2) that it was determined by Mr. Hughes that Glenn Brooks and Michael Black failed to follow sanitation standard operating procedure when they failed to lock out and tag out the machine on which I was injured, and that as a direct result, I suffered injuries;
"(3) that Glenn Brooks and Michael Black were found to have improperly supervised and trained me and my associates in sanitation on the kill floor where I was injured as to the proper method and standard operating procedures on locking out and tagging out;
"(4) that Glenn Brooks and Michael Black were disciplined and/or received citations as a result of their willful misconduct in causing my accident."
Pearson's affidavit does not address her inability to identify either Brooks or Black and her ignorance of the existence of a relationship that could give rise to a duty; rather, it addresses her ability to gather additional evidence to substantiate her claims against Brooks and Black. Pearson's deposition testimony on August 20, 2002, indicated that she was quite familiar with Brooks and Black and their duties and responsibilities at Perdue Farms. The affidavit does not contradict Pearson's knowledge of the existence of a relationship that could give rise to a duty, and, while the affidavit does not in that respect contradict her deposition, it does not avoid the consequences of the rule in Marsh where, as previously noted, we defined ignorance under Rule 9(h) as "ignorance of the existence of a relationship that could give rise to a duty." 732 So. 2d at 989.
Pearson also relies upon Roberts v. Cochran, 656 So. 2d 353 (Ala. 1995). Roberts, a passenger in Cochran's car, was injured when Cochran's car was struck from behind. During the discovery process, Roberts became aware that Cochran applied her emergency brake and not her regular brakes when she tried to stop her car. Thereafter, Roberts amended her complaint to substitute Cochran for one of the fictitiously named parties. Cochran argued that Roberts's claim against her was untimely. This Court held that although Roberts was aware that Cochran owed her a duty to operate the vehicle so as not to wantonly or willfully injure Roberts, she was still permitted to amend her complaint under Rule 9(h) because Roberts did not know that Cochran had misapplied the brakes until after the complaint was filed. Therefore, the Court stated:
"Roberts had no information [before the deposition] that would have indicated that she had a cause of action against Cochran, and it is the public policy of the state that civil actions are not to be commenced without 'substantial justification.' See Ala. Code 1975, ยง 12-19-270 et seq. ('The Alabama Litigation Accountability Act'), which sets forth certain penalties to be assessed against attorneys and/or parties who file civil claims that lack 'substantial justification,' i.e., that are 'frivolous, groundless in fact or in law, or vexatious, or interposed for any improper purpose, including without limitation, to cause unnecessary delay or needless increase in the cost of litigation.'"
656 So. 2d at 355.
Roberts cannot be reconciled with this Court's earlier holding in Columbia Engineering and our later holding in Marsh involving the same issue. Columbia Engineering held that the purpose of Rule 9(h) is not to toll the statutory period of limitations to give plaintiffs more time to formulate a cause of action, but to extend the time in emergency situations where the plaintiff knows he has been injured and has a cause of action against some person or company, but cannot determine through due diligence the party's name. 429 So. 2d at 959. This Court refused to create a special exception to Rule 9(h)
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