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Ford v. Carylon Corporation11/10/2005
d his supervisor that "he could not put himself in another tank," for which he was also reprimanded in writing. This episode could be viewed as an "expression of [Video's] negative attitude toward [Ford's] injured condition" in that he was disciplined for expressing a perceived limitation in his abilities to perform work.
Video, as noted above, asserts that Ford failed to establish a prima facie case of retaliatory discharge. It cites from Aldridge our extensive discussion of the prima facie case a plaintiff must establish, 854 So. 2d at 561-64, arguing that Ford has not presented substantial evidence indicating that his filing of workers' compensation claim was the "sole cause" of the termination of his employment. In that regard, it argues principally that Ford voluntarily resigned and thus that his workers' compensation claim could not have been the sole reason for his termination. The notion that Ford voluntarily resigned has been refuted above. The basis of Video's argument thus being meritless, its argument cannot stand.
Viewing the evidence in the light most favorable to Ford, we conclude that Ford has presented sufficient evidence indicating that he was terminated solely in retaliation for filing his workers' compensation claim. In short, then, we must conclude that Ford made a prima facie showing of retaliatory discharge. Specifically, we must conclude that Ford presented substantial evidence indicating that his employment was terminated and that his termination was solely in retaliation for his filing a workers' compensation claim. The burden thus shifted to Video, which propounded only an unsigned, unsworn "affidavit," the content of which did not eliminate genuine issues of material fact. Therefore, Video having presented no effectively countering evidence, we conclude that it failed to meet the burden that had shifted to it, and we hold that the trial court erred in entering a summary judgment for Video as to Ford's retaliatory-discharge claim.
II. Willful Removal of a Safety Device
Section 25-5-11, Ala. Code 1975, provides, in pertinent part:
"(b) If personal injury ... to any employee results from the willful conduct, as defined in subsection (c) herein, of any ... employee of the same employer ..., the employee shall have a cause of action against the person ....
"(c) As used herein, 'willful conduct' means any of the following:
"....
"(2) The willful and intentional removal from a machine of a ... safety device provided by the manufacturer of the machine with knowledge that injury or death would likely or probably result from the removal ...."
Ford has consistently labeled the violation of this statute as "intentional trespass." Whatever the proper designation, § 25-5-11(b) clearly envisions an action against only a co-employee. Thus only Eady may be the subject of this claim.
This Court, in Harris v. Gill, 585 So. 2d 831, 835 (Ala. 1991), broke § 25-5-11(c)(2) into four elements:
"1. The safety guard or device must have been provided by the manufacturer of the machine;
"2. The safety guard or device must have been removed from the machine;
"3. The removal of the safety guard or device must have occurred with knowledge that injury would probably or likely result from that removal; and
"4. The removal of the safety guard or device must not have been part of a modification or an improvement that rendered the safety guard or device unnecessary or ineffective."
The failure to install a safety device is the equivalent of removing of that device. Bailey v. Hogg, 547 So. 2d 498, 500 (Ala. 1989). In t
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