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Ford v. Carylon Corporation11/10/2005
he instant action, although Ford charges Eady with removal of the safety T, it seems clear that his true allegation is that Eady never actually installed the safety T on the vacuum hose that caused Ford's injuries. This allegation, however, is functionally equivalent to the allegation of the removal of a safety device, as Hogg indicates.
In his motion for a summary judgment on this issue, Eady argued that the safety T was not "provided by the manufacturer of the machine" and thus that the failure to install the safety T could not constitute willful conduct under ยง 25-5-11(c)(2).
In Harris v. Simmons, 585 So. 2d 906 (Ala. 1991), we held that there was no evidence of willful conduct because the safety guard alleged not to have been installed was not provided by the manufacturer. 585 So. 2d at 907. Three distinct portions of Kulbitskas's deposition testimony, presented in chronological order, are relevant to the issue whether the safety T was provided by the manufacturer:
"Q: [Counsel for Ford:] ... ho is the manufacturer of the particular vacuum on this jetter truck?
"A: On the truck that we -- which one?
"Q: The manufacturer of the vacuum.
"A: That was on this job here?
"Q: Yeah.
"A: That was Clean Earth --
"Q: Clean Earth?
"A: -- Manufacturing, here in Birmingham.
"Q: Located here in Birmingham?
"A: Uh-huh. (Witness indicates affirmatively.)
"Q: Do they build them here in Birmingham?
"A: They build them.
"Q: Oh, really?
"A: They assemble them, yeah.
"Q: Do you have a rep that comes out to visit you, or do you just do direct --
"A: No. We've done business with them quite a while, and they're just pretty much -- it's a corporate account."
Shortly thereafter, the following discussion transpired. Here, Kulbitskas is testifying regarding the hoses connected to the vacuum and used to vacuum material out of the water-treatment tanks:
"Q: Now, do you purchase those hoses? And would you purchase those at Home Depot [building supplies store], or wherever else --
"A: No, we get them from the -- direct from the manufacturer.
"Q: Oh, okay, from the manufacturer of the --
"A: Of the plastic hose.
"Q: Okay. And that would be Clean Earth Manufacturing?
"A: No.
"Q: No. Okay.
"A: I'm trying to think of who sells that hose. I don't know."
Finally, counsel for Ford moved from a discussion of the vacuum and the hoses to the actual safety T:
"Q: ... Could you explain to me what that safety T is for.
"A: That's if -- if there's a problem of the hose getting stuck -- something stuck, you know, to the floor, and you can't get it loose. You ... stuck it into the material too far, and you can't get it out of it, you break the vacuum by allowing air to get into the hose and back to the truck --
"Q: Okay.
"A: -- at some point along the line.
"Q: Okay. So that would be something that was in the hose, or would it be something in the -- or the truck, or the back --
"A: It's on the hose.
"Q: On the hose?
"A: On the hose.
"Q: Okay. And is that something that you would purchase separately from the manufacturer or --
"A: Yes. There are people that sell that particular item.
"Q: Okay. Who are the people that sell that particular item?
"A: I can't think of the name of the compan
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