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Ford v. Carylon Corporation11/10/2005
ment as to that claim. Because Video has not met its burden with respect to Ford's retaliatory-discharge claim, we reverse the summary judgment as to that claim and remand the cause for proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Nabers, C.J., and See, Lyons, Woodall, Stuart, Smith, and Bolin, JJ., concur.
Parker, J., concurs specially.
PARKER, Justice (concurring specially).
I concur with the main opinion solely because it correctly interprets § 25-5-11, Ala. Code 1975, thereby precluding recovery by Terry Ford for the injuries he suffered. I am writing specially because I believe that in this case the statute does not adequately fulfill its intended purpose of providing a cause of action for injury or death resulting from the willful conduct of a third party, and I call upon the Alabama Legislature to correct the wording of the statute so that equity may be served in future claims of this nature.
Section 25-5-11, Ala. Code 1975, provides a cause of action for an employee or the employee's estate to recover damages from a third party for personal injury or death that "results from the willful conduct, as defined in subsection (c) herein, of any ... employee of the same employer ...." § 25-5-11(b), Ala. Code 1975. " he willful and intentional failure to install an available safety guard equates to the willful and intentional removal of a safety guard for the purposes of Ala. Code 1975, § 25-5-11(c)(2)." Bailey v. Hogg, 547 So. 2d 498, 500 (Ala. 1989).
Terry Ford was injured on the job that he had held for about two weeks when he lost control of a large vacuum hose into which his arm was drawn. An experienced co-worker had set the machine up without using a "safety T," which some evidence indicates might have prevented, or substantially reduced the severity of, Ford's injuries. Testimony was presented that the employer kept a stock of the safety T's on hand, and the evidence established that the company required the use of the safety T for every job involving the use of a vacuum.
Ford's injuries required surgery and physical therapy. He also received psychological treatment and did not return to work for nearly nine months after the accident. Although it would seem that Ford could have a cause of action under subsection (c) as defined above and in Hogg, such is not to be, as evidenced by the main opinion, because an action for recovery for damages is precluded by subsection (c)(2), which provides an action for the "willful and intentional removal from a machine of a ... safety device provided by the manufacturer of the machine ...." (Emphasis added.) In short, Terry Ford cannot recover for his injuries merely because the uninstalled safety T was not provided by the manufacturer of the vacuum machine.
I believe Terry Ford has suffered an injustice. Unfortunately, the statute as currently worded does not afford him a remedy for this injustice. As tempting as it might be to expand the statute beyond its plain meaning and afford him the remedy he rightfully deserves, by doing so we as judges would be usurping a role that does not belong to us. Judge Robert Bork wrote of just such a judicial temptation to engage in political activism:
"In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, i
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