Over the last 20 years HWC Managing Partner Josh Wright has invested a lot of litigation time and firm resources toward co-employee “removal of safety guard” cases and has had great success in that practice area. Over just the last four years, Josh has successfully resolved seven separate cases under a (c)(2) safety device theory.
Josh stated, “lawyers in our state often believe the exclusivity provision of the Workers’ Compensation Act is an absolute bar to cases against co-employees, or believe (c)(2) cases are often not covered by liability insurance. Fortunately, both those beliefs are incorrect. In fact, these cases are almost always covered by insurance. And, the Alabama Supreme Court has not restricted the legislature’s intent—when it carved out from the exclusivity provision co-employee claims many years ago—to protect injured employees who are harmed by the removal of a safety device, or something tantamount to that removal. Co-employee litigation under 25-5-11(c)(2) is alive and well in our State legislatively and under Alabama caselaw.”
The law is still very favorable in the (c)(2) area to protect employees from the wrongful conduct of co-employees that removed safety devices from a machine, bypassed a guard, failed to repair a damaged safety device, or failed to maintain a machine generally. And, the class of employees that can be sued is broad, to include the actual co-employee who removed a safety device, to the supervisor of machines at a plant, to the director of safety at the plant responsible for machine safety.
“The APJI jury charges were recently amended and the amendment, along with existing caselaw, softened the definition of what must be proven to show ‘willful removal’ of a guard. Namely, that a reasonable person knew or should have known that the removal would likely or probably result in physical injury or death. The fact is true even if the defendant co-employee did not subjectively expect or intend to cause anyone’s injury,” Josh said.
Like the APJI, Alabama caselaw has consistently helped injured workers in the area of (c)(2) co-employee litigation. The Court stated that “neither (c)(2) nor (c)(4) requires a purpose, intent, or design to injure.” See Pettibone v. Tyson, 794 So. 2d 377, 380 (Ala. 2001)(quoting Haisten v. Audubon Indemnity Co., 642 So.2d 404, 406 (Ala. 1994)). The Court has consistently distinguished between the ‘intent to injure’ burden imposed by subsection (c)(1) and the lesser scienter burden imposed by subsection (c)(2). …[T]his Court has applied what was first enunciated by the Legislature in § 25-5-11(c)(2), Ala. Code 1975, that a plaintiff does not bear the burden of proving ‘intent to injure’ under § 25-5-11(c)(2).” Id., 794 So. 2d at 381 (Emphasis added).
Ala. Code, §25-5-11(c)(2) “allows recovery under a finding that a reasonable person had or should have had ‘knowledge that injury or death would likely or probably result,’ even if the defendant co-employee did not subjectively expect or intend to cause injury.” Haisten v. Audubon Indem. Co., 642 So. 2d 404, 407 (Ala. 1994)(emphasis added). See also Pettibone v. Tyson, 794 So. 2d 377, 380 (Ala. 2001)(quoting Haisten and stating “[t]hus, a court which incorporates the “intent” requirement of subsection (c)(1) into subsection (c)(2) confuses the separate fields of operation that the Legislature intended.”).
Unfortunately, co-employee litigation is often well defended, requires multiple experts, is expensive, and can take time to litigate. “But,” Josh added, “the result for employees who are willing to be patient can be big and far greater than traditional workers’ comp awards.”
If your goal is to maximize the recovery of your injured worker beyond the standard Workers’ Compensation Act award, let Hollis Wright evaluate your serious injury cases to assess if a safety device may be the cause of your employee injury.
Contact Josh Wright today if Hollis Wright can help: on line here, firstname.lastname@example.org, email@example.com, or 844.LAW.TALK or 205.324.3600.