Fleming ex rel. Fleming v. Sanders Lead Co.

201 So. 3d 1160
CourtSupreme Court of Alabama
DecidedFebruary 26, 2016
Docket1141111 and 1141112
StatusPublished

This text of 201 So. 3d 1160 (Fleming ex rel. Fleming v. Sanders Lead Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fleming ex rel. Fleming v. Sanders Lead Co., 201 So. 3d 1160 (Ala. 2016).

Opinion

BOLIN, Justice.

Elmer G. Fleming, an incapacitated person, by and through his wife and guardian, Wanda A. Fleming (“Fleming”), and Jam-arion Williams, a minor dependent of Rodney Williams, by and through his mother and next friend, Laquenta Dixon; Shami-rey Williams, a minor dependent of Rodney Williams, by and through her mother and next friend, Latisha Sandrill Bolden; and Jacory Williams and Demond Williams, minor dependents of' Rodney Williams, by and through their-mother and next friend Kathryn Davis (hereinafter referred to collectively as “the Williams plaintiffs” and sometimes referred to collectively with Fleming as “the plaintiffs”), appeal from a summary judgment in favor of Sanders Lead Company, Inc., Roy Bag-gett, and Donnie Glover (referred to collectively as “the defendants”), on the plaintiffs’ claims alleging that the defendants “affirmatively undertook [a duty] to inspect for, identify and provide remedies to correct jobsite safety hazards” on the premises of the employer of Elmer Fleming and Rodney Williams, KW Plastics Recycling Division, LLP (“KWPRD”), and that the defendants negligently and, wantonly performed the undertaken duty to inspect.

[1162]*1162 Facts and Procedural History

In November 2010, Rodney Williams and Elmer Fleming were employed at EWPRD. Williams was employed, as a supervisor in the shipping department, and Elmer was training to become a shipping supervisor. KWPRD is in the business of selling recycled plastic. KWPRD purchases scrap plastic in the form of baled plastic bottles. After the scrap plastic has been washed,' it is converted into recycled-resin pellets and sold to the packaging industry. KWPRD ships the recycled-resin pellets in tanker-trailers hauled by semi-tractors. The tanker-trailers are delivered to the KWPRD shipping yard by Wiley Sanders Truck Lines (“WSTL”). Once the tanker-trailers are delivered, a KWPRD employee attaches, a tanker-trailer to an Ottawa brand semi-tractor1— which is used for moving tanker-trailers within a shipping yard—and then backs the tanker-trailer into a loading bay. The reeycled-resin pellets -are then blown by pressurized air into the tanker-trailers through hoses connected to the trailers. A KWPRD employee returns the loaded tanker-trailer to the .shipping, yard using the Ottawa semi-tractor. The loaded tanker-trailer is then picked up by WSTL and hauled to its destination.

Edward Ousley was employed' by KWPRD in its shipping department where he had operated the Ottawa semi-tractors for a number ■ of years. Ousley testified that he received on-the-job training on how to operate the semi-tractors from the other drivers of the Ottawa semi-tractors and from the WSTL drivers. Ousley stated that the Ottawa drivers and the WSTL drivers instructed him on the operation of the Ottawa semi-tractor until he was able to demonstrate “enough control where [he] could handle the Ottawa and back the tankers in and out of the hold.” Once Ousley demonstrated an ability to operate an Ottawa semi-tractor, he was allowed to operate one by himself. Ousley further testified that he was never trained to use a spotter when using the Ottawa semi-tractor to back a tanker-trailer into a loading bay. Additionally, Ousley testified that he was never provided any safety policies or procedures regarding the operation of the Ottawa semi-tractor, including using the Ottawa semi-tractor to back a tanker-trailer into a loading bay. Ousley stated that he had used an Ottawa semi-tractor to back a tanker-trailer into the loading bay at KWPRD “thousands” of times without incident.

On November 8, 2010, Ousley began his shift at KWPRD at 6:00 a.m. The weather was sunny and dry. Williams and Elmer entered the area of the loading bay at approximately 10:00 a.m. Williams, who was training Elmer, was familiarizing Elmer with the loading bay and how the recycled-resin pellets were loaded into the tanker-trailers. Ousley testified that Williams instructed him to retrieve a tanker-trailer and to back it into the loading bay. Ousley stated that he took an Ottawa semi-tractor to the shipping yard and hooked it to a tanker-trailer and returned to the loading bay. Ousley testified that before he began to back the tanker-trailer into the loading bay, he checked the outside rearview mirrors of the semi-tractor to ensure that the path behind him was clear. Ousley stated that he saw both Williams and Elmer in the outside rear-view mirrors of the semi-tractor and that they were standing next to each other [1163]*1163approximately 40 feet behind the tanker-trailer. Ousley testified that they were facing the rear of the tanker-trailer and that Williams was motioning for him to “come on back.” Ousley stated that everyone employed in the shipping area of KWPRD was familiar with the arm motion being used by Williams because it was used on a daily basis each time someone would back a tanker-trailer into the loading bay. Ousley testified that as he slowly began to back the tanker-trailer into the loading bay he repeatedly scanned both of the outside rearview mirrors. Ousley stated that for approximately one minute he continued to observe Williams in the mirrors motioning for him to “come on back.” However, Ousley testified that he lost visual contact with Williams and Elmer wheh he closed the distance between the tanker-trailer and the men to about two tanker-trailer lengths. Ousley stated that he assumed that the men had left the loading bay by walking left toward the product-storage silos or to the rear of the loading bay where a door leads to the inside of the KWPRD plant. Ousley testified that each time he acted as a spotter for another driver or someone else acted as a spotter for him, the person acting as a spotter would exit the loading bay in this manner. Ousley stated that he then felt a bump and heard a scream. Ousley testified that after he heard the scream, he put the Ottawa semi-tractor in park, “jumped out,” and ran to the réar of the tanker-trailer to see what had happened. Williams was dead and Elmer suffered a permanent traumatic brain injury when the two men were run over by the tanker-trailer.

Sanders Lead Company, Inc. (“Sanders Lead”), is in the business of recycling lead-acid automobile batteries and is located across the road from the KWPRD plant.2 The Sanders Lead Environmental, Health, and Safety Department (“the EHS department”) was responsible for overseeing KWPRD’s compliance with regulations of the Occupational Safety and Health Administration (“OSHA”) and for providing safety training for KWPRD because KWPRD had no safety department of its Own. Roy Baggett was employed by Sanders Lead and by KW Plastics, Inc. (“KWP”), as the manager of environmental affairs,3 and, as the manager of environmental affairs, he was the head of the EHS department. The EHS department was located in the “training building” on the premises of. Sanders Lead. The EHS department provided orientation and health and safety training to newly hired KWPRD employees on a variety of safety topics, including hazardous materials, forklift operation, bloodborne pathogens, lockout/tag-out procedures, and fall protection. Baggett testified that once a new employee had completed this safety training, the employee was assigned to a particular position at KWPRD where the employee would go through specific on-the-job training for that particular position. Baggett also testified that the EHS department “handled” the OSHA-required safety logs for KWPRD.

The KWPRD supervisors were responsible for conducting weekly or biweekly safety meetings with the employees under their supervision.

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Bluebook (online)
201 So. 3d 1160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fleming-ex-rel-fleming-v-sanders-lead-co-ala-2016.