Hough v. Nichol

549 So. 2d 466, 1989 Ala. LEXIS 590, 1989 WL 115301
CourtSupreme Court of Alabama
DecidedAugust 25, 1989
Docket87-1118, 87-1545
StatusPublished
Cited by1 cases

This text of 549 So. 2d 466 (Hough v. Nichol) 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
Hough v. Nichol, 549 So. 2d 466, 1989 Ala. LEXIS 590, 1989 WL 115301 (Ala. 1989).

Opinion

STEAGALL, Justice.

Plaintiff, James H. Hough, appeals from summary judgments in favor of defendants, Jimmy Nichol, Mitchell Hall, and St. Paul Fire and Marine Insurance Company in an action alleging negligence and negligent failure to inspect.

On August 1, 1983, Hough was employed at ALFAB, Inc., in Enterprise, Alabama, which is in the business of metal fabrication, specifically, building staircases, handrails, wall rails, and mats. While performing his job as a “grinder,” 1 Hough was injured when an overhead crane struck a mobile 20-foot maintenance platform near Hough’s workstation. The platform fell, striking the handrail Hough was working on, causing it, in turn, to strike Hough and render him unconscious.

On August 1, 1984, Hough filed suit in Houston County against Nichol, as plant supervisor at ALFAB; against Hall, as plant manager at ALFAB; against St. Paul Fire and Marine Insurance Company (“St. Paul Insurance”), as the insurance carrier that had contracted to provide ALFAB with workmen’s compensation insurance and coverage, alleging that St. Paul Insurance undertook to make safety inspections and was negligent in that undertaking; and against fictitiously named defendants under Alabama’s Extended Manufacturer’s Liability Doctrine, alleging that they had provided defective operational controls and component parts of the crane involved in the accident.2 Hough’s complaint against Nichol and Hall alleged that, pursuant to Ala.Code 1975, § 25-1-1, each owed a duty to provide Hough with a reasonably safe place to work and to do everything reasonably necessary to protect the life, health, and safety of Hough and that each was negligent in the performance of that duty.

After the case was transferred from Houston County to Coffee County, a hearing was held on the defendants’ motion for summary judgment. On May 23, 1988, the trial court entered summary judgment in favor of Nichol and Hall and made that judgment final pursuant to Rule 54(b), Ala. R.Civ.P., and, on August 15, 1988, entered summary judgment in favor of St. Paul Insurance.

On appeal, Hough argues that the trial court erred in entering summary judgment in favor of St. Paul Insurance on the issue of negligent inspection and as to Nichol and Hall on the issue of co-employee liability-

Because this case was pending prior to June 11, 1987, the review is governed by the scintilla rule. The standard of review this Court must follow in reviewing the trial court’s entry of summary judgment is well settled:

[468]*468“Summary judgment for a defendant is proper when there is no genuine issue of a material fact as to any element of a cause of action and the defendant is entitled to a judgment as a matter of law. If there is any evidence of every element of a cause of action, summary judgment is inappropriate. In determining whether there is any evidence to support every element of a cause of action in this case, this Court must review the record in a light most favorable to the plaintiffs and resolve all reasonable doubts against the defendant.”

Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1986).

We first address Hough’s claim against St. Paul Insurance on the negligent inspection theory. Both St. Paul Insurance and Hough rely on Clark v. Floyd, 514 So.2d 1309 (Ala.1987), as controlling. In that case, this Court stated:

“In Adams v. Travelers Ins. Co., 494 So.2d 401, 403 (Ala.1986), this Court quoted from Barnes v. Liberty Mutual Ins. Co., 472 So.2d 1041, 1042 (Ala.1985):
“ ‘Common law liability to third parties can arise from the negligent performance of even a voluntary undertaking. Beasley v. MacDonald Engineering Co., 287 Ala. 189, 249 So.2d 844 (1971). Under current Alabama law, a worker’s compensation carrier may be liable when it voluntarily undertakes to inspect an employer’s premises for safety. Fireman’s Fund American Insurance Co. v. Coleman, 394 So.2d 334, 338 (Ala.1980). However, in a suit of this nature, a plaintiff bears the burden of proving (1) that the defendant had a duty, or assumed a duty by voluntarily undertaking the inspection; (2) the scope of that duty; (3) whether the duty was breached; (4) whether there was damage or injury; and (5) whether the injury was proximately caused by that breach. Fireman’s Fund, 394 So.2d at 349 (Jones, J,, concurring); see also, United States Fidelity & Guaranty Co. v. Jones, 356 So.2d 596 (Ala.1977).’
“In Barnes, we held that proof of a general inspection of the premises by the insurance carrier was insufficient to establish a negligent inspection when that proof did not contain any evidence of an undertaking by the insurance carrier to inspect the specific area of the plant where the injury occurred. Barnes, 472 So.2d at 1042. In Adams, we refused to accept the plaintiff’s argument that the insurance company’s failure to inspect the plant while it was in operation was, in and of itself, proof of a negligent inspection. Adams, 494 So.2d at 404. Since the inspection had occurred after the plant had shut down for the day, we held that the insurance company had not undertaken a duty to discover any defects in its insured’s operation. Id.”

514 So.2d at 1313-14.

Hough argues that “[t]he duty was breached as a defect in the operation of the crane and the way the crane was set up around various products caused the plaintiff to suffer injury.” However, a complete review of the record shows that St. Paul Insurance never inspected any of the cranes located on ALFAB’s premises. Likewise, St. Paul Insurance never inspected the metal platform that actually caused Hough’s injuries. Wallace Jacobs, St. Paul Insurance’s safety inspector for ALFAB, testified in his deposition:

“Q. Did you ever close up inspect one of them [cranes]?
“A. No, sir.
“Q. Did you ever ask to be able to inspect one of those cranes?
“A. No, sir.
“Q. What other hazards are associated with the cranes?
“MR. ASH: I object to the form. That’s assuming there are hazards associated with it.
“MR. PITTMAN: Same objection.
“Q. Go ahead and answer.
“A. One hazard that would be associated with it you might attempt to move a load over people that were working, chain, sling, cable could fail and drop it a little bit.
“Q. At any time that you were in ALFAB’s plant did you see the cranes in operation?
[469]*469“A. I am sure I did.
“Q. Did you ever see the cranes moving any type of materials over people or over work areas?
“A. Please describe work areas.
“Q. Anyplace that any individual would be walking or working.
“MR. ASH: Would be or was?
“Q. Was, would be.
“A. Let me back up one step. The major reason for cranes being here was to move materials to particular work places where people were working.
“Q.

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Bluebook (online)
549 So. 2d 466, 1989 Ala. LEXIS 590, 1989 WL 115301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hough-v-nichol-ala-1989.