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WORKPLACE SAFETY - VOLUNTARY INSPECTION - FLEMING V. SANDERS LEAD CO., INC.

Fleming v. Sanders Lead Co., Inc., [Ms. 1141111, Feb. 26, 2016] __ So. 3d __ (Ala. 2016). One worker was killed and another severely injured while working at KW Plastics Recycling Division, LLP (“KWPRD”). Safety for KWPRD was provided by Sanders Lead Co., an affiliate of KWPRD. Plaintiffs allege that Sanders Lead employees undertook to provide safety inspections and that their negligence and wantonness in performing such inspections caused or contributed to the death and injury. The Court reverses a summary judgment for the defendants on a procedural ground – when defendants moved for summary judgment, the voluntary-inspection claim was not included in the complaint, so the parties did not join issue on that claim and no burden fell upon plaintiffs to present substantial evidence on it. The circuit court allowed the amendment to add the voluntary-inspection claim before entering summary judgment, but the defendants did not amend their summary-judgment motion. Thus, although the holding here does not address the voluntary-inspection claim, the description of how a plausible claim can be stated against an affiliated company and its safety employees shows a potential avenue for avoiding worker’s-compensation exclusivity in such a situation.

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