RULE 5 PERMISSIVE APPEAL - REMOVAL OF SAFETY GUARD - 25-5-11(C)(2), ALA. CODE 1975 - SAARINEN V. HALL
Saarinen v. Hall, [Ms. 1160066, Sept. 1, 2017] __ So. 3d __ (Ala. 2017). In this decision by Justice Sellers, (Stuart, C.J., and Parker, Shaw, Main, and Wise, JJ. concur, and Bolin and Bryan, JJ., concur in the result) the Court grants defendant co-employees permission to appeal pursuant to Rule 5 of the Appellate Rules and answers in the negative the following controlling question of law certified by the trial court:
“Is the presence of another saw on the premises that had not been installed and [that] was not manufactured by the manufacturer of the saw in question, the equivalent of the removal of a safety guard under Ala. Code  § 25-5-11(c)(2)?”
The undisputed facts before the Court were that the saw by which the plaintiff was injured was manufactured by Kalamazoo Industries and had at the time of his injury contained a safety guard that was more protective than the guard originally provided by Kalamazoo. Ms. *5. The employer and co-employees had purchased a Dewalt saw with an even more complete safety guard but that saw had not been installed at the time of the plaintiff’s injury. The Court held that these facts did not constitute removal of a safety guard or device within the meaning of § 25-5-11(c)(2). Ms. *9. The Court added a caveat that it did “not express an opinion as to whether the failure to install an allegedly safer machine that is present on the premises and made by the same manufacturer as the machine that injured an employee might come within the operation of § 25-5-11(c)(2).” Ms. *9, fn. 2.