City of Birmingham v. Jenkins, [Ms. 2190224, Dec. 11, 2020], ___ So. 3d ___ (Ala. Civ. App. 2020). In a per curiam opinion, (Moore, Donaldson, and Hanson, JJ., concur; Thompson, P.J., and Edwards, J., concur in the result) the court reverses a summary judgment awarding workers’ compensation death benefits to the dependents of an employee of a City of Birmingham horticulture crew who was shot and killed while cutting grass in the backyard of an abandoned property. The court holds
When no witness can describe how an injury or death occurred in the course of the employment, compensation may be awarded when the circumstantial evidence leads only to an inference of an employment connection. ... In this case, the evidence leads to conflicting inferences as to the nature of the assault, and such conflicts cannot be resolved in a summary-judgment proceeding. See Martin v. Auto-Owners Ins.,57 Ala. App. 489, 492-93, 329 So. 2d 547, 551 (Civ. 1976) (noting that, at the summary-judgment stage, “[t]he trial judge’s role is not to resolve ... factual issues, but to determine if a triable issue exists.”). The trial-court judge, as the fact-finder in a workers’ compensation case, see Ala. Code 1975, §25-5-81(a), is charged with resolving conflicting inferences from the evidence only through a trial on the merits.
Ms. **32-33. Accordingly, the court remands for a bench trial on whether the assault on the employee was directed for reasons personal to the employee or were directed against him as an employee, or because of his employment.