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Fictitious Parties Practice – Co-Employee Liability

Means v. Glover, et al., [Ms. 1190660, June 4, 2021], ___ So. 3d ___ (Ala. 2021). The Court (Mitchell, J.; Parker, C.J., and Wise and Bryan, JJ., concur; Bolin and Mitchell, JJ., concur specially; Sellers and Stewart, JJ., concur in the result; Shaw and Mendheim, JJ., dissent) affirms the Pike Circuit Court’s summary judgment dismissing Means’s willful misconduct claims against co-employees. Means was injured on July 8, 2015 when molten lead splashed from a kettle as Means poured sodium hydroxide into the kettle using a forklift. The use of sodium hydroxide in the processing of aluminum dross was a new process at Sanders Lead Company. Ms. **2-3.

On September 27, 2018, Means substituted a number of defendants for fictitious parties named in his original complaint filed on June 2, 2017. Ms. *9. As to the substituted defendants, the Court explains

“In order to avoid the bar of a statute of limitations when a plaintiff amends a complaint to identify a fictitiously named defendant on the original complaint, the plaintiff: (1) must have adequately described the fictitiously named defendant in the original complaint; (2) must have stated a cause of action against the fictitiously named defendant in the body of the original complaint; (3) must have been ignorant of the true identity of the fictitiously named defendant; and (4) must have used due diligence in attempting to discover the true identity of the fictitiously named defendant. Ex parte Tate & Lyle Sucralose [,Inc.], 81 So. 3d [1217,] 1220-21 [(Ala. 2011)].”

Ms. *17, quoting Ex parte Noland Hospital Montgomery, LLC, 127 So. 3d 1160, 1167 (Ala. 2012). The Court holds that Means failed to exercise due diligence in identifying the substituted defendants because “the OSHA report that Means received no later than August 2016 contains the accident notice that Sanders Lead submitted to OSHA following his accident. That notice expressly states that the process Means was undertaking when he was injured ‘was developed with a metallurgist; Vice President of Operations, Bart Sanders; Kelley Grenon and staff from the Casting and Alloying Department.’” Ms. *20.

The Court affirms the summary judgment dismissing Means’s timely-filed claims against his co-employees Glover and Brown. The Court reiterates that willful misconduct claims under § 25-5-11(c)(1) require the injured employee to show

[E]ither 1) “the reason why the co-employee defendant would want to intentionally injure the plaintiff, or someone else,” or 2) “that a reasonable man in the position of the defendant would have known that a particular result (i.e., injury or death) was substantially certain to follow from his actions.” Reed v. Branson, 527 So. 2d 102, 120 (Ala. 1988).”

Ms. *25. Means failed to identify “any evidence in the record that would support a finding that either Glover or Brown would have known that his injury was substantially certain to follow any course of conduct they consciously pursued, see § 25-5-11(c)(1), related to Sanders Lead’s processing of aluminum dross.” Ms. *27.

The Court also affirms the summary judgment as to the claim involving failure to install a safety windshield on the forklift Sanders was operating. The evidence showed that Sanders Lead installed aftermarket safety windshields on certain of its forklifts but did not install a windshield on the forklift Means was operating when he was injured. Ms. *28. However, the Court explains “Section 25-5-11(c)(2) does not provide an injured employee with a cause of action against a co-employee simply because that co-employee did not install a safety device that was available. Rather, § 25-5-11(c)(2) requires the co-employee to have willfully and intentionally removed a manufacturer-provided safety device before liability can be found.” Ms. *30.

Justice Shaw’s dissent, joined by Justice Mendheim, concludes that Means’s appeal was untimely. Ms. **38-51.

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