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Whether The Unsafe Use Of A Safety Device Is Sufficient To Support A Co Employee Liability Claim Based On The Alleged Removal Of A Safety Device

In Bates v. Riley, the Alabama Court of Civil Appeals examined whether the unsafe use of a safety device was sufficient to support a co-employee liability claim based on the alleged willful or intentional removal of a safety device. 2013 Ala. Civ. App. LEXIS 32 (Ala. Civ. App. Feb. 1, 2013).

Plaintiff Jack Bates and Defendant Robert Riley were both employed at a Dixie Pellets plant in Selma, Alabama. The plant specialized in creating wood pellets through a mechanical grinding process. Pocket feeders are used to grind wood chips which are then fed into a hammer mill and additional grinders until the wood is reduced to fine particles that can be formed into pellets. 

The pocket feeders are equipped with magnets to prevent sparks caused by metal contacting metal. Finely ground wood chips are combustible and sparks could lead to an explosion. The pocket feeders routinely clog and the magnets are cleaned approximately once per shift. Prior to unclogging the pocket feeders or cleaning the magnets, power to the machine was to be cut and a locking mechanism was to be employed.

On April 23, 2009, the plaintiff was called to investigate a clog above one of the hammer mills. The plaintiff requested that the power be shut down and then attempted to unclog the machine. The defendant watched the repair and held a “limiting switch” on the machine which kept the machine from shutting down completely. After 10-15 minutes, the defendant, believing that the machine had been unclogged and that plaintiff had completed his chore, released the limiting switch and requested that power be restored to the machine.  At that moment, Plaintiff placed his hand back into the machine, the machine activated, and the plaintiff’s right hand was pulled into the machine. The plaintiff suffered serious injuries.

The plaintiff filed a lawsuit asserting that the defendant proximately caused the accident by willfully and intentionally removing a safety device. At trial, the jury awarded $10,000.00 to the plaintiff. The plaintiff appealed the sufficiency of the judgment. The defendant appealed on grounds that the plaintiff had not established each element of section 25-5-11(c)(2) of the Alabama Code.

The Alabama Court of Civil Appeals restated the elements of a co-employee liability claim, based on Ala. Code § 25-5-11(c)(2), as requiring the plaintiff to prove:

(1)  The safety guard or device must have been provided by the manufacturer of the machine;

(2)  The safety guard or device must have been removed from the machine;

(3)   The removal of the safety guard or device must have occurred with knowledge that injury would probably 

       or likely result from that removal; and

(4)  The removal of the safety guard or device must not have been part of a modification or an improvement 

       that rendered the safety guard or device unnecessary or ineffective.


The defendant argued on appeal that the “limiting switch” was never detached from the machine and that the plaintiff had failed to prove the second element of the test. The Court of Civil Appeals agreed and noted that the defendant had not “altered” or physically removed the machines safety mechanisms, but had merely held the switch to prevent the machine from completely shutting down. The court noted that while defendant’s action may have constituted an unsafe practice, the plaintiff had failed to prove that the defendant had removed a safety device from the machine.