Dean Leader and William Durall v. Crescencio Pablo, as the dependent spouse of Catalina Estillado (a/k/a Eva Saenz) (Appeal from Jefferson Circuit Court: CV-17-903862)

Rel: August 30, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
SPECIAL TERM, 2024

_________________________

SC-2022-0736
_________________________

Dean Leader and William Durall

v.

Crescencio Pablo, as the dependent spouse of Catalina Estillado
(a/k/a Eva Saenz)

Appeal from Jefferson Circuit Court
(CV-17-903862)
SC-2022-0736

MENDHEIM, Justice.

Catalina Estillado incurred injuries that caused her death as the

result of a workplace accident that occurred in the course of her

employment with ABC Polymer Industries, LLC ("ABC Polymer").

Crescencio Pablo, the surviving spouse of Estillado, initiated an action in

the Jefferson Circuit Court ("the circuit court"), asserting, in addition to

other claims that are not germane to this appeal, a wrongful-death claim

based on § 25-5-11, Ala. Code 1975, against Estillado's coworkers, Dean

Leader and William Durall, alleging that their willful conduct had caused

Estillado's injuries. Specifically, Pablo alleged that Estillado's coworkers

had removed a guard from the machine that caused Estillado's injuries.

Following a bench trial, the circuit court entered a judgment against

Leader and Durall and in favor of Pablo in the amount of $3 million.

Leader and Durall appealed.

Facts and Procedural History

Estillado was an employee of ABC Polymer. ABC Polymer uses

numerous extruder machines to manufacture "extruded polypropylene

products" at a plant located in Helena. In ABC Polymer's plant, there

are multiple "lines" of equipment composed of, among other things,

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"godets," which are groupings of industrial rollers. On August 16, 2017,

Estillado was working at ABC Polymer's plant on "Line 3" at "Godet 1"

when she was "caught in the rolls and material web … while the line was

producing a fibrillated polypropylene fiber …." Estillado was working

alone at the time of the accident; "there were no eye witnesses or video of

the accident." A report created by the United States Department of

Labor's Occupational Safety and Health Administration ("OSHA") during

the course of its investigation of the accident indicates that Estillado

"was most likely cutting or about to cut a wrap on the bottom
roll at Godet 1 with a utility knife and/or scissors. A wrap
occurs when the strands of the web break and the material
wraps around or balls up on a roll. The employer trained and
expected the employees to cut a wrap from the roll while the
line was operating to prevent it from becoming too big and
requiring the line to be shut down."

The cause of Estillado's death, as stated in the OSHA report, was

determined "to be multiple blunt force injuries to the head, neck, torso

and extremities."

Line 3, including Godet 1, was manufactured in 1989 by Faré,

S.p.A. ("Faré"), an Italian company that manufactures extruder

machines. Faré manufactured Godet 1 with various guards to protect the

operator of the machine from injury while the machine is in use. Marco

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Faré ("Marco"), a mechanical engineer, works for Faré as its special

purchaser. Marco's deposition testimony, which was read into the record

during the course of the bench trial below, indicated that Marco was

familiar with Line 3 and had knowledge of how it was designed and

manufactured in 1989. Marco testified that Line 3 was manufactured

with a "security gate or safety gate" on Godet 1 that, Marco confirmed, as

originally designed and manufactured, "electronically interlocked with a

limit switch." Marco explained the operation of the security gate as

follows:

"[Pablo's trial attorney:] And this machine as designed
and manufactured included a [security gate] that was
electronically interlocked?

"[Marco:] Yes. Correct.

"[Pablo's trial attorney:] How did the [security gate] that
was electronically interlocked work? How was it intended to
work?

"[Marco:] It has a base, a steel plate, that if removed,
activates a microswitch which activates a circuit, a safety
circuit.

"[Pablo's trial attorney:] And how does that affect the
rollers?

"[Marco:] The machine, in order to function, needs to be
fed with a plastic film, and for this reason, the gate can be
lifted. In this operation, the operator inserts the film in front
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of the machine, in front of the rollers. Obviously, this
operation has to be executed at low speed, and this is to be
able to make the machine work. For this reason, when the
gate is lifted, it immediately lowers the speed to reduce speed.
It's called a slowdown.

"….

"[Pablo's trial attorney:] So the lifting of the gate and the
safety feature you described would slow down the rollers?

"[Marco:] Yes. Instantly.

"[Pablo's trial attorney:] And make the -- and thereby,
make the machines and the rollers more safe?

"[Marco:] Absolutely, yes.

"….

"[Pablo's trial attorney:] … Can you describe for us how
the security gate would be interlocked with th[e] switch and
how the safety feature works?

"[Marco:] The limit switch … is activated by a metal
plate that's soldered, or welded, with the arm with the
[security] gate. As soon as the gate is moved for any reason,
the switch intervenes, and then the security circuit activates
slowdown mode.

"….

"[Pablo's trial attorney:] So that if the gate is lowered,
the rollers can turn at production speed?

"[Marco:] Yes. …

"….
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"[Pablo's trial attorney:] Is it fair to say that if this
switch is removed from the machine, it becomes unreasonably
dangerous for the operator?

"[Marco:] Yes, that's correct."

Marco also confirmed that it is "necessary that the rollers [in Godet 1] be

guarded when the machine is in production" and that, "if the rollers are

not guarded as designed and manufactured by Faré," then Line 3

"becomes unreasonably dangerous." Marco answered in the affirmative

when asked the following question: "If the machine we've been discussing

as designed and manufactured by Faré had been installed with all safety

features working, is it true that the operator would have been unable to

open the [security gate] and cut wraps at production speed?"

In his deposition testimony, Marco also discussed the electrical

schematic diagrams for Line 3, which were submitted into evidence as

Plaintiff's Exhibits 6 and 7. In discussing Plaintiff's Exhibit 6, Marco

stated:

"[Pablo's trial attorney:] What are we looking at?

"[Marco:] This is of the circuit called emergency chains.

"[Pablo's trial attorney:] Is this an electrical schematics
dealing with the control circuits for these safety features?

"[Marco:] Yes.
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"….

"[Pablo's trial attorney:] Does this drawing show how
the limit switch for the security gate [on Godet 1] is wired?

"[Marco:] Yes.

"….

"[Pablo's trial attorney:] And is it fair to say that Faré
has had possession of this electrical schematic since the date
this machine was manufactured?

"[Marco:] Correct.

"[Pablo's trial attorney:] And it would have been
available to ABC Polymer or Mr. Durall had they requested
it?

"[Marco:] Yes."

Concerning Plaintiff's Exhibit 7, Marco stated:

"[Pablo's trial attorney:] Can you tell us what it shows?

"[Marco:] This is the slowdown circuit, emergency.

"….

"[Marco:] This design shows the position of the switches
on the line group and the switches of the security gate. As you
can note, there's the first godet gate, second godet gate, and
hot rolls gate. These are the security gates on the line, and
what we previously described as the switch is connected to the
security gate.

"[Pablo's trial attorney:] This drawing would allow the
machine to slow down the rollers when the gate was lifted?
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"[Marco:] Correct.

"….

"[Pablo's trial attorney:] And this drawing was also
maintained by Faré since the date this machine was
manufactured?

"[Marco:] Correct.

"[Pablo's trial attorney:] And would have been available
to ABC Polymer or Mr. Durall had they requested it?

"[Marco:] Yes."

Marco's deposition testimony indicated that the electrical schematic

diagrams were given to the original purchaser of Line 3, which was a

company located in Scotland. Marco had no knowledge of whether the

electrical schematic diagrams were passed along to subsequent

purchasers.

ABC Polymer did not purchase Line 3 directly from Faré; it

purchased it second-hand from a third party in 2004. Before purchasing

Line 3, ABC Polymer hired Durall as an independent contractor to travel

to the Netherlands, where Line 3 was then located, to inspect Line 3 to

ensure that it was the proper kind of machine ABC Polymer needed and

to ensure its quality. Durall confirmed during his testimony that, at the

time he inspected Line 3 in the Netherlands, he also inspected various
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documents that were associated with Line 3, including documents

pertaining to how "to operate Line 3," "[t]he safety devices that came with

[Line 3]," "[e]lectrical schematics" or "electrical drawings," and "[t]he

guarding that was available …." Durall submitted into evidence the

documents that were provided with Line 3 at the time that ABC Polymer

purchased Line 3.

It appears that the documents that Marco testified were sent with

Line 3 to the original purchaser in 1989 differ in some respects from the

documents provided to ABC Polymer at the time that ABC Polymer

purchased Line 3 in 2004. Durall was shown Plaintiff's Exhibit 6,

discussed above, and testified that it "does not appear to be the same

drawing that is -- that came with Line 3." Durall answered the following

question pertaining to Plaintiff's Exhibit 6 affirmatively: "But this

schematic is correct that was provided by the manufacturer and this

schematic mostly deals with emergency stops, correct, full stops, right?"

Durall offered the following testimony pertaining to Plaintiff's Exhibit 7,

also discussed above:

"[Pablo's trial attorney:] And this would be the -- an
electrical schematic for Line 3 at ABC Polymer, correct?

"[Durall:] Supposedly so, yes.
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"….

"[Pablo's trial attorney:] And does this diagram or this
schematic include what appears to be a limit switch that is
triggered by raising the gates?

"[Durall:] That would be correct, but it's also not
representative of the line that's at ABC [Polymer's plant].
This only has two godet's and a hot roll. That's not how Line
3 was delivered. This is a completely different line.

"[Pablo's trial attorney:] But Godet 1 identified on this
schematic has a limit switch identified where when you raise
--

"[Durall:] On this diagram, yes.

"[Pablo's trial attorney:] Where when you raise the gate,
the limit switch is triggered, and it slows the rollers down,
right?

"[Durall:] According to this document, yes."

Durall confirmed during his testimony that he did not visibly observe

anything on Line 3, Godet 1, "that would make [him] think that the

[security gate] on Godet 1 should have been interlocked." Durall provided

the following testimony, indicating that, at the time of his inspection of

Line 3 in the Netherlands, Durall thoroughly examined the extensive

documentation associated with Line 3:

"[Durall's trial attorney:] … [T]here was a large box of
documents at the inspection. Did you review them at that time
or did you just inspect [Line 3]?
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"[Durall:] No, I actually pulled the documents -- I had to
pull the documents out to verify that it had the mechanical
prints in there. The scope of what I was trying to do was make
sure that we had the complete machine was [sic] reassembly.

"I was not going to be the person to reassemble [Line 3],
so we carefully went through the documents, made sure the
wiring was complete, reviewed the electrical documents to
make sure all the items in the electrical documents were
actually represented as what [Line 3] was, and checked
everything as thoroughly as possible to make sure all the
documentation was there.

"[Durall's trial attorney:] And this thorough and careful
review of the documents did you find anything at all that
indicated there should be a limit switch at the [security gate
on Godet 1] that would make that guard interlock?

"[Durall:] I never saw anything like that, no."

In examining the documentation and wiring diagram provided to ABC

Polymer with Line 3, Durall further testified:

"[Durall's trial attorney:] What does this -- does this
wiring diagram indicate to you and did it indicate to you while
you were employed at ABC [Polymer] that a limit switch
should have been included on the [security gate] with Godet
1?

"[Durall:] No, this would not."

Leader provided the following similar testimony concerning the

documents that were delivered to ABC Polymer with Line 3 at the time

ABC Polymer purchased the machine:

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"[Durall's trial attorney:] And what does [Defendants'
Exhibit 3] show?

"[Leader:] This shows a slow down circuit.

"[Durall's trial attorney:] All right. Does it show that
there was an interlocking [security gate] on this godet?

"[Leader:] It does not."

Scott Broshetta, Durall's expert witness in forensic electrical

engineering, gave the following testimony at trial concerning what the

documentation provided to ABC Polymer at the time of the purchase of

Line 3 showed:

"[Durall's trial attorney:] Can you explain to the court
what [Defendants' Exhibit 3] shows?

"[Broshetta:] Yes, I can. This would be in Faré's mode of
creating schematics. This would be the area that the initiation
of the slowdown circuit would take place. So this would be --
if there were limit switches on the machine that were used in
conjunction with the lifting of the gate in front of the godets,
this is where those switches would be detailed and located.

"[Durall's trial attorney:] All right. So my follow-up
question is, does this schematic show these limit switches
anywhere and could you explain that and explain what it
actually does show?

"[Broshetta:] Yes. So [to] answer your question, no, it
does not show limit switches anywhere on this page that
would be used to initiate slowdown by means of lifting the
gate in front of the godet rollers. …

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"….

"[Durall's trial attorney:] So do I understand your
testimony, do any of these Faré documents that came with
[Line 3] to ABC [Polymer] indicate that a limit switch should
have been on the [security] gate for that machine?

"[Broshetta:] I reviewed the entire Defendants' Exhibit
2] and I saw nowhere in that entire schematic that detail limit
switches that would be used with the lifting of the gate to put
the machine into slow down mode.

"[Durall's trial attorney:] So that was not contained on
any of the schematic diagrams in the Faré documents that
came to ABC [Polymer] with the machine. Is that what you're
saying?

"[Broshetta:] If what I'm given is Defendants' Exhibit 2
are the schematics that came with [Line 3], then that is true.

"[Durall's trial attorney:] All right. Would an electrician
or an installer looking at these schematics from Faré be made
aware that a limit switch or [security gate] was provided with
[Line 3]?

"[Broshetta:] I don't think either one. There's definitely
no indication of a limit switch. I don't think the schematics
would actually show a [security gate] either, but I can't
confirm the gate itself only the electronic for a limit switch.

"[Durall's trial attorney:] Did the documents indicate to
an electrician or installer that a limit switch should have been
installed with the [security gate]?

"[Broshetta:] No.

"[Durall's trial attorney:] OK. Based on your expertise
and your view of these schematic diagrams … do you believe
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that either Mr. Leader or Mr. Durall should have known to
install a limit switch on the [security gate] and roll stand of
Godet 1 on Line 3?

"[Broshetta:] No, I do not. And after my many years of
reviewing schematics over the course of my career, if I ever
see these schematics, I would not have known to put a limit
switch on the machine."

Following Durall's inspection of Line 3 in the Netherlands, ABC

Polymer purchased Line 3, and it was transferred to ABC Polymer's plant

located in Mexico and installed. Durall testified that, in May 2004, near

the end of the installation process of Line 3 in ABC Polymer's Mexican

plant, he traveled to the Mexican plant, as an independent contractor for

ABC Polymer, to help complete the installation of Line 3. Upon arriving

at the Mexican plant, Durall confirmed that the same documents that

had been with Line 3 in the Netherlands were with Line 3 at the Mexican

plant. Durall confirmed during his testimony that "all the guards that

[he] had inspected in the Netherlands were also in Mexico …."

In 2007, ABC Polymer hired Durall in a full-time capacity to serve

as its director of operations. Subsequently, in 2008 or 2009, Line 3, along

with the same documents that had been with Line 3 in the Netherlands

and in Mexico, was transferred to ABC Polymer's plant in Helena and

assembled there. Durall testified that, after Line 3 was assembled in
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ABC Polymer's Helena plant, he did a thorough inspection and confirmed

that "all the safety guards were installed and installed correctly." Durall

testified, however, that he did not "reach out to Faré to confirm that [Line

3] had all the safety guards as originally designed …." As finally

assembled and installed, Line 3, Godet 1, had the following guards: (1) a

kick bar, which, when activated, completely stops Line 3; (2) an

emergency stop button, which, when activated, completely stops Line 3;

(3) an emergency pull cord, which, when activated, completely stops Line

3; and (4) the security gate, discussed extensively above, which was not

electronically interlocked with a limit switch. Durall testified that he

had never disabled or removed a safety device from a machine owned and

used by ABC Polymer and that he had no knowledge that a safety device

was missing from a machine and failed to take action. In 2015, Durall

resigned from his employment with ABC Polymer to accept a job with a

different company.

Although the security gate on Line 3, Godet 1, was not

electronically interlocked with a limit switch, ABC Polymer had another

extruder machine in its Helena plant that was manufactured by Faré

that did have a security gate on a godet that was electronically

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interlocked with a limit switch. Durall testified that he was familiar with

Line 5 and was aware that a security gate on a godet on Line 5 was

electronically interlocked with a limit switch.

Estillado, who spoke only Spanish, was hired by ABC Polymer on

or about April 15, 2017. At the time of Estillado's hiring, ABC Polymer

had the following general safety rule in place:

"Machine guards are installed as a means of protecting you
from those parts of the equipment which could cause injury
should you make contact while the equipment is in operation.
For this reason, these guards must be left in place except
when maintenance is being performed and then the guard
may be removed only when the equipment controls are locked
out by the person performing the maintenance."

Despite that rule, the affidavit of Luisa Mariel Miller, an employee of

ABC Polymer, contains the following testimony:

"3.) Part of my job at ABC Polymer was to communicate
between supervisors and Spanish speaking employees. I
would do this with the Spanish speaking machine operators.

"4.) I personally knew Catalina Estillado. I was familiar
with the Faré machine located at Line 3. I communicated with
Catalina about how the operators were supposed to cut wraps
that would develop around the rollers. The supervisors told
me to instruct the operators, including Catalina[,] to cut or
remove the wraps at production speed, with the [security
gate] in the up position.

"5.) The operators, including Catalina Estillado, were
instructed to cut the wraps with handheld cutting tools like a
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box cutter. The supervisors did not want to shut the Faré
machine down to remove the wraps, unless it was absolutely
necessary. The Faré machine on Line 3 usually ran during
production with the [security gate] up."

Leader's written statement to OSHA states: "Here we've been running

with the [security gate] up most of time. I say it's just a really bad habit

not keeping guards in place. Even if they needed to cut a wrap they could

raise it up, cut it and then put it back in place." As noted above, Durall

no longer worked for ABC Polymer at the time that Estillado was hired

by ABC Polymer; Durall did not train Estillado. 1

On August 16, 2017, Estillado was working at Line 3, Godet 1. As

set forth above, Estillado was most likely attempting to cut a wrap off of

Godet 1 when her hand got caught in the rollers, pulling her body into

Godet 1. The injuries she sustained as a result of the accident caused her

death.

On September 13, 2017, Pablo filed a complaint against ABC

Polymer seeking workers' compensation benefits under the Alabama

1Durall testified that, when he did work for ABC Polymer, part of

his responsibilities included training new employees how to operate Line
3. Durall also testified that, during his employment with ABC Polymer,
he trained employees to cut wraps off the rollers in Godet 1 by lifting the
security gate and cutting the wraps with a knife while the rollers were
operating at production speed.
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Workers' Compensation Act, § 25-5-1 et seq., Ala. Code 1975. Pablo later

amended his complaint, adding Faré, Leader, and Durall as defendants.

Pablo asserted against Leader and Durall a claim alleging that Leader

and Durall violated § 25-5-11 "by removing, failing to install, or failing to

maintain a safety guard." Pablo also asserted claims of negligence,

wantonness, premises liability, and products liability against the

defendants.

On June 22, 2018, Pablo entered into a settlement agreement with

ABC Polymer for his workers' compensation claim against ABC Polymer,

agreeing to settle that claim for $75,000. On the same day, upon the

motion of Pablo and ABC Polymer, the circuit court entered a judgment

on the parties' settlement agreement but allowed ABC Polymer to

"remain in this case for the limited purpose of protecting its statutory

subrogation lien."

On July 19, 2018, ABC Polymer, Leader, and Durall filed an answer

to Pablo's complaint. On September 10, 2018, Pablo filed a stipulation of

dismissal, dismissing, with prejudice, ABC Polymer from the case. On

September 12, 2018, the circuit court granted Pablo's stipulation of

dismissal, dismissing ABC Polymer, with prejudice, and stating that

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"[t]his case remains pending as to the defendants … Leader, … Durall

and Faré …." On February 27, 2020, after extensive efforts to determine

whether the circuit court had personal jurisdiction over Faré, Pablo and

Faré filed a joint stipulation of dismissal of Faré from the underlying

case. On March 5, 2020, the circuit court entered an order dismissing

Faré, without prejudice.

On June 15, 2021, Leader and Durall filed a motion for a summary

judgment. On July 20, 2021, Pablo filed a response to Leader and

Durall's summary-judgment motion. The circuit court held a hearing on

the summary-judgment motion on July 22, 2021. On August 4, 2021, the

circuit court entered an order granting in part and denying in part

Leader and Durall's summary-judgment motion, stating, in pertinent

part, that "[t]he motion is Denied as to the § 25-5-11(b) claims …. The

Motion is Granted as to any negligence/wantonness claims not permitted

by § 25-5-11(b). The motion is conceded as to premises liability." Pablo's

remaining wrongful-death claim based on § 25-5-11 was then set for a

bench trial.

The bench trial commenced on March 14, 2022. At the close of

Pablo's case, Leader and Durall filed a motion for a judgment on partial

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findings under Rule 52(c), Ala. R. Civ. P., arguing that Pablo had failed

to present a "legally sufficient evidentiary basis for the [circuit] court to

rule in his favor." The circuit court did not rule on that motion at that

time, as is permitted under Rule 52(c). On June 14, 2022, after all the

evidence had been submitted and both sides had rested, the circuit court

entered an extensive final judgment in favor of Pablo on his claim under

§ 25-5-11. The circuit court's judgment states, in pertinent part:

"This is a wrongful death case, and the recovery is
limited by statute to punitive damages. See Ala. Code [1975,]
§ 6-5-410. Punitive damages are determined by the 'gravity of
the wrong done[,] the propriety of punishing the wrongdoer,
and the need for deterring others from committing the same
or similar wrongful conduct.' Deaton, Inc. v. Burroughs, 456
So. 2d 771, 776 (Ala. 1984) (citing Estes Health Care Centers,
Inc. v. Bannerman, 411 So. 2d 109 (Ala. 1982)). [Pablo] has
satisfied each element of his cause of action and is entitled to
punitive damages for wrongful death. Accordingly, this court
finds for the Plaintiff, CRESCENCIO PABLO, and hereby
awards damages in the amount of three-million dollars
($3,000,000.00), jointly and severally against [Leader and
Durall], which is the amount necessary[,] based on the gravity
of the wrong, to adequately punish [Leader and Durall], and
to deter similar conduct from others."

(Capitalization in original.) On July 22, 2022, Leader and Durall

appealed.

After filing the notice of appeal, on August 25, 2022, Leader filed in

the circuit court a "suggestion of pendency of bankruptcy … and
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automatic stay of proceedings," indicating that he had filed a petition for

relief under federal bankruptcy laws in the United States Bankruptcy

Court for the Northern District of Alabama and had listed Pablo as a

general unsecured creditor with a judgment claim of $3,000,000. On

November 27, 2023, the bankruptcy court entered an order determining

that the circuit court's judgment against Leader is "dischargeable

pursuant to 11 U.S.C. § 524(a)." Pablo v. Leader (In re Leader), 656 B.R.

459, 469 (Bankr. N.D. Ala. 2023). As a result, the appellee's brief filed

with this Court states that "only … Durall continues in this appeal."

Durall's brief at i n.1. Pablo acknowledges in his brief that Leader has

been "discharged in bankruptcy." Pablo's brief at 40. Accordingly, it

being apparent from the records before this Court that Leader's appeal

has been abandoned on account of his having the judgment against him

formally discharged, we dismiss the appeal as to him ex mero motu. See

Francis v. Scott, 260 Ala. 590, 594, 72 So. 2d 93, 97 (1954)("When it is

apparent from the court records that on appeal the question has become

moot (or the appeal abandoned), the court will dismiss it ex mero motu.

Willis v. Buchman, 240 Ala. 386, 387, 199 So. 892, 132 A.L.R. 1179

[(1940)]; Coleman v. Mange, 238 Ala. 141, 189 So. 749 [(1939)]; McCord

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v. Lanier, 207 Ala. 663, 93 So. 546 [(1922)]; Postal Tel.-Cable Co. v. City

of Montgomery, 193 Ala. 234, 69 So. 428 [(1915)]; Agee v. Cate, 180 Ala.

522, 61 So. 900 [(1913)].").

Standard of Review

" 'Because the trial court heard ore tenus
evidence during the bench trial, the ore tenus
standard of review applies. Our ore tenus standard
of review is well settled. " 'When a judge in a
nonjury case hears oral testimony, a judgment
based on findings of fact based on that testimony
will be presumed correct and will not be disturbed
on appeal except for a plain and palpable error.' "
Smith v. Muchia, 854 So. 2d 85, 92 (Ala. 2003)
(quoting Allstate Ins. Co. v. Skelton, 675 So. 2d
377, 379 (Ala. 1996)).

" ' " 'The ore tenus rule is grounded upon
the principle that when the trial court
hears oral testimony it has an
opportunity to evaluate the demeanor
and credibility of witnesses.' Hall v.
Mazzone, 486 So. 2d 408, 410 (Ala.
1986). The rule applies to 'disputed
issues of fact,' whether the dispute is
based entirely upon oral testimony or
upon a combination of oral testimony
and documentary evidence. Born v.
Clark, 662 So. 2d 669, 672 (Ala. 1995).
The ore tenus standard of review,
succinctly stated, is as follows:

" ' " '[W]here the evidence
has been [presented] ore
tenus, a presumption of
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correctness attends the trial
court's conclusion on issues
of fact, and this Court will
not disturb the trial court's
conclusion unless it is
clearly erroneous and
against the great weight of
the evidence, but will affirm
the judgment if, under any
reasonable aspect, it is
supported by credible
evidence.' "

" 'Reed v. Board of Trs. for Alabama State Univ.,
778 So. 2d 791, 795 (Ala. 2000) (quoting Raidt v.
Crane, 342 So. 2d 358, 360 (Ala. 1977)). However,
"that presumption [of correctness] has no
application when the trial court is shown to have
improperly applied the law to the facts." Ex parte
Board of Zoning Adjustment of Mobile, 636 So. 2d
415, 417 (Ala. 1994).'

"Kennedy v. Boles Invs., Inc., 53 So. 3d 60, 67-68 (Ala. 2010).
Furthermore, where there are no disputed facts and where
the judgment is based entirely upon documentary evidence,
our review is de novo. Weeks v. Wolf Creek Indus., Inc., 941
So. 2d 263, 268-69 (Ala. 2006)."

E.B. Invs., L.L.C. v. Pavilion Dev., L.L.C., 212 So. 3d 149, 161-62 (Ala.

2016).

Discussion

Pablo brought this action under § 25-5-11. "That section provides

that an employee injured in the scope of his employment may, in certain

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circumstances, bring an action for damages for his injuries, in addition

to any recovery he may be entitled to under the Alabama Workers'

Compensation Act." Layne v. Carr, 631 So. 2d 978, 980 (Ala. 1994).

Section 25-5-11 also "authorizes the dependents of a deceased employee

to file a wrongful-death action against a culpable third party …." Ex

parte Texas Loss Control Sys., LLC, 164 So. 3d 602, 604 (Ala. Civ. App.

2014). Pablo asserts in this case that Durall willfully and intentionally

removed or disabled the electronically interlocking limit switch from the

security gate on Line 3, Godet 1, and also that Durall willfully and

intentionally trained Estillado to bypass the security gate and cut wraps

off the rollers in Godet 1 while they were operating at production speed.

Section 25-5-11 states, in pertinent part, as follows:

"(b) If personal injury or death to any employee results
from the willful conduct, as defined in subsection (c) herein, of
any officer, director, agent, or employee of the same employer
…, the employee shall have a cause of action against the
person ….

"(c) As used herein, 'willful conduct' means any of the
following:

"….

"(2) The willful and intentional removal from
a machine of a safety guard or safety device
provided by the manufacturer of the machine with
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knowledge that injury or death would likely or
probably result from the removal; provided,
however, that removal of a guard or device shall
not be willful conduct unless the removal did, in
fact, increase the danger in the use of the machine
and was not done for the purpose of repair of the
machine or was not part of an improvement or
modification of the machine which rendered the
safety device unnecessary or ineffective."

Concerning claims under § 25-5-11(c)(2), a plurality of the Court of Civil

Appeals, quoting well-established authority, has stated:

"The Alabama Supreme Court has commented: 'Section
25-5-11(c)(2) cannot be construed to allow a coemployee action
in every situation where an employee is injured on the job.
The legislature expressly limited exceptions to the exclusivity
of the workers' compensation scheme.' Layne v. Carr, 631 So.
2d 978, 982 (Ala. 1994). Instead, to succeed in an action under
§ 25-5-11(c)(2), a plaintiff must prove:

" '1. The safety guard or device [was] provided by
the manufacturer of the machine;

" '2. The safety guard or device [was] removed from
the machine;

" '3. The removal of the safety guard or device ...
occurred with knowledge that injury would
probably or likely result from that removal; and

" '4. The removal of the safety guard or device [was]
not ... a part of a modification or an improvement
that rendered the safety guard or device
unnecessary or ineffective.'

"Harris v. Gill, 585 So. 2d 831, 835 (Ala. 1991)."
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Murray v. Manz, 813 So. 2d 918, 921 (Ala. Civ. App. 2001).

In its judgment, the circuit court determined that Pablo had

presented sufficient evidence to satisfy each element of his § 25-5-11(c)(2)

claim. Pertaining to the first element set forth above, the circuit court

determined that it was undisputed that Faré had designed and

manufactured Line 3, Godet 1, with a security gate that was

electronically interlocked with a limit switch so that the rollers in Godet

1 slowed when the security gate was lifted and that Line 3 was shipped

to the original purchaser with that safety device intact. The circuit court

determined that Faré, the manufacturer of Line 3, provided the safety

device (the security gate that was electronically interlocked with a limit

switch) to the original purchaser of Line 3. Pertaining to the second

element of Pablo's § 25-5-11(c)(2) claim, the circuit court determined that,

at the time of Estillado's injury, it was undisputed that the security gate

on Line 3, Godet 1, was no longer electronically interlocked with a limit

switch and, thus, that the rollers in Godet 1 did not slow down from

production speed when the security gate was lifted. Based on that fact,

the circuit court concluded that Durall had "removed" the safety device

that Faré had provided to the original purchaser of Line 3 by not

26
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reconnecting the security gate to the limit switch. The circuit court also

determined that Durall, while employed by ABC Polymer, had trained

employees to cut wraps on the rollers in Godet 1 by lifting the security

gate on Godet 1 and cutting the wraps while the rollers were operating

at production speed. The circuit court determined that such training

provided by Durall was the equivalent of bypassing the safety device,

which ultimately resulted in Estillado's death. Pertaining to the third

element of Pablo's claim, the circuit court determined that Durall knew

that injury to an employee would likely result from his action of failing

to ensure that the security gate on Godet 1 was electronically interlocked

with a limit switch and from his action of training employees to bypass

the security gate. Finally, pertaining to the fourth element of Pablo's

claim, the circuit court determined that the removal of the safety device

at issue in this case was not a modification or an improvement that

rendered the safety device unnecessary.

On appeal, Durall argues that Pablo did not present sufficient

evidence to support the circuit court's judgment in Pablo's favor; Durall

argues that Pablo did not present sufficient evidence to support any of

the elements of his claim. Pertaining to the first element of Pablo's claim

27
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(" '[t]he safety guard or device [was] provided by the manufacturer of the

machine,' " Murray, 813 So. 2d at 921), Durall argues that, although

Pablo demonstrated that Line 3, Godet 1, was manufactured and

provided by Faré to the original purchaser with an electronically

interlocked security gate, Pablo failed to present evidence indicating that

Line 3 was provided to ABC Polymer and Durall with an electronically

interlocked security gate. Durall acknowledges that Line 3 was provided

to ABC Polymer and Durall with a security gate on Line 3, Godet 1, but

he argues that the security gate was not electronically interlocked with a

limit switch at the time ABC Polymer purchased Line 3. Durall argues

that "[t]o allow Faré's alleged provision of the interlocking [security gate]

to someone other than ABC [Polymer] or Durall certainly cannot be in

line with what the legislature intended when drafting this limited

exception for willful employee conduct." Durall's brief at 26-27. As a

result, Durall argues, the circuit court's judgment must be reversed

because, he argues, the first element of Pablo's claim is not supported

with sufficient evidence.

Durall cites numerous cases in this section of his brief, but none of

those cases involve the same situation presented in the present case or

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support his argument. Here, it is undisputed that Faré, the

manufacturer, designed and manufactured Line 3, Godet 1, with a

security gate that was electronically interlocked with a limit switch and

provided Line 3 to the original purchaser with that safety device intact.

The parties have presented no evidence, however, indicating what

happened to the machine from the time it was provided to the original

purchaser until Durall inspected Line 3 in the Netherlands in 2004.

Apparently, however, the security gate on Line 3, Godet 1, was, at some

point, disconnected from the limit switch. Durall has presented

unrebutted evidence indicating that, at the time he inspected Line 3 in

the Netherlands, the security gate on Godet 1 was not electronically

interlocked with a limit switch and that nothing in the documentation

provided to him with Line 3 indicated that the manufacturer had

designed and manufactured it that way. Accordingly, the evidence before

us indicates that the machine was designed, manufactured, and provided

to the original purchaser with the safety device and that it was provided

to ABC Polymer without the safety device. 2

2In its final judgment, the circuit court, citing a specific portion of a

written statement given by Leader to OSHA, states that Leader "testified
to OSHA that all safety devices on Line 3, Godet 1, were original." The
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It appears that Pablo has presented sufficient evidence to support

the first element of his claim. In bringing a claim under § 25-5-11(c)(2),

Pablo is asserting that Durall willfully and intentionally removed a

safety device from a machine that the manufacturer had included as part

of the design and manufacturing of that machine. Obviously, to prove

that a safety device has been removed from a machine, it must first be

proven that a machine was manufactured with a safety device attached

to it. The purpose of the first element of a claim under § 25-5-11(c)(2) is

to demonstrate that the at-issue machine was manufactured with a

safety device attached to it. Pablo has presented unrebutted evidence

demonstrating that Faré designed, manufactured, and provided to the

original purchaser Line 3 with a security gate on Godet 1 that was

electronically interlocked with a limit switch. Further, the limit switch

itself is still present in Line 3; the security gate on Godet 1, however, is

not electronically interlocked with that limit switch. That is sufficient

portion of Leader's statement cited by the circuit court actually states,
however, that Godet 1 "where accident happened is original and so is the
last one." Leader's written statement given to OSHA does not make any
specific comment about the safety devices on Line 3, Godet 1; he simply
indicated that Line 3, Godet 1, was original. That evidence does not
indicate that Line 3 was provided to ABC Polymer with the security gate
on Godet 1 electronically interlocked to a limit switch.
30
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evidence to satisfy the first element of a claim under § 25-5-11(c)(2).

Durall does not dispute that evidence and agrees that the security gate

on Godet 1 was not electronically interlocked with a limit switch when

ABC Polymer purchased Line 3; he instead argues that he was not the

one to remove the safety device. That is a relevant argument in offering

a defense to a claim under § 25-5-11(c)(2), but such an argument goes to

the second element of Pablo's claim, discussed below.

The second element of Pablo's claim is whether "[t]he safety guard

or device [was] removed from the machine." Harris v. Gill, 585 So. 2d

831, 835 (Ala. 1991). In this case, it is undisputed that, at the time of the

accident, the security gate on Godet 1 had been disconnected from the

limit switch, which essentially "removed" the benefit of the limit switch.

The question in this case, however, is not, generally, whether the safety

device was removed but, specifically, whether Durall himself willfully

removed the safety device from Line 3, Godet 1. See § 25-5-11(b) ("If

personal injury or death to any employee results from the willful conduct,

as defined in subsection (c) herein, of any … employee of the same

employer …." (emphasis added)); see also Means v. Glover, 342 So. 3d

539, 550 (Ala. 2021)("[Section] 25-5-11(c)(2) requires the co-employee to

31
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have willfully and intentionally removed a manufacturer-provided safety

device before liability can be found."). The circuit court determined that

Durall had "removed" the safety device by failing to reconnect the

security gate on Godet 1 to the limit switch and by training employees

other than Estillado to cut wraps from the rollers in Godet 1 while they

were operating at production speed. See Murray, 813 So. 2d at 921 ("The

term 'removal' [as used in § 25-5-11(c)(2)] has been extended to include

the failure to install a safety guard or device, Bailey v. Hogg, 547 So. 2d

498 (Ala. 1989); [and] the bypassing of a safety guard or device, Harris

[v. Gill], 585 So. 2d [831,] 837 [(Ala. 1991)] …."); but see Williams v. Price,

564 So. 2d 408 (Ala. 1990)(holding that the failure to give instructions

regarding safety procedures is not equivalent to the removal of a safety

device).

In his brief on appeal, Durall argues that Pablo "presented no

evidence that Durall 'removed' any interlocking feature from the barrier

guard." Durall's brief at 28. Durall argues that the circuit court erred in

determining that Durall had willfully and intentionally "removed" the

interlocking limit switch on Line 3, Godet 1, by failing to install it

because, Durall argues, no evidence was presented indicating that Durall

32
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should have electronically interlocked the security gate with a limit

switch. 3 Durall is correct. Durall presented extensive evidence

indicating that, at the time he inspected Line 3 in 2004, before ABC

Polymer's purchase of it, the security gate on Godet 1 was not

electronically interlocked with a limit switch. Not only was the security

gate not electronically interlocked with a limit switch, but also Durall

presented evidence indicating that there was nothing on Line 3 itself or

in the extensive documentation provided with Line 3 that indicated that

the security gate on Godet 1 should be electronically interlocked with a

limit switch. Durall presented the expert testimony of Broshetta, which

3We note that, in this section of his brief, Durall interweaves the

same argument he raised before -- namely, that he was not "provided"
with the at-issue safety device because, when Line 3 was purchased by
ABC Polymer, the security gate on Godet 1 was not electronically
interlocked with a limit switch. As noted above, that argument is
misguided and not persuasive. It is undisputed that Faré provided Line
3 to the original purchaser with the at-issue safety device. The focus of
this element of Pablo's claim is whether Durall willfully and intentionally
removed that safety device. The evidence indicates that the at-issue
safety device was removed; the question is whether Durall is the one that
willfully and intentionally removed it. Durall does argue that the
evidence does not demonstrate that he was the one to remove the at-issue
safety device and that he never had any knowledge that the security gate
should have been electronically interlocked with a limit switch. As
explained infra, that argument is persuasive.
33
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also indicated that there was no indication that the security gate on

Godet 1 should be electronically interlocked with a limit switch.

Pablo did present the deposition testimony of Marco, which

indicated that the documentation provided with Line 3 to the original

purchaser, which was not ABC Polymer, showed that the security gate

on Godet 1 should have been electronically interlocked with a limit

switch. However, the evidence before us indicates that that

documentation was not provided to ABC Polymer or Durall at the time

Durall inspected and ABC Polymer purchased Line 3, and there is

nothing before us indicating that the documentation provided to ABC

Polymer and Durall was lacking in any way. The evidence indicates that

ABC Polymer and Durall were provided with complete and extensive

documentation pertaining to Line 3 and its operation and components,

including all safety devices, and that none of that documentation

indicated that the security gate on Godet 1 should be electronically

interlocked with a limit switch. There is no evidence explaining the

discrepancy in the documentation, but the end result is that the evidence

before us shows that Durall was provided with extensive documentation

pertaining to Line 3 at the time of his inspection and that that

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documentation did not indicate that the security gate on Godet 1 should

have been electronically interlocked with a limit switch. 4 In other words,

the evidence does not indicate that Durall willfully and intentionally

failed to install an available safety guard.

In determining that Durall had "removed" the at-issue safety

device, the circuit court relied upon Bailey v. Hogg, 547 So. 2d 498 (Ala.

1989), a discussion of which helps provide a contrast to the present case.

In Bailey, an employee was injured in the course of his employment at a

concrete-manufacturing plant. The concrete manufacturer had

purchased a used concrete-manufacturing plant second-hand from

another concrete manufacturer. A supervisor for the concrete

manufacturer that purchased the concrete-manufacturing plant was

responsible for assembling the plant. After assembly of the plant, an

4Marco testified that Faré could have provided the documentation

it had indicating that the security gate on Godet 1 should have been
electronically interlocked with a limit switch but that Durall did not
request such documentation. There is no evidence, however,
demonstrating that Durall had any indication that the documentation
provided to him at the time he inspected Line 3 was incomplete or in need
of supplementation. From the evidence before us, it appears that Durall
was provided with sufficient documentation and that he had no reason to
seek further documentation from Faré to ensure that all safety devices
had been provided and installed.
35
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employee was tasked with cleaning it. While cleaning the assembled

plant, the employee suffered an injury to his thumb when it was caught

between a belt and a pulley on a machine. The concrete manufacturer

had received with the concrete-manufacturing plant "a guard that would

have covered this pulley, but had not installed it." Bailey, 547 So. 2d at

499. The supervisor's deposition testimony indicated that "he knew that

this guard and other guards had been delivered with the plant and that

he knew that they had not been installed, but that he did not know why

the guards had not been installed." Id.

The employee sued the supervisor, among others, under § 25-5-11

alleging that the supervisor had "removed" the guard over the pulley that

caused the employee's injury by failing to install it. The trial court

entered a summary judgment in favor of the supervisor, determining that

the supervisor had acted negligently in failing to install the guard, but

not willfully. The employee appealed.

On appeal, this Court reversed the trial court's judgment, stating:

"By making the willful and intentional removal of a
safety guard the basis for a cause of action without the higher
burden of proof of 'intent to injure' found in [Ala. Code 1975,
§ 25-5-11](a), the legislature acknowledged the important
public policy of promoting safety in the workplace and the
importance of such guards in providing such safety. The same
36
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dangers are present when an available safety guard is not
installed as are present when the same guard has been
removed. To say that an injury resulting from the willful and
intentional removal of a safety guard is actionable but that an
injury resulting from the willful and intentional failure to
install the same guard is not contravenes that important
public policy. To hold that the willful and intentional failure
to install an available safety guard is not actionable would
allow supervisory employees to oversee assembly of new
machinery, instruct their employees not to install the safety
guards, and then, when an employee is injured due to the lack
of a safety guard, claim immunity from suit.

"We hold that the willful and intentional failure to
install an available safety guard equates to the willful and
intentional removal of a safety guard for the purposes of Ala.
Code 1975, § 25-5-11(c)(2). There was evidence from which a
jury could find that [the supervisor's] failure to have the
safety guard installed was willful and intentional. Therefore,
the trial court erred in entering summary judgment in favor
of [the supervisor]."

Id. at 499-500.

In the present case, unlike in Bailey, there is nothing indicating

that Durall willfully or intentionally failed to install a safety device. The

evidence demonstrates that all the information that Durall had did not

indicate that the security gate on Godet 1 should have been electronically

interlocked with a limit switch. Durall installed Line 3 in accordance

with the documentation provided to ABC Polymer along with Line 3, and

there is no evidence indicating that Durall should have had any reason

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to believe that that documentation was lacking in some way. In Bailey,

it was undisputed that the supervisor (the co-employee) in that case was

provided with a safety device, knew that the safety device should have

been installed, and willfully and intentionally made the decision not to

do so. In contrast, in the present case, although Line 3 was manufactured

with the at-issue safety device, there is nothing to indicate at what point

the safety device was uninstalled, there is no evidence indicating that

Durall knew that the security gate on Godet 1 should have been

electronically interlocked with a limit switch, and there is no evidence

indicating that Durall willfully and intentionally chose not to install the

safety device. This case is distinguishable from Bailey. The circuit court

erred in determining that Pablo presented sufficient evidence to support

the conclusion that Durall willfully and intentionally "removed" the at-

issue safety device on this basis.

Durall also argues that the circuit court erred in determining that

he "removed" the at-issue safety device by training employees, other than

Estillado, to bypass the security gate and cut wraps off the rollers in

Godet 1 while they were operating at production speed. Durall, citing

Williams, supra, argues that instructions given to bypass a safety device

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are not the equivalent of removing a safety device from a machine and,

thus, that Pablo's evidence indicating that Estillado was instructed to

bypass the security gate on Godet 1 to cut wraps off of the rollers therein

is not evidence sufficient to prove the second element of his claim. Durall

is correct.

The circuit court did not discuss Williams in its judgment. Instead,

the circuit court relied upon Harris, which is distinguishable from the

present case. In Harris, a company purchased a punch press from a used-

equipment dealer approximately 40 years after it had been

manufactured. 585 So. 2d at 833. This Court provided the following facts

concerning the machine and its safety devices:

"When the press arrived at [the company's plant], it was
basically unusable. It was neither equipped with nor
accompanied by any safety buttons, guards, or devices. [The
company's] engineering department had to rewire and rework
the press in order to get it operational. In June 1985, when
the press first was put into operation at [the plant], it had a
panel across the front that had been installed by the
engineering department. The panel contained, among other
things, palm control buttons to activate the press and an
emergency stop button. At that time, the palm control buttons
were the only activating device on the press. Sometime
thereafter, [the company] began making a new kind of collar
for the gas cylinders; the new collars were longer or taller
than before. Because of their size, weight, and configuration,
these collars would fall off the die when the operator removed
his hands to depress the palm control buttons. As a result, in
39
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order to keep the collars in place on the die and to punch holes
in the collars with the exactness and precision necessary for
their eventual use, the operator had to hold the collar firmly
in place throughout the operating cycle. The operator could
not use his hands to activate the press with the palm control
buttons, because it physically was not possible for him to hold
the collar in place and depress the palm control buttons at the
same time. Subsequently, at some point between June 1985
and early 1987, a foot control pedal (which was equipped with
a cover and an elevated pedal to prevent accidental
depression) was added to the press as an alternative
activating device to enable the operator to activate the press
with his foot while holding the collar in place with his hands.
Thereafter, either the foot control or the pre-existing palm
control buttons could be used to activate the press."

Id. An employee of the company was operating the press when a piece of

metal that had been punched from the collar got stuck in the press. Id.

at 834. As the employee was trying to dislodge the stuck metal, he

accidentally depressed the foot-control pedal, activating the press, which

amputated two of the employee's fingers. Id.

Subsequently, the employee sued two of his co-employees, who were

supervisors for the company and were not present at the time of the

accident, under § 25-5-11(c)(2), alleging, among other things, that the co-

employees had removed a safety device from the press, which made it

unsafe to use. The employee alleged that the co-employees had willfully

and intentionally removed the palm-control buttons from the press by

40
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adding the foot-control pedal, which bypassed the palm-control buttons.

The co-employees filed a motion for a summary judgment, which the trial

court granted. The employee appealed.

On appeal, this Court reversed the trial court's judgment. This

Court provided the following statement of the issue raised by the parties'

arguments:

"[The co-employees] contend that the 'removal' of a
safety device or guard from a machine requires more than
disabling a control or using an alternative control that makes
the other control ineffective. They contend that 'removal'
requires a physical separation from the machine.

"[The employee] contends that the act of bypassing the
palm control buttons, which were the safety device that would
have prevented his injury, constituted the 'removal' of a safety
device or guard.

"Thus, the question becomes whether the use of the
alternative foot control instead of the palm control buttons
constituted a 'removal from the machine of a safety guard'
within the meaning of § 25-5-11(c)(2) -- in other words, even
though there was no physical removal of the palm control
buttons, but rather an installation of a system designed to
bypass the palm control buttons, did such action constitute
'removal' within the meaning of § 25-5-11(c)(2)?"

Harris, 585 So. 2d at 836. This Court, relying upon Bailey, stated:

"Applying the rationale of Bailey [v. Hogg, 547 So. 2d
498 (Ala. 1989)], we hold that the act of 'bypassing' a safety
device of a particular machine that would prevent an injury
-- specifically, in the instant case, the act of bypassing the
41
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palm control buttons, the safety device on the press that
would have prevented [the employee] from inserting his hand
at the point of operation during operation and, thereby, would
have prevented the loss of his fingers -- is encompassed within
the word 'removal.' As we found in Bailey, supra, to hold
otherwise would contravene public policy; it would allow
supervisory employees to instruct their employees to perform
a certain operation after a safety device related to that
operation had been removed -- it would allow a supervisor in
this case to instruct an operator to cut a particular material
on a press by holding the material with both hands and
utilizing the foot control, thus requiring the operator to
bypass the palm control buttons that constituted the safety
device that would have prevented the injury that occurred."

Id. at 837.

As is apparent from the above discussion, the safety device that was

bypassed in Harris was bypassed not by training or by the giving of

verbal instructions, as in the present case, but by the installation of an

entirely different mechanism on the machine. As was stated by the Court

of Civil Appeals in Bates v. Riley, 130 So. 3d 1225, 1230 (Ala. Civ. App.

2013),

"the supreme court held in Harris [v. Gill, 585 So. 2d 831 (Ala.
1991),] that the 'removal' of a safety device occurs when a
machine is permanently altered to bypass that device and
render it ineffective for its safety purposes. See also
Cunningham v. Stern, 628 So. 2d 576 (Ala. 1993) (co-
employees who allowed worker to operate press that had been
modified to bypass palm-control buttons were not entitled to
summary judgment since the act of bypassing safety device

42
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constituted removal of safety device for purposes of § 25-5-
11(c)(2))."

(Emphasis added.)

There has been no evidence presented indicating that Durall

bypassed the security gate on Godet 1 by permanently altering Line 3.

Instead, the allegation made by Pablo is that Durall "bypassed" the

security gate on Godet 1 by training employees, other than Estillado, to

lift the security gate and cut wraps off of the rollers in Godet 1 while the

rollers were operating at production speed. As Durall argues, however,

this Court, in Williams, has refused to extend the definition of "removal"

in § 25-5-11(c)(2) to include instructions given to disregard available

safety devices.

In Williams, an employee was instructed to unclog a machine used

by the company he worked for to remove paper waste from the company's

plant. 564 So. 2d at 409. The paper-waste-removal system consisted of

numerous parts, including a baler. Id. at 409 n.1. The employee's

supervisors knew that unclogging the paper-waste-removal system

without turning the machine off posed a risk to the employee but, in spite

of the danger posed to the employee, instructed him to unclog the

machine without turning it off and provided him with the tools to do so.
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Id. at 409. The machine also included a posted sign that instructed

employees to not turn off the machine without supervisory approval. Id.

As the employee was attempting to unclog the machine while it was still

on, he fell into the baler and his legs were crushed. The employee sued

his co-employees, those who instructed him to unclog the machine while

it was still on, under § 25-5-11(c)(1) and (2). Id. The trial court entered

a summary judgment in favor of the co-employees. The employee

appealed.

On appeal, this Court affirmed the trial court's judgment in favor

of the co-employees. Concerning the employee's claim under § 25-5-

11(c)(2), this Court stated:

"We note [the employee's] argument that [one of the co-
employee's] instruction to [the other co-employee] not to use
the available safety devices to disengage the baler, along with
the written instructions on the baling machine not to cut off
the machine without permission, rendered unavailable the
safety devices that cut the power to the baling machine and
therefore 'removed those safety devices in violation of § 25-5-
11(c)(2).' [The employee] attempts to equate these
instructions with the willful and intentional removal of, or
failure to install, a safety guard found in Bailey v. Hogg, 547
So. 2d 498, 500 (Ala. 1989), in which the Court held:

" '[T]he willful and intentional failure to install an
available safety guard equates to the willful and
intentional removal of a safety guard for the
purposes of Ala. Code 1975, § 25-5-11(c)(2).'
44
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"[The employee] argues that § 25-5-11(c)(2) does not
require a showing of intent to injure as is required under § 25-
5-11(c)(1). Rather, [the employee] argues that liability under
§ 25-5-11(c)(2) may be established merely by presenting
evidence of a willful and intentional removal of, or failure to
install, a safety guard and that [the co-employee's] actions in
the instant case were tantamount to the willful and
intentional removal of a safety device under § 25-5-11(c)(2).

"In Bailey v. Hogg, supra, as in Reed v. Brunson, [527
So. 2d 102 (Ala. 1988)], we were dealing with safety guards or
safety devices provided by the manufacturers of the machines.
In the instant case, we are dealing with a co-employee's
instructions concerning a safety procedure. Section 25-5-
11(c)(2) specifically defines willful conduct in terms of '[t]he
willful and intentional removal from a machine of a safety
guard.' Although we extended § 25-5-11(c)(2) in Bailey v. Hogg
to equate the term 'removal' with 'failure to install,' finding
the same dangers present in both situations, we cannot and
will not extend § 25-5-11(c)(2) to include instructions, whether
given or not given, pertaining to safety procedures. Rather,
the instruction not to deactivate the baler while someone was
attempting to unclog it would constitute willful conduct only
if it constituted such conduct under § 25-5-11(c)(1), as
interpreted by Reed v. Brunson, supra. Thus, having found no
evidence of an intent to injure on the part of [the co-employee]
under § 25-5-11(c)(1), we must affirm the summary judgment
as to § 25-5-11(c)(2)."

Williams, 564 So. 2d at 411.

In the present case, as in Williams, the complained of "removal"

was an instruction pertaining to safety procedures, mainly an instruction

to Estillado to lift the security gate on Godet 1 and cut the wraps off of

the rollers therein. Based on this Court's precedent in Williams, such
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conduct does not constitute the "removal" of a safety device under § 25-5-

11(c)(2), and, thus, the circuit court erred in concluding otherwise.

Moreover, we note that Durall had left his employment with ABC

Polymer years before Estillado was hired and trained. It is undisputed

that Durall did not train or instruct Estillado to do any part of her job.

Although Durall admitted to instructing other ABC Polymer employees

to lift the security gate on Godet 1 to cut wraps off of the rollers therein

while they were operating at production speed, Durall certainly did not

instruct Estillado to do so. Therefore, for this reason as well, the circuit

court's judgment in this regard is in error.

We conclude that Pablo failed to establish the second element of his

claim under § 25-5-11(c)(2). He failed to present evidence demonstrating

that Durall willfully and intentionally "removed" the at-issue safety

device by failing to electronically interlock the security gate on Godet 1

to a limit switch, and his theory that Durall "removed" the at-issue safety

device by instructing employees other than Estillado to "bypass" it is not

a theory of recovery supported by our precedent. As a result, the circuit

court's judgment in Pablo's favor was in error and must be reversed. Our

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conclusion that Pablo failed to establish the second element of his claim

pretermits discussion of the remaining elements of his claim.

Conclusion

Based on the foregoing, we consider Leader to have abandoned the

appeal of the circuit court's judgment, of which he has been discharged

in bankruptcy court, and, thus, we dismiss the appeal insofar as it was

brought by Leader. Concerning the appeal as it relates to Durall, we

reverse the circuit court's judgment in favor of Pablo. We remand the

matter for proceedings consistent with this opinion.

APPEAL DISMISSED IN PART; REVERSED AND REMANDED.

Parker, C.J., and Shaw, Wise, Sellers, and Mitchell, JJ., concur.

Cook, J., concurs in part and concurs in the result, with opinion.

Bryan and Stewart, JJ., concur in the result.

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COOK, Justice (concurring in part and concurring in the result).

I concur with dismissing the appeal as to Dean Leader. I also concur

with the main opinion's conclusion that the plaintiff, Crescencio Pablo,

failed to present sufficient evidence in support of the second element of

his claim that William Durall willfully and intentionally "removed" the

safety device from Line 3, Godet 1, by disabling the electronically

interlocking limit switch from the security gate on Line 3, Godet 1.

However, because I would have addressed the question of whether

Durall "removed" the safety device by willfully and intentionally training

employees of ABC Polymer Industries, LLC, "to bypass the security gate

and cut wraps off the rollers in Godet 1 while they were operating at

production speed" in a different way than the main opinion, I must concur

in the result. ____ So. 3d at ____.

In addressing this issue, the main opinion contains a lengthy

explanation of what the "removal" of a safety device could mean in this

context and, at one point, discusses whether the "removal" of a safety

device occurs when " 'a machine is permanently altered to bypass that

device and render it ineffective for safety purposes.' " ____ So. 3d at ____

(quoting Bates v. Riley, 130 So. 3d 1225, 1230 (Ala. Civ. App. 2013))

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(emphasis altered). In my view, that in-depth discussion is not necessary

for determining whether the "removal" element of this claim is satisfied

in this case.

As the main opinion notes, Durall had "left his employment with

ABC Polymer years before Estillado was hired and trained," and, thus,

he could not have trained or instructed Estillado to do any part of her job.

____ So. 3d at ____. This alone is a sufficient basis upon which to reverse

the circuit court's judgment on this issue. It is for this reason that I

concur in the result.

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