Ex parte Mike Griffin, Eddie Pate, and Scott Engle PETITION FOR WRIT OF MANDAMUS (In re: Gary Jackson v. Mike Griffin) (Jefferson Circuit Court: CV-23-901453).

Rel: December 19, 2025

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
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2025-2026

_________________________

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Ex parte Mike Griffin, Eddie Pate, and Scott Engle

PETITION FOR WRIT OF MANDAMUS

(In re: Gary Jackson

v.

Mike Griffin et al.)

(Jefferson Circuit Court: CV-23-901453)

STEWART, Chief Justice.
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PETITION DENIED. NO OPINION.

Shaw, Bryan, Mendheim, and McCool, JJ., concur.

Cook, J., concurs specially, with opinion.

Wise and Sellers, JJ., dissent.

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COOK, Justice (concurring specially).

Gary Jackson was seriously injured when his hand got caught in a

leveler machine at a facility owned by his employer, Alabama Metal

Industries Corporation ("AMICO"). Jackson later sued several of his

coworkers, alleging that they were responsible for his injury.

Jackson's co-workers moved for a summary judgment in their favor,

alleging immunity under Alabama's workers' compensation laws. In

response, Jackson argued that, because his injury was caused by the

willful removal of a safety device from the machine by one of his

coworkers, the immunity provided under Alabama's workers'

compensation laws did not apply.

After the Jefferson Circuit Court denied the coworkers' summary-

judgment motion, they petitioned this Court for a writ of mandamus. As

explained below, I am uncertain that the facts in this case satisfy the

narrow exception to immunity in Alabama's workers' compensation laws

for willfully removing a "manufacturer provided" safety guard. However,

I reluctantly concur because of our mandamus standard and because the

circuit court did not have the opportunity to review this argument fully.

I am also concerned that our caselaw may be inconsistent with the

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text of § 25-5-11(c)(2), Ala. Code 1975, which requires "willful and

intentional" conduct. As I explain below, these issues, as well as the issue

of stare decisis, are best left for full briefing during an appeal of this or a

future case.

Facts and Procedural History

Jackson began working at AMICO's facility, a metal-manufacturing

and -processing plant in Birmingham, in 2012. One day in September

2021, he was working the metal-process line, which included flattening

metal by using a leveler machine, a flattener machine, and a conveyor

belt between them.

AMICO originally purchased the leveler, used, in the late 1990s.

AMICO placed the leveler near the flattener and added a conveyor belt

between the two to help facilitate the metalworking process. AMICO also

fabricated two other additions to the machine -- a funnel and wings --

that helped guide the metal straight into the leveler. AMICO further

added a safety bar that went across the machine at the point where the

metal is fed into the machine. 1 The process line as a whole and the leveler

1The coworkers vigorously dispute that the alleged safety guard
even existed before the accident (much less that they removed it). For
instance, one coworker insists that he created the safety bar after the
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at issue had been in operation at AMICO's facility for over 30 years before

the incident involving Jackson, and there had been no prior injuries

reported.

On the day of his injury, Jackson was feeding some metal into the

leveler from the conveyor belt when his left hand went into the machine.

As a result, Jackson lost three fingers.

Jackson thereafter commenced an action against AMICO, seeking

workers' compensation benefits under Alabama's Workers'

Compensation Act ("the Act"), § 25-5-1 et seq., Ala. Code 1975, which

resulted in a settlement. Jackson then commenced an action in the circuit

court against several of his coworkers, Mike Griffin, Eddie Pate, and

Scott Engle ("the defendants"),2 claiming that they were liable for his

accident. The coworkers also argue that there is no testimony by anyone
regarding the identity of any specific person who removed a safety guard.
However, Jackson cites other testimony that the safety bar existed before
the accident and insists that "[t]here is overwhelming evidence" that the
safety guard was present "as some point prior to the accident."

2Originally, five of Jackson's coworkers were parties to the suit.
Jackson dismissed one of them. Another was left out of the caption of
Jackson's second amended complaint and subsequently left out of the
motion for a summary judgment at issue in this case. Thus, only three
coworkers -- Mike Griffin, Eddie Pate, and Scott Engle -- are parties to
the present petition.
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injury.

Normally, co-employees are not liable for their coworkers' injuries.

See § 25-5-53, Ala. Code 1975. However, under the Act, an employee who

suffers a workplace injury can bring a cause of action against a co-

employee whose willful conduct contributed to the employee's injury. See

§ 25-5-11(b), Ala. Code 1975. Subsection (c) of § 25-5-11 lists several

scenarios where co-employee conduct can be deemed willful.

In his complaint, Jackson alleged that the "willful conduct" in this

case involved "[t]he willful and intentional removal from a machine of a

safety guard or safety device provided by the manufacturer of the

machine with knowledge that injury or death would likely or probably

result from the removal." § 25-5-11(c)(2) (emphasis added).

After the close of discovery, the defendants moved for a summary

judgment in their favor, claiming that the above exception did not apply

to them and that they were, thus, immune from liability under the Act.

In particular, the defendants argued that AMICO was not the

"manufacturer" of the leveler. They also argued, among other things,

that, regardless of AMICO's status, there was no substantial evidence to

suggest that any one of them willfully and intentionally removed the

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safety bar and caused Jackson's injury.

In response, Jackson argued that AMICO became the manufacturer

when it added the conveyor belt, funnel, wings, and safety bar to the

leveler, thus essentially creating a "new machine" and making the leveler

more dangerous. He also relied upon theories in existing Alabama

caselaw that consider a "removal" to have occurred even when there is

not a physical removal by the defendant. Those include a failure to install

(or reinstall), a failure to maintain/repair, or a bypassing of a safety

device.

Finally, relying on prior caselaw from our Court, Jackson argued

that the "willful and intentional" mens rea requirement in the Act is

satisfied for purposes of creating a jury question if a co-employee "knew

or should have known" of the removal instead of having personally

effected the removal. (Emphasis added.)

The circuit court denied the defendants' motion for a summary

judgment. They then petitioned this Court for a writ of mandamus.

Standard of Review

A petitioner seeking the drastic and extraordinary remedy of a writ

of mandamus must demonstrate all four of the following to warrant the

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issuance of a writ: " '(1) a clear legal right to the order sought; (2) an

imperative duty upon the respondent to perform, accompanied by a

refusal to do so; (3) the lack of another adequate remedy; and (4) the

properly invoked jurisdiction of the court.' " Ex parte Gulf Health Hosps.,

Inc., 321 So. 3d 629, 632 (Ala. 2020)(quoting Ex parte BOC Grp., Inc., 823

So. 2d 1270, 1272 (Ala. 2001), citing in turn Ex parte Inverness Constr.

Co., 775 So. 2d 153, 156 (Ala. 2000)).

A petition for a writ of mandamus is an appropriate method by

which to seek review of the denial of a summary-judgment motion that is

based on a claim of immunity arising under § 25-5-53 of the Act. See Ex

parte Tenax Corp., 228 So. 3d 387, 391 (Ala. 2017). However, in reviewing

such a petition, this Court considers only the issue of immunity. See Ex

parte Morgan, 392 So. 3d 33, 41 (Ala. 2023)(explaining that this Court

"will entertain a mandamus petition that challenges the denial of a

summary-judgment motion when the petition is grounded on a claim of

immunity, but we confine our review of such a petition to the issue of

immunity").

This Court reviews de novo a trial court's decision to deny a

summary-judgment motion; however, we " ' "must review the record in a

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light most favorable to the nonmovant and must resolve all reasonable

doubts against the movant." ' " Ex parte Canada, 890 So. 2d 968, 970 (Ala.

2004)(quoting Wilson v. Manning, 880 So. 2d 1101, 1102 (Ala. 2003),

quoting in turn Hobson v. American Cast Iron Pipe Co., 690 So. 2d 341,

344 (Ala. 1997)). Our task is to determine " ' "whether the evidence

presented to the trial court created a genuine issue of material fact" ' and

whether the moving party is entitled to prevail as a matter of law." Id.

(quoting Potter v. First Real Estate Co., 844 So. 2d 540, 545 (Ala. 2002),

quoting in turn Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C.,

792 So. 2d 369, 372 (Ala. 2000)).

Discussion

I. The Argument that AMICO is Not the "Manufacturer" of the
Leveler Machine.

As noted above, the Act allows co-employee liability for removing

safety devices that are "provided by the manufacturer of the machine." §

25-5-11(c)(2) (emphasis added). The operative complaint expressly pleads

that the relevant safety guard here was "manufacturer provided."

The parties agree that AMICO did not originally manufacture the

leveler but that it purchased the machine, used, approximately 30 years

ago. The parties also agree that there is no evidence indicating that the

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original manufacturer provided the safety guard at issue in this case.

Thus, under a strict textual reading of the statute, summary judgment is

due.

However, in his response to the defendants' summary-judgment

motion, Jackson argued in detail that AMICO became the manufacturer

when it added the conveyor belt, funnel, wings, and safety bar to the

leveler, thus essentially creating a "new machine" and making the leveler

more dangerous.

In support of his argument, Jackson relied principally on one

Alabama Supreme Court case, Harris v. Gill, 585 So. 2d 831, 836 (Ala.

1991), in which we held that "the term 'manufacturer' may include not

only the original manufacturer (one who produces article for use or

trade), but also a subsequent entity that substantially modifies or

materially alters the product through the use of different components

and/or methods of assembly." (Emphasis added.)

Twelve days after Jackson filed his response brief, the defendants

filed a reply brief, responding in detail to this substantial-modification

theory from the Harris decision. The defendants filed that reply brief at

10:00 p.m. -- the day before the summary-judgment hearing. At 9:00 a.m.

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the following day, Jackson filed a motion to strike the relevant portions

of the defendants' reply brief, which the circuit court granted.

As a result, the circuit court never had the opportunity to decide

the merits of this substantial-modification theory. The trial court never

heard or considered AMICO's arguments about whether the

modifications were in fact "substantial" or whether the Harris decision

was distinguishable.

A. Why I Concur -- The Importance of Procedure.

In its amicus brief before this Court, the Alabama Association for

Justice made the following observation about the timeliness of the

defendants' reply brief:

"[N]umerous issues were raised by the petitioner-defendants
for the first time in their reply brief, which was filed the night
before the summary judgment hearing. More new arguments
were included for the first time in their mandamus petition.
These tactics are a recurring problem for civil plaintiff
practitioners, who are already under a tight timeline to
respond to summary judgment motions (sometimes with only
eight court days to do so) and file answers to a mandamus
petitions (with only ten to fifteen court days to do so). It is
neither fair nor right to allow civil defendants -- who always
have at least a year or more to develop their summary
judgment arguments -- to reduce the plaintiff’s already
significantly reduced time to respond."

Amicus brief of the Alabama Association of Justice at 8 (emphasis in

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original).

Procedure matters. The parties deserve due process and thus

deserve an opportunity to (1) know what the arguments and evidence

against them are and (2) be able to respond to those arguments and

evidence. 3 Procedure also matters on mandamus review.

I cannot determine from the materials before us whether one or all

of the parties bear responsibility for not timely placing the substantial-

modification argument before the circuit court. On the one hand, I find it

difficult to read the operative complaint as making the assertion that

AMICO became the manufacturer because of a "substantial"

modification. Instead, the complaint appears to make a distinctly

different assertion (that is, that the safety device was provided by

someone else -- "manufacturer provided"). Perhaps this argument was

made for the first time in the 55-page response brief filed by Jackson. If

3See e.g., Southampton 100, LLC v. Alabama Dep't of Revenue, [Ms.

SC-2025-0227, Nov. 26, 2025] ___ So. 2d. ___, ___ (Ala. 2025) (Cook, J.,
concurring specially) (highlighting the importance of both sides' being
"afforded the opportunity to timely present their strongest arguments to
the trial court"); Hyundai Constr. Equip. Americas, Inc. v. Southern Lift
Trucks, LLC, 392 So. 3d 716, 729 (holding that, due to new, material
allegations that a party made less than 30 minutes before the hearing on
a contempt petition, defendants were not afforded due process).
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this is accurate, it would be hard to fault the defendants for not guessing

beforehand that Jackson was alleging that AMICO itself had become the

manufacturer. Even if surprised, the defendants did not respond until

the night before the hearing -- 12 days after receiving Jackson's brief.

On the other hand, perhaps the defendants were aware of this

substantial-modification argument before the summary-judgment stage

-- for instance, during the discovery process or through the statements in

Jackson's expert report. In that case, the defendants should have raised

this argument in their original motion (or at least immediately after

receiving the response brief).

Regardless, we do not need to decide the issue because the

defendants do not seek mandamus relief regarding the circuit court's

order striking their reply brief. Nor do they attempt to explain why the

circuit court's order to strike was improper. Further, we do not have the

entire record before us.

Because the response to the substantial-modification argument was

not before the circuit court and because the mandamus standard is high

and includes the requirement that there be " ' a clear legal right' " to relief

and " ' an imperative duty upon the respondent to perform, accompanied

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by a refusal to do so,' " Ex parte Gulf Health Hosps., 321 So. 3d at 632

(citation omitted), it is not appropriate for us to issue a writ of mandamus

at this time.

B. What is Necessary to Transform a User of Equipment Into
the Manufacturer?

By denying the petition for a writ of mandamus, our Court does not

decide that AMICO became the manufacturer because of "substantial"

modifications (or even that there is sufficient evidence for a jury to

determine that it became the manufacturer). Instead, this case will go

before the circuit court and may result in a jury trial where that question

will need to be determined. If this occurs, the parties should think

carefully about what jury charge will be appropriate regarding whether

AMICO became the manufacturer via modification of the equipment. I

observe that the Harris decision, although nearly 35 years old, appears

to be the single case decided by this Court that gives any insight into the

types of modifications that qualify as "substantial" or "material" in this

context.

Should this case or a similar case return to our Court, I would urge

the parties to devote attention to how the facts of their case compare to

the facts of Harris. I would also urge the parties to consider (1) whether
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some or all of the language used in Harris is dicta, (2) whether our

caselaw since 1991 has been consistent with Harris, (3) whether the text

of § 25-5-11(c)(2) is consistent with the substantial-modification rule and,

if not, whether Harris should be reconsidered or limited to its facts, and

(4) the importance of stare decisis as discussed below. 4

II. Our Caselaw Addressing the "Willful and Intentional Removal"
of a Safety Device from a Machine May Be Inconsistent with the
Language of the Act and Should be Revisited.

As explained previously, under the Act, an employee who suffers a

workplace injury can bring a cause of action against a co-employee whose

"willful conduct" contributed to the employee's injury. § 25-5-11(b).

Although the Act provides several different definitions of what

constitutes "willful conduct," the relevant definition here is the following:

4Although the defendants imply that we should overrule Harris,

they do not expressly ask us to overrule Harris. See Alabama Dep't of
Revenue v. Greenetrack, Inc., 369 So. 3d 640 (Ala. 2022) (declining to
overrule precedent when the parties did not expressly ask this Court to
do so).

The defendants do make the additional argument that, even if
AMICO could be the "manufacturer" because of any "substantial"
modifications, there is no evidence indicating that the alleged safety
guard was added at the time of the modifications. They argue that
merely adding a safety guard later is not the same thing as the
manufacturer providing a safety guard at the time of manufacture. I do
not reach this question and leave it for future consideration.
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"The willful and intentional removal from a machine of a
safety guard or safety device provided by the manufacturer of
the machine with knowledge that injury or death would likely
or probably result from the removal …."

§ 25-5-11(c)(2).

The defendants argue that our caselaw has developed an expansion

of (1) what constitutes "removal" and (2) what conduct can be considered

"willful and intentional" that is contrary to the plain meaning of the

statute. They ask that we overrule some or all of this caselaw.

In response, Jackson and the amicus respondent, the Alabama

Association of Justice, argue that (1) this is a mandamus petition and we

should not overrule existing law on mandamus review and (2) there are

multiple Alabama decisions applying these expanded interpretations and

those cases should be respected under the doctrine of stare decisis.

Given the weight of these legitimate concerns and given the

resolution of this petition, I do not believe it is necessary for me to reach

the merits of these issues at the mandamus stage. However, I would

encourage full briefing regarding these issues in a future appeal. I would

especially encourage arguments regarding what factors should be

considered if a party seeks to overrule potentially incorrect precedent

involving the construction of a statute, including (1) whether our caselaw
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on § 25-5-11(c)(2) has been consistent, (2) whether there are any reliance

interests, and (3) whether the caselaw is "egregiously wrong." Dobbs v.

Jackson Women's Health Org., 597 U.S. 215, 293-94 (2022). I am

particularly concerned with the arguments made by the amicus on for the

need for stare decisis, especially for precedent involving the construction

of a statute.

For the present, I will outline each of the major expansions in this

caselaw and why future briefing will be helpful.

A. "Removal."

First, Alabama cases have expanded the definition of "removal" to

include, along with physical removal, the failure to install, the failure to

maintain/repair, and the bypassing of a safety device.

For instance, in Bailey v. Hogg, 547 So. 2d 498, 500 (Ala. 1989), our

Court held 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 … § 25-5-11(c)(2)." (Emphasis added.) In

reaching this conclusion, our Court reasoned that "[t]he same dangers

are present when an available safety guard is not installed as are present

when the same guard has been removed." Id. Because the legislature

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recognized an "important public policy of promoting safety in the

workplace," our Court reasoned that allowing an action for physical

removal but not failure to install the same guard would "contravene[]

that important public policy." Id. at 499-500.

Our Court next expanded the meaning of "removal" in Moore v.

Reeves, 589 So. 2d 173 (Ala. 1991). Citing Bailey, our Court held that,

because the same danger is also present in a situation where a present

safety guard is not maintained, the "failure to maintain and/or repair a

safety guard or device provided by the manufacturer … would be

tantamount to the 'removal of' or the 'failure to install' a safety guard or

device." Id. at 178 (emphasis added).

Finally, in Harris, supra, this Court recognized yet another new

definition of removal. Again, citing Bailey, our Court held that "the act of

'bypassing' a safety device … is encompassed within the word 'removal.' "

Harris, 585 So. 2d at 837 (emphasis added).

The defendants appear to argue that all of this caselaw is mistaken

and that "removal" means an affirmative act and can only mean a

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physical act. 5

I only raise these issues for future consideration and take no

position on the defendants' argument, the correctness or consistency of

our caselaw, or whether the defendants can overcome stare decisis for

some or all of the precedents. See, e.g., Leader v. Pablo, 411 So. 3d 1234

(Ala. 2024); Murray v. Manz, 813 So. 2d 918 (Ala. Civ. App. 2001).

B. "Willful and Intentional" Conduct.

Second, as to the mens rea requirement, § 25-5-11(c)(2) provides

that the removal must be (1) "willful and intentional" and (2) done "with

knowledge that injury or death would likely or probably result from the

removal."

The defendants argue that our caselaw has diluted the language of

the first requirement to sustain a lawsuit with only evidence of mere

negligence.

5See e.g., Moore, 589 So. 2d at 179 (Maddox, J., dissenting) ("I
cannot accept the majority's conclusion that the failure of the workman's
employer to repair a car door locking mechanism constituted a 'willful
and intentional removal from a machine of a safety guard or device.' " );
Bailey, 547 So. 2d at 500 (Houston, J., dissenting) (citing the definition
of "removal" and recognizing that "[t]here is no evidence that the safety
guard was removed from the machine by Hogg. For some unexplained
reason, the guard was not installed …." (second emphasis added)).
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In his answer, Jackson essentially argues that this first mens rea

requirement has been completely written out of the caselaw:

"Moreover, the law does not require that the defendant
intentionally and willfully remove the safety device (personally) or
even that they were directly or actually aware of its removal to be
liable under … § 25-5-11(c)(2)."

Answer at 28 (emphasis added).

Jackson's position seems difficult to reconcile with the literal text

of the statute. The text explicitly states that the removal must be "willful

and intentional." (Emphasis added.) The text likewise explicitly requires

that the "removal" must have been "with knowledge that injury or death

would likely or probably result from the removal." (Emphasis added.)

This Court's decisions in Harris, supra, and Jackson v. Hill, 670 So.

2d 917 (Ala. 1995), have introduced a "knew or should have known"

formulation into this analysis. In Harris, the defendants did not dispute

that they intentionally bypassed the safety device -- the only question

was whether bypassing constituted removal and whether they had

knowledge that the bypass created a danger. The Court said that those

co-employees "knew or should have known that the safety device had

been bypassed and, therefore, posed a safety risk for co-employees." 585

So. 2d at 837 (emphasis added). In that context, the Court’s use of "should
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have known" language might be understood as addressing only the

second requirement of knowledge (that is, that "knowledge that injury or

death would likely … result") once removal was conceded.

Jackson, though, takes that phrasing a step further. There, the

supervisor did dispute that he had removed any device, yet our Court in

Jackson quoted Harris and treated constructive knowledge as sufficient

to satisfy the willfulness requirement. Jackson, 670 So. 2d at 918-19.

That reading blurs the statute's distinction between intentional conduct

and ordinary negligence, and it risks converting a narrow exception into

a broad one.

In the ordinary course, negligence -- that is, a "knew or should have

known" standard -- does not equal "willful and intentional" conduct.

While this issue does not control today's outcome, in my view the proper

mens rea standard under § 25-5-11(c)(2) deserves careful

reconsideration. Any inconsistency in the relevant caselaw should also be

considered. See, e.g., King v. Cape, 907 So. 2d 1066, 1074 (Ala. Civ. App.

2005). I thus invite parties in future appropriate cases to address these

issues.

Conclusion

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This case is before our Court on a petition for a writ of mandamus.

In my view, our decision today is dictated by the high standard applicable

to such petitions, and, thus, I concur. But I welcome future briefing in

an appropriate appeal on the issues identified above regarding § 25-5-

11(c)(2).

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