In exchange for providing no fault workers’ compensation insurance, Alabama employers are afforded the protections of the Exclusivity Doctrine. While this
doctrine serves to insulate employers from liability claims, Alabama Code § 25-5-11 provides a means for recovery against supervisors and safety personnel.
To prevail, the employee must prove by clear and convincing evidence that the injuries resulted from a co-employee’s willful conduct. § 25-5-11(c)(1)
requires a finding that the co-employee acted in a manner where he or she knew or should have known that someone would be injured. § 25-5-11(c)(2)
requires a finding that the co-employee committed an overt act, such as removing a safety device that exposed the plaintiff to injury.


The Alabama Supreme Court recently reaffirmed the difficulty of proving co-employee willful conduct claims in its Means v. Glover opinion. In
Means, the employee was burned by molten lead. At the time of the incident, he was using a forklift to pour a 55-gallon drum of sodium hydroxide
into a hot kettle of molten lead and other metals. Because the process was newly developed and implemented, he did not know that he was adding the
sodium hydroxide too quickly, or that doing so would cause it to react with the aluminum, form hydrogen gas, and explode. The employee asserted that
his co-workers should have known of the dangers of mixing the substances, and that a safety windshield should have been installed on the forklift.
However, he failed to produce any evidence that his co-workers knew of the danger and instructed him to proceed with pouring the sodium hydroxide,
with purpose of causing injury. For this reason, the trial court entered judgment in favor of the employer on the § 25-5-11(c)(1) claim.


Judgment was also entered in favor of the employer on the § 25-5-11(c)(2) claim because the evidence established that the forklift was purchased without
a safety windshield. To prevail under this statutory provision, the safety mechanism must have been removed. There is no provision that an available
safety mechanism must be added.


The Alabama Supreme Court found no error and affirmed the trial court’s Order.