McGee v. Liberty Mutual Insurance Co.
McGee v. Liberty Mutual Insurance Co.
Opinion of the Court
This is an appeal from a summary judgment entered in a personal injury action in favor of Liberty Mutual Insurance Company (“Liberty Mutual”) and against Valerie McGee.
McGee, an employee of the Barber Ice Cream Company (“Barber”), sustained an on-the-job injury when a machine used in the manufacture of popsicles fell over on her while she was attempting to load it. Unlike similar machines in Barber’s plant, that machine was not bolted to the floor, but was on rollers so that it could be moved to different locations along the production line. The machine was a temporary replacement that was being used while other machines were awaiting repair. According to the affidavit of Ken Chapman, the plant’s floor supervisor, the machine had been in use for only two or three days before McGee was injured.
McGee filed a complaint against Barber, numerous other defendants, and Liberty Mutual as Barber’s worker’s compensation insurance carrier. This appeal concerns only McGee’s claim against Liberty Mutual; therefore, only the allegations involving-the insurer will be discussed. McGee alleged that Liberty Mutual had negligently inspected the Barber plant during its routine safety inspections and had failed to correct the allegedly negligent installation of the machine that caused her injury by not causing it to be securely attached to the platform or table on which it was located.
McGee contends that she presented a scintilla of evidence to show Liberty Mutual’s alleged negligence.
This Court has recognized that a worker’s compensation carrier may be liable to an injured employee when it undertakes to inspect an employer's premises for safety and then performs its inspections negligently. Fireman’s Fund American Insurance Co. v. Coleman, 394 So.2d 334, 338 (Ala. 1980). In such cases a plaintiff has the burden of proving (1) that the insurer had a duty to inspect, or assumed such a duty by voluntarily undertaking the inspection; (2) the scope of that duty; (3) that the duty was breached; (4) that there was injury; and (5) that the injury was proximately caused by that breach. Fireman’s Fund, supra, at 349 (Jones, J., concurring).
In this case there was no evidence to indicate that Liberty Mutual had had an opportunity to inspect the machine before McGee’s injury. This Court therefore concludes that McGee failed to present a scintilla of evidence to indicate that any safety inspection was negligently ■ performed or that any negligence on the part of Liberty Mutual proximately caused McGee’s injuries. Accordingly, we agree with the trial court’s determination that there exists no genuine issue of material fact, and we hereby affirm that court’s judgment.
AFFIRMED.
. McGee’s complaint was filed before June 11, 1987, and was therefore tried under the scintilla evidence rule. See Ala.Code 1975, § 12-21-12.
Reference
- Full Case Name
- Valerie McGee v. Liberty Mutual Insurance Company.
- Status
- Published