Hume v. Hughes

Filing 114

MEMORANDUM OPINION - Based on the foregoing and the discussion during the September 26, 2019 hearing, the Court denies Mr. Hughes and Mr. Loveless's motion for summary judgment, (Doc. 80 ). Signed by Judge Madeline Hughes Haikala on 10/28/2019. (KEK)

FILED
2019 Oct-28 AM 10:39
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOSEPH MICHAEL HUME,

)
)
Plaintiff,
)
)
v.
)
)
WILLIAM L. HUGHES, KERRY )
G. LOVELESS, MILLS-CONOLY )
ENGINEERING, P.C.,
)
)
Defendants.
)

Case No.: 2:16-CV-00954-MHH

MEMORANDUM OPINION
This action arises from injuries plaintiff Joseph Michael Hume suffered after
he entered an enclosure containing high voltage electrical equipment on the
University of Montevallo campus in 2015. Defendants William Hughes and Kerry
Loveless worked for the University of Montevallo at the time of Mr. Hume’s
accident. Mr. Hughes and Mr. Loveless ask the Court to enter judgment in their
favor on Mr. Hume’s negligence and wantonness claims against them. (Doc. 80).
For the reasons explained below, disputed questions of fact preclude summary
judgment.
I.

STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). To demonstrate that there is a genuine
dispute as to a material fact that precludes summary judgment, a party opposing a
motion for summary judgment must cite “to particular parts of materials in the
record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ.
P. 56(c)(1)(A). When considering a summary judgment motion, a district court must
view the evidence in the record and draw reasonable inferences in the light most
favorable to the non-moving party. Asalde v. First Class Parking Sys., 898 F.3d
1136, 1138 (11th Cir. 2018). “The court need consider only the cited materials, but
it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).
II.

FACTUAL AND PROCEDURAL BACKGROUND
The factual record in this case is extensive. The facts relevant to Mr.

Loveless’s and Mr. Hughes’s motion for summary judgment are these: at the time
of his accident, Mr. Hume was a sophomore at the University of Montevallo. (Doc.
76-68, p. 12). One summer evening in 2015, he and two friends began playing
frisbee golf on the campus’s “makeshift course.” (Doc. 76-68, pp. 19, 182). While
playing, one of the frisbees fell into an unmarked enclosure connected to Farmer
Hall, the University’s Student Center. (Doc. 76-68, pp. 16, 36).

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One side of the enclosure is a chain-link locked fence; the other two accessible
sides are brick. (Doc. 76-70; see also Doc. 76-68, pp. 42–43). From where Mr.
Hume was standing, he faced a brick wall; Mr. Hume did not approach the enclosure
from the chain-link side. (Doc. 76-68, pp. 42–43; see also Doc. 76-76 (photograph
where Mr. Hume marks where he climbed onto the wall)). Mr. Hume asked his
friends if they could retrieve the frisbee. (Doc. 76-68, p. 55). When his friends said
that they could not get the frisbee from their side, Mr. Hume “hopped up on top of
the wall and hopped in[to the enclosure] to recover the frisbee.” (Doc. 76-68, pp.
55–56). At the time of Mr. Hume’s accident, there were no warning signs on the
enclosure indicating that it was a high-voltage area. (Doc. 57-1, pp. 276, 298; Doc.
78-12, pp. 75–76).
Mr. Hume swung into the enclosure, grabbed the frisbee, and moved to leave
the enclosure. (Doc. 76-68, pp. 74, 79; see Doc. 76-79 (noting where the frisbee was
inside the enclosure)). As he left the enclosure, Mr. Hume contacted a transformer
and suffered a severe shock. (Doc. 26, ¶ 15; Doc. 76-68, pp. 89–90). Mr. Hume
asserts that the enclosure should have had warning signs to alert people that it
contained dangerous high voltage equipment. (Doc. 26, ¶ 16). It is undisputed that
years before Mr. Hume’s accident, Mr. Loveless secured a warning sign to the
enclosure.

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The University of Montevallo has owned and operated the Farmer Hall
transformer since it was installed in the early 1960s. (Doc. 57-2, pp. 298, 483; Doc.
76-16, p. 93; Doc. 76-1, p. 3). William Hughes is the director of the physical plant
for the University. (Doc. 78-12, pp. 110–11). Mr. Hughes supervises Kerry
Loveless, the University’s electrical supervisor. (Doc. 51-1, p. 182; Doc. 78-19, pp.
33–34). Mr. Hughes has no background as an electrician and assigned Mr. Loveless
responsibility for electrical maintenance and safety on campus. (Doc. 78-13, pp. 16,
45–46).
Mr. Hughes’s responsibilities as “Director of Physical Plant” are detailed in
the University’s written position description for that job. (Doc. 78-17, p. 37). Item
number 4 in the section titled “Essential Job Duties” states that the plant director:
Implement[s] program for continuous and reliable operation of
facilities, including routine and preventative maintenance for all
campus buildings, (including real property) and grounds including
landscape maintenance, custodial services, plumbing, painting,
carpentry, heating and cooling and electrical.
(Doc. 78-17, p. 37). Item 6 states that the plant director “[o]versees utility services
for steam, chill water, drinking water, sewer, natural gas and electricity.” (Doc. 7817, p. 38). And item 8 states that the plant director “[e]nsures organizational
compliance with applicable codes, rules and regulations.” (Doc. 78-17, p. 38).
Mr. Loveless’s responsibilities as “Supervisor-Electrical Shop” are detailed
in the University’s written position description for that job. (Doc. 78-17, p. 45). The
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general description details the broad purpose of the job as follows: “to plan, develop,
organize, direct and evaluate all aspects of the Electrical Department and provide
supervision of department personnel.” (Doc. 78-17, p. 45). Mr. Loveless was,
among other things, required to “[s]upervise and perform work on high and low
voltage electrical systems”; “[p]articipate in the planning, layout and estimating of
new or modified electrical systems and upgrades”; “[p]rovide technical guidance on
jobs performed”; and “[e]nsure training of staff is consistent with the skill levels and
requirements within the department.” (Doc. 78-17, pp. 45–46). Mr. Loveless had
the ultimate responsibility for the electrical equipment and the enclosure involved in
Mr. Hume’s accident. (Doc. 78-20, p. 87).
In 2002, Mills-Conoly, an engineering firm that the university retained to
survey the campus’s existing electric system and prepare recommendations for
corrective action, (Doc. 55-6, p. 3; Doc. 51-1, pp. 32–33), advised the university that
various transformer configurations on campus were dangerous. In a written report
to the University, Mills-Conoly stated:
Transformers housed in transclosure to form a three phase transformer
bank generally are in poor condition. Generally the housings have
deteriorated and [are] in need of replacement. . . .
[] Open transformer banks enclosed with fencing appear to be in fair
condition but are very unsightly. There are several open transformer
banks within buildings. This is a dangerous condition and needs to be
alleviated.
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(Doc. 33-4, pp. 6, 10). It is undisputed that the university took no action in response
to the report. Jurors reasonably may infer that at that the time of Mr. Hume’s
accident in 2015, the condition of the transformer enclosures on the University’s
campus were at least as poor as they were in 2002. Additionally, jurors reasonably
may infer that Mr. Hughes and Mr. Loveless were aware of the deficiencies in the
transformer enclosures on campus.
In 2015, the Electrical Department had a work order for “High voltage system
inspection, Annually.” (Doc. 78-33, pp. 8-11; see also Doc. 78-20, pp. 98-99). Mr.
Loveless explained:
Now, there was a work order that was made for high voltage, to check
the locks on it. It was just something I had made to annually – It’s a
yearly thing, just to make sure all the locks are functioning.

(Doc. 78-20, pp. 91–92; see also Doc. 78-13, p. 87). Mr. Loveless created the work
order, and he assigned the work order to himself to remind himself “to oil the locks
every year.” (Doc. 78-20, pp. 101-102; Doc. 78-33, pp. 8-11, 13-14). According to
University records, a February 2009 work order for the annual high voltage
inspection was completed in January 2010. (Doc. 78-33, p. 8). A February 2010
work order for the annual high voltage inspection was completed in October 2010.
(Doc. 78-33, p. 9). A February 2011 work order for the annual high voltage
inspection was completed in April 2012. (Doc. 78-33, p. 10). A February 2012

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work order for the annual high voltage inspection was completed in September 2013.
(Doc. 78-33, p. 11). A February 2014 work order for the annual high voltage
inspection was completed in August 2014. (Doc. 78-33, p. 8). And a February 2015
work order for the annual high voltage inspection was completed on September 30,
2015. (Doc. 78-33, p. 14).1
The University did not have an inspection protocol pertaining to warning signs
on high voltage electrical enclosures on campus. (Doc. 78-13, p. 87; Doc. 78-20,
pp. 77–78, 91). If a plant or electrical employee happened to notice that a sign was
missing, the employee would report the missing sign, and someone would replace it,
but there were no annual inspections of signage. (Doc. 78-13, p. 55). Jurors
reasonably could infer that Mr. Loveless and the members of his staff could survey

1

After acknowledging the work order for annual review of the locks on enclosures containing high
voltage equipment, Mr. Loveless testified that the work order was more of a suggestion than a
requirement, and that the work order only reminded him to oil the locks on high voltage enclosures,
not to make certain that locks were secured. He acknowledged that he had oiled the lock on the
enclosure in which Mr. Hume was injured before Mr. Hume’s accident, but he could not recall the
year in which he oiled the lock. He stated that the “annual” aspect of the work order was more of
a suggestion than a requirement – “if you get a chance . . . It was something that needed to be done
if we had time.” (Doc. 78-20, pp. 93–97). Jurors, not the Court, are judges of credibility. Jurors
will have to determine whether to believe Mr. Loveless’s evolving description of the annual work
order.
In addition to the annual inspections of the locks on the high voltage enclosures on the University’s
campus, the record indicates that between September 25, 2013 and September 30, 2015, Mr.
Loveless conducted at least four lighting inspections at Farmer Hall. Jurors reasonably could infer
that Mr. Loveless visited Farmer Hall more than once each year. (Doc. 78-33, pp. 28–61).

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the signage on the transformer enclosures annually when they surveyed the locks on
the enclosures.
III.

ANALYSIS
Mr. Hughes and Mr. Loveless contend that state-agent immunity bars Mr.

Hume’s negligence and wantonness claims against them. Alabama law requires
courts to evaluate assertions of state-agent immunity under a burden-shifting
framework. Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala. 2003). First, a
state agent “‘bears the burden of demonstrating that the plaintiff’s claims arise from
a function that would entitled the State agent to immunity.’” Ex parte Lawley, 38
So. 2d 41, 47 (Ala. 2009) (quoting Ex parte Reynolds, 946 So. 2d 450 (Ala. 2006)).
To examine the function component of state agent immunity, a court must examine
whether:
the conduct made the basis of the claim against the agent is based upon
the agent’s:
(1) formulating plans, policies, or designs; or
(2) exercising his or her judgment in the administration of a department
or agency of government, including, but not limited to, examples such
as:
…
(b) allocating resources;
…
(d) hiring, firing, transferring, assigning, or supervising
personnel; . . . .”
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Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000) (emphasis in original). If a state
employee’s conduct falls into one of these categories, then the burden shifts to the
plaintiff to demonstrate by substantial evidence that one of the two exceptions to
state-agent immunity applies: either (1) the action was done willfully, maliciously,
fraudulently, in bad faith, or in way that exceeded the scope of the state agent’s
authority; or (2) the action was forbidden by state or federal law. Ex parte Price,
256 So. 3d 1184, 1191 (Ala. 2018).
Here, Mr. Hume’s claims against Mr. Hughes and Mr. Loveless concern the
allocation of resources. Mr. Hume contends that “the Defendants’ ‘informal policy’
to replace a sign if someone happened to notice it was missing does not satisfy the
requirements of the NEC and NFPA 70E . . . .” (Doc. 87, p. 13). Mr. Hughes and
Mr. Loveless argue that because the Electrical Department had only a few employees
to service all the buildings on campus, the department followed an “as needed”
policy for reviewing and replacing signage on high voltage enclosures.

This

determination of allocation of department resources is a discretionary function which
may provide the basis for state agent immunity. Ex parte Cranman, 792 So. 2d at
405. Thus, the burden shifts to Mr. Hume to prove an exception to immunity.
To carry his burden, Mr. Hume first argues that state-agent immunity does not
apply here because Mr. Hughes and Mr. Loveless were acting beyond their authority.
(Doc. 87, pp. 11–12). Mr. Hume focuses on the NEC and NFPA, arguing that both
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codes “imposed affirmative, mandatory duties to install and maintain a warning sign
on the subject enclosure, and [that defendants] had no discretion with respect to
whether or not they had to comply with these duties.” (Doc. 87, p. 7). Mr. Hughes
and Mr. Loveless reject this characterization and argue that the NEC and NFPA
regulations are not detailed enough to rob them of their immunity. (Doc. 90, pp. 6–
8). Mr. Hughes and Mr. Loveless have the better argument.
Cranman’s “beyond authority” exception applies when a state agent “fails ‘to
discharge duties pursuant to detailed rules or regulations, such as those stated on a
checklist.’” Giambrone, 874 So. 2d at 1052 (quoting Ex parte Butts, 775 So. 2d 173,
178 (Ala. 2000)). Mr. Hume argues that NEC section 110.34(C) is such a checklist.
(Doc. 87, p. 7). The Court disagrees.
NEC section 110.34(C) provides that all “enclosures containing live parts or
exposed conductors operating at over 600 volts” must have “[p]ermanent and
conspicuous danger signs.” (Doc. 76-8, p. 35). Craig Mills, the president of MillsConoly Engineering, interprets section 110.34(C) as requiring a warning sign only
on the chain-link side of the Farmer Hall enclosure. (Doc. 51-1, p. 87). Mr. Loveless
echoes Mr. Mills, testifying that he does not read section 110.34(C) to require “a
sign on a [brick] wall that’s eight foot [sic] tall.” (Doc. 78-21, pp. 49–50). Mr.
Hume’s expert witness, Michael Anthony, interprets section 110.34 of the NEC as

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requiring warning signs on the exterior of all sides of the Farmer Hall enclosure.
(Doc. 76-3, pp. 182–83).2
These competing interpretations show that the language of the standard leaves
room for interpretation and, therefore, the operation of discretion. As a result, NEC
section 110.34(C) is “‘not the type of detailed rule[] or regulation[]’ that would
remove a State agent’s judgment in the performance of required acts.” Ex parte
Spivey, 846 So. 2d 322, 333 (Ala. 2002) (quoting Ex parte Butts, 775 So. 2d at 178).
Thus, Mr. Hume has not demonstrated that the NEC and NFPA are “‘the type of
detailed rules or regulations’ that would remove a State agent’s judgment in the
performance of required acts,” such that Mr. Hughes or Mr. Loveless could be said
to have acted beyond the authority that the electrical standards afford. Ex parte
Spivey, 846 So. 2d at 333 (quoting Ex parte Butts, 775 So. 2d at 178).
Still, a state-agent “shall not be immune from civil liability in his [] personal
capacity” when he acts willfully or in bad faith. Giambrone, 874 So. 2d at 1057
2

The logic underlying Mr. Anthony’s conclusion goes something like this: section 110.34(C)
“requires that the entrances to enclosures containing exposed live parts . . . must have ‘permanent
and conspicuous’ warning signs”; the opening at the top of the Farmer Hall enclosure is an
“entrance”; that “entrance” is accessible from the chain-link side and both brick sides of the Farmer
Hall enclosure; the word “conspicuous” requires a warning sign at any access point of any
“entrance”; thus, section 110.34(C) required warning signs on all three sides of the Farmer Hall
enclosure. (Doc. 76-5, pp. 5, 7, 12–13; see Doc. 76-3, pp. 100, 105).
The Alabama Fire Marshall offers yet another take: “[R]equired signage must be permanent and
legible as long as the electrical equipment remains within the enclosure.” (Doc. 101-1, p. 3). The
Fire Marshall gives no opinion on the meaning of “required signage.”

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(citing Ex parte Cranman, 792 So. 2d at 405). A jury must determine whether the
evidence relating to Mr. Hughes’s and Mr. Loveless’s purported effort to maintain
warning signs on high voltage areas on an “as needed” basis is merely a post hoc
characterization of the defendants’ abdication of their responsibility for maintaining
warning signs on dangerous enclosures. If a jury makes such a finding, then the
defendant’s conduct rises to the level of bad faith or willful conduct.
According to Mr. Hughes, “[i]f a sign was missing, [University personnel]
would replace it.” (Doc. 76-38, p. 145). Mr. Hughes testified that the University’s
policy required University personnel to notify Coty Jones—the assistant facilities
director in 2002—that a sign was missing; Coty Jones was then required to inform
Mr. Loveless and the electrical department; and the electrical department would
replace the sign. (Doc. 76-38, p. 145–46). Coty Jones testified that while he worked
at the University, he did not know what types of signs had to be on high voltage
electrical enclosures; he was unaware that he was responsible for warning signs on
electrical enclosures; and he could not identify the last time a warning sign was on
the Farmer Hall enclosure. (Doc. 76-80, pp. 36, 40, 46).
For his part, Mr. Loveless clearly knew that a warning sign had to be on the
enclosure at Farmer Hall, at least on the chain-link side of the enclosure, because he
had replaced the sign on one occasion when he noticed that the sign was missing.
(See Doc. 57-1, pp. 270–73; Doc. 57-2, pp. 23–24). The evidence indicates that Mr.
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Loveless serviced the lock on the enclosure approximately once each year. (Doc.
78-20, pp. 93–97). The evidence, viewed in the light most favorable to Mr. Hume,
also indicates that there was no sign on the Farmer Hall enclosure on the night of his
injury and that, before his injury, the last time a sign was affixed to the Farmer Hall
enclosure was some time in 2008 or 2009. (See Doc. 85-3, pp. 3–12) (Photograph
from 2011 showing no warning signs on the fence of the Farmer Hall enclosure);
(Doc. 57-1, p. 273; Doc. 76-3, pp. 169–70, 227–28). Jurors could reasonably
conclude that nothing prevented Mr. Loveless from maintaining the one sign that the
University placed on the enclosure when he visited the enclosure to service the lock
on the chain-link gate.
The defendants argue that they may, in their discretion, determine the
frequency of inspections of signage. That is true, but a policy that requires no routine
inspection of signs affixed to enclosures housing hazardous electrical components—
even an annual inspection—is no policy at all and is evidence at least of bad faith,
especially when the required inspection only would require Mr. Loveless to glance
up from the lock that he examined each year.

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IV.

CONCLUSION
Based on the foregoing and the discussion during the September 26, 2019

hearing, the Court denies Mr. Hughes and Mr. Loveless’s motion for summary
judgment, (Doc. 80). 3
DONE and ORDERED this October 28, 2019.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

3

This opinion addresses Mr. Hughes's and Mr. Loveless’s state agent immunity argument. By
separate opinion, the Court will address the defendants’ alternative arguments for summary
judgment.

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