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REL: 2/6/09

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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2008 -2009

_________________________ 2070709 _________________________ Darius Moore v. Larry Welch, Sid Sewell, and Frank James Appeal from Mobile Circuit Court (CV-05-3522.51) THOMAS, Judge. On December 20, 2003, Darius Moore was injured when the paint thinner he was using to prepare a piece of machinery for painting was ignited by sparks from a metal grinder being used overhead by Larry Welch. When Welch heard Moore scream, he

2070709 ran to Moore's aid, attempting first to pat out the flames with his hands, which were encased in work gloves. When the

work gloves caught fire and it was apparent that a different approach to putting out the flames was necessary, Welch retrieved a nearby fire extinguisher and attempted to use it by removing its pin and depressing its lever. The fire

extinguisher did not discharge. Welch then retrieved a second fire extinguisher, which also failed to discharge. Moore ran

outside, and Welch and others kicked wet sand on him as he rolled in the sand to extinguish the flames. Moore was taken

to the emergency room by ambulance; he suffered third-degree full-thickness burns to 25 percent of his body. Moore sued Staffing Concepts, Inc., PSI Sales, Inc., Garrett's Fire Equipment, Wiley Garrett, and various

fictitiously named parties, asserting, among other things, a workers' compensation claim, negligence claims, and wantonness claims.1 In August 2006, Moore substituted his co-employees

PSI Sales sought and received a summary judgment in its favor on the claims asserted against it in August 2006. Moore's workers' compensation claim against Staffing Concepts was resolved by settlement in January 2007. Moore's claims against Garrett and Garrett's Fire Equipment were resolved by a joint stipulation of dismissal, which was filed in the trial court on April 12, 2007. Thus, the claims asserted against
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2070709 at the time of the accident, Larry Welch, Frank James, and Sid Sewell (sometimes collectively referred to as "the co-

employees") for certain fictitiously named parties in the original complaint. He asserted against those co-employees

claims under Ala. Code 1975,

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