On April 15, 2010, the Supreme Court of Appeals of West Virginia affirmed the decision of the Circuit Court of Logan County granting the appellee’s motion for summary judgment. The Court denied the appellant’s deliberate intent claim under West Virginia Code §23-4-2(d)(2)(ii) regarding a job-related injury.
The accident occurred on March 2, 2005 at the job site of the employer appellee where the employee appellant had worked as a highwall drill operator for a number of years. In contravention of the ground control plan which assures that drill operators work at least four feet away from the edge of the highwall, the appellant was drilling within two feet of the edge without a harness when he slipped and fell over the 80-foot tall highwall and sustained extensive physical injuries.
The appellant brought a deliberate intent claim in the Circuit Court of Logan County, alleging that the appellee was aware of a specific unsafe working condition in violation of federal law but intentionally continued to expose him and others to that hazardous condition to his detriment. The trial court held that because there was no genuine issue of material fact due to insufficient evidence to support the elements of the appellant’s claim, it was proper to grant the appellee’s motion for summary judgment.
The Court of Appeals began by summarizing the five elements of a deliberate intent claim codified by §23-4-2-(d)(2)(ii) of the West Virginia Code: “(A) the existence of a specific unsafe working condition posing a high degree of risk of injury; (B) an employer’s actual knowledge of the specific unsafe working condition; (C) the specific unsafe working condition is a violation of law or established standard in the industry; (D) despite being aware of the first three conditions the employer intentionally exposed an employee to the specific unsafe working condition; and (E) the existence of a serious compensable injury or death of the employee subjected to the unsafe condition.”
The Court determined that the appellant failed to introduce sufficient evidence to establish the second and fourth elements, that the appellee had actual knowledge of the hazardous working condition or intentionally exposed appellant to it. The assertions by a former employee in his affidavit that he spoke with a supervisor about unsafe working conditions was too indefinitive to prove that the employer had actual awareness of the situation in order to satisfy the second element of the claim. Additionally, the appellant was unable to establish the fourth element, since he did not have sufficient evidence to prove that the employer directed him to operate the drill that close to the edge of the highwall contrary to the ground control plan. Conversely, there was evidence in the appellee’s favor showing that the employee had received proper training and that a safety harness was not required as long as the workers operated at least four feet away from the edge of the highwall pursuant to the ground control plan of which the appellant was aware.
Therefore, because the appellant failed to meet his burden of proof, there was no genuine issue as to a material fact and the Supreme Court of Appeals of West Virginia affirmed the summary judgment order of the Circuit Court of Logan County.
Ramey v. Contractor Enterprises, Inc. , 2010 W. Va. Lexis 37
By: Catherine Spafford |
