Hesson v. Morrison-Knudsen Co. , 117 F. App'x 857 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1058
CLARENCE W. HESSON,
Plaintiff - Appellant,
versus
MORRISON-KNUDSEN COMPANY, INCORPORATED, a
Delaware corporation; E.I. DUPONT DE NEMOURS
& COMPANY, a Delaware corporation,
Defendants - Appellees.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (CA-01-619-2)
Argued: October 28, 2004 Decided: December 3, 2004
Before WILKINS, Chief Judge, and MICHAEL and TRAXLER, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Harry Gustavus Shaffer, III, SHAFFER & SHAFFER, P.L.L.C.,
Madison, West Virginia, for Appellant. Raymond Michael Ripple,
E.I. DUPONT DE NEMOURS & COMPANY, Wilmington, Delaware; Eric E.
Kinder, SPILMAN, THOMAS & BATTLE, P.L.L.C., Charleston, West
Virginia, for Appellees. ON BRIEF: H. Jerome Sparks, SHAFFER &
SHAFFER, P.L.L.C., Madison, West Virginia, for Appellant. Edward
W. Rugeley, III, Niall A. Paul, SPILMAN, THOMAS & BATTLE, P.L.L.C.,
Charleston, West Virginia, for Appellee Morrison-Knudsen; Donna L.
Goodman, E.I. DUPONT DE NEMOURS & COMPANY, Wilmington, Delaware,
for Appellee DuPont.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Clarence Hesson sued his former employer, Morrison-
Knudsen Company, Inc. (MK), and E.I. Dupont De Nemours and Company
(Dupont) for injuries he sustained while cleaning a bag house at
Dupont’s Washington Works facility near Parkersburg, West Virginia.
(A bag house sits atop a boiler and functions to prevent
particulate matter generated by the boiler from escaping into the
outside air.) Hesson seriously injured his leg when he slipped and
fell into a temporary recess in the bag house floor while removing
empty filter-bag cages. At the time of Hesson’s injuries, MK was
Dupont’s in-house contractor responsible for maintaining and
cleaning the facility’s bag houses. Hesson alleges, pursuant to
section 23-4-2(d)(2) of the West Virginia Code, that MK is not
immune from suit under the State’s workers’ compensation scheme
because MK acted with deliberate intention in exposing him to an
unsafe working condition. Hesson also alleges that Dupont, as the
owner of the facility, violated West Virginia statutory and common
law by maintaining unsafe premises.
The district court awarded summary judgment to both MK
and Dupont. As to MK, the court concluded that Hesson could not
establish three of the five requirements of a deliberate intention
claim under section 23-4-2(c)(2) of the West Virginia Code. More
specifically, Hesson could not establish (1) that MK had a
subjective realization and appreciation of the existence of a
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specific unsafe working condition, (2) that the specific unsafe
working condition constituted a violation of state or federal law,
or (3) that MK had exposed Hesson to a specific unsafe working
condition. See Hesson v. Morrison-Knudsen Co., Inc., No. 2:01-0619
(S.D.W.Va. Dec. 12, 2003) (mem. order granting summary judgment to
MK). The district court concluded that Dupont is not liable under
West Virginia statutory or common law because Hesson could not
establish that the bag house was unsafe or that Dupont exercised
sufficient control over MK to permit MK’s employment practices to
be attributed to Dupont. See Hesson v. Morrison-Knudsen Co., Inc.,
No. 2:01-0619 (S.D.W.Va. Dec. 12, 2003) (mem. order granting
summary judgment to DuPont).
We affirm the orders awarding summary judgment to both MK
and Dupont, and we do so on the reasoning of the district court
with one exception. As to the deliberate intention claim against
MK, we decline to conclude that Hesson could not establish that the
specific unsafe working condition constituted a violation of OSHA
regulations, 29 C.F.R. § 1910.23(a)(5) and (a)(7), which set safety
standards for pits, trap door floor openings, and temporary floor
openings. These regulations require either railings around an
opening or the assignment of an employee to attend the opening.
The district court concluded, and Hesson’s expert witness agreed,
that railings around the temporary openings or recesses in the bag
house floor were not feasible. According to the district court, no
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violation of these regulations occurred when Hesson entered the bag
house by himself and began removing cages because he was attending
the temporary openings or recesses in the bag house floor at the
same time he was removing the cages. We disagree with the court’s
conclusion, on summary judgment, that Hesson could simultaneously
attend the openings and work around them. Nevertheless, Hesson’s
deliberate intention claim against MK still fails because, as the
district court determined, he cannot establish the two other
requirements of section 23-4-2(c)(2) noted in the preceding
paragraph.
The orders of the district court are therefore affirmed.
AFFIRMED
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