Jason S. Smith v. Apex Pipeline Services , 230 W. Va. 620 ( 2013 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2013 Term
FILED
April 4, 2013
No. 11-1610 released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
JASON S. SMITH
Plaintiff Below, Petitioner
v.
APEX PIPELINE SERVICES, INC.,
Defendant Below, Respondent
Appeal from the Circuit Court of Kanawha County
Honorable Tod J. Kaufman, Judge
Civil Action No. 09-C-2087
AFFIRMED
Submitted: February 19, 2013
Filed: April 4, 2013
Charles M. Love, IV, Esq. Mary H. Sanders, Esq.
Marvin W. Masters, Esq. J. Todd Bergstrom, Esq.
The Masters Law Firm lc Huddleston Bolen, LLP
Charleston, West Virginia Charleston, West Virginia
Attorneys for Petitioner Attorneys for Respondent
The opinion of the Court was delivered PER CURIAM.
Justice Workman concurs, in part, and dissents, in part, and reserves the right to file a
separate opinion.
SYLLABUS BY THE COURT
1. “A circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1,
Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
2. “‘“A motion for summary judgment should be granted only when it is clear that
there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable
to clarify the application of the law.” Syllabus Point 3, Aetna Casualty & Surety Co. v.
Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).’ Syllabus Point
1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).” Syl. Pt. 2,
Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
3. “Summary judgment is appropriate if, from the totality of the evidence presented,
the record could not lead a rational trier of fact to find for the nonmoving party, such as
where the nonmoving party has failed to make a sufficient showing on an essential element
of the case that it has the burden to prove.” Syl. Pt. 2, Williams v. Precision Coil, Inc., 194
W.Va. 52, 459 S.E.2d 329 (1995).
4. “In order to make a prima facie case of discrimination under W.Va. Code, 23-5A­
1, the employee must prove that: (1) an on-the-job injury was sustained; (2) proceedings were
i
instituted under the Workers’ Compensation Act, W.Va. Code, 23-1-1, et seq.; and (3) the
filing of a workers’ compensation claim was a significant factor in the employer’s decision
to discharge or otherwise discriminate against the employee.” Syl. Pt. 1, Powell v. Wyoming
Cablevision, Inc., 184 W.Va. 700, 403 S.E.2d 717 (1991).
5. “‘A plaintiff may establish a “deliberate intention” in a civil action against an
employer for a work-related injury by offering evidence to prove the five specific
requirements provided in [W.Va. Code § 23-4-2(d)(2)(ii) (2010)].’ Syl. Pt. 2, Mayles v.
Shoneys, Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990).” Syl. Pt. 3, Tolley v. ACF Industries,
Inc., 212 W.Va. 548, 575 S.E.2d 158 (2002).
ii
Per Curiam:
This case is before this Court upon the appeal of a final order of the Circuit
Court of Kanawha County, West Virginia, entered on October 18, 2011, granting summary
judgment in favor of Respondent Apex Pipeline Services, Inc. (“Apex”), in a “deliberate
intention” action filed pursuant to West Virginia Code § 23-4-2(d)(2)(ii) (2010), and which
also alleged workers’ compensation discrimination. On appeal, Petitioner Jason S. Smith
contends that the circuit court erred in granting summary judgment on both claims because
genuine issues of material fact exist as to whether Apex acted with deliberate intention to
cause the petitioner’s injury, and whether Apex refused to rehire the petitioner in retaliation
for filing a workers’ compensation claim. This Court has carefully considered the briefs and
arguments of the parties, the appendix record, and the applicable legal authority. For the
reasons set forth below, the order of the circuit court is affirmed.
I. Facts and Procedural Background
On or about September 4, 2008, the petitioner was hired by Apex as a general
laborer to work on a pipeline project in Boone County, West Virginia. According to Robert
Keaton, Apex’s Vice President of Operations and the petitioner’s supervisor on the project,
Apex routinely hires “out of the union hall” for pipeline projects and specifically asks for
“pipeline laborers.” He testified that these workers are “supposed to be trained professionals
1
when they come [however], we always put them with our trained people until we figure out
if they are actually what they say they are.”1
At the end of the workday on September 30, 2008, two pipes were laid side by
side diagonally across a trench so that they could be lowered into the trench for welding the
next morning. According to Mr. Keaton and Christopher Graham, the side boom operator
on the project, the pipes were secured by a wooden chock on one side of the pipes and, on
the other side, were cradled in loose dirt that was removed from the trench.2 After the
petitioner placed the strap from the side boom around the center of one of the pipes, Mr.
Graham lifted it with the side boom in order to lower it into the trench. Both Mr. Keaton and
Mr. Graham testified that it is the responsibility of the laborers (here, the petitioner) to then
move the chock flush to the pipe that remained lying across the trench. However, the
petitioner failed to move the chock to the remaining pipe and, as a result, that pipe was left
unsecured.3 Then, when the petitioner entered the trench in order to set the skids on which
1
Mr. Keaton further testified that he “give[s] the safety meetings on Monday
mornings” and “closely monitor[s] the whole place every day.”
2
According to Mr. Keaton, one of the reasons the pipe is secured is because if it
“roll[s] to the ground or rock,” the pipe’s coating becomes damaged, which could cause gas
to escape through the pipe.
3
In its order granting summary judgment, the circuit court agreed with Apex that the
evidence presented “demonstrate[d] that securing the pipe was the responsibility of the
laborers” and that the petitioner “failed to secure the remaining pipe after its companion pipe
was lifted.” The petitioner does not dispute either of these facts in this appeal.
2
the first pipe would be set, the unsecured pipe rolled into the trench and struck the petitioner
in the back.4 The petitioner sustained back and other injuries as a result of the accident. He
subsequently applied for and received workers’ compensation benefits for his injury.
In May of 2009, even though he was physically unable to perform his pre-
injury job duties, the petitioner contacted Apex to inquire whether the company had any
work.5 Mr. Keaton advised him that there was no available work at that time. He explained
that because the project for which the petitioner was specifically hired was completed, he and
many other workers hired for the project were laid off. More specifically, he testified that
there were “lots of them we didn’t bring back[,]” that “[w]e [were] done with the ones that
we called out of the union hall [, and] [a]s their job finishes, we send them back to the union
hall.” With regard to the petitioner’s employment at Apex, Mr. Keaton testified that “he
4
Mr. Keaton, who has worked in the pipeline industry for more than thirty years,
testified that he has never seen a pipe roll into a trench in the manner that occurred in this
case.
5
Although the petitioner asserts that he was released to work “without restriction”
when he contacted Apex in May of 2009, the evidence does not support this assertion.
According to an Independent Medical Evaluation Report dated March 19, 2009, the
evaluating physician, Dr. William Hoh, wrote that the petitioner “does not believe that he
could return to his pre-work duties. It is my opinion that it is unlikely that he will return to
his pre-injury job duties.” Furthermore, in Plaintiff’s Objections, Answers and Responses
to Defendant Apex Pipeline Services, Inc.’s First Set of Interrogatories and Requests for
Production of Documents, filed January 27, 2010, the Petitioner indicated that he “continues
to suffer from injuries which have prevented his employability,” and that he has not been
released by his treating physician to return to work. Subsequently, during the course of his
March 11, 2010, deposition, the petitioner testified that “I am released to go back to work on
light duty.”
3
[was] laid off. No one terminated him or discharged him, because we [were] done with his
services.” Moreover, the petitioner testified that, following his conversation with Mr.
Keaton, he believed there was no available work at Apex.
On or about May 21, 2009, the petitioner filed for unemployment compensation
benefits. The required “Request for Separation Information” form stated that the petitioner
was separated from employment due to “Lack of Work.” However, Pamela D. Perry,6
Secretary/Treasurer of Apex, also indicated on the form that the reason for the petitioner’s
separation was “discharge” and that he was “injured on job[;] workers comp.
injury–settlement granted 4/22/09.” When the petitioner contacted Ms. Perry to inquire about
the discrepancy on the form,7 she acknowledged her error and took immediate action to
correct it.8 Soon thereafter, the petitioner was awarded unemployment compensation
benefits.
6
At the time Ms. Perry gave her deposition in this matter, she was known as Pamela
Moss.
7
The petitioner contacted Ms. Perry because his application for unemployment
compensation benefits was denied.
8
More specifically, Ms. Perry testified that she “checked the wrong box.” She further
testified that she “called the judge, and the judge called me back, and I explained to her that
I was unaware up until [the petitioner] had called me that I had made an error on the form,
and I did, and I explained to her what had happened, and she awarded him his
unemployment.”
4
On November 6, 2009, the petitioner filed the instant action alleging deliberate
intention and workers’ compensation discrimination.9 On August 11, 2011, Apex filed a
motion for summary judgment. Following a hearing on the matter, the circuit court entered
its Order Granting Defendant’s Motion for Summary Judgment, in which it concluded that
the petitioner failed to present evidence supporting four of the five elements required for a
deliberate intention claim as set forth in West Virginia Code § 23-4-2(d)(2)(ii)(A)-(D), and
further failed to demonstrate that the petitioner’s filing of a workers’ compensation claim
was a significant factor in Apex’s decision not to rehire him, in violation of West Virginia
Code § 23-5A-1 (2010).10 This appeal followed.
9
Through the Complaint, the petitioner also alleged that Apex’s negligence
proximately caused the petitioner’s injuries. It is axiomatic that, under West Virginia Code
§ 23-2-6 (2010), qualifying employers are immune “from common-law tort liability for
negligently inflicted injuries.” Bias v. Eastern Assoc. Coal. Corp., 220 W.Va. 190, 194, 640
S.E.2d 540, 544 (2006). Nevertheless, the petitioner’s negligence allegation is not addressed
in the circuit court’s summary judgment order, nor does the record herein indicate the status
of the claim.
10
The circuit court’s order also concluded that the petitioner failed to present sufficient
evidence that Apex unlawfully discriminated against the petitioner in violation of either West
Virginia Code § 23-5A-3(a) (2010) (providing, in relevant part, that it is a discriminatory
practice to terminate an injured employee while he or she is off work and receiving
temporary total disability benefits) or West Virginia Code § 23-5A-3(b) (providing, in
relevant part, that it is a discriminatory practice for an employer to fail to reinstate an injured
employee who demands reinstatement to his or her former position “provided that the
position is available and the employee is not disabled from performing the duties of such
position”). The petitioner does not appeal the circuit court’s ruling in this regard.
5
II. Standard of Review
This case is before the Court on appeal of the circuit court’s order granting
summary judgment in favor of Apex. Accordingly, our review of this appeal is de novo.
As we held in syllabus point one of Painter v. Peavy, 192 W.Va. 189, 190, 451 S.E.2d 755,
756 (1994), “[a] circuit court’s entry of summary judgment is reviewed de novo.” In
performing our plenary review, we are mindful that
“‘[a] motion for summary judgment should be granted only
when it is clear that there is no genuine issue of fact to be tried
and inquiry concerning the facts is not desirable to clarify the
application of the law.’ Syllabus Point 3, Aetna Casualty &
Surety Co. v. Federal Insurance Co. of New York, 148 W.Va.
160, 133 S.E.2d 770 (1963).” Syllabus Point 1, Andrick v.
Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).
Painter, 192 W.Va. at 190, 451 S.E.2d at 756, syl. pt. 2. Moreover, both this Court and the
court below “must draw any permissible inference from the underlying facts in the light most
favorable to the party opposing the motion.” Id. at 192, 451 S.E.2d at 758.
Finally, we note that
[s]ummary judgment is appropriate if, from the totality of
the evidence presented, the record could not lead a rational trier
of fact to find for the nonmoving party, such as where the
nonmoving party has failed to make a sufficient showing on an
essential element of the case that it has the burden to prove.
Syl. Pt. 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 56, 459 S.E.2d 329, 333 (1995).
6
III. Discussion
A. Workers’ Compensation Discrimination Claim
The first issue for our review is whether the circuit court properly concluded
that the petitioner failed to present sufficient evidence of discriminatory conduct to withstand
Apex’s motion for summary judgment. The petitioner argues that genuine issues of material
fact exist as to whether Apex violated West Virginia Code § 23-5A-1, which provides as
follows:
No employer shall discriminate in any manner against
any of his present or former employees because of such present
or former employee’s receipt of or attempt to receive benefits
under this chapter.
This Court has previously held that
[i]n order to make a prima facie case of discrimination
under W.Va. Code, 23-5A-1, the employee must prove that: (1)
an on-the-job injury was sustained; (2) proceedings were
instituted under the Workers’ Compensation Act, W.Va. Code,
23-1-1, et seq.; and (3) the filing of a workers’ compensation
claim was a significant factor in the employer’s decision to
discharge or otherwise discriminate against the employee.
Syl. Pt. 1, Powell v. Wyoming Cablevision, Inc., 184 W.Va. 700, 701, 403 S.E.2d 717, 718
(1991).
Having clearly satisfied the first two elements of Powell (i.e., an on-the-job
injury and the filing of a workers’ compensation claim), the petitioner contends, in essence,
that he also presented prima facie evidence of the third element: that Apex “refused to put
7
him back to work” because he applied for workers’ compensation benefits as a result of his
injury. Specifically, the petitioner points to the unemployment compensation form on which
Ms. Perry indicated that he was discharged from his employment at Apex because he was
injured at work and received a workers’ compensation settlement for the injury. The
petitioner argues that this fact alone creates a genuine issue of material fact on his
discrimination claim and that summary judgment was not appropriate. Apex argues,
however, that the competent evidence clearly shows that the petitioner’s filing of a workers’
compensation claim was not a significant factor in Apex’s decision not to rehire him in May
of 2009. Rather, Apex argues that the evidence demonstrates that the petitioner was not
rehired because there was no available work at the time he contacted Mr. Keaton in May
2009. Moreover, Mr. Keaton’s undisputed testimony established that the petitioner and many
other general laborers were hired “out of the union hall” for the purpose of working on the
pipeline project in Boone County. Mr. Keaton testified that as the workers’ jobs were
completed, Apex “sen[t] them back to the union hall” and that “[t]here [were] lots of them
we didn’t bring back.”
The petitioner also testified that he believed Mr. Keaton when he told him there
was no available work when he contacted him in May of 2009. Moreover, Ms. Perry testified
that she erroneously checked the “discharge” box on the petitioner’s unemployment
compensation form, and that, upon learning of her error, she immediately corrected it by
personally contacting the unemployment compensation office to explain her mistake. As a
8
direct result of Ms. Perry’s contact with the unemployment compensation office, the
petitioner was awarded unemployment compensation benefits.11
Upon careful consideration of the evidence presented, we find that the
petitioner failed to establish that his filing of a workers’ compensation claim was a
significant factor in Apex’s decision not to rehire him in May of 2009. The undisputed
evidence demonstrates that Ms. Perry made a clerical error on the petitioner’s unemployment
compensation form and that, as soon as she was made aware of her mistake, she contacted
the unemployment compensation office and corrected it in order to ensure that the petitioner
received the benefits to which he was entitled. Importantly, the petitioner does not dispute
that he was one of many workers laid off when the Boone County project was completed.
Based upon all of the above, this Court concludes that the petitioner failed to
adduce prima facie evidence giving rise to a genuine issue of material fact with regard to his
claim of workers’ compensation discrimination. Accordingly, the circuit court properly
granted summary judgment on this issue in favor of Apex.
11
There was a delay of approximately two weeks in the petitioner’s receipt of benefits
as a result of the clerical error in completing the form.
9
B. Deliberate Intention Claim
The second issue for our review is whether the circuit court committed error
in granting summary judgment on the petitioner’s “deliberate intention” claim. As a general
principle, the West Virginia Workers’ Compensation Act provides immunity to covered
employers for employee suits for “damages at common law or by statute” resulting from
work-related injuries. W.Va. Code § 23-2-6 (2010); see Sias v. W-P Coal Co., 185 W.Va.
569, 574, 408 S.E.2d 321, 326 (1991). An employer’s immunity is lost, however, when it
acts with “deliberate intention” to cause the employee’s injury. W.Va. Code § 23-4-2(d)(2);
see Sias, 185 W.Va. at 574, 408 S.E.2d at 326. If the deliberate intention exception applies,
the employee may file an action for damages in excess of workers’ compensation benefits.
W.Va. Code §§ 23-4-6 and 2(c); see Sias, 185 W.Va. at 574, 408 S.E.2d at 326.
This Court has recognized that “‘[a] plaintiff may establish a ‘deliberate
intention’ in a civil action against an employer for a work-related injury by offering evidence
to prove the five specific requirements provided in [W.Va. Code § 23-4-2(d)(2)(ii) (2010)].’
Syl. Pt. 2, Mayles v. Shoneys, Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990).” Syl. Pt. 3, Tolley
v. ACF Industries, Inc., 212 W.Va. 548, 550, 575 S.E.2d 158, 160 (2002). Under West
10
Virginia Code § 23-4-2(d)(2)(ii),12 a plaintiff must prove the following five elements to
establish a deliberate intention cause of action:
(A) That a specific unsafe working condition existed in the
workplace which presented a high degree of risk and a strong
probability of serious injury or death;
(B) That the employer, prior to the injury, had actual knowledge
of the existence of the specific unsafe working condition and of
the high degree of risk and the strong probability of serious
injury or death presented by the specific unsafe working
condition;
(C) That the specific unsafe working condition was a violation
of a state or federal safety statute, rule or regulation, whether
cited or not, or of a commonly accepted and well-known safety
standard within the industry or business of the employer, as
demonstrated by competent evidence of written standards or
guidelines which reflect a consensus safety standard in the
industry or business, which statute, rule, regulation or standard
was specifically applicable to the particular work and working
condition involved, as contrasted with a statute, rule, regulation
or standard generally requiring safe workplaces, equipment or
working conditions;
(D) That notwithstanding the existence of the facts set forth in
subparagraphs (A) through (C), inclusive, of this paragraph, the
12
In addition to West Virginia Code § 23-4-2(d)(2)(ii), an alternate method of
providing that an employer acted with deliberate intention is found in West Virginia Code
§ 23-4-2(d)(2)(i), which requires proof that an employer “acted with a consciously,
subjectively and deliberately formed intention to produce the specific result of injury or death
to an employee. This standard requires a showing of an actual, specific intent and may not
be satisfied by allegation or proof of: (A) Conduct which produces a result that was not
specifically intended; (B) conduct which constitutes negligence, no matter how gross or
aggravated; or (C) willful, wanton or reckless misconduct[.]” Id. See Syl. Pt. 1, Mayles v.
Shoneys, Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990). The petitioner’s deliberate intention
claim in the case sub judice alleges only a violation of West Virginia Code § 23-4-2(d)(2)(ii).
11
employer nevertheless intentionally thereafter exposed an
employee to the specific unsafe working condition; and
(E) That the employee exposed suffered serious compensable
injury or compensable death as defined in section one, article
four, chapter twenty-three whether a claim for benefits under
this chapter is filed or not as a direct and proximate result of the
specific unsafe working condition.
W.Va. Code § 23-4-2(d)(2)(ii)(A)-(E).
This Court has made clear that, pursuant to West Virginia Code § 23-4­
2(d)(iii)(B), a court shall dismiss a deliberate intention action “upon motion for summary
judgment if it finds . . . that one or more of the facts required to be proved by the provisions
of subparagraphs (A) through (E), inclusive, paragraph (ii) of this subdivision do not exist.”
W.Va. Code § 23-4-2(d)(iii)(B). Each of the five statutory factors “is an essential element
of a ‘deliberate intention’ cause of action, which a plaintiff has the ultimate burden to prove.
Therefore, at the summary judgment stage, if a defendant should establish that no material
issue of fact is in dispute on any one of the factors, and such a finding is in favor of the
defendant, summary judgment must be granted to the defendant.” Mumaw v. U.S. Silica Co.,
204 W.Va. 6, 11, 511 S.E.2d 117, 122 (1998). Finally, “‘in order to withstand a motion for
summary judgment, a plaintiff must make a prima facie showing of dispute on each of the
12
five factors.’” Marcus v. Holley, 217 W.Va. 508, 520, 618 S.E.2d 517, 529 (2005) (quoting
Mumaw, 204 W.Va. at 9, 511 S.E.2d at 120)).13
As discussed in more detail below, we conclude that although the petitioner
presented prima facie evidence as to whether there was a specific unsafe working condition,
West Virginia Code § 23-4-2(d)(ii)(A), he failed to present prima facie evidence of the
remaining statutory factors required to maintain a deliberate intention claim against Apex.
Specific Unsafe Working Condition
The petitioner alleges that a specific unsafe working condition existed on the
Apex job site “which presented a high degree of risk and a strong probability of serious injury
or death.” W.Va. Code § 23-4-2(d)(2)(ii)(A). According to the petitioner’s liability expert,
Dr. Gary S. Nelson, the specific unsafe working condition was Apex’s failure “to physically
safeguard the pipe . . . in a physically positive manner, from rolling [or] otherwise falling into
the adjacent excavation where Mr. Smith was present.” Dr. Nelson’s report further indicated
that
13
As indicated above, the circuit court concluded that the petitioner failed to present
prima facie evidence supporting four of the five statutory factors, West Virginia Code § 23­
4-2(d)(ii)(A) through (D). The fifth factor (that the employee suffered a serious compensable
injury as a proximate result of the specific unsafe working condition), set forth in
subparagraph (E), was not addressed in the circuit court’s summary judgment order and,
likewise, is not addressed by the parties on appeal.
13
[t]his could have been done in an easily achievable combination
of safeguards by the required use of iron stacks driven into the
ground at each end of every pipe on the excavation side of such
pipe, and as a secondary (backup), the routine piling of excavated
earth (the construction of a small mound) at the edge of all
excavations behind which pipe in storage would be placed in
preparation for its transfer into the excavation under controlled
(stable) conditions.
Special note: The routine practice and procedure
established by Apex in an attempt (the key word is attempt) to
secure stored pipe from rolling or otherwise prevent the pipe
from falling into adjacent excavations was to ‘find a nearby rock
or clump of earth’ to place at the base of the pipe to keep it from
rolling. Such a haphazard method must be recognized as subject
chance (high risk failure), the potential for such material to move
or roll away from such pipe or otherwise crumble under the
weight of the pipe, and therefore not a reliable method to secure
such pipe.
Special note: Unlike the relatively hidden nature of rocks
(etc.) to secure the pipe in this matter that are relatively small and
hidden from view in terms [sic] required inspection, the use of
iron stacks to secure pipe, stacks that would appear above the
pipe after being driven into the ground, would provide a readily
observable method to assure that such pipe was secure. . . . Apex
failed to properly train worke[rs] regarding the proper methods
to secure such pipe from movement.
For its part, Apex argues that the record demonstrates that securing the pipe was
the petitioner’s responsibility as a laborer and that the specific unsafe working condition
alleged to have existed was caused by the petitioner’s own carelessness in failing to secure
the remaining pipe with the chock after the companion pipe was moved. Apex argues that it
cannot be held liable for an unsafe working condition created by the petitioner’s failure to
14
perform the duties and obligations of his job. Apex relies, inter alia, on Mumaw, in which this
Court recognized that “where an employee creates a specific unsafe working condition by not
following expected procedures, a deliberate intention cause of action cannot be maintained
against the employer.” 204 W.Va. at 12, 511 S.E.2d at 123.14 This Court agreed with the
circuit court that, based upon the evidence, the employee, and not his employer, created the
unsafe working condition, and thus, the plaintiff (the administrator of the deceased
employee’s estate) could not sustain a deliberate intention claim under West Virginia Code
§ 23-4-2(d)(ii). Id. at 12, 511 S.E.2d at 123.
Apex’s argument notwithstanding, it is clear that the specific unsafe working
condition is not alleged to have arisen from the petitioner’s failure to chock the remaining
pipe after the companion pipe was removed. Rather, through Dr. Nelson’s report, the
petitioner has presented at least prima facie evidence that the specific unsafe working
condition was the manner in which Apex routinely secured its pipe. In reviewing the circuit
court’s summary judgment order, this Court reviews the underlying facts and inferences in the
light most favorable to the petitioner, the non-moving party. In so doing, we conclude that
the petitioner presented a genuine issue of material fact as to whether a specific unsafe
working condition existed on the job site which presented a high degree of risk and a strong
probability of serious injury, pursuant to West Virginia Code § 23-4-2(d)(ii)(A).
14
In Mumaw, an employee died after falling through a trap door that he failed to close
even though he had been directed to do so three times.
15
Actual Knowledge
We next address whether the petitioner has presented prima face evidence that,
Apex, “prior to the injury, had actual knowledge of the existence of the specific unsafe
working condition and of the high degree of risk and the strong probability of serious injury”
it presented. West Virginia Code §23-4-2(d)(2)(ii)(B). This Court has emphasized that “[t]his
is a high threshold that cannot be successfully met by speculation or conjecture.” Mumaw,
204 W.Va. at 12, 511 S.E.2d at 123; Coleman Estate ex rel. Coleman v. R.M. Logging, Inc.,
226 S.E.2d 199, 207, 700 S.E.2d 168, 176 (2010). Indeed, the actual knowledge requirement
“is not satisfied merely by evidence that the employer reasonably should have known of the
specific unsafe working condition and of the strong probability of serious injury or death
presented by that condition. Instead, it must be shown that the employer actually possessed
such knowledge.” Syl. Pt. 3, in part, Blevins v. Beckley Magnetite, Inc., 185 W.Va. 633, 634,
408 S.E.2d 385, 386 (1991). We have further clarified that a determination of whether an
employer had actual knowledge “requires an interpretation of the employer’s state of mind,
and must ordinarily be shown by circumstantial evidence, from which conflicting inferences
may often reasonably be drawn.”15 Syl. Pt. 2, in part, Nutter v. Owens-Illinois, Inc., 209
W.Va. 608, 609, 550 S.E.2d 398, 399 (2001).
15
Moreover, “while a plaintiff may choose to introduce evidence of prior similar
incidents or complaints to circumstantially establish that an employer has acted with
deliberate intention, evidence of prior similar incidents or complaints is not mandated” under
the deliberate intention statute. Nutter, 209 W.Va. at 667, 639 S.E.2d at 759, syl. pt. 2, in
part.
16
Though not clearly articulated in his brief, the petitioner appears to argue that
he has demonstrated that a genuine issue of material fact exists as to whether, prior to the
petitioner’s injury, Apex had actual knowledge that its workers were practicing an unsafe
procedure with regard to the manner in which pipe was secured. The petitioner relies on Dr.
Nelson’s report, which stated that, due to the nature of Apex’s
daily work of laying pipe in excavated trenches, Apex
(undeniably) knew (a) of the severe injury potential associated
with the danger of heavy pipe rolling or falling into excavations
from the adjacent embankment, (b) knew that such potential
contains the clear risk of producing severe injury to workers
working within such excavations; that is, they had a clear and
reasonable subjective awareness of the high degree of risk and
probability of severe injury (or death) associated with the
potential for unsecured pipe rolling or falling into excavations
where their workers were present, and (c) that such injury
potential would dictate the focused attention on their part toward
the positive elimination or control of related hazardous
conditions or factors that cause such injury . . . .
However, Apex argues that the facts upon which Dr. Nelson relied in rendering
his report were limited to those surrounding the accident at issue and that such evidence is not
sufficient to show that, prior to the petitioner’s injury, Apex had actual knowledge that a
specific unsafe working condition existed and of the high degree of risk and the strong
probability of serious injury it presented. W.Va. Code § 23-4-2(d)(ii)(B).
17
It is clear from our review of Dr. Nelson’s report that he makes absolutely no
reference to specific facts supporting his opinion that, before the petitioner’s injury occurred,
Apex actually knew of the existence of the specific unsafe working condition, and that the
unsafe condition presented a high degree of risk and a strong probability of serious injury.
In fact, under the “Preface to Opinions and Conclusions” section of his report, Dr. Nelson
explained that the opinion section of his report intended to provide
foundational opinions that enumerate various concepts,
principles, and basic areas of knowledge or understandings that
Apex knew about–that is, they either knew about in fact as
documented in the discovery process in this matter, doubtlessly
knew about as such knowledge cannot be realistically or credibly
denied as being universally known by workplace managers, or
they otherwise reasonably possessed a conscious awareness and
understanding of by virtue of the[ir] industry position, business
operation, and related circumstances–which taken as a whole,
establish a basis for . . . [my] opinion and conclusions that
address specific issues of causation.
(footnotes omitted and emphasis added). Notwithstanding the foregoing, and although Dr.
Nelson’s report listed the discovery documents reviewed in preparation of his report, the
report itself makes no specific or substantive reference to any facts demonstrating that, before
the petitioner’s injury occurred, Apex had actual knowledge of the specific unsafe working
condition. Moreover, the petitioner does not point to any evidence tending to show that Apex
had “actual knowledge” within the meaning of the deliberate intention statute. To the
contrary, the petitioner’s evidence is based upon speculation that, prior to the petitioner’s
injury, Apex reasonably should have known of the unsafe working condition and its attendant
degree of risk and probability of injury.
18
Based upon the foregoing, and viewing the evidence in the light most favorable
to the petitioner, we conclude that the petitioner has failed to present prima facie evidence,
either direct or circumstantial, that, prior to the petitioner’s injury, Apex had actual knowledge
that a specific unsafe working condition existed and of the high degree of risk and the strong
probability of serious injury it presented, as required by West Virginia Code § 23-4­
2(d)(ii)(B).
Given that the petitioner has failed to demonstrate that a genuine issue of
material fact exists as to whether Apex had actual knowledge of the specific unsafe working
condition, we find that the circuit court properly granted summary judgment in favor of Apex
because the petitioner failed to prove all five statutory factors provided in West Virginia Code
§ 23-4-2(d)(ii). Tolley, 212 W.Va. at 550, 575 S.E.2d at 160, syl. pt. 3; see W.Va. Code § 23­
4-2(d)(iii)(B) (specifically requiring dismissal of deliberate intention action if, upon motion
for summary judgment, court finds “that one or more of the facts required to be proved by the
provisions of subparagraphs (A) through (E) . . . do not exist.”); Mumaw, 204 W.Va. at 11,
511 S.E.2d at 122 (stating that each of five statutory factors is essential element of deliberate
intention claim; therefore, at summary judgment stage, if defendant “establish[es] that no
material issue of fact is in dispute on any one of the factors, and such a finding is in favor of
the defendant, summary judgment must be granted to the defendant.”).
19
Although we recognize that it is not necessary to the resolution of this appeal,
we, nevertheless, proceed to address the remaining statutory factors required to prove the
petitioner’s deliberate intention claim.
Violation of Specific Safety Statute, Rule,
Regulation or Industry Standard
To withstand Apex’s motion for summary judgment, the petitioner was
required to present prima facie evidence that the specific unsafe working condition was a
violation of a state or federal safety statute, rule or regulation or of a commonly accepted
standard within the pipeline industry and was “specifically applicable to the particular work
and working condition involved, as contrasted with . . . regulation[s]. . . generally requiring
safe workplaces, equipment or working conditions[.]” W.Va. Code § 23-4-2(d)(2)(ii)(C).
The petitioner argues that he presented competent evidence of violations of OSHA
regulations 29 C.F.R. § 1926.651(j)(2) and (k)(1), regarding “specific excavation
requirements.”16
16
The petitioner also relies upon alleged violations of 29 C.F.R. § 1926.20(b)(1), (2)
and (3), which are OSHA regulations identified as “General Safety and Health Provisions”
and which provide as follows:
(b) Accident prevention responsibilities.
(1) It shall be the responsibility of the employer to initiate and
20
The provisions of 29 C.F.R. § 1926.651(j)(2) state as follows:
(j) Protection of employees from loose rock or soil.
(2) Employees shall be protected from excavated or other
materials or equipment that could pose a hazard by falling or
rolling into excavations. Protection shall be provided by
maintain such programs as may be necessary to comply with this
part.
(2) Such programs shall provide for frequent and regular
inspections of the job sites, materials, and equipment to be made
by competent persons designated by the employers.
(3) The use of any machinery, tool, material, or equipment
which is not in compliance with any applicable requirement of
this part is prohibited. Such machine, tool, material, or
equipment shall either be identified as unsafe by tagging or
locking the controls to render them inoperable or shall be
physically removed from its place of operation.
29 C.F.R. 1926.21(b)(2), states:
(b) Employer responsibility.
(2) The employer shall instruct each employee in the recognition
and avoidance of unsafe conditions and the regulations
applicable to his work environment to control or eliminate any
hazards or other exposure to illness or injury.
However, the petitioner fails to offer any argument or set forth any evidence
demonstrating that 29 C.F.R. § 1926.20(b)(1)-(3) and 29 C.F.R. § 1926.21(b)(2) were
violated. This Court has explained that “[a] skeletal ‘argument,’ really nothing more than
an assertion, does not preserve a claim[.] Judges are not like pigs, hunting for truffles buried
in briefs.” State, Dept. of Health v. Robert Morris N., 195 W.Va. 759, 765, 466 S.E.2d 827,
833 (1995). Finally, we reiterate that “[a]lthough we liberally construe briefs in determining
issues presented for review, issues . . . mentioned only in passing but are not supported with
pertinent authority, are not considered on appeal.” State v. LaRock, 196 W.Va. 294, 303, 470
S.E.2d 613, 621 (1995).
21
placing and keeping such materials or equipment at least 2 feet
(.61 m) from the edge of excavations, or by the use of retaining
devices that are sufficient to prevent materials or equipment
from falling or rolling into excavations, or by a combination of
both if necessary.
Under this regulation, protection from materials that could pose a hazard by
falling or rolling into excavations shall be provided either by “placing and keeping such
materials . . . at least 2 feet . . . from the edge of excavations, or by the use of retaining
devices that are sufficient to prevent materials . . . from falling or rolling into excavations,
or by a combination of both if necessary.” Id. (emphasis added). The petitioner states only
that “[t]he pipe was unsecured and not re-secured under the job site supervisor’s direction.
The pipe rolled into the excavation, striking Mr. Smith and causing serious injury.”
The petitioner’s argument notwithstanding, the undisputed evidence
demonstrates that Apex workers had secured the pipe with a chock, which was sufficient to
prevent the pipe from rolling into the trench. The pipe then became unsecured when the
petitioner failed to move the chock flush to the remaining pipe after its companion pipe had
been lifted with the side boom. The petitioner has failed to present prima facie evidence that
29 C.F.R. § 1926.651(j)(2) was violated by Apex.
The petitioner also alleges that Apex violated 29 C.F.R. § 1926.651(k)(1),
which provides as follows:
22
(k) Inspections
(1) Daily inspections of excavations, the adjacent areas, and
protective systems shall be made by a competent person for
evidence of a situation that could result in possible cave-ins,
indications of failure of protective systems, hazardous
atmospheres, or other hazardous conditions. An inspection
shall be conducted by the competent person prior to the start of
work and as needed throughout the shift. Inspections shall also
be made after every rainstorm or other hazard increasing
occurrence. These inspections are only required when
employee exposure can be reasonably anticipated.
The petitioner fails to set forth any evidence demonstrating that daily
inspections were not performed or that this regulation was otherwise violated. In contrast,
Apex points to specific testimony from Mr. Keaton indicating that he closely monitors the
job site on a daily basis. The petitioner has failed to present prima facie evidence that 29
C.F.R. § 1926.651(k)(1) was violated by Apex.
In summary, the petitioner has failed to demonstrate that there are genuine
issues of material fact as to whether the alleged specific unsafe working condition violated
any of the federal safety regulations discussed herein.
Intentional Exposure
Lastly, we address whether the petitioner presented competent evidence “[t]hat
notwithstanding the existence of the facts set forth in [West Virginia Code § 23-4­
2(d)(ii)(A) through (C)] . . . the employer nevertheless intentionally thereafter exposed [the
23
petitioner] to the specific unsafe working condition.” W.Va. Code § 23-4-2(d)(ii)(D). In
order to establish the existence of intentional exposure in a deliberate intention claim, there
“must be some evidence that, with conscious awareness of the unsafe working condition .
. . an employee was directed to continue working in that same harmful environment.”
Ramey v. Contractor Enterprises, Inc., 225 W.Va. 424, 431, 693 S.E.2d 789, 796 (2010)
(quoting Tolley, 212 W.Va. at 558, 575 S.E.2d at 168). “In other words, this element, which
is linked particularly with the [actual knowledge] element, is not satisfied if the exposure
of the employee to the condition was inadvertent or merely negligent.” Sias, 185 W.Va. at
575, 408 S.E.2d at 327.
As evidence that Apex intentionally exposed him to a specific unsafe working
condition, the petitioner points to the fact that Mr. Keaton, his supervisor, “instructed him
to work in the trench below the unsecured pipe,” even though Mr. Keaton had “knowledge
of safety violations and hazards.” The specific evidence on which the petitioner relies is his
own testimony that Mr. Keaton was present on the job site; that he “wanted us to get
everything set up”; and that “if there was something unsafe, he should have said something
to us right there and right then.” The petitioner’s testimony notwithstanding, and as we have
already concluded, there is simply no evidence that Mr. Keaton had actual knowledge that
the pipe was not chocked or that he (or anyone at Apex) directed the petitioner to work in
the trench “with conscious awareness of the unsafe working condition.” Ramey, 225 W.Va.
at 431, 693 S.E.2d at 796. We therefore conclude that the petitioner has not presented prima
24
facie evidence that Apex intentionally exposed him to a specific unsafe working condition.
Having determined that the petitioner failed to demonstrate the statutory
predicate for a “deliberate intention” claim, we find that the circuit court did not err in
granting summary judgment in favor of Apex.
IV. Conclusion
For the reasons set forth above, the order of the circuit court entered October
18, 2011, is hereby affirmed.
Affirmed.
25