Toth v. A&R Logistics, Inc., CIVIL ACTION NO. 2:16-cv-09793

Decision Date12 June 2018
Docket NumberCIVIL ACTION NO. 2:16-cv-09793
CourtU.S. District Court — Southern District of West Virginia
PartiesCHRISTOPHER TOTH, Plaintiff, v. A&R LOGISTICS, INC., Defendant.

Pending before the Court is Defendant A&R Logistics, Inc.'s Motion for Summary Judgment. (ECF No. 65.) For the reasons below, the Court DENIES the motion.


This case arises out of an injury Plaintiff Christopher Toth suffered on April 7, 2014, while operating the bottom hopper valve on the trailer attached to a truck he drove that day during his employment with Defendant. (ECF No. 3-1 at 3-4 ¶¶ 3, 7-8.) According to the Complaint, the valve "kicked back" and caused a serious, permanent injury to Plaintiff's left arm. (Id. at 4 ¶¶ 7-8.)

Plaintiff originally filed this suit in the Circuit Court of Wood County, West Virginia, on April 7, 2016. (Id. at 3.) The Complaint asserts a single deliberate intent cause of action in violation of West Virginia Code § 23-4-2(d)(2). Plaintiff seeks relief in the forms of general and compensatory damages in addition to future earning capacity, interest, and costs. (Id. at 6.)

Defendant removed the case to this Court on October 17, 2016, asserting diversity jurisdiction as the basis of removal pursuant to 28 U.S.C. § 1332. (ECF No. 3 at 1-2.) Defendant's summary judgment motion was filed on October 25, 2017. (ECF No. 65.) Plaintiff responded to the motion on November 9, 2017, (ECF No. 69), and Defendant filed a reply on November 16, 2017, (ECF No. 71). As such, the motion is fully briefed and ripe for adjudication.


Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment. This rule provides, in relevant part, that summary judgment should be granted if "there is no genuine issue as to any material fact." Summary judgment is inappropriate, however, if there exist factual issues that reasonably may be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "Facts are 'material' when they might affect the outcome of the case, and a 'genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." News & Observer Publ. Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). When evaluating such factual issues, the Court must view the evidence "in the light most favorable to the opposing party." Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970).

The moving party may meet its burden of showing that no genuine issue of fact exists by use of "depositions, answers to interrogatories, answers to requests for admission, and various documents submitted under request for production." Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir. 1984). Once the moving party has met its burden, the burden shifts to the nonmoving party to "make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477U.S. 317, 322 (1986). If a party fails to make a sufficient showing on one element of that party's case, the failure of proof "necessarily renders all other facts immaterial." Id. at 323.


Plaintiff alleges that Defendant violated West Virginia Code § 23-4-2(d)(2) by "consciously, subjectively and deliberately form[ing] the intention to produce the specific result of the injuries suffered . . . ." (ECF No. 1-1 at 5.) Generally, employees who are injured at their place of work must seek compensation through the West Virginia Workers' Compensation Act. See W. Va. Code § 23-2-6 (2003); State ex rel. Frazier v. Hrko, 510 S.E.2d 486, 493 n.11 (W. Va. 1998). This legislation serves the dual purposes of allowing an employee to recover even when he is at fault while immunizing employers from civil litigation. "There is an exception to this immunity, however, when the employee's injury is the result of the employer's 'deliberate intention' to cause that injury." Helmick v. Potomac Edison Co., 406 S.E.2d 700, 705 (W. Va. 1991).

The standard for "deliberate intention" as codified by West Virginia law at the time of Plaintiff's injury provides, in pertinent part, the following:

(2) The immunity from suit provided under this section and under section six-a, article two of this chapter may be lost only if the employer or person against whom liability is asserted acted with "deliberate intention". This requirement may be satisfied only if:

. . .

(ii) The trier of fact determines, either through specific findings of fact made by the court in a trial without a jury, or through special interrogatories to the jury in a jury trial, that all of the following facts are proven:
(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 had a subjective realization and an appreciation 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, 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 employer nevertheless thereafter exposed an employee to the specific unsafe working condition intentionally; and
(E) That the employee exposed suffered serious injury or death as a direct and proximate result of the specific unsafe working condition.

W. Va. Code § 23-4-2(d) (2005).

Success on a deliberate intent claim hinges on the existence of evidence proving all five specific requirements enumerated above in subparagraphs (A) through (E). See Keesee v. Gen. Refuse Serv., Inc., 604 S.E.2d 449, 459 (W. Va. 2004) (citing Syl. pt. 2, Mayles v. Shoney's, Inc., 405 S.E.2d 15 (W. Va. 1990)).1 "Thus, in order to withstand a motion for summary judgment, a plaintiff must make a prima facie showing of dispute on each of the five factors." Marcus v. Holley, 618 S.E.2d 517, 529 (W. Va. 2005) (quoting Mumaw v. U.S. Silica Co., 511 S.E.2d 117, 120 (W. Va. 1998)).

A. Specific Unsafe Working Condition

Subparagraph (A) "requires proof by the employee of a specific unsafe working condition which presented a high degree of risk and a strong probability of serious injury or death." McComas v. ACF Indus., 750 S.E.2d 235, 240 (W. Va. 2013). Plaintiff argues that the specific unsafe working condition in this dispute is the "failure to provide mandatory training to a driver prior to sending him on a solo trip to unload a pneumatic trailer."2 (ECF No. 69 at 22.) This Court has recognized that a failure to provide legally-required training can serve as an unsafe working condition for purposes of the statute at issue. See Skaggs v. Kroger Co./Kroger Ltd. P'Ship I, 788 F. Supp. 2d 501, 506 (S.D. W. Va. 2011) (citing Arnazzi v. Quad/Graphics, Inc., 621 S.E.2d 705, 707 (W. Va. 2005)).

Plaintiff has submitted testimony supporting the notion that the lack of proper training on how to unload the type of trailer involved in this case presents a high degree of risk and a strong probability of serious injury. For example, Dirk Schulthesis, a former dispatcher for Defendant, testified that the trailer operated by Plaintiff requires specialized training and that serious injury may occur in the absence of proper training. (See ECF No. 69-3 at 2, 4 ("Q. . . . If a person isn't properly trained on [the loading and unloading process], they could be exposed to a risk of serious injury or could expose others around them to a risk of serious injury; right? . . . A. Yes."), 8 (testifying that, as a former dispatcher, he would not send an untrained employee to drive andunload a trailer by himself because it "would present him a risk of serious injury if he did that").) Rodney Turner, one of Defendant's employees who trained individual drivers at the company, also testified that the failure to train employees creates an unsafe working condition and that one purpose of such training is to prevent injuries like Plaintiff's. (See ECF No. 69-2 at 9, 13 ("Q. Right. And if you don't know the process fully, you're not trained on it, you're at risk of getting hurt . . . . We've established that, right? A. Yeah.").) The Court notes that neither Mr. Schulthesis nor Mr. Turner appears to be a safety expert. However, their testimonies lend support to the notion that the failure to train individuals on how to unload pneumatic trailers creates a high degree of risk and a strong probability of serious injury. The expert report submitted by Plaintiff and prepared by Samuel T. Daugherty, Safety Specialist and Owner of DCT Safety Solution, also attests to the fact that the failure to train creates an unsafe working condition. (See ECF No. 69-7 at 2 ("Mr. Toth was subjected to an unsafe environment when he was instructed to perform a task that he did not feel comfortable with and was not properly trained to conduct according to manufacturer and industry standards.").) Based on this, the trier of fact could find for Plaintiff on the first statutory element, and the Court, therefore, finds a genuine issue of material fact as to subparagraph (A). Of course, this element is contingent on proof that the training is legally mandated or required by industry standards, see Skaggs, 788 F. Supp. 2d at 506, which is addressed below.

B. Actual Knowledge


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