Ball v.

Decision Date10 April 2015
Docket NumberNo. 14-0582,No. 14-0583,14-0582,14-0583
CourtWest Virginia Supreme Court
PartiesDavid Edward Ball, II, Plaintiff Below, Petitioner v. A.L.L. Construction, Inc., a West Virginia corporation, and Allegheny Investments, LLC, a West Virginia Limited Liability Company, Defendants Below, Respondents And David Edward Ball, II, Plaintiff Below, Petitioner v. OSA Enterprises, LLC, a West Virginia Limited Liability Company, Defendant Below, Respondent

(Grant County 10-C-46)


In these consolidated appeals, Petitioner David Edward Ball, II, by counsel James A. Varner, Sr., Woodrow E. Turner, David A. Sims, and Pat A. Nichols, appeals the orders of the Circuit Court of Grant County granting summary judgment in favor of respondents and denying his motions for reconsideration of the same.1 Respondents A.L.L. Construction, Inc. and Allegheny Investments, LLC, by counsel Peter G. Zurbuch and Jeffrey S. Zurbuch, andRespondent OSA Enterprises, LLC, by counsel Mary A. Prim and Nathanial Kuratomi, filed responses. Petitioner filed a reply to each response.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's orders are appropriate under Rule 21 of the Rules of Appellate Procedure.

Facts and Procedural History

This matter stems from the dismissal of petitioner's civil action against Respondent A.L.L. Construction, Inc. ("A.L.L. Construction"), Respondent Allegheny Investments, LLC ("Allegheny Investments"), and Respondent OSA Enterprises, LLC ("OSA Enterprises") on summary judgment. Petitioner filed suit after suffering injuries on June 26, 2008, while he was an employee of both A.L.L. Construction and Allegheny Investments on property owned by OSA Enterprises. Petitioner's suit alleged, inter alia, violations of our deliberate intent statute2against his employers and a premises liability claim against OSA Enterprises.

Petitioner was hired by A.L.L. Construction in 2006 as a drilling rig operator. He operated A.L.L. Construction's Ingersol Rand drill that was mounted on a crawler chassis. During his employment until his accident in 2008, petitioner primarily performed excavation for site pads for windmills on the NedPower Project on Scherr Mountain in Grant County.

Allegheny Investments is in the business of mining limestone. On three or four occasions prior to the accident, including the day before the accident, petitioner had conducted drilling at an Allegheny Investments quarry also located on Scherr Mountain. He conducted this drilling without incident. Allegheny Investment's quarry is located on property adjacent to property owned by OSA Enterprises, where the accident occurred. Part-owner of A.L.L. Construction, Jason Kitzmiller, is also the managing member of Allegheny Investments.

On the day of the accident, petitioner was performing exploratory drilling on behalf of Allegheny Investments on OSA Enterprises property by collecting bore samples. The exploratory drilling was intended to ascertain whether the OSA Enterprises property was suitable to operate as a limestone quarry for Allegheny Investments. Mr. Kitzmiller and an Allegheny Investments foreman had previously walked the proposed drill path and staked out the starting and ending points. The foreman drove petitioner along the path on a parallel road to show him the drill path prior to his drilling. Petitioner states that, at times, it was difficult to see the drill path due to trees and overgrown vegetation.

Petitioner operated the drilling rig for several hours on the day of the accident. The last thing petitioner remembered before the accident was being on a hill and debating whether to keep going or to turn and go back. Petitioner elected not to turn the rig around, which he admitted in his deposition that he could have done. Rather, he continued off of the drill path, which resulted in the drilling rig going down an embankment and overturning onto its side, causing injuries to petitioner's face and head. Petitioner was able to walk back to the quarry and was transported to the hospital.

Petitioner reported the accident to the United States Mine Safety and Health Administration ("MSHA"). MSHA investigated and determined that it did not have jurisdiction as the accident did not occur on MSHA-permitted property. Allegheny Investments reported the accident to the United States Occupational Safety and Health Administration ("OSHA"), which did not issue any citations to respondents.

Following discovery, respondents filed their respective motions for summary judgment. By order entered on November 19, 2013, the circuit court granted respondents' motions and dismissed petitioner's suit. With respect to petitioner's deliberate intent claim against A.L.L.Construction and Allegheny Investments,3 the circuit court concluded that petitioner failed to establish a prima facie case that either respondent had "actual knowledge" of an unsafe working condition as required by West Virginia Code § 23-4-2(d)(2)(ii)(B). In this respect, the circuit court found that there were no prior accidents involving similar roll-overs of drilling rigs; there were no prior complaints by petitioner or other drill operators concerning the rigs or the slopes in the area; there were no prior complaints about the area where petitioner was to conduct the test drilling; and there was no citation issued by either MSHA or OSHA as a result of the accident. The circuit court also concluded that petitioner failed to establish a violation of statute or safety standard, as required by West Virginia Code § 23-4-2(d)(2)(ii)(C). Despite petitioner's identification of various MSHA regulations allegedly violated, the circuit court determined that by virtue of MSHA's refusal of jurisdiction over the accident, the identified regulations did not apply to the accident. Lastly, the circuit court concluded that petitioner failed to establish intentional exposure to an unsafe working condition, as required by West Virginia § 23-4-2(d)(2)(ii)(D). The only evidence petitioner introduced in support of intentional exposure was unsubstantiated hearsay from petitioner that another drilling company had refused to work in the area due to safety concerns. The circuit court noted that respondents deposed the president of this other company, who refuted petitioner's theory and testified that his company had declined to drill in the area because the company was too busy to do so, not due to safety concerns. Accordingly, the circuit court granted summary judgment in favor of A.L.L Construction and Allegheny Investments with respect to petitioner's deliberate intent claim.

In granting summary judgment in favor of OSA Enterprises with respect to petitioner's premises liability claim, the circuit court concluded that there was no evidence that OSA Enterprises employed petitioner; was under any obligation to train petitioner or any employee of A.L.L. Construction or Allegheny Investments; or was otherwise responsible for the supervision or direction of petitioner's actions. Petitioner argued that OSA Enterprises had an obligation to provide a reasonably safe place for him to work pursuant to West Virginia Code § 21-3-1.4 Thecircuit court rejected that argument, concluding that there was no evidence that the land in question was defective or that the embankment upon which petitioner attempted to drive his drilling rig constituted a "hidden danger, trap, snare, pitfall, or the like." McDonald v. University of West Virginia Bd. of Trustees, 191 W.Va. 179, 183, 444 W.Va. S.E.2d 57, 61 (1994) (citing Burdette v. Burdette, 147 W.Va. 313, 127 S.E.2d 249 (1962)). Further, the circuit court concluded that the slope of the hill was open, obvious, and observed by petitioner, and he was consciously aware of the slope. Accordingly, the circuit court concluded that OSA Enterprises owed no duty of care to petitioner and dismissed petitioner's premises liability claim.

Thereafter, petitioner moved for reconsideration of each ruling pursuant to Rules 60(b)5 and 59(e)6 of the West Virginia Rules of Civil Procedure. With respect to the deliberate intent claim, petitioner attached an affidavit from his expert witness, dated November 15, 2013, indicating that the expert had revised his opinion to opine that the standards set forth in MSHAregulations - regulations the circuit court found inapplicable given MSHA's decline of jurisdiction over the accident - reflect a consensus safety standard in the industry. Based upon this opinion, petitioner argued that the court should revisit its summary judgment ruling. Petitioner also relied on McComas v. ACF Indus., LLC, 232 W.Va. 19, 750 S.E.2d 235 (2013), to argue that the violation of the safety standard served to impute "actual knowledge" of the unsafe working condition to A.L.L. Construction and Allegheny Investments.

The circuit court rejected petitioner's arguments, finding that his expert's affidavit was untimely because expert opinions were required to be disclosed no later than August of 2011, as set forth in the court's scheduling order. The circuit court went on to conclude that McComas did not materially change the law set forth in Ryan v. Clonch Industries, Inc., 219 W.Va. 664, 639 S.E.2d 756 (2006), and that, nevertheless, petitioner's reliance on McComas was misplaced because that case holds that when a specific safety statute or regulation imposes a duty of inspection upon an employer who fails to inspect, actual knowledge may be imputed to the employer. Petitioner failed to identify any applicable regulations creating a duty to inspect. By order entered April 7, 2014, the circuit court denied petitioner's motion...

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