Bell v. Vecellio & Grogan, Inc., 21692

• Decision Date: 11 July 1994
• Docket Number: No. 21692,21692
• Citation: 447 S.E.2d 269,191 W.Va. 577
• Parties: George BELL, Allison Bell and Jessica Bell, Plaintiffs Below, Appellants, v. VECELLIO & GROGAN, INC., a West Virginia Corporation, Defendant Below, Appellee.
• Court: West Virginia Supreme Court

Page 269

447 S.E.2d 269

191 W.Va. 577

George BELL, Allison Bell and Jessica Bell, Plaintiffs Below, Appellants, v. VECELLIO & GROGAN, INC., a West Virginia Corporation Defendant Below, Appellee.

No. 21692.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 12, 1994.

Decided July 11, 1994.

[191 W.Va. 578] Syllabus by the Court

1. "A plaintiff may establish '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(c)(2)(ii) (1983)." Syl. pt. 2, Mayles v. Shoney's, Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990).

2. " ' "Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence." Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85, 163 S.E. 767 (1932).' Syllabus Point 1, Jenkins v. Chatterton, 143 W.Va. 250, 100 S.E.2d 808 (1957)." Syl. pt. 1, Delp v. Itmann Coal Co., 176 W.Va. 252, 342 S.E.2d 219 (1986).

Jack R. Ormes, Encino, CA, Bruce L. Freeman, Freeman & Chiartas, Charleston, for appellants.

James M. Henderson, II, Abrams, Byron, Henderson & Richmond, Beckley, for appellee.

PER CURIAM:

This is an appeal from a judgment entered in the Circuit Court of Raleigh County, in which the trial court granted the appellee's motion for a directed verdict on the ground that the appellant failed to present evidence sufficient to make a prima facie case to establish "deliberate intention" on the part of the appellee, the appellant's employer, as required by W.Va.Code, 23-4-2(c)(2)(ii)(A) through (E) [1991] ¹. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. For the reasons stated below, the judgment of the circuit court is reversed.

I.

George Bell ² (hereinafter "appellant") was employed as an ironworker by Vecellio & Grogan, Inc. (hereinafter "appellee"). On May 15, 1990, while working on the construction of a bridge near Flinstone, Maryland, ³ the appellant and co-workers Dennis Lesher, Tom Morrison and Jimmy Singleton were moving nine and one-half ton steel bridge beams ⁴ to the staging area. Five bridge beams were located in a storage area and placed on their flanges, approximately one foot apart.

The first bridge beam, located in the interior of the other beams, was moved by lifting it, with a boom crane, to a height sufficient to clear the remaining beams so as to move it over the top of the remaining beams. ⁵ The appellant and Mr. Lesher stabilized the beam with their tag lines, which are ropes attached at each end of the beam, enabling the appellant and Mr. Lesher to stand a safe distance from the beam while directing its movement. Once this first beam cleared the other beams, it was let down two to three feet from the ground, at which time the appellant and Mr. Lesher walked it to the staging area.

The appellant and Mr. Lesher then began to move a second beam out from the interior of the remaining beams. When this second beam was boomed up approximately one foot, it started moving parallel to the remaining beams rather than being lifted up and over the remaining beams as the first beam had been. When it appeared that this second beam was about to hit one of the remaining

[191 W.Va. 579] beams, the appellant took a few steps in between the beams. It was at that time that the boom on the crane dropped its load, causing the load to fall against one of the remaining beams, which in turn, fell onto the appellant, pinning him to the ground and paralyzing him from the chest down.

II.

As an employer subject to the Workers' Compensation Act, the appellee would, ordinarily, be immune from common law liability for a work-related injury such as that suffered by the appellant. W.Va.Code, 23-2-6 [1991]; Sias v. W-P Coal Co., 185 W.Va. 569, 573-74, 408 S.E.2d 321, 325-26 (1991). See also Mandolidis v. Elkins Indus. Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978). However, if the appellant's personal injury resulted from the "deliberate intention" ⁶ of the appellee to produce such injury, the appellee would lose immunity from common law liability. Sias, 185 W.Va. at 574, 408 S.E.2d at 326. The appellant sought to establish the appellee's "deliberate intention" under W.Va.Code, 23-4-2(c)(2)(ii) [1991]. ⁷ As this Court has previously stated: "A plaintiff may establish '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(c)(2)(ii) (1983)." Syl. pt. 2, Mayles v. Shoney's, Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990). ⁸

At the close of the appellant's case-in-chief, the appellee timely moved for a directed verdict, which the trial court granted, finding that the appellant had failed to establish three of the five required elements of "deliberate intention": (1) a specific unsafe working condition; (2) subjective realization; and (3) intentional exposure. ⁹

It is the appellant's contention that, in granting the appellee's motion for a directed verdict, the trial court erred in its assessment of the evidence and abused its discretion. W.Va.Code, 23-4-2(c)(2)(iii)(B) [1991] provides, in relevant part [C]onsistent with the legislative findings of intent to promote prompt judicial resolution of issues of immunity from litigation under this chapter, the court shall dismiss the action ... upon timely motion for a directed verdict against the plaintiff if after considering all the evidence and every inference legitimately and reasonably raised thereby most favorably to the plaintiff, the court shall determine that there is not sufficient evidence to find each and every one of the facts required to be proven by the provisions of subparagraphs (A) through (E) of the preceding paragraph (ii)[.]

(emphasis added). Furthermore, this Court stated in syllabus point 1 of Delp v. Itmann Coal Co., 176 W.Va. 252, 342 S.E.2d 219 (1986):

' "Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence." Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85, 163 S.E. 767 (1932).' Syllabus Point 1, Jenkins v. Chatterton, 143 W.Va. 250, 100 S.E.2d 808 (1957).

Therefore, we must review, in the light most favorable to the appellant, whether the appellant introduced sufficient evidence to satisfy each requirement under the "deliberate intention" statutory exception to employer immunity.

A. SPECIFIC UNSAFE WORKING CONDITION

The appellant alleged two specific unsafe working conditions which presented a high degree of risk and a strong probability of serious injury: (1) that the five steel beams, or girders, were not safely stored in the storage area, in that they were not properly braced to keep them from falling and (2) that the boom crane that was used to move the beams was in a defective condition and was not the proper equipment to be used for this job. W.Va.Code, 23-4-2(c)(2)(ii)(A) [1991]. While the trial court recognized that bridge construction is, by its nature, dangerous work, it indicated that the evidence failed to establish that a specific unsafe working condition existed which caused the appellant's injury. Upon review of the evidence concerning the storage of the beams as well as the condition and use of the boom crane, we disagree with the trial court's finding that there was no specific unsafe working condition.

At trial, the appellant presented the expert testimony of Perry Jones, former safety compliance officer and area director for the Occupational Safety and Health Administration ("OSHA") in Charleston, West Virginia. Mr. Jones reviewed the Maryland Occupational Safety and Health ("MOSH") ¹⁰ investigation report of the appellant's accident from which he opined that the appellee had violated 29 C.F.R. § 1926.250(b)(9) (1993), ¹¹ which requires that steel beams, or girders, which are being stored, be blocked or braced so as to prevent tilting, slipping or moving. At the appellee's job site, the beams were braced with timbers only on the outer side of the outermost beams, thus, tending to prevent only the two outside beams from falling away from the center of the stack. It was one of the interior beams which had no bracing of any kind applied to it that fell on the appellant. ¹² According to Mr. Jones, had the beams been adequately blocked and braced, the appellant would not have been injured.

Similarly, Steven Cooper, Safety Director for the Iron Workers International Union of North America and former employee of the National Institute of Occupational Safety and Health in Washington, D.C., testified that he, too, believed that the appellee's failure to properly brace the stored beams violated 29 CFR § 1926.250(b)(9) (1993). Mr. Cooper based his opinion on the MOSH report, the affidavits of Mr. Lesher and Mr. Singleton, the appellant's co-workers, and the appellant's deposition.

In addition, John McMahan, Executive Director of the Institute of the Iron Working Industry, testified that it is industry practice, when storing steel beams, or girders, to unload the steel, shore it and brace it so that it will not fall over at the job site. Mr. McMahan further testified that the ideal way to store steel is to have it shipped to the job site in the proper sequence so that it may be moved to the staging area in that order. Mr. McMahan also indicated that the beams should have been spaced such that there would have been sufficient room to brace each beam individually.

The appellant also elicited testimony from Mr. Jones and Mr....