Bennett v. Nat. Steel Corp., No. 88-2853

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore CHAPMAN and WILKINSON; PER CURIAM
Citation881 F.2d 1069
Docket NumberNo. 88-2853
Decision Date20 July 1989
PartiesUnpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Jamie S. BENNETT, Administratrix of the Estate of Donald Bennett, Deceased, Plaintiff-Appellant, v. NATIONAL STEEL CORPORATION, Defendant-Appellee. and Weirton Steel Corporation: Consolidated Rail Corporation; International Mill Services, Inc., Defendants.

Page 1069

881 F.2d 1069
Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Jamie S. BENNETT, Administratrix of the Estate of Donald
Bennett, Deceased, Plaintiff-Appellant,
v.
NATIONAL STEEL CORPORATION, Defendant-Appellee.
and
Weirton Steel Corporation: Consolidated Rail Corporation;
International Mill Services, Inc., Defendants.
No. 88-2853.
United States Court of Appeals, Fourth Circuit.
Argued June 5, 1989.
Decided July 20, 1989.

Sterl Franklin Shinaberry (Frank Venezia, G. David Brumfield on brief) for appellant.

Mark A. Colantonio (Carl N. Frankovitch, James G. Connolly, Volk, Frankovitch, Anetakis, Recht, Robertson & Hellerstedt, on brief) for appellee.

Before CHAPMAN and WILKINSON, Circuit Judges, and RICHARD L. VOORHEES, United States District Judge for the Western District of North Carolina, sitting by designation.

PER CURIAM:

The only question in this appeal is whether the district court properly granted summary judgment against plaintiff-appellant, thereby dismissing her claim for damages resulting from the death of her husband. Because plaintiff's husband was killed while at work and while an employee of the National Steel Coporation, the legal issue is whether there are sufficient facts to allow the plaintiff to advance her claim outside of West Virginia's limited workers' compensation remedy. We affirm.

Summary judgment should be granted against a party only if the evidence reveals "there is no issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In reviewing a district's court grant of summary judgment, this court applies the same standard, and it must consider the inferences from the underlying facts in a light most favorable to the plaintiff. A reversal of summary judgment is required if it appears from the record that there is an unresolved issue of material fact, Helm v. Western Maryland Ry. Co., 838 F.2d 729, 734 (4th Cir.1988), but summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In this case plaintiff's decedent, Donald Bennett, was a railroad brakeman at Weirton, West Virginia's National Steel plant. On August 25, 1981, Bennett was called to work on the 4:00 P.M. to midnight shift, in the plant's ore dumping department. Bennett had been a brakeman at National for about two years, and, although he did not normally work in the ore dumping area, he had worked there on occasion before August 25.

The task of the ore dumping department was to empty iron ore from railroad cars. A large machine, the ore dumper, performed the physical act of emptying the cars by turning them upside down. As part of the five-man ore dumping crew, Bennett's job was to help move emptied cars down the track and away from the dumper. The process worked as follows: first, each loaded car in a train, usually consisting of 40 to 50 cars, would be unloaded by the dumper; second, the cars would be pushed by an engine away from the immediate area of the dumper; third, the field brakeman, in this case Bennett, would determine whether each car was properly coupled and whether the cars' brakes were set; fourth, the brakeman moved the train away from the dumper by releasing the brakes on the forward cars, and...

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