Blevins v. Beckley Magnetite, Inc.

• Decision Date: 05 September 1991
• Docket Number: No. 19654,19654
• Citation: 408 S.E.2d 385,185 W.Va. 633
• Court: West Virginia Supreme Court
• Parties: Jerry Ray BLEVINS, Plaintiff Below, Appellant, v. BECKLEY MAGNETITE, INC. Defendant Below, Appellee.

Page 385

408 S.E.2d 385

185 W.Va. 633

Jerry Ray BLEVINS, Plaintiff Below, Appellant, v. BECKLEY MAGNETITE, INC. Defendant Below, Appellee.

No. 19654.

Supreme Court of Appeals of West Virginia.

Submitted May 8, 1991.

Decided July 29, 1991.

Rehearing Denied Sept. 5, 1991.

Syllabus by the Court

1. "The statute creating a legislative standard for loss of employer immunity from civil liability for work-related injury to employees found in W.Va.Code § 23-4-1 (1983) essentially sets forth two separate and distinct methods of proving 'deliberate intention.' " Syl.Pt. 1, Mayles v. Shoney's, Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990).

2. "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).

3. Given the statutory framework of W.Va.Code §§ 23-4-2(c)(2)(i) and (ii), (1983, 1991) which equates proof of the five requirements listed in W.Va.Code § 23-4-2(c)(2)(ii) with deliberate intention, a plaintiff attempting to impose liability on the employer must present sufficient evidence, especially with regard to the requirement that the employer had a subjective realization and an appreciation of the existence of such specific unsafe working condition and the strong probability of serious injury or death presented by such specific unsafe working condition. This 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.

Richard E. Hardison, Beckley, for appellant.

Clyde A. Smith, Jr., Beckley, for appellee.

WORKMAN, Justice:

This case is before the Court upon the appeal of Jerry Ray Blevins from a June 9, 1989, final order from the Circuit Court of Raleigh County, which granted the appellee's, Beckley Magnetite Inc., motion to set aside the jury verdict and enter judgment for the appellee notwithstanding the jury verdict. The appellant asserts that the lower court committed the following errors:

1) The circuit court erred in its finding of facts and in its conclusion thereon that appellee, Beckley Magnetite, Inc., did not have knowledge of the high degree of risk and strong probability of injury as a result of the specific unsafe working condition that existed in the workplace;

2) The circuit court erred in finding that the appellee did not have subjective realization and appreciation of the existence of an unsafe working condition and that it presented a high risk and strong probability of serious injury; [and]

3) The circuit court erred in its application of the statute and its concomitant conclusion that the employer did not act with a consciously, subjectively and deliberately formed intention to injure the appellee.

Based upon a review of the petition, the briefs and oral arguments, and all other matters of record, we conclude that no error was committed by the lower court, and accordingly, affirm the lower court's decision.

The facts of this case reveal that on February 16, 1985, at approximately 1:15 a.m., the appellant was working as a dryer-hopper operator, a position that he had held for about a year, when he was severely injured. The injury occurred when his left hand and arm were pulled into and crushed in the pinch-point of a self-cleaning conveyor tail pulley. The appellant testified that this accident happened as he was cleaning up ore spillage around the tail pulley so that it would not back up on the conveyor belt. The appellant indicated that clean-up of the spilled ore occurred three to four times a shift.

The appellant's testimony further indicated that "I went down and opened the gate.... I was up here shoveling materials on to the belt and while I saw [sic] shoveling, my coveralls must have got caught in the tail pulley and pulled me in." The appellant testified that he was instructed by William Dugger, the owner of Beckley Magnetite, to keep the conveyor systems running when cleaning up the spillage. The appellant also testified that he had not received any safety instruction regarding the operation of the machinery and that he only had been shown how to operate the dryer-hopper on one occasion before he started running it.

The appellant also offered the testimony of Dr. Wayne J. Wasson, the Federal Mine Safety and Health inspector who investigated the accident just after it occurred. Dr. Wasson testified that approximately one year prior to the accident, on February 21, 1984, he had issued a citation to Beckley Magnetite, for "the lack of a guard or a self-cleaning tail pulley on a conveyor." He testified that by guard he meant "a device to prevent persons from contacting moving machinery, getting caught up in or caught by or somehow [coming into] contact with moving machinery." Additionally, Dr. Wasson's testimony indicated that if in order to clean up the ore spillage, the person had to go into the guarded area, then there was a federal regulation that required the operation to be "turned off and locked out.... That's throwing the main disconnect and assuring that the power was off and applying a pad lock to the disconnect handle in such a manner that the power cannot be turned back on." Dr Wasson's testimony further revealed that the appellee immediately installed the requisite guard. He further testified that the guard installed by the appellee met the safety standards set by the Mine Enforcement Safety Administration (hereinafter referred to as MSHA) and accordingly, the MSHA inspector terminated and abated the citation previously issued.

Finally, Dr. Wasson testified that he investigated the appellant's accident and determined that the cause of the accident was "the injured [worker] working on or near the unguarded tail pulley without first shutting the conveyor down." He also testified that it was the responsibility of the appellant at the time he went into the guarded area to clean up the ore spillage to first turn off the power and lock out the machinery. While his testimony indicated that at the time of the appellant's injury he did issue a citation to the appellee, it also indicated that the citation was abated approximately fifteen minutes after it was issued when employees were reinstructed never to remove guards from around machinery or to enter a guarded area while the machinery was in operation.

The appellant also presented the testimony of Jimmy Ray Lilly, Charles Lilly, Leslie Lilly and Brady Allen Lilly, all former employees of appellee and all relatives of one another. Jimmy Ray Lilly had worked at Beckley Magnetite for approximately two weeks running the dryer-hopper. His employment occurred prior to the guard being placed around the machinery. Charles Lilly was hired primarily as a truck driver, but also occasionally worked on the dryer-hopper and unloaded material from the railroad cars. Leslie Lilly had driven trucks and worked on the dryer-hopper also at a time prior to the guard being installed. Finally, Brady Allen Lilly worked for the appellee running the dryer-hopper for only twenty-seven days. His employment ended shortly after the guard was installed. All of these witnesses testified that they were never instructed by the appellee to turn off the conveyor belt prior to shoveling ore spillage back onto the belt. However, none of them testified that they had ever been affirmatively instructed not to turn it off. Nor did any of them testify that they ever made the employer aware of the practice of not turning off the belt.

The appellant also offered the testimony of Dr. Russell Rex Haynes, president and chief engineer of Tech Engineering and Design Incorporated, a forensic consulting engineering firm. It is important to note that most of his testimony concerning the Code of Federal Regulations which had allegedly been violated was premised upon his opinion that the fence which had been erected by the appellee was not a guard. Consequently, he opined that the dryer-hopper on which the appellant was injured was unguarded on the day of the injury. Dr. Haynes also testified that the difference between a fence and a guard was that "a guard is more closely attached to the problem ... [and] is so arranged and sufficient in scope that a person can't even get in behind it accidentally." Haynes testified based upon this opinion that the appellee was operating in violation of the following provisions found in the Code of Federal Regulations: (1) 30 C.F.R. § 55.9-7 which is a mandatory provision providing that "[u]nguarded conveyors with walkways shall be equipped with emergency stop devices or cords along their full length;" (2) 30 C.F.R. § 55.14-1 which is a mandatory provision providing that "[g]uards, sprockets, chains, drive head, tail and take up pulleys, fly wheels, couplings, shafts, saw blades, fan inserts and similar exposed moving machine parts which may be contacted by persons and which may cause injury to persons shall be guarded;" (3) 30 C.F.R. § 55.14-3 which mandates that "[g]uards at conveyor drive, conveyor head and conveyor tail pulleys, shall extend a distance sufficient to prevent a person from accidentally reaching behind the guard and becoming caught between the belt and the pulley;" (4) 30 C.F.R. § 55.14-7 which mandates that "[g]uards shall be of substantial construction and properly maintained;" and (5) 30 C.F.R. § 55.14-29 which states that "[r]epairs or maintenance shall not be performed on machinery until the power is off and the machinery is blocked against motion, except where machinery motion is necessary to make adjustments."

In addition, Dr. Haynes testified that even though the machinery was fenced in, it constituted "a very hazardous working condition...