Clarence T. Coleman Estate By Co-adm'rs v. R.M. Logging Inc.

• Decision Date: 02 June 2010
• Docket Number: No. 35139.,35139.
• Citation: 700 S.E.2d 168,226 W.Va. 199
• Parties: Clarence T. COLEMAN ESTATE by Co-Administrators, Clarence COLEMAN and Helen M. Adkins, Plaintiffs Below, Appellants, v. R.M. LOGGING, INC., A West Virginia Corporation; Clonch Industries, Inc., A West Virginia Corporation; and John Robinson, Individually, Defendants Below, Appellees.
• Court: West Virginia Supreme Court

226 W.Va. 199

700 S.E.2d 168

Clarence T. COLEMAN ESTATE by Co-Administrators, Clarence COLEMAN and Helen M. Adkins, Plaintiffs Below, Appellants,

v.R.M. LOGGING, INC., A West Virginia Corporation; Clonch Industries, Inc., A West Virginia Corporation; and John Robinson, Individually, Defendants Below, Appellees.

No. 35139.

Supreme Court of Appeals ofWest Virginia.

Submitted March 3, 2010.

Decided June 2, 2010.

Dissenting Opinion of Justice Benjamin July 26, 2010.

Syllabus by the Court

1.“A circuit court's entry of summary judgment is reviewed de novo.”Syllabus point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755(1994).

2.“A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.”Syllabus point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770(1963).

3.“Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.”Syllabus point 4, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755(1994).

4.“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 § 23-4-2(d)(2)(2003)(Spec.Supp. Aug. 2003)] essentially sets forth two separate and distinct methods of proving ‘deliberate intention.’ ”Syllabus point 1, Mayles v. Shoney's, Inc.,185 W.Va. 88, 405 S.E.2d 15(1990).

5.“[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.”Syllabus point 3, in part, Blevins v. Beckley Magnetite, Inc.,185 W.Va. 633, 408 S.E.2d 385(1991).

6.“To establish that an employer has acted with deliberate intention, no higher burden of proof exists beyond those five requirements set forth in [W. Va.Code § 23-4-2(d)(2)(ii)(2003)(Spec.Supp. Aug. 2003) ].Under the statute, whether an employer has a ‘subjective realization and appreciation’ of an unsafe working condition and its attendant risks, and whether the employer intentionally exposed an employee to the hazards created by the working condition, requires an interpretation of the employer's state of mind, and must ordinarily be shown by circumstantial evidence, from which conflicting inferences may often reasonably be drawn.

Accordingly, while a plaintiff may choose to introduce evidence of prior similar incidents or complaints to circumstantially establish that an employer has acted with deliberate intention, evidence of prior similar incidents or complaints is not mandated by [W. Va.Code § 23-4-2(d)(2)(ii)(2003)(Spec.Supp. Aug. 2003)].”Syllabus point 2, Nutter v. Owens-Illinois, Inc., 209 W.Va. 608, 550 S.E.2d 398(2001).

John R. Mitchell, John R. Mitchell, L.C., Charleston, WV, Joshua I. Barrett, Lonnie C. Simmons, Heather M. Langeland, DiTrapano, Barrett & DiPiero, PLLC, Charleston, WV, for Appellants.

Mary H. Sanders, Jessica L. Wiley, Huddleston Bolen LLP, Charleston, WV, for Appellee, R.M. Logging, Inc.

PER CURIAM:

This is an appeal by Clarence Coleman and Helen Adkins, plaintiffs below (hereinafter referred to as “the Plaintiffs”), from an order of the Circuit Court of Fayette County granting summary judgment in favor of the defendant below, R.M. Logging, Inc.(hereinafter referred to as “R.M. Logging”), in a workers' compensation deliberate intention action they filed after the work-related death of their son.In granting summary judgment in favor of the employer, R.M. Logging, the circuit court concluded that the Plaintiffs had failed to establish subjective knowledge and intentional exposure on the part of R.M. Logging, which factors represent two of the five elements required to prevail in a deliberate intention action.On appeal, the Plaintiffs argue that they presented sufficient evidence to create a question of fact regarding those two elements of a deliberate intention action.We agree and, therefore, reverse the February 11, 2009, summary judgment order of the circuit court and remand this case for further proceedings consistent with this opinion.

I.FACTUAL AND PROCEDURAL HISTORY

R.M. Logging was engaged in the business of timber removal.¹The Plaintiffs' decedent, Mr. Clarence T. Coleman(hereinafter referred to as “Mr. Coleman”), was employed by R.M. Logging as a timber cutter.On December 2, 2003, Mr. Coleman was working at a timbering site in the Cannelton Hollow area near Smithers, West Virginia, where, relevant to this action, he cut a large maple tree that fell to the ground.Mr. Coleman then cut a fifteen-inch diameter hickory tree that became lodged about twenty feet above the ground.After that, Mr. Coleman cut a third tree, an eighteen-inch diameter hickory, that also became lodged.Following his cutting of the third tree, Mr. Coleman proceeded back toward the first tree he downed, the large maple.In doing so, he walked under the butt end of the hung fifteen-inch hickory.The hickory tree broke loose at that moment and fell, striking Mr. Coleman on the head.Although he was wearing a hard hat, the injury he sustained was fatal.

An inspection by the Occupational Safety & Health Administration (hereinafter referred to as “OSHA”) followed the fatal injury.The OSHA inspection resulted in the issuance of eleven citations, including one for employee training that “did not consist of the recognition of safety and health hazards associated with the employee's specific work tasks.”²

The Plaintiffs, who are Mr. Coleman's parents and the co-administrators of his estate, filed the instant workers' compensation “deliberate intention” action ³ against R.M. Logging and others ⁴ in the Circuit Court of Fayette County on June 17, 2005.In August 2006, R.M. Logging filed a motion for summary judgment, which was granted by the circuit court in an order dated September 20, 2006.In a prior appeal of this action, the Plaintiffs challenged the circuit court's September 20, 2006, summary judgement ruling.SeeColeman Estate v. R.M. Logging, Inc.,222 W.Va. 357, 664 S.E.2d 698(2008).⁵In Coleman I,this Court reversed the summary judgment order and remanded the case for further proceedings based upon the trial court's failure to address two motions that were pending at the time summary judgment was granted: (1)the Plaintiffs' motion to continue the scheduled trial date to take the deposition of Kelcey Nichols, a former employee of R.M. Logging who had witnessed Mr. Coleman's death and the events surrounding the same, and (2) R.M. Logging's motion to exclude the evidence of Homer S. Grose, the Plaintiffs' expert.Coleman I.

Following remand to the circuit court, Mr. Nichols was deposed; however, the Appellant's expert, Homer S. Grose, died.The Appellants then retained James Dougovito as their liability expert.Mr. Dougovito issued a report and was deposed.On January 5, 2009, R.M. Logging filed a second motion for summary judgment.The circuit court once again granted summary judgment by order entered February 11, 2009.This appeal followed.

II.STANDARD OF REVIEW

It is well established that “[a]circuit court's entry of summary judgment is reviewed de novo.”Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755(1994).In conducting our de novo review, we are mindful that “[a]motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.”Syl. pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770(1963).Finally, we note that “[s]ummary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.”Syl. pt. 4, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755.With these standards in mind, we proceed to address the issues raised in this appeal.

III.

DISCUSSION

As previously noted, the Plaintiffs have asserted a “deliberate intention” cause of action under the West Virginia Workers' Compensation Act.The requirements for the Plaintiffs' deliberate intention action are set forth in W. Va.Code § 23-4-2(d)(2)(2003)(Spec.Supp. Aug. 2003).⁶This Court has observed that “[t]he statute creating a legislative standard for loss of employer immunity from civil liability for work-related injury to employees found in [ W. Va.Code § 23-4-2(d)(2)(2003)(Spec.Supp. Aug. 2003) ] 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).The Plaintiffs have asserted their deliberate intention action under the method set out in W. Va.Code § 23-4-2(d)(2)(ii).With regard to granting summary judgment in this type of case, the Legislature has declared that

the court shall dismiss the action upon motion for summary judgment if it finds, pursuant to rule 56 of the rules of civil procedure that one or more of the facts required to be proved

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