Cline v. Joy Mfg. Co.

• Decision Date: 29 September 1983
• Docket Number: 15660,Nos. 15649,s. 15649
• Citation: 172 W.Va. 769,310 S.E.2d 835
• Parties: Tim CLINE, et al. v. JOY MFG. CO. et al., Defendants Below, Jumacris Mining Co. (Two cases).
• Court: West Virginia Supreme Court

Page 835

310 S.E.2d 835

172 W.Va. 769

Tim CLINE, et al. v. JOY MFG. CO. et al., Defendants Below Jumacris Mining Co. (Two cases).

Nos. 15649, 15660.

Supreme Court of Appeals of West Virginia.

Sept. 29, 1983.

Dissenting Opinion Dec. 15, 1983.

Rehearing Denied Dec. 15, 1983.

Syllabus by the Court

Under Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978), it is essential, in order for an injured employee to recover, that the employer's misconduct must be of an intentional or wilful, wanton and reckless character, that the employer must have knowledge and appreciation of the high degree of risk of physical harm to another created by such misconduct, and, of course, that the employer's action must be the proximate cause of the injury.

William L. Jacobs, Parkersburg, H. Truman Chafin, Williamson, for cline et al.

Jackson, Kelly, Holt & O'Farrell, John L. McClaugherty, W.T. Shaffer and A.L. Emch, Charleston, Lawson & Lawson and J. Brooks Lawson, Jr., Williamson, Pamela A. Lambert, Gilbert, for Jumacris Mining Co.

MILLER, Justice:

This case is on cross-appeals from the Circuit Court of Mingo County which granted the defendant's motion for a new trial on damages, but denied its motion to set aside the jury verdict as to liability. The cause of action arises under the deliberate intent exception in the Worker's Compensation Act, W.Va.Code, 23-4-2, which we discussed at some length in Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978). The plaintiffs, Tim and Bonnie Cline, were awarded damages of four million dollars by the jury. The defendant, Jumacris Mining Company, contends that the evidence was insufficient to support the verdict as a matter of law. ¹

The plaintiff Tim Cline was employed by the defendant at its No. 5 Mine in Mingo County as a section foreman on the second, or evening shift. On March 23, 1977, when the plaintiff was injured, he was the only foreman in the mine. The accident occurred at approximately 10:00 p.m. when the plaintiff was crushed between a rib of coal and the continuous mining machine (hereinafter "continuous miner"), which he was operating by standing outside of it. He had been reaching into the cab to activate the control levers in an attempt to "tram," or move, the continuous miner in a rearward direction. The continuous miner was used to cut coal and load it onto shuttle cars which transported the coal to a dumping point where it was then conveyed by a belt line to the surface.

Earlier in the shift, the regular continuous miner operator, Larry Dale Cline, stopped operating the machine because it had moved forward into an area where water had collected. The water was of sufficient depth to enter the cab. After Larry Dale Cline left the continuous miner, the plaintiff began to operate the machine by standing outside the cab and reaching in to activate the control levers. There is some argument on appeal over whether the plaintiff merely intended to remove the continuous miner from the water in order to protect the machine or whether he proceeded with mining operations. The evidence from the employees present at the scene appears uncontroverted that he did mine some coal. The plaintiff testified that he might have continued mining, but he could not remember.

There is also some controversy over why the plaintiff was attempting to move the machine in a reverse direction. The plaintiff contends that he wanted to get the continuous miner out of the water. The defendant argues that the evidence shows that while the plaintiff continued to mine coal by moving the continuous miner forward, the shuttle car was following the continuous miner and its electrical cable ran out. The cable pulled off the spool, thereby, shutting off electrical power to the shuttle car. According to the defendant's evidence, the plaintiff was standing on the outside of the continuous miner and began to tram it in reverse to shove the shuttle car back to the disconnected cable. We do not believe these factual variances are critical to a resolution of this case.

Whatever the reason for the plaintiff's moving the continuous miner in reverse, it is undisputed that he was pinned between the mine wall and the continuous miner when the left tram lever failed to automatically return to its neutral position once pressure on it was released.

The continuous miner had two sets of control levers inside the operator's cab. One set operated the cutting heads which dug the coal from the seam and conveyed it rearward to be loaded into the shuttle cars. The other set, consisting of two levers positioned immediately in front of the operator's seat, was used to move the continuous miner backward and forward. To tram the machine, a switch inside the operator's cab had to be turned on to get an electric current and a dead man's switch on the deck of the cab as well as the tram levers had to be depressed. Additionally, a cut-off switch, or "panic bar," located in the cab at the shoulder height of a seated operator could stop the machine. Another switch located outside the continuous miner at the left rear could also cut off power.

It also appears that the same left tram-lever had been sticking in the reverse position on Friday evening and Monday, prior to the accident Tuesday evening. This malfunctioning had been reported to the mine's management personnel but the lever had not been repaired. However, the lever did work on the shift immediately prior to the accident and there was testimony that sporadic malfunctioning was common, even after the lever had just been repaired. According to the operator of the continuous miner on the day shift, the lever had been repaired a "couple of times" during the week before the accident.

The defendant's primary contention is that had the plaintiff been inside the cab, which had a metal enclosure, he would have been protected against injury. Moreover, if he had been in the cab, he would also have had easier access to various cut-off switches. Several employees testified that the plaintiff would not have been injured had he been inside of the cab, despite the malfunctioning of the tram lever.

The plaintiff maintains that the reason he was outside the cab was that there was water in the cab. ² The plaintiff testified about an earlier incident when he had been informed by his superior that he could lose his job if he did not protect the continuous miner. Thus, the plaintiff's theory was that he tried to save the machine from the water as previously ordered; that he could only operate it from outside the cab; and, that he had no knowledge the tram lever was broken, but the defendant did know and failed to repair it.

The sole issue in this case is whether there is sufficient evidence to support a finding that the defendant violated the Mandolidis standard. We recognize that in view of a favorable jury verdict, the facts must be construed in the light most favorable to the plaintiff. Wager v. Sine, 157 W.Va. 391, 201 S.E.2d 260 (1973); Lambert v. Goodman, 147 W.Va. 513, 129 S.E.2d 138 (1963). However, we believe there is insufficient evidence to sustain the judgment for the plaintiff. ³

In Mandolidis v. Elkins Industries, Inc., supra, we addressed W.Va.Code, 23-4-2, which permits an injured employee to sue his employer if his injury results from the "deliberate intention" of his employer. ⁴ We spoke to the question of the meaning of the phrase "deliberate intent" after reviewing a number of our earlier cases, ⁵ and concluded:

"In light of the foregoing discussion, the phrase 'deliberate intent to produce such injury or death' must be held to mean that an employer loses immunity from common law actions where such employer's conduct constitutes an intentional tort or wilful, wanton and reckless misconduct. See Barr v. Curry, 137 W.Va. 364, 71 S.E.2d 313 (1952); Stone v. Rudolph, 127 W.Va. 335, 32 S.E.2d 742 (1944); see 2 Restatement (Second) of Torts § 500-03 (1965). While wilful, wanton, and reckless misconduct are well-established concepts, we wish to make clear that we are using the words 'wilful,' 'wanton,' and 'reckless' misconduct synonymously, and that the conduct removing the immunity bar must be undertaken with a knowledge and an appreciation of the high degree of risk of physical harm to another created thereby. See Restatement (Second) of Torts § 500, Comment a at 587-88 (1965)." 161 W.Va. at 695, 246 S.E.2d at 914. (Footnotes omitted)

With regard to the term "intentional tort" used in the foregoing quotation, we stated in note 9 of Mandolidis:

"We adopt the Restatement Second of Torts definition of 'intent.' Intentional '... denote[s] that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.' Restatement (Second) of Torts § 8A (1965). See also W. Prosser, Handbook of the Law of Torts 31-2 (4th ed. 1971)." 246 S.E.2d at 914. ⁶

Clearly from the foregoing standard, acts amounting to negligence do not meet the Mandolidis test. Under Mandolidis it is essential, in order for an injured employee to recover, that the employer's misconduct must be of an intentional or wilful, wanton and reckless character, that the employer must have knowledge and appreciation of the high degree of risk of physical harm to another created by such misconduct, and, of course, that the employer's action must be the proximate cause of the injury.

Mandolidis' discussion of the statutory "deliberate intent" exception ⁷ did not substantially depart from our prior case law as evidenced by this statement from Maynard v. Island Creek Coal Co., 115 W.Va. 249, 253, 175 S.E. 70, 72 (1934):

"It may be that the carelessness, indifference and negligence of an employer may be so wanton as to warrant a judicial determination that his ulterior intent was to inflict injury. But in the very nature of things, a showing which would warrant such finding would have to be clear and...