Coleman Estate v. R.M. Logging

• Decision Date: 16 June 2008
• Docket Number: No. 33452.,33452.
• Citation: 664 S.E.2d 698
• Court: West Virginia Supreme Court
• 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.

664 S.E.2d 698

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. 33452.

Supreme Court of Appeals of West Virginia.

Submitted April 15, 2008.

Decided June 16, 2008.

Syllabus by the Court

1. "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 Casualty and Surety Company v. Federal Insurance Company of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

2. "If the moving party makes a properly supported motion for summary judgment and can show by affirmative evidence that there is no genuine issue of a material fact, the burden of production shifts to the nonmoving party who must either (1) rehabilitate the evidence attacked by the moving party, (2) produce additional evidence showing the existence of a genuine issue for trial, or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f) of the West Virginia Rules of Civil Procedure." Syl. pt. 3, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

3. "Although our standard of review for summary judgment remains de novo, a circuit court's order granting summary judgment must set out factual findings sufficient to permit meaningful appellate review. Findings of fact, by necessity, include those facts which the circuit court finds relevant, determinative of the issues and undisputed." Syl. pt. 3, Fayette County National Bank v. Lilly, 199 W.Va. 349, 484 S.E.2d 232 (1997).

4. "`In determining who is an expert, a circuit court should conduct a two-step inquiry. First, a circuit court must determine whether the proposed expert (a) meets the minimal educational or experiential qualifications (b) in a field that is relevant to the subject under investigation (c) which will assist the trier of fact. Second, a circuit court must determine that the expert's area of expertise covers the particular opinion as to which the expert seeks to testify." Syl. pt. 5, Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171 (1995).

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

Mary H. Sanders, Esq., Shawn D. Nines, Esq., Ashley W. French, Esq., Huddleston Bolen, LLP, Charleston, WV, for Appellees, R.M. Logging, Inc., and John Robinson.

PER CURIAM.

This action is before this Court upon the appeal of Clarence Coleman and Helen M. Adkins, co-administrators of the Estate of Clarence T. Coleman, from the September 20, 2006, order of the Circuit Court of Fayette County, West Virginia, granting summary judgment in favor of the appellees R.M. Logging, Inc., and its foreman, John Robinson. The appellants' son, Clarence T. Coleman, employed by R.M. Logging, Inc., as a timber cutter, suffered fatal injuries when he was struck by a falling tree.¹ In seeking recovery, the appellants relied upon the statutory "deliberate intention" exception to the immunity from common law tort liability granted to employers under the West Virginia Workers' Compensation Act.

In entering summary judgment, the Circuit Court concluded that the appellants failed to present evidence upon one of the key requirements of the "deliberate intention" exception, namely, that, prior to the accident, R.M. Logging, Inc., through its foreman, John Robinson, had a "subjective realization and an appreciation" of a specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by the specific unsafe working condition.

Underlying the Circuit Court's ruling, however, were two unresolved motions: (1) the appellees' motion to exclude the evidence of Homer S. Grose, the appellants' expert safety consultant and (2) the appellants' motion to continue the scheduled trial date for "not more than sixty days" to take the deposition of Kelcey Nicholas, an employee of R.M. Logging, Inc., who was the first person to discover Coleman underneath the fallen tree and who may have witnessed the accident. Neither motion was addressed by the Circuit Court.²

This Court has before it the petition for appeal, the record designated by the parties and the briefs and argument of counsel. For the reasons set forth below, and particularly in view of the two unresolved motions, this Court is of the opinion that the summary judgment granted in favor of appellees R.M. Logging, Inc., and John Robinson was premature and constituted error. The Circuit Court, in failing to address the motion to exclude, rendered unclear whether the evidence of safety consultant Grose was considered in granting summary judgment in favor of the appellees. Moreover, as discussed below, this Court is of the opinion that, under the circumstances, the appellants should have been permitted a reasonable additional time period to discover the evidence of Kelcey Nicholas.

Accordingly, the September 20, 2006, order of the Circuit Court of Fayette County granting summary judgment in favor of R.M. Logging, Inc., and John Robinson is set aside, and this action is remanded to that Court for further proceedings consistent with this opinion.

I. Factual Background

R.M. Logging, Inc., and its foreman, John Robinson were engaged in the business of timber removal in the Cannelton Hollow area near Smithers, West Virginia. After trimming and cutting into logs, the timber was transported to a sawmill operated by Clonch Industries, Inc. One of the timber cutters employed by R.M. Logging, Inc., was Clarence T. Coleman, age 24. As the Circuit Court found, Coleman had 1 year of experience as a timber cutter prior to being hired.

On December 2, 2003, Coleman, using a chainsaw, cut three trees immediately prior to the accident. The first, a large maple tree, fell to the ground. The second, a 15-inch diameter hickory tree, fell in part, leaving its butt end lodged approximately 20 feet above the ground upon a 4 to 6-inch limb.³ The third tree, an 18-inch hickory, fell but also remained partly lodged above the ground. The record includes a map showing that the second tree, the 15-inch diameter hickory, was between the other two trees. Coleman then proceeded back toward the maple tree and walked under the butt end of the 15-inch diameter hickory. At that moment, the 4 to 6-inch limb failed, and the 15-inch diameter hickory tree fell striking Coleman on the head. Although Coleman was wearing a hard hat, his injuries were fatal. A report subsequently filed by the federal Occupational Safety and Health Administration ("OSHA") indicated that, instead of passing under the lodged tree, Coleman could have walked 5 feet around the tree's butt end.

The only co-worker near Coleman when the accident occurred was Kelcey Nicholas who was operating a skidder, a vehicle used to pull cut timber from the woods. The record indicates that Nicholas may have seen the tree strike Coleman.⁴ In any event, Nicholas, aware that an accident had occurred, ran to Coleman, pulled him from beneath the tree and drove the skidder to the area where John Robinson was operating a dozer. A 911 call for an ambulance was placed and Robinson administered CPR to Coleman at the scene until the paramedics arrived. Coleman was pronounced dead at the hospital.

Soon after, an OSHA investigation was conducted, and a number of citations were issued against R.M. Logging, Inc., for violations of the Occupational Safety and Health Standards of the United States Department of Labor. While many of the citations did not directly concern the accident of December 2, 2003, two are particularly relevant to the proceedings below. The first citation cited 29 C.F.R. § 1910.0266(i)(3)(iii), providing that, with regard to logging operations, employees shall be trained in the recognition of safety and health hazards associated with the employee's specific work tasks. This citation stated that Coleman's continuing to work in the vicinity of the two lodged hickory trees constituted evidence that R.M. Logging, Inc., failed to properly train its employees pursuant to that section.⁵ The second citation cited 29 C.F.R. § 1910.0266(h)(1)(vi), providing that each danger tree, including lodged trees and snags, shall be felled or removed using mechanical or other techniques that minimize employee exposure. Here, the citation indicated that a violation occurred because Coleman continued working in the area where the two trees were lodged.⁶

II. Procedural Background

On June 17, 2005, the appellants filed an action in the Circuit Court of Fayette County against the appellees and Clonch Industries, Inc. The complaint was based upon the statutory "deliberate intention" exception, set forth in W. Va.Code, 23-4-2(d)(2)(ii)(A) through (E) (2003), to the immunity from common law tort liability granted to employers under the West Virginia Workers' Compensation Act. Pursuant to the statute, evidence establishing each of the following five factors is required to satisfy the exception:

(A) That a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death;

(B) That the employer had a subjective realization and an appreciation of the existence of the specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by the specific unsafe working condition;

(C) That the specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known safety standard...