Duty v. Walker

• Decision Date: 28 November 1988
• Docket Number: No. 17965,17965
• Citation: 180 W.Va. 149,375 S.E.2d 781
• Parties: John Junior DUTY v. James M. WALKER and Falcon Drilling Corporation.
• Court: West Virginia Supreme Court

Page 781

375 S.E.2d 781

180 W.Va. 149

John Junior DUTY v. James M. WALKER and Falcon Drilling Corporation.

No. 17965.

Supreme Court of Appeals of West Virginia.

Nov. 28, 1988.

Syllabus by the Court

1. " 'In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.' Point 3 Syllabus, Walker v. Monongahela Power Co., 147 W.Va. 825, [131 S.E.2d 736 (1963) ]." Syllabus point 1, Bolling v. Clay, 150 W.Va. 249, 144 S.E.2d 682 (1965).

2. "A jury verdict approved by the trial court should not be set aside on the ground that it is contrary to the evidence unless in that respect it is clearly wrong." Syllabus point 4, Skeen v. C and G Corporation, 155 W.Va. 547, 185 S.E.2d 493 (1971).

3. " 'Under Mandolidis v. Elkins Industries, Inc., , 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.' Syllabus, Cline v. Joy Mfg. Co., W.Va. , 310 S.E.2d 835 (1983)." Syllabus, Kane v. Corning Glass Works, 175 W.Va. 77, 331 S.E.2d 807 (1984).

Ben B. White, III, Princeton, for Walker & Falcon Drilling Corp.

H.L. Kirkpatrick, III, Beckley, for John Duty.

PER CURIAM:

This is an appeal from a final order of the Circuit Court of Wyoming County, entered March 13, 1987, which denied the motion of the appellants, James M. Walker and Falcon Drilling Corporation, to set aside a jury verdict in favor of the appellee, John Junior Duty, in a civil action brought pursuant to W.Va.Code § 23-4-2 [1969] and our decision in Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978). The appellants contend that there was insufficient evidence to support the verdict. We agree, and we reverse the judgment of the circuit court.

The decedent, Robert Neal Duty, was employed by Falcon Drilling Corporation, a West Virginia corporation engaged in the business of drilling natural gas wells, as a general laborer on a four-member crew headed by appellant James M. Walker. On August 28, 1981 the crew was working the day shift on a mobile drilling rig at a site near Gilbert, Mingo County. Drilling had been completed the day before, and the task of the day shift was to move three drill collars, pipes thirty feet in length and weighing between 2,800 and 4,800 pounds each, from a metal pipe tub to adjacent tubs used for storing and transporting drilling equipment.

The crew moved each drill collar by attaching a heavy, motor-controlled steel cable, called a sand line, to both ends of the pipe with hooks. Appellant Walker, the most senior member of the crew, operated the sand line from the derrick platform to hoist the drill collar into the air. A chain at the end of a second, lighter cable, called a cat line, was then wrapped around the center of the suspended pipe and secured by the chain man, the decedent. The derrick hand, Andy Pete Rocchi, would then pull the cat line to move the suspended drill collar horizontally towards the appropriate pipe tub. The decedent and Jackie McIntire the most junior member of the crew, would stand at opposite ends of the drill collar, holding on to the sand line or the pipe itself, to guide it towards the pipe tub.

On the morning in question, Rocchi had just begun to pull the cat line to move the first drill collar towards the pipe tubs when the cat line chain slid from the center of the pipe towards the end, causing it to swing towards McIntire. McIntire pushed on her end of the pipe while the decedent pulled on his end, causing the drill collar to swing back towards him. McIntire and the decedent attempted to reverse the motion of the pipe, but were unable to do so. The decedent braced himself and attempted to stop the oncoming pipe with his body. The drill collar struck the decedent in the chest, pushed him against one of the pipe tubs and knocked him to the ground. He died of internal injuries before medical help arrived.

On January 26, 1983, the appellee, father of the decedent and administrator of his estate, instituted a civil action in the Circuit Court of Wyoming County against the appellants, alleging that his son's death was the result of their willful, wanton and reckless misconduct in failing to provide a safe workplace and to exercise reasonable care for his safety in the conduct of their operations. The appellants denied these allegations.

The case went to trial before a jury on November 10, 1986. At the close of all the evidence, the appellants moved for a directed verdict on the ground that the appellee had failed to prove deliberate intent to cause injury or death. The circuit court denied the motion and submitted the case to the jury for decision. On November 12, 1986, the jury found the appellants guilty of willful, wanton and reckless misconduct and awarded the appellee $100,000 in compensatory damages and $50,000 in punitive damages. The appellants' motion to set aside the verdict on the ground of insufficiency of evidence was denied by the trial court in an order dated March 13, 1987.

The only issue in this appeal is whether the evidence was insufficient to support the jury's verdict.

"In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true." Point 3 Syllabus, Walker v. Monongahela Power Co., 147 W.Va. 825, [131 S.E.2d 736 (1963) ].

Syllabus point 1, Bolling v. Clay, 150 W.Va. 249, 144 S.E.2d 682 (1965). "A jury verdict approved by the trial court should not be set aside on the ground that it is contrary to the evidence unless in that respect it is clearly wrong." Syllabus point 4, Skeen v. C and G Corporation, 155 W.Va. 547, 185 S.E.2d 493 (1971).

The Workers' Compensation Act affords a covered employer immunity from common-law liability for the negligent injury or death of an employee at work. W.Va.Code § 23-2-6 (1985 Replacement Vol.). In Mandolidis v. Elkins Industries, Inc., we discussed at length W.Va.Code § 23-4-2 [1969], which preserves an employee's common-law right of action for personal injury in the work place which results from the employer's "deliberate intention" to produce such injury. ¹ 161 W.Va. at 698-706, 246 S.E.2d at 910-914. The burden the plaintiff bears in a deliberate intent action has been stated as follows:

"Under Mandolidis v. Elkins Industries, Inc., , 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." Syllabus, Cline v. Joy Mfg. Co., W.Va. ,310 S.E.2d 835 (1983).

Syllabus, Kane v. Corning Glass Works, 175 W.Va. 77, 331 S.E.2d 807 (1984). See Miller v. Gibson, 177 W.Va. 535, 355 S.E.2d 28 (1987); Mooney v. Eastern Associated Coal Corp., 174 W.Va. 350, 326 S.E.2d 427 (1984). The same principles apply to actions against fellow employees for personal injury. W.Va.Code § 23-2-6a (1985 Replacement Vol.). ²

At the trial below, the appellee attempted to show that the method employed by the appellants to move the drill collars was inherently unsafe and contrary to industry practice. Reuben Graham, a chemical engineer and private consultant with 22 years of experience in the oil and gas business, testified that the...