FirstEnergy Generation, LLC v. Muto, 17-0067

• Citation: 242 W.Va. 132,832 S.E.2d 58
• Decision Date: 29 March 2018
• Docket Number: No. 17-0067,17-0067
• Parties: FIRSTENERGY GENERATION, LLC, Defendant Below, Petitioner, v. James J. MUTO and Carol Muto, Plaintiffs Below, Respondents.
• Court: Supreme Court of West Virginia

242 W.Va. 132
832 S.E.2d 58

FIRSTENERGY GENERATION, LLC, Defendant Below, Petitioner,
v.
James J. MUTO and Carol Muto, Plaintiffs Below, Respondents.

No. 17-0067

Supreme Court of Appeals of West Virginia.

Submitted: January 17, 2018
Filed: March 12, 2018
Dissenting Opinion of Justice Davis March 29, 2018

Stephen M. LaCagnin, Esq., Seth P. Hayes, Esq., David R. Stone, Esq., Jackson Kelly PLLC, Morgantown, West Virginia, Attorneys for Petitioner

Michael D. Crim, Esq., Jeffrey D. Van Volkenburg, Esq., Stanley A. Heflin III, Esq., McNeer, Highland, McMunn and Varner, L.C., Clarksburg, West Virginia, Attorneys for Respondents

LOUGHRY, Justice:

832 S.E.2d 60

The petitioner and defendant below, FirstEnergy Generation, LLC, appeals the December 27, 2016, order of the Circuit Court of Harrison County denying its post-trial motions following an adverse jury verdict in this "deliberate intention" action filed pursuant to West Virginia Code § 23-4-2(d)(2)(ii) (2005)¹ by the respondents and plaintiffs below, James and Carol Muto. In this appeal, FirstEnergy asserts multiple assignments of error. Having considered the parties' briefs and oral arguments, the submitted appendix record, and the applicable authorities, we find the evidence presented at trial was insufficient to establish two of the required elements of a "deliberate intention" claim. Accordingly, we reverse the circuit court's final order and remand this case for entry of an order granting FirstEnergy's post-trial motion for judgment as a matter of law.

I. Factual and Procedural Background

On January 22, 2013, James Muto suffered permanent injuries when he fell approximately fourteen feet and landed on a concrete floor while attempting to inspect a rotary flyash feeder in a flyash silo at FirstEnergy's Harrison Power Station.² At the time of the accident, Mr. Muto had been an employee of FirstEnergy for twenty-three years. On January 26, 2014, he filed this action against FirstEnergy to recover damages for his injuries and, his wife, Carol Muto, asserted a claim for loss of consortium. The case was tried before a Harrison County jury in April 2016. The following is a brief summary of the evidence presented at trial. The evidence pertinent to the issues in this appeal will be addressed more fully in the discussion section.

On the morning of January 22, 2013, a FirstEnergy maintenance crew under the direction of John Rapp, a maintenance supervisor, went into the flyash silo in the solid waste processing building of the Harrison Power Station to replace a piece of equipment known as a rotary feeder.³ The entrance to the flyash silo is located on the fifth floor of the six-story waste processing building. The rotary feeder is housed on the second level of an elevated platform constructed of metal grating inside the flyash silo. In order to replace the rotary feeder, the crew had to remove the old rotary feeder, attach it to a chain, and lower it to the concrete floor, which required them to open portions of the grating on both levels of the elevated platform. Upon arrival, the maintenance crew proceeded to remove the old rotary feeder from its housing. The crew then left the silo for a mid-morning break. When the crew returned, they put steel cable barricades and yellow caution tape, labeled "Caution Do Not Enter," across the access points to both the

832 S.E.2d 61

first and second levels of the elevated platform. The crew then opened a portion of the grating on both levels of the elevated platform in order to lower the old feeder to the floor below. The crew noticed that dust had become more prevalent inside the silo since removing the old feeder.⁴ Tom Hamilton, the maintenance crew member who was in charge, called the control room⁵ and requested that the flyash "train"⁶ be shutdown to decrease the dust.

The maintenance crew was informed that the "train" was not going to be shutdown and that alternative measures for reducing the dust were being taken. The crew proceeded to lower the old rotary feeder to the ground floor of the flyash silo. By that time, the dust had increased to the point of causing near zero visibility inside the silo. The maintenance crew decided to evacuate the silo and did so without closing the floor grating on either the first or second levels of the elevated platform; however, the barricades and yellow caution tape remained in place. The crew did not inform anyone that they were leaving the silo, that they had left the floor grating open, or that the amount of dust in the air had increased.

In the meantime, Mr. Muto, a control room employee, had been dispatched from the control room to the pug mill, which is located one floor below the flyash silo, to check the water levels in the pug mill dust collectors. Jim Harley, the control room supervisor, had decided to try to alleviate the dust problem by adjusting the water levels in the pug mill dust collectors rather than shutting down the "train." According to Mr. Muto, he did not know that the maintenance crew was replacing the rotary feeder; therefore, when he found nothing unusual on the pug mill floor, he proceeded to climb the steps to the flyash silo to find the source of the dust. Through a window in the door to the silo, Mr. Muto observed that the dust had caused near zero visibility conditions and the maintenance crew was no longer inside. Although he was carrying a radio that allowed him to communicate with the control room, Mr. Muto did not notify anyone of the conditions inside the silo. Instead, he opened the door, climbed the two flights of steps to the top of the elevated platform and ducked under the barricade and yellow caution tape, which he assumed were erected due to the dusty conditions. Mr. Muto was going to inspect the rotary feeder when he fell through the open grating, landing two levels below on the concrete floor. Mr. Muto acknowledged during his testimony at trial that he had not been asked to inspect the rotary feeder and that he made the decision to do so himself. Although he sustained a head injury, Mr. Muto was able to call for help, and he was subsequently transported to a hospital for treatment. Prior to trial, Mr. Muto was granted workers' compensation permanent partial disability benefits.

After a multi-day trial, the jury returned a verdict in favor of the Mutos, finding that FirstEnergy acted with "deliberate intent." The jury awarded Mr. Muto $350,000.00 for past pain and suffering; $150,000.00 for future pain and suffering; $275,000.00 in past lost wages; and $420,000.00 in future lost wages. The jury awarded Carol Muto $25,000.00 for loss of consortium. The total verdict amount was $1,220,000.00. Prior to trial, the parties agreed that FirstEnergy was entitled to an offset for medical payments and indemnity of lost wages paid through workers compensation in the respective amounts of $21,338.25 and $56,047.75. Accordingly, after the offsets were applied, the total verdict was $1,142,614.00, to which the trial court added pre-judgment interest in the amount of $49,497.90.

Upon entry of the verdict, FirstEnergy filed a renewed motion for judgment as a matter of law⁷ and, alternatively, filed a

832 S.E.2d 62

motion for a new trial and a motion to alter or amend the judgment. After a hearing, the trial court denied the motions, and this appeal followed.

II. Standard of Review

FirstEnergy contends the circuit court erred by denying its post-trial motions. Our standards of review with respect to such motions are well-established. "The appellate standard of review for an order granting or denying a renewed motion for a judgment as a matter of law after trial pursuant to Rule 50(b) of the West Virginia Rules of Civil Procedure [1998] is de novo ." Syl. Pt. 1, Fredeking v. Tyler , 224 W.Va. 1, 680 S.E.2d 16 (2009). We have explained that

[w]hen this Court reviews a trial court's order granting or denying a renewed motion for judgment as a matter of law after trial under Rule 50(b) of the West Virginia Rules of Civil Procedure [1998], it is not the task of this Court to review the facts to determine how it would have ruled on the evidence presented. Instead, its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, when considering a ruling on a renewed motion for judgment as a matter of law after trial, the evidence must be viewed in the light most favorable to the nonmoving party.

Fredeking , 224 W.Va. at 2, 680 S.E.2d at 17, syl. pt. 2.

Regarding a motion for a new trial, we have held that,

[a]lthough the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.

Syl. Pt. 4, Sanders v. Georgia-Pacific Corp. , 159 W.Va. 621, 225 S.E.2d 218 (1976). Therefore,

[t]his Court reviews the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law

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