Jones v. Patterson Contracting, Inc.

• Decision Date: 19 November 1999
• Docket Number: No. 25959, No. 25960.
• Citation: 206 W.Va. 399,524 S.E.2d 915
• Court: West Virginia Supreme Court
• Parties: Sherman JONES and Lori Jones, Plaintiffs Below, Appellants, v. PATTERSON CONTRACTING, INC., a West Virginia Corporation; and Grasan Equipment Company, an Ohio Corporation, Defendants Below, Grasan Equipment Company, Inc., an Ohio Corporation, Defendant Below, Appellee. Sherman Jones and Lori Jones, Plaintiffs Below, Appellants, v. Patterson Contracting, Inc., a West Virginia Corporation; and Grasan Equipment Company, an Ohio Corporation, Defendants Below, Patterson Contracting, Inc., a West Virginia Corporation, Defendant Below, Appellee.

524 S.E.2d 915

206 W.Va. 399

Sherman JONES and Lori Jones, Plaintiffs Below, Appellants, v. PATTERSON CONTRACTING, INC., a West Virginia Corporation; and Grasan Equipment Company, an Ohio Corporation, Defendants Below, Grasan Equipment Company, Inc., an Ohio Corporation, Defendant Below, Appellee.

Sherman Jones and Lori Jones, Plaintiffs Below, Appellants, v. Patterson Contracting, Inc., a West Virginia Corporation; and Grasan Equipment Company, an Ohio Corporation, Defendants Below, Patterson Contracting, Inc., a West Virginia Corporation, Defendant Below, Appellee.

Nos. 25959, 25960.

Supreme Court of Appeals of West Virginia.

Submitted September 22, 1999.

Decided November 19, 1999.

Concurring and Dissenting Opinion of Justice Davis November 24, 1999.

Timothy P. Rosinsky, Esq., Rosinsky Law Offices, Huntington, West Virginia, Attorney for Appellants.

Mary H. Sanders, Esq., Huddleston, Bolen, Beatty, Porter & Copen, Charleston, West Virginia, Attorney for Patterson Contracting.

Anita R. Casey, Esq., MacCorkle, Lavender & Casey, Charleston, West Virginia and R. Ford Francis, Esq., Shumacher, Francis & Nelson, Charleston, West Virginia, Attorneys for Grason Equipment Company.

PER CURIAM:

This is an appeal by Sherman and Lori Jones (hereinafter "Appellants") from July 28, 1998, and August 27, 1998, orders of the Circuit Court of Logan County granting directed verdicts in favor of Patterson Contracting, Inc., and Grasan Equipment Company (hereinafter "Appellees," "Patterson," or "Grasan").¹ The Appellants maintain that the lower court erred in granting the directed verdicts, that expert testimony was improperly excluded from consideration, and that the Appellants' evidence of deliberate intent was not properly evaluated. We conclude that the lower court erred in granting the directed verdict in favor of Grasan, but we affirm the directed verdict in favor of Patterson.

I. Facts

On May 15, 1995, Mr. Sherman Jones, employed by Appellee Patterson at Cora, West Virginia, was operating a rock crusher manufactured by Appellee Grasan. Mr. Jones was injured as he placed his head and upper body into a chute in the rock crusher in an attempt to manually dislodge dirt which had become clogged in the machine.² While cleaning the chute, dirt and rock dust from within the machine fell on Mr. Jones, trapping him in the chute. He has alleged that he sustained back, neck, and psychiatric injuries as a result of the accident.

The Appellants instituted a civil action in the Circuit Court of Logan County against Patterson based upon the deliberate intent statute, West Virginia Code § 23-4-2(c)(2)(ii)(A-E) (1994), and against Grasan on a products liability theory. Trial commenced on July 13, 1998, and continued through July 16, 1998. The lower court granted directed verdicts in favor of both defendants, entered by order dated July 28, 1998, for Patterson, and August 27, 1998, for Grasan. The Appellants thereafter appealed to this Court.

II. Review of a Lower Court's Entry of a Directed Verdict

Rule 50(a) of the West Virginia Rules of Civil Procedure authorizes a party to move for a directed verdict. A circuit court should direct a verdict in the defendant's favor if " `the plaintiff's evidence, considered in the light most favorable to him, fails to establish a prima facie right to recovery[.]' " Syl. Pt. 1, in part, Brannon v. Riffle, 197 W.Va. 97, 475 S.E.2d 97 (1996) (quoting Syl. Pt. 3, in part, Roberts v. Gale, 149 W.Va. 166, 139 S.E.2d 272 (1964)). In syllabus point three of Brannon, this Court explained as follows:

The appellate standard of review for the granting of a motion for a directed verdict pursuant to Rule 50 of the West Virginia Rules of Civil Procedure is de novo. On appeal, this court, after considering the evidence in the light most favorable to nonmovant party, will sustain the granting of directed verdict when only one reasonable conclusion as to the verdict can be reached. But if reasonable minds could differ as to the importance and sufficiency of the evidence, a circuit court's ruling granting a directed verdict will be reversed.

In evaluating a request for a directed verdict, syllabus point five of Wager v. Sine, 157 W.Va. 391, 201 S.E.2d 260 (1973), instructs that "all reasonable doubts and inferences should be resolved in favor of the party against whom the verdict is asked to be directed." " ` "Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence. Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85[, 163 S.E. 767 (1932) ]." ` Point 1, Syllabus, Jenkins v. Chatterton, 143 W.Va. 250 (1957)." Syl. Pt. 1, Jividen v. Legg, 161 W.Va. 769, 245 S.E.2d 835 (1978).

III. Grasan Products Liability Claim

The Appellants maintained that Grasan, as manufacturer of the rock crusher, had failed to warn operators of the "dangers associated with the foreseeable use and misuse of its product." They further alleged that the machine was inherently dangerous in its failure to provide a safe and reliable means of cleaning the chute. The Appellants' primary evidence of defective design was introduced at trial through the expert testimony of Mr. Keith Colombo, a licensed professional engineer and a certified safety professional. His practical experience included systems safety analysis in major companies such as Boeing, Martin Marietta, and United Technologies. Mr. Colombo is a member of the American Society of Safety Engineers, the American Society for Testing and Materials, the National Fire Protection Association, and the Systems Safety Society.

Prior to trial, Grasan had presented the lower court with a motion in limine requesting that the lower court prohibit the introduction of Mr. Colombo's testimony based upon his alleged lack of familiarity with the standards of the mining industry in particular. The lower court, however, permitted Mr. Colombo to testify at trial, explaining as follows: "I think this is a question of what weight to give to his testimony and the jury will give whatever weight is appropriate."

Mr. Colombo testified that he was familiar with chutes, conveyors, and material handling. Having viewed numerous photographs and videotapes of the rock crusher, Mr. Colombo opined that there was no safe method by which operators could clean the rock crusher chute. Relying upon standard promulgated by the American National Standard Institute (ANSI) to assist him in identifying hazards in the work place, Mr. Colombo determined that either of two potential design alterations could have prevented access to the chute door: (1) an interlock device to prevent opening the door, or (2) a permanent metal grate to prevent a person from accessing the chute door opening. Mr. Colombo also emphasized that the written materials supplied by Grasan regarding the maintenance and operation of the rock crusher did not instruct the user on the appropriate method of cleaning the chute.

On the morning following Mr. Colombo's presentation of testimony to the jury, Grasan moved to strike Mr. Colombo's testimony in its entirety. The lower court granted Grasan's motion to strike and asked the jury to disregard Mr. Colombo's testimony. The lower court explained that it had done a "disservice" by allowing Mr. Colombo to testify and reasoned as follows:

There are mining engineers in profusion and you end up with somebody who is an astronautical (sic) engineer from Florida.... [H]e seemed to have a real hard time coping with the stuff and his obvious unfamiliarity with the industry, with the standards of the industry, with anything having to do with the mining industry was just pretty obvious.... There are various engineers who deal with very narrow areas and do not have expertise in other areas and I don't accept the proposition that it is quite that flexible.

The Appellants maintain that Mr. Colombo's lack of experience within the particular field of mining or the realm of rock crushing equipment does not render his testimony as to general safety precautions inadmissible. They contend that any credibility issues are more properly resolved by permitting the jury to have the benefit of all information, establishing an issue of credibility, the weight of the evidence, rather than admissibility.

Grasan asserts that the lower court properly exercised its discretion in striking the testimony of Mr. Colombo based upon his deficiencies in training, education, and experience in the mining industry. Grasan emphasizes that Mr. Colombo had not seen the actual machine in question until the morning of the trial, had not operated a rock crusher, had no knowledge of MSHA (Mine Safety and Health Administration) regulations, and had no knowledge of the mining industry in general.

In the determination of the admissibility of expert testimony, we must be guided by the principles of Rule 702 of the West Virginia Rules of Evidence, explaining as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

In syllabus point five of Gentry v. Mangum, 195 W.Va. 512, 525, 466 S.E.2d 171, 184 (1995), this Court explained:

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

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