Kane v. Corning Glass Works, 16078

• Court: Supreme Court of West Virginia
• Citation: 331 S.E.2d 807,175 W.Va. 77
• Docket Number: No. 16078,16078
• Parties: Nelson T. KANE v. CORNING GLASS WORKS, a corp.
• Decision Date: 17 October 1984

Page 807

331 S.E.2d 807 175 W.Va. 77 Nelson T. KANE
v.
CORNING GLASS WORKS, a corp. No. 16078. Supreme Court of Appeals of
West Virginia. Oct. 17, 1984.
Rehearing Denied Dec. 21, 1984.
Dissenting Opinion Feb. 13, 1985.

Douglas S. Rockwell, Avey, Steptoe, Perry, Van Metre & Rockwell, Charles Town, for appellee.

Lacy I. Rice, Jr., Rice, Hannis & Douglas, Martinsburg, for appellant.

Syllabus by the Court

"Under Mandolidis v. Elkins Industries, Inc., [161 W.Va. 695], 246 S.E.2d 907 [96 A.L.R. 3d 1035] (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

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cause of the injury." Syllabus,[175 W.Va. 78] Cline v. Joy Mfg. Co., 172 W.Va. 769, 310 S.E.2d 835 (1983).

MILLER, Justice:

This case involves an industrial accident where Corning Glass Works contends that there was insufficient proof to show a deliberate intent to injure Nelson Kane, one of its employees, under W.Va.Code, 23-4-2, of our Workers' Compensation Act. ¹ Consequently, Corning maintains that the Circuit Court of Berkeley County erred in refusing its motion for a directed verdict.

Mr. Kane was awarded $40,000 by a jury for injuries received while operating a forklift in the course of his employment. His injuries occurred when the safety shield or canopy over the driver's seat detached, striking him on the head and back. This overhead canopy was attached to the front of the operator's cab, which was located behind the two lifting booms or masts of the forklift. Connected to the front of the masts was the lift assembly, which could be moved up or down.

Prior to October, 1977, Corning had modified the safety canopy by installing a metal bar between the two metal poles that held the canopy and by welding an additional metal screen on the anchoring poles. These modifications were made to provide additional protection to the operator.

In October, 1977, the booms on the forklift were removed and shorter booms were installed. This change decreased the height to which loads could be lifted. The foregoing facts do not appear to be disputed by the parties.

What is disputed is how the canopy came off. The plaintiff's evidence was that on February 21, 1978, he was operating the forklift, lifting a load of discarded pipe and angle iron. In order to keep the load on the lift, he had tilted the booms back toward the cab and was elevating the lift platform to avoid some material on the floor. In the course of lifting the platform, the masts or booms which telescope out caught the edge of the safety canopy and pulled its anchoring pipes out of their securing brackets. This caused the canopy to become detached and fall on the plaintiff.

Corning's view was that the canopy's anchoring pipes some how had been bent forward over the booms so that when the booms were extended, they caught the canopy, pushing it up until the canopy anchoring pipes pulled out of their brackets. No one witnessed the accident except Mr. Kane.

The other disputed fact was whether Corning knew or had reason to know that the canopy could become disengaged. One of the plaintiff's fellow employees, Homer Kitchen, testified that some two weeks prior to the accident, a similar event occurred to him on the same forklift. Mr. Kitchen, however, saw the canopy start to lift and was able to stop the upward movement of the booms so that the canopy did not completely disengage. He claimed that he reported this condition to Harold Markle, who was a maintenance supervisor. However, Mr. Markle denied this and stated that he had never received any complaint about the canopy problem on this forklift from any of the employees.

This case is analogous to Cline v. Joy Mfg. Co., 172 W.Va. 769, 310 S.E.2d 835 (1983), where we formulated this rule in its single Syllabus:

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"Under Mandolidis v. Elkins Industries, Inc., [161 W.Va. 695], 246 S.E.2d 907 [96 A.L.R.3d 1035](1978), it is essential, in order for an injured employee to recover, that the employer's misconduct [175 W.Va. 79] 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."

Cline involved an injury in a coal mine occasioned by a defective lever on a continuous miner. The operator of the continuous miner was a section foreman who was standing outside the control cab operating a control lever, which moved the machine. He was injured when the lever stuck, causing the machine to pin him against the rib of the mine. The operator claimed that he had been told by a supervisor to protect this equipment, and it was for this reason that he was operating it. The regular operator had left the machine when he encountered water in the mine. It was not disputed that the defective lever had been reported to the employer on at least two occasions prior to the accident. We concluded that there was insufficient evidence to meet the Mandolidis standard.

In Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907, 96 A.L.R.3d 1035 (1978), an employee lost a part of his fingers and hand while operating a mechanically powered table saw. The saw's original safety shield had been removed by the employer because it slowed production. It was established that operating the saw without the safety shield was a violation of both federal and state safety regulations.

A federal safety inspector had ordered the employees not to use the machine until the safety shield was replaced and tagged the machine as being inoperable. The employer removed the tags and ordered that it be placed back into operation. There was a history of previous injuries to persons operating the power saw without the safety shield. Moreover, one employee had been fired because he refused to operate the power saw without the safety shield. Finally, when the injured employee in Mandolidis protested the unsafe condition, he was advised that if he did not operate it, he would be fired.

In the present case, we find no such compelling state of facts. There was no evidence that the forklift was found to violate any safety standards. Nor can it be said that the condition of the forklift canopy constituted such a dangerous condition that the employer was guilty of a wilful or wanton act in continuing it in operation. In order to reach this conclusion, it would have to be established that the arrangement of the forklift canopy constituted an obviously hazardous condition brought about by the intentional or wilful and wanton act of Corning, and that it was apparent that Corning must have known of the high degree of risk of physical harm by permitting the forklift to be operated. The defective condition was neither obvious nor had there been any past injury arising from it. In short, while there may have been a design defect in the arrangement of the canopy, this does not prove that the employer had a deliberate intent to injure as required by Mandolidis and Cline. ²

We, therefore, conclude that the Circuit Court of Berkeley County erred in refusing to grant Corning Glass Works a directed

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verdict on liability, and we remand the case with directions to enter such a verdict.

Remanded.

McGRAW, J., dissents and files a dissenting opinion.

[175 W.Va. 80] McGRAW, Justice, dissenting:

I respectfully dissent from the majority's failure to apply the appropriate standard regarding motions for a directed verdict and from its misapplication of the appropriate standards set forth in Syllabus Point 1 of Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978) and in the single Syllabus of Cline v. Joy Mfg. Co., 172 W.Va. 769, 310 S.E.2d 835 (1983).

In Syllabus Point 5 of Wager v. Sine, 157 W.Va. 391, 201 S.E.2d 260 (1973), this Court stated the general rule that, "Upon a motion for a directed verdict, all reasonable doubts and inferences should be resolved in favor of the party against whom the verdict is asked to be directed." See also Syl. pt. 3, Robertson v. LeMaster, 171 W.Va. 607, 301 S.E.2d 563 (1983); Syl. pt. 1, Jimco Supply Co. v. Neal, 166 W.Va. 794, 277 S.E.2d 626 (1981); Syl. pt. 2, Ashland Oil, Inc. v. Donahue, 164 W.Va. 409, 264 S.E.2d 466 (1980). This is a condensation of the long established rule in this jurisdiction that, "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." Syl., Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85, 163 S.E. 767 (1932); see also Syl. pt. 9, Casto v. Martin, 159 W.Va. 761, 230 S.E.2d 722 (1976); Syl., Curry v. Heck's Inc., 157 W.Va. 719, 203 S.E.2d 696 (1974); Syl. pt. 5, Young v. Ross, 157 W.Va. 548, 202 S.E.2d 622 (1974); Syl. pt. 1, Pinfold v. Hendricks, 155 W.Va. 489, 184 S.E.2d 731 (1971); Syl. pt. 5, Smith v. Edward M. Rude Carrier Corp., 151 W.Va. 322, 151 S.E.2d 738 (1966); Syl. pt. 1, Duling v. Bluefield Sanitarium, Inc., 149 W.Va. 567, 142 S.E.2d 754 (1965); Syl. pt. 4, Thornsbury v. Thornsbury, 147 W.Va. 771, 131 S.E.2d 713 (1963); Syl. pt. 1, Lambert v. Goodman, 147 W.Va. 513, 129 S.E.2d 138 (1963); Syl. pt. 1, Spaur v. Hayes, 147 W.Va. 168, 126 S.E.2d 187 (1962); Syl. pt. 5, Reilley v. Byard, 146 W.Va. 292, 119 S.E.2d 650 (1961); Syl. pt. 3, Costello v. City of Wheeling, 145 W.Va. 455, 117 S.E.2d 513 (1960); Syl. pt. 1, Jenkins v. Chatterton, 143 W.Va. 250, 100 S.E.2d 808 (1957); Syl. pt. 1, Reese v....