Keesee v. General Refuse Service, Inc.

• Decision Date: 29 June 2004
• Docket Number: No. 31615.,31615.
• Citation: 216 W.Va. 199,604 S.E.2d 449
• Parties: Buddy KEESEE, Individually, and as the Administrator of the Estate of Douglas Saville, Plaintiff Below, Appellant v. GENERAL REFUSE SERVICE, INC., Defendant Below, Appellee.
• Court: West Virginia Supreme Court

604 S.E.2d 449

216 W.Va. 199

Buddy KEESEE, Individually, and as the Administrator of the Estate of Douglas Saville, Plaintiff Below, Appellant v. GENERAL REFUSE SERVICE, INC., Defendant Below, Appellee.

No. 31615.

Supreme Court of Appeals of West Virginia.

Submitted April 13, 2004.

Decided June 29, 2004.

Joshua I. Barrett, Rudolph L. DiTrapano, DiTrapano, Barrett & DiPiero, Charleston, Timothy P. Rosinsky, Huntington, for Appellant.

R. Carter Elkins, Dustin C. Haley, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Huntington, Mennis E. Ketchum, II, Greene, Ketchum, Bailey & Tweel, Huntington, for Appellee.

PER CURIAM:

In the instant case, the appellant, Buddy Keesee, individually, and as the administrator of the estate of Douglas Boyd Saville,¹ instituted a suit against General Refuse Service, Inc. ("GRS") asserting a deliberate intention action pursuant to W.Va.Code § 23-4-2(c)(2) (1994)², arising from the death of Mr. Saville on December 1, 1998. Mr. Keesee alleged an unsafe working condition existed at GRS because employees purportedly rode on the side step of the Pak-Rat³ and that the side step was not intended to be a riding step. A jury trial commenced on October 29, 2002, and concluded on November 4, 2002, when the jury found that a specific unsafe working condition which presented a high degree of risk and strong probability of serious injury or death did not exist in the workplace of Mr. Saville. On December 10, 2002, the Circuit Court of Cabell County entered judgment in favor of GRS. Thereafter, on February 26, 2003, the circuit denied Mr. Keesee's subsequent motion for a new trial. Before this Court, Mr. Keesee appeals the adverse jury verdict and the circuit court's subsequent denial of his motion for a new trial. After reviewing the facts of the case, the issues presented, and the relevant statutory and case law, this Court affirms the decision of the circuit court.

I. FACTS

On December 1, 1998, twenty-two-year-old Douglas Saville was killed in Cabell County while working in the employ of appellee, General Refuse Service, Inc. ("GRS"). He was run over and crushed to death by the Pak-Rat, a refuse collection truck, while he was working as a groundman⁴ for GRS. No one witnessed the accident, however, there was no dispute that the death of Mr. Saville resulted from an impact with the vehicle that Mr. Danny Johnson was driving.⁵ Instead, the dispute surrounded how the accident occurred.

In this case, Mr. Keesee contended that Mr. Saville was exposed to a specific unsafe working condition by riding on a loading step of the vehicle. Conversely, GRS argued that Mr. Saville was not riding on the step in question, and thus, the alleged specific unsafe working condition did not exist. GRS further argued that Mr. Saville's death was caused by the negligent acts of his co-employee, Mr. Johnson. In addition, GRS maintained that there was never a groundman assigned to the Pak-Rat as it was a single operation vehicle consisting solely of a driver who gets out of the vehicle to pick up trash or recyclables. As such, GRS argued that Mr. Saville was not trained to work around the Pak-Rat, nor was he assigned to the Pak-Rat. Instead, GRS stated that Mr. Saville was a groundman for a large rear-loader garbage truck and had received on-the-job training from an employee who had been with GRS for a time of between twenty and twenty-five years.

On the day of the accident, Mr. Saville had been assigned to work with Mr. Daniel Meadows on a truck driven by Mr. Verl Goodpasture. During trial, Mr. Johnson testified that Mr. Ronnie Finley, a member of GRS's management team, delivered Mr. Meadows and Mr. Saville to assist Mr. Johnson on the Pak-Rat as they had both completed their assigned route. Conversely, Mr. Meadows testified that he and Mr. Saville volunteered to help Mr. Johnson without the knowledge of Mr. Finley or any other management personnel. Later that day, Mr. Saville was killed when he was run over by the Pak-Rat.

After five days of trial, the jury returned a verdict in GRS's favor, answering "no" to the first interrogatory: "Do you find by a preponderance of the evidence, that a specific unsafe working condition existed in the workplace of Douglas Saville, which presented a high degree of risk and a strong probability of serious injury of death?" On December 10, 2002, judgment was entered for GRS. Thereafter, Mr. Keesee filed a motion for a new trial which was denied on February 26, 2003. This appeal followed.

II. STANDARD OF REVIEW

In Syllabus Point 1 of State v. Paynter, 206 W.Va. 521, 526 S.E.2d 43 (1999), we held, "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review. Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995)." We have further indicated that a circuit court's final order and ultimate disposition are reviewed under the abuse of discretion standard. State ex rel. Hechler v. Christian Action Network, 201 W.Va. 71, 491 S.E.2d 618 (1997). Moreover, in Tennant v. Marion Health Care Foundation, 194 W.Va. 97, 104, 459 S.E.2d 374, 381 (1995), we explained:

We review 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 are subject to a de novo review.

We have also held that:

Although 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.

Syllabus Point 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976). Accord, Stillwell v. The City of Wheeling, 210 W.Va. 599, 604, 558 S.E.2d 598, 603 (2001)

; Syllabus Point 1, Andrews v. Reynolds Mem'l Hosp., Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997). Moreover, in Rollyson v. Jordan, 205 W.Va. 368, 379, 518 S.E.2d 372, 383 (1999), we provided that: "Ordinarily, when a circuit court is afforded discretion in making a decision, this Court accords great deference to the lower court's determination. However, when we find that the lower court has abused its discretion, we will not hesitate to right the wrong that has been committed."

Additionally, when we are asked to decide if a jury received the proper instructions in a given trial our review is de novo. "As a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion. By contrast, the question of whether a jury was properly instructed is a question of law, and the review is de novo.' Syl. pt. 1, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996)." Syllabus Point 2, Foster v. Sakhai, 210 W.Va. 716, 559 S.E.2d 53 (2001). Moreover, "[t]he formulation of jury instructions is within the broad discretion of a circuit court, and a circuit court's giving of an instruction is reviewed under an abuse of discretion standard. A verdict should not be disturbed based on the formulation of the language of the jury instructions so long as the instructions given as a whole are accurate and fair to both parties." Syllabus Point 6, Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995). We proceed with our examination of the assigned errors with these standards in mind.

III. DISCUSSION

A. Clear Weight of the Evidence

We begin our review in this appeal with Mr. Keesee's argument that the jury's finding that Mr. Saville was not exposed to a specific unsafe working condition, which presented a high degree of risk and strong probability of serious injury or death, was against the clear weight of the evidence presented at trial. Mr. Keesee argues that it is undisputed that Mr. Saville was working on the Pak-Rat; that he was not trained to work on that vehicle or to recognize the difference between a riding step or a loading step; and, that he was not trained to avoid riding on the step which was not specifically designed for riding. Mr. Keesee further argues that the evidence shows that it was the general practice at GRS that if a vehicle had a step, it was ridden. As such, Mr. Keesee asserts that the fact that the jury answered this question in the negative "strongly suggests the jury did not consider the evidence on this issue, but rather was persuaded by unrelated, prejudicial evidence and testimony...."

We believe that Mr. Keesee's argument ignores the primary theory of GRS's defense which was that Mr. Saville was not on the side step of the Pak-Rat immediately prior to the fatal accident, and thus, an unsafe working condition did not exist. During trial, GRS provided evidence that its employees were trained effectively through on-the-job training and that there had been the absence of serious injuries in general at GRS for many years. In fact, Mr. Lawson testified that in his seventeen years with GRS no one had been "run over" or seriously injured in a work-related incident. Additionally, Mr. Finley testified that during his twenty-one years with the company there had not been an injury at GRS that was serious enough to require overnight hospitalization. Jurors further discovered that Mr. Saville was not trained to work around the Pak-Rat because he was not assigned to the Pak-Rat. Moreover, while one witness testified that Mr. Saville may have been riding on the step prior to having been run over by the truck, other testimony depicted that Mr. Saville was not riding on the Pak-Rat step immediately prior to the accident and that he had both feet on the ground. Additionally, it was GRS's contention that Mr. Johnson may have carelessly and negligently operated the Pak-Rat leading to Mr. Saville's death.

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