Mayles v. Shoney's, Inc.

Decision Date20 December 1990
Docket NumberNo. 19530,19530
Citation405 S.E.2d 15,185 W.Va. 88
CourtWest Virginia Supreme Court
PartiesTimothy MAYLES, Appellee, v. SHONEY'S, INC., a Corporation, d/b/a Captain D's; Fred Hunt; Edward and Hotchkiss, Inc.; and Wayne Phillips, Defendants Below; Shoney's, Inc., a Corporation, d/b/a Captain D's, Appellant.

Syllabus by the Court

1. The statute creating a legislative standard for loss of employer immunity from civil liability for work-related injury to employees found in W.Va.Code § 23-4-2 (1983) essentially sets forth two separate and distinct methods of proving "deliberate intention."

2. A plaintiff may establish "deliberate intention" in a civil action against an employer for a work-related injury by offering evidence to prove the five specific requirements provided in W.Va.Code § 23-4-2(c)(2)(ii) (1983).

Charles E. Hurt, Victor A. Barone, Charleston, for Shoney's Inc.

Paul T. Camilletti, Camilletti & Sacco, Wheeling, David Camilletti, Glenville, for Timothy Mayles.

WORKMAN, Justice:

This case is before the Court upon the appeal of Shoney's, Inc. d/b/a Captain D's from a February 2, 1989, final order of the Circuit Court of Kanawha County, West Virginia, in which the lower court entered judgment on a jury verdict awarding $220,000.00 to the appellee, Timothy Mayles, as a result of a Mandolidis 1 -type personal injury case brought under W.Va.Code § 23-4-2 (1983). The appellant alleges that the following errors were committed by lower court:

1) the trial court allowed the jury to decide a case which did not satisfy the mandatory five-factor test set forth in West Virginia Code § 23-4-2(c)(2)(ii) governing Mandolidis cases [in that t]he case may have satisfied a standard for ordinary negligence or carelessness but did not come close to the requirements set forth in said statute for proof of 'deliberate intent', and therefore, should not have been allowed to go to the jury;

2) the court, over appellant's objection, gave an instruction that advised the jury that in order to show deliberate intent, the appellee 'need only prove' each of the five statutory elements in Code § 23-4-2(c)(2)(ii), whereas the statutory language is that the 'requirement [proof of deliberate intent] may be satisfied only if [certain requirements are met]'; and

3) the court, over the [appellant's] objection, gave an instruction that advised the jury that it could, in determining damages, consider the probable life expectancy of the plaintiff, even though no mortality tables or any other evidence of life expectancy was ever offered.

Upon a review of all the matters of record, including the briefs of the parties, we find that no error was committed by the lower court and accordingly affirm that decision.

The evidence at trial revealed that the appellee, Timothy Mayles, was employed at a Captain D's restaurant in Star City, West Virginia. The appellee had been hired by the restaurant in mid-March of 1984 as a short-order cook. On April 4, 1984, the appellee was severely injured at work while carrying a large five-gallon container of hot grease to a disposal unit located outside the restaurant. The appellee testified that while he was carrying the container to the disposal unit, he slipped and fell on a wet grassy slope and was burned when the grease splashed out of the container and fell onto him. The severity of the appellee's injury is uncontested. The incident caused the appellee to suffer severe burn injuries with disfiguring scarring involving the right arm and shoulder area, the left upper chest and the left shoulder area. The appellee also suffered less severe burns to his face and legs. He underwent skin grafting and, according to Dr. Jacques Charbonniez, a plastic surgeon who testified at trial, the appellee may expect chronic breakdown of the scar tissue from movement.

According to the appellee's testimony, as part of his employment duties, he was required to dispose of used grease from the fryers and grease bins used to deep-fry foods. However, the appellee testified that he received no training regarding his duties in connection with these bins except that he was told by the unit manager, 2 Fred Hunt, to watch other employees and follow their lead. Mayles testified that the manner in which he viewed the grease being disposed was to "pour the grease from the bottom of the vat into a 5-gallon kettle with two handles and walk it back to the back of the store, out the back door, down the slope and into the 55-gallon drums." Further, the appellee's testimony revealed that no one had instructed him to wait until the grease was cold before carrying it out; and that from his observations, the grease was always immediately disposed of while it was hot. He further testified that on the only occasion on which he actually disposed of grease aside from the day of the accident, the grease was cold. 3

The appellee's testimony as to the practice of disposing of grease while still hot was corroborated not only by Paul Mayles, 4 his cousin, who was also employed as a short-order cook at the same Captain D's and who observed his cousin's injury when it occurred, but also by Phillip Wakim, another short-order cook employed at the same restaurant. In addition, Terry Franks, who had been unit manager of the Captain D's where the accident occurred until shortly before the appellee was hired and was the dining room supervisor when the appellee began work, testified that the restaurant's policy was to dump the grease while it was hot. Specifically, she testified that "[i]t was just the general feeling around the store that we were always so short on laborers and trying to cut hours that everything was done right now, get it done, get the people off the clock and then that was the end of the day." Her testimony also indicated that other employees had come to her expressing concern that it was unsafe and extremely dangerous to carry hot grease down the slope to discard it; however, she never reported these concerns to the subsequent unit manager, Fred Hunt. Franks also testified that the grease was always taken down the slope to dump it and that alternate routes were not used because the bucket was too hot and heavy and the other routes too long. Finally, Franks' testimony revealed that another employee named Leon Willson, who was another former unit manager, had suffered a foot injury in the same manner as the appellee in December 1983. 5

Dr. Andrew Sorine, who had a master's degree in Industrial Safety and a doctorate in Safety Management from West Virginia University, testified as an expert for the appellee. Dr. Sorine testified that the restaurant was in violation of Occupation Safety and Health Administration (hereinafter referred to as OSHA) regulations for lack of training of its employees in handling hazardous materials; lack of proper personal protective equipment to be worn when handling hazardous material; and the elevation problem of having to go down a slope to dispose of hot grease. The expert further testified that the specific unsafe working condition found at the injury sight was that Mayles "had to transport a corrosive and dangerous material or substance over a path that was not conducive for ... transportation of that material." His testimony also indicated that this unsafe working condition presented a high degree of risk to employees which included a strong probability of serious injury. Finally, Dr. Sorine testified that the unsafe working condition was in violation of the industry standard since "[t]he industry standards for disposing of the hot grease would have been to drain the grease into a container which could have been tightly sealed and could have transmitted or transferred that hot grease to another container without the possibility of the hot grease escaping the container."

The appellant's case consisted of the testimony of an expert witness and Fred Hunt, the unit manager at Captain D's at the time of the appellee's injury. Hunt testified that he personally went over all the written company policies and procedures with Mayles. Hunt also testified that he personally trained the appellee in how to empty the fryers. 6 He denied that he instructed Mayles just to watch the other employees and follow their lead. Further, Hunt testified that when he was manager he required the oil to be cooled either in the back storage room or in the freezer prior to being carried out to the disposal unit. He also testified that he and the appellee had carried out oil one day and that the oil was cold. He indicated that an alternate route which did not involve going down the slope was used. 7 Hunt's testimony also revealed that he had heard rumors that hot oil was being disposed of behind his back; but that he took no measures to correct the situation until after Mayles' injury. Additionally, Hunt also testified that when the appellee was injured, while he did not actually see the appellee disposing of the hot oil, he did hear them while they were disposing of it. He thought that the grease was being placed in an area to cool and not being carried outside. Finally, Hunt testified that he was never informed that another employee had previously been injured in the same manner as Mayles, as this event occurred about four months prior to his becoming unit manager of the store.

Appellant's expert, David Pierce, who was a safety engineer for a private consulting firm and a former compliance officer with OSHA, testified that there were no specific violations of OSHA regulations. He testified that the violations found by appellee's expert pertained to corrosive materials and it was his opinion that hot grease did not qualify as a corrosive material under the OSHA regulations; 8 that protective gear would only be required in the transfer of the hot grease from one container to another; and that the only even arguable violation would be of the general duty clause found in the OSHA...

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