McComas v. Acf Indus., LLC, No. 12–0548.

CourtSupreme Court of West Virginia
Writing for the CourtKETCHUM
Citation232 W.Va. 19,750 S.E.2d 235
PartiesDavid McCOMAS, Plaintiff Below, Petitioner v. ACF INDUSTRIES, LLC, a Delaware Company, Defendant Below, Respondent.
Decision Date17 October 2013
Docket NumberNo. 12–0548.

232 W.Va. 19
750 S.E.2d 235

David McCOMAS, Plaintiff Below, Petitioner
v.
ACF INDUSTRIES, LLC, a Delaware Company, Defendant Below, Respondent.

No. 12–0548.

Supreme Court of Appeals of
West Virginia.

Submitted Sept. 25, 2013.
Decided Oct. 17, 2013.


[750 S.E.2d 236]



SYLLABUS BY THE COURT

1. “A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” Syl. pt. 3, Aetna Casualty and Surety Company v. Federal Insurance Company of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

2. “To establish ‘deliberate intention’ in an action under W.Va.Code, § 23–4–2(c)(2)(ii) (1983) [currently, W.Va.Code, 23–4–2(d)(2)(ii) (2005) ], a plaintiff or cross-claimant must offer evidence to prove each of the five specific statutory requirements.” Syl. pt. 2, Helmick v. Potomac Edison Company, 185 W.Va. 269, 406 S.E.2d 700,cert. denied,502 U.S. 908, 112 S.Ct. 301, 116 L.Ed.2d 244 (1991).

3. “The violation of a statute, rule, regulation or standard is a proper foundation for the element of deliberate intent found at W.Va.Code § 23–4–2(c)(2)(ii)(C) (1994) (Repl.Vol.1998), where such statute, rule, regulation or standard imposes a specifically identifiable duty upon an employer, as opposed to merely expressing a generalized goal, and where the statute, rule, regulation or standard asserted by the employee is capable of application to the specific type of work at issue.” Syl. pt. 3, Ryan v. Clonch Industries, Inc., 219 W.Va. 664, 639 S.E.2d 756 (2006).

4. When a safety statute, rule or regulation, or a commonly accepted and well-

[750 S.E.2d 237]

known safety standard within the industry or business, imposes a specifically identifiable duty to inspect upon the employer, and the inspection would have revealed the specific unsafe working condition, the employer may be found to have had actual knowledge of the specific unsafe working condition within the meaning of this State's deliberate intent statute, W.Va.Code, 23–4–2(d)(2)(ii)(B) [2005].


Shannon M. Bland, Esq., Bland and Bland Attorneys At Law, L.C., Charleston, WV, for Petitioner.

Jenna Perkins Wood, Esq., Justin M. Hershberger, Esq., Rawle & Henderson, LLP, Wheeling, WV, for Respondent.


KETCHUM, Justice:

This deliberate intent action is before this Court upon the appeal of the plaintiff / petitioner David McComas (“McComas”) from the order of the Circuit Court of Cabell County granting summary judgment in favor of the defendant / respondent ACF Industries, LLC (“ACF”). McComas, a welder employed by ACF, sustained severe burns from an arc blast emanating from a 480–volt electrical box. The blast occurred as McComas attempted to turn on the power at his work station for lighting and to operate an electric welding machine.

The controlling statute, in effect on the date of the accident, was W.Va.Code, 23–4–2(d)(2)(ii) [2005], which provided an exception to the immunity from common law tort liability granted to employers under the West Virginia Workers' Compensation Act. McComas offered evidence that ACF was required, under applicable safety standards within the industry, to routinely inspect its 480–volt electrical boxes to ensure that they were in proper working order. His evidence showed that the box resulting in the arc blast was not in proper working order. ACF was unable to show that the 480–volt box had ever been inspected following its installation in the 1950s or early 1960s.

Upon careful review, this Court concludes that the entry of summary judgment constituted reversible error. The circuit court erred in finding that the safety standards relied on by McComas were not specifically applicable to his work and working conditions. The circuit court also erred in finding no question of material fact concerning whether ACF intentionally exposed McComas to the unsafe 480–volt box.

Accordingly, the order of the Circuit Court of Cabell County granting summary judgment in favor of ACF is reversed, and this action is remanded to the circuit court for proceedings consistent with this opinion.

I. Factual Background

ACF, a Delaware corporation, operates an industrial plant in the City of Huntington, Cabell County, for the construction of railroad cars. McComas began working for ACF in 1995 and, following a 2001 layoff period, returned to ACF in February 2004. McComas was a welder at the time of his injury.

On June 22, 2007, McComas and Ronnie Lambert, also a welder, were directed by their foreman, Wayne Stillwell, to go to the ST–3 section of the ACF plant to begin building sides for railroad cars.1 McComas and Lambert were joined by McComas's father, Vollie McComas (“Vollie”), a welding technician. The ST–3 section of the plant had not been in recent operation, and the electric power for that area had been shut off. Lambert testified in his deposition that the area was dark. Turning on the electric power was necessary for lighting the area and also necessary because the welding machines used to build the sides of railroad cars were electric welders.

The three employees first attempted to turn the power on by means of individual circuit breakers. When that attempt failed, McComas approached an adjoining 480–volt,

[750 S.E.2d 238]

fused, switch box. The box was enclosed, and the side-handle was down, in the “Off” position. When McComas raised the handle to the “On” position, an arc blast suddenly occurred that blew him backwards and to the floor. Although McComas was wearing a hard hat, safety glasses and gloves, he sustained severe burns to 25% of his body surface area, including his face, chest and abdomen.2

The 480–volt box was installed in the 1950s or early 1960s and had never been inspected by ACF. McComas subsequently testified in his deposition that, other than a statement of the voltage, the box had no sign or label warning of danger. The 480–volt box was significantly damaged by the blast. It was stored for over a year by ACF but was discarded before it could be examined by the experts in this litigation. However, a similar power box owned by ACF was used for comparison. Most of the testimony submitted to this Court attributes the arc blast to the wear and tear and disintegration of the insulation within the 480–volt box.3

II. Procedural Background

On June 18, 2009, McComas instituted a statutory deliberate intent action in the Circuit Court of Cabell County against ACF. The controlling statute, in effect on the date of the accident, was W.Va.Code, 23–4–2(d)(2)(ii) [2005]. 4 That statute provided that the requirements of a deliberate intent action may be satisfied only if all of the following facts are proven:

(A) That a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death;

(B) That the employer, prior to the injury, had actual knowledge of the existence of the specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by the specific unsafe working condition;

(C) That the specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known safety standard within the industry or business of the employer, as demonstrated by competent evidence of written standards or guidelines which reflect a consensus safety standard in the industry or business, which statute, rule, regulation or standard was specifically applicable to the particular work and working condition involved, as contrasted with a statute, rule, regulation or standard generally requiring safe workplaces, equipment or working conditions;

(D) That notwithstanding the existence of the facts set forth in subparagraphs (A) through (C), inclusive, of this paragraph, the employer nevertheless intentionally thereafter exposed an employee to the specific unsafe working condition; and

(E) That the employee exposed suffered serious compensable injury or compensable death as defined in section one, article four, chapter twenty-three whether a claim for benefits under this chapter is filed or not as a direct and proximate result of the specific unsafe working condition.

In July 2011, ACF filed a motion for summary judgment. Following a hearing, the circuit court granted the motion in an order entered on March 22, 2012.

Conducting an analysis of the pleadings and the evidence in the context of subparagraphs (A) through (E) of the deliberate intent statute, the circuit court concluded that McComas (1) failed to show under subparagraph (C) that ACF violated a specifically

[750 S.E.2d 239]

applicable safety regulation or safety standard, and (2) failed to show a question of material fact under subparagraph (D), concerning the intentional exposure of an employee to a specific unsafe working condition.

First, in its analysis of subparagraph (C), the circuit court cited Electrical Equipment Maintenance Standard 70B of the American National Standards Institute / National Fire Protection Association (“ANSI / NFPA”). Addressing safe electrical practices, Standard 70B provides for the maintenance and periodic inspection of electrical equipment in the workplace. The circuit court determined that the 480–volt, fused, switch box that injured McComas was subject to the inspection requirements of Standard 70B. Concluding that the Standard 70B inspection requirements were mandatory, the circuit court stated that ACF failed to comply with the requirements and that, if inspections had been conducted, ACF might have identified the problem with the box. However, the circuit court also concluded that, while Standard 70B generally required electrical safety in the workplace, Standard 70B was not a standard specifically applicable to the particular work and working conditions pertaining to McComas. Thus, the circuit court concluded that McComas's...

To continue reading

Request your trial
17 practice notes
  • Lucas v. Icg Beckley, LLC, CIVIL ACTION NO. 2:15-cv-13534
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • February 23, 2018
    ...working condition which presented a high degree of risk and a strong probability of serious injury or death." McComas v. ACF Indus., 750 S.E.2d 235, 240 (W. Va. 2013). The Complaint continuously references "specific unsafe working conditions" in Count I as supporting a claim of deliberate i......
  • Long v. M&M Transp., LLC, Civil Action No. 3:13–CV–65.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • September 5, 2014
    ...however, are not required. See Syl. Pt. 2, Nutter, 550 S.E.2d at 399. Indeed, in Syllabus Point 4 of McComas v. ACF Industries, LLC, 232 W.Va. 19, 750 S.E.2d 235, 236–37 (2013), the Supreme Court of Appeals of West Virginia held that safety statutes, rules, or regulations can prove actual k......
  • Long v. M & M Transp., LLC, Civil Action No. 3:13–CV–65.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • September 5, 2014
    ...however, are not required. See Syl. Pt. 2, Nutter, 550 S.E.2d at 399. Indeed, in Syllabus Point 4 of McComas v. ACF Industries, LLC, 232 W.Va. 19, 750 S.E.2d 235, 236–37 (2013), the Supreme Court of Appeals of West Virginia held that safety statutes, rules, or regulations can prove actual k......
  • Toth v. A&R Logistics, Inc., CIVIL ACTION NO. 2:16-cv-09793
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • June 12, 2018
    ...working condition which presented a high degree of risk and a strong probability of serious injury or death." McComas v. ACF Indus., 750 S.E.2d 235, 240 (W. Va. 2013). Plaintiff argues that the specific unsafe working condition in this dispute is the "failure to provide mandatory training t......
  • Request a trial to view additional results
17 cases
  • Lucas v. Icg Beckley, LLC, CIVIL ACTION NO. 2:15-cv-13534
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • February 23, 2018
    ...working condition which presented a high degree of risk and a strong probability of serious injury or death." McComas v. ACF Indus., 750 S.E.2d 235, 240 (W. Va. 2013). The Complaint continuously references "specific unsafe working conditions" in Count I as supporting a claim of deliberate i......
  • Long v. M&M Transp., LLC, Civil Action No. 3:13–CV–65.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • September 5, 2014
    ...however, are not required. See Syl. Pt. 2, Nutter, 550 S.E.2d at 399. Indeed, in Syllabus Point 4 of McComas v. ACF Industries, LLC, 232 W.Va. 19, 750 S.E.2d 235, 236–37 (2013), the Supreme Court of Appeals of West Virginia held that safety statutes, rules, or regulations can prove actual k......
  • Long v. M & M Transp., LLC, Civil Action No. 3:13–CV–65.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • September 5, 2014
    ...however, are not required. See Syl. Pt. 2, Nutter, 550 S.E.2d at 399. Indeed, in Syllabus Point 4 of McComas v. ACF Industries, LLC, 232 W.Va. 19, 750 S.E.2d 235, 236–37 (2013), the Supreme Court of Appeals of West Virginia held that safety statutes, rules, or regulations can prove actual k......
  • Toth v. A&R Logistics, Inc., CIVIL ACTION NO. 2:16-cv-09793
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • June 12, 2018
    ...working condition which presented a high degree of risk and a strong probability of serious injury or death." McComas v. ACF Indus., 750 S.E.2d 235, 240 (W. Va. 2013). Plaintiff argues that the specific unsafe working condition in this dispute is the "failure to provide mandatory training t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT