Moore v. Environmental Const. Corp., No. 2001-SC-0227-DG.

• Citation: 147 S.W.3d 13
• Decision Date: 26 August 2004
• Docket Number: No. 2001-SC-0227-DG.
• Parties: John G. MOORE, Sr. and Sharon Moore, Personal Representatives of the Estate of John G. Moore, Jr., Appellants, v. ENVIRONMENTAL CONSTRUCTION CORPORATION, Appellee.
• Court: United States State Supreme Court (Kentucky)

147 S.W.3d 13

John G. MOORE, Sr. and Sharon Moore, Personal Representatives of the Estate of John G. Moore, Jr., Appellants, v. ENVIRONMENTAL CONSTRUCTION CORPORATION, Appellee.

No. 2001-SC-0227-DG.

Supreme Court of Kentucky.

August 26, 2004.

Rehearing Denied November 18, 2004.

W. Douglas Myers, Deatherage, Myers & Haggard, Hopkinsville, Counsel for Appellants, John G. Moore, Sr. and Sharon Moore, Personal Representatives of the Estate of John G. Moore, Jr.

Gregory N. Schabell, Busald, Funk & Zevely, PSC, Florence, Counsel for Amicus Curiae, the Kentucky Academy of Trial Attorneys.

Joe A. Evans, III and Richard L. Frymire, Jr., Frymire, Evans, Peyton, Teague & Cartwright, Madisonville, Counsel for Appellee.

KELLER, Justice.

I. INTRODUCTION

Appellants, John G. Moore, Sr. and Sharon Moore, Personal Representatives of the Estate of John G. Moore, Jr. appeal from an opinion of the Court of Appeals that affirmed the Order Granting Judgment Notwithstanding the Verdict ("JNOV") entered by the trial court.

On September 30, 1999, a Hopkins County jury determined that Appellee, Environmental Construction Corporation ("Environmental") had caused the death of John G. Moore, Jr. through "deliberate intention" when the walls of the trench in which he was working caved in, burying him and causing his death by "compression asphyxia." Upon Environmental's motion, the trial court entered an Order Granting JNOV and stated that from the evidence presented at trial "the only reasoned analysis is that John G. Moore, Jr. did not die as a result of the deliberate intention of the Defendant or its employees." Upon review, the Court of Appeals, "[h]aving thoroughly analyzed the evidence presented in this matter against the standard set for recovery by KRS 342.610(4) and [relevant case law] believe[d] the trial court properly entered JNOV." From a review of the trial proceedings and the evidence presented therein, we hold that the trial court's grant of JNOV was appropriate and therefore affirm.

II. BACKGROUND

In April of 1996 Environmental won the bid on the contract for a sewer rehabilitation and new sewer project in Dawson Springs, Kentucky. The contract contemplated 120 days for the project, which would involve digging trenches and laying new sewer lines throughout the town, including work in residential areas.

The Occupational Safety and Health Administration ("OSHA") Regulations as enforced by Kentucky provide that for trenches exceeding five feet in depth, employers must take one of three safety precautions to prevent cave-ins: a) sloping the sides of the trench away from the excavation, b) shoring the walls of the trench with hydraulic jacks or timbers, or c) installing a trench box inside the trench in which employees can perform their work.¹ Before leaving headquarters in Lexington, Randy Price ("Price"), the ten-year superintendent for Environmental, made a conscious decision to leave the shoring jacks and trench box in Lexington. Once work began in Dawson Springs, Price used the sloping or "cutting back" method where the trench exceeded five feet in depth.

At the beginning of July, 1996, Price called on a second crew to help with the trench and pipe laying work. At the request of William Wilson, one of Environmental's officers, Michael Sargent ("Sargent"), who had previously worked for Environmental and had experience in trench work, joined the project and brought along his son Lewis. Price made Sargent the foreman and "competent person"² for the second crew based on Sargent's past work for Environmental and Sargent's competent person training certification. At the end of July, Sargent hired his "nephew"³ John G. Moore, Jr. as an additional second crewmember.

When Sargent and his crew began the trench work on Fredericks Road, Price told Sargent that he would obtain whatever safety devices Sargent thought necessary to do the job right and ensure that no one was injured. Both Price and Sargent classified the soil type in that particular trench as the most cohesive type and the least likely to cause a cave-in and determined that no safety precautions needed to be taken. In the deposition that was read to the jury at trial, Sargent stated that "[he] deemed it safe [him]self or [he] wouldn't have allowed [his] son and [his] nephew or [him]self to get in the hole and work."

Charles Wilson ("Wilson"), who dug the Fredericks Road trench with a backhoe, testified at trial that the trench walls were solid with no cracks or dirt clods falling out. Sargent and his son Lewis both noted that the soil was a hard clay that was hard to dig in some parts and easier in others. Nevertheless, sometime in the late morning or early afternoon of July 30, 1996, Lewis Sargent exited the trench in which he and John, Jr. were working; Sargent replaced his son in the trench because John, Jr. was bent over the sewer pipe preparing it for the next piece and Sargent did not like to leave a worker in a trench alone. Suddenly, a nine-foot long portion of the trench wall collapsed onto John Moore, Jr.'s back. Sargent then tried to dig his nephew out with his bare hands, but the backhoe operator warned him to get out of the trench because it was about to collapse again. Sargent escaped the second cave-in and the crewmembers began digging out John, Jr. Their attempts were in vain because the collapsed trench wall had buried and suffocated him almost instantly.

After John, Jr.'s body was recovered, Price had the trench filled in because it was located near a street in a residential area. Work on the project was halted for two days. Once work resumed, Steve Rogers ("Rogers"), a Kentucky OSHA inspector, was called to the site to investigate. Although Rogers could not investigate the trench because it had been filled in, he noted that the decision to fill in the trench was reasonable given that it was in a residential area. Rogers talked to Price and two other employees who were working the day of John, Jr.'s death and issued four serious citations.⁴ Rogers stated that all his citations were based on facts that Price had relayed to him and he noted that Price appeared forthcoming and truthful. At trial, Rogers testified that he saw no evidence to indicate that Environmental had a deliberate intention to injure or kill John G. Moore, Jr.

At trial, all parties involved recognized the safety precautions for trench work and acknowledged a risk of injury or death from failure to take the proper precautionary measures.⁵ The Appellants believe that Environmental's failure to take the proper precautions constituted a deliberate intention to kill their son, such that the exclusivity provisions of the Workers' Compensation Act would not apply:

If injury or death results to an employee through the deliberate intention of his employer to produce such injury or death, the employee or his dependents may take under this chapter, or in lieu thereof, have a cause of action at law against the employer as if this chapter had not been passed, for such damage so sustained by the employee, his dependents or personal representatives as is recoverable at law.⁶

Although the jury's verdict confirmed the Appellants' position, the trial judge determined that the safety violations did not amount to a deliberate intent on the part of Environmental to bring about the death of John G. Moore, Jr. and entered a JNOV for Appellee.

III. ANALYSIS

Upon review of the Order Granting JNOV, we must examine the trial court's decision under the clearly erroneous standard.⁷ That is to say, we must review all the evidence presented to the jury and must uphold the trial court's decision if "after all the evidence is construed most favorably to the verdict winner, a finding in his favor would not be made by a reasonable [person]."⁸

As provided in Fryman v. Electric Steam Radiator Corp.,⁹ "`deliberate intention' [has been interpreted to mean] that the employer must have determined to injure an employee and used some means appropriate to that end, and there must be specific intent."<sup>10</sup> "`The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong.'"¹¹

The United States District Court for the Eastern District of Kentucky recently encountered the exception to the exclusivity provision of the Kentucky Workers' Compensation Act and determined that without evidence that the employers acted to harm employees, evidence that the employers knew that employees would be exposed to chemicals that caused cancer but did not take measures to reduce or alleviate risks, was insufficient to give rise to a tort cause of action under the deliberate intention exception to the exclusivity provision of Kentucky's Workers' Compensation Act.¹²

In Tennessee, where a deliberate intention must also be established to avoid the exclusivity of the Workers' Compensation Act, evidence of an employer's failure to follow safety regulations and a history of disregarding safety regulations¹³ or permitting dangerous working conditions¹⁴ has been found insufficient to establish that an employer had actual intent to injure an employee. Many other states in which Workers' Compensation exclusivity is abrogated when the employer intentionally causes injury or death, have concluded that violations of OSHA regulations or other safety standards alone do not rise to the level of an intentional wrong necessary to overcome the Workers' Compensation exclusivity provisions¹⁵ because mere knowledge and appreciation of the risk involved in an act is not the same as the intent to cause the injury.¹⁶ Mere carelessness or negligence, however gross, wanton or reckless, does not establish such intent.¹⁷

From a review of the trial proceedings and the evidence presented therein, we determine that the trial court's grant of JNOV was appropriate, as "it is the...