Mueller v. AM. ELEC. POWER ENERGY SERVICES

• Decision Date: 10 November 2003
• Docket Number: No. 31151.,31151.
• Citation: 214 W.Va. 390,589 S.E.2d 532
• Court: West Virginia Supreme Court
• Parties: Dennis G. MUELLER, Jr., and Pamela Mueller, his wife, Plaintiffs Below, Appellants v. AMERICAN ELECTRIC POWER ENERGY SERVICES, INC., and Mark C. Wilson, Defendants Below, Appellees.

589 S.E.2d 532

214 W.Va. 390

Dennis G. MUELLER, Jr., and Pamela Mueller, his wife, Plaintiffs Below, Appellants v. AMERICAN ELECTRIC POWER ENERGY SERVICES, INC., and Mark C. Wilson, Defendants Below, Appellees.

No. 31151.

Supreme Court of Appeals of West Virginia.

Submitted September 23, 2003.

Decided November 10, 2003.

Ronald W. Zavolta, Robinson Law Offices, John Lee Bremer, Wheeling, for the Appellants.

David L. Delk, Jr., Bachmann, Hess, Bachmann & Garden, Wheeling, for the Appellees.

PER CURIAM:

The appellants, Dennis G. Mueller, Jr., and his wife, Pamela Mueller, plaintiffs below, appeal from an order entered on April 17, 2002, in the Circuit Court of Marshall County, West Virginia, granting summary judgment in favor of the appellees, American Electric Power Energy Services, Inc., and Mark C. Wilson, defendants below. In so ruling, the Circuit Court concluded that the appellants failed to show that Dennis G. Mueller, Jr.'s, exposure to boiler gas and fumes while working at the appellees' premises proximately caused the injury to his respiratory system known as Reactive Airways Dysfunction Syndrome ("RADS").

The appellants contend that the entry of summary judgment was erroneous because the record, in fact, contains evidence that Dennis G. Mueller, Jr., contracted Reactive Airways Dysfunction Syndrome while working at the appellees' premises. The appellees, on the other hand, contend that the Circuit Court ruled correctly, especially in view of the Circuit Court's conclusion that there was no evidence that the boiler gas and fumes, to which Dennis G. Mueller, Jr., was exposed at the workplace, contained any substance known to cause RADS.

This Court has before it the petition for appeal, all matters of record and the argument of counsel. As discussed below, this Court is of the opinion that the record does contain evidence of a substance found within the boiler gas and fumes which could have caused appellant Dennis G. Mueller, Jr., to contract RADS. Therefore, the summary judgment entered against the appellants is reversed, and this action is remanded to the Circuit Court for trial.

I. FACTUAL AND PROCEDURAL BACKGROUND

In April 1995, the appellant, Dennis G. Mueller, Jr., was working at the Kammer Power Plant in Moundsville, West Virginia. The Plant was operated by Ohio Power Company, also known for purposes of this action as appellee American Electric Power Energy Services, Inc. Appellant Mueller was assigned to work at the Plant by way of his immediate employer, Manpower Temporary Services. He was supervised at the Kammer Power Plant by appellee Mark C. Wilson, an employee of Ohio Power Company.

On April 4, 1995, appellant Mueller was sweeping up coal dust and fly ash in the vicinity of the appellees' boiler number 3. The boiler was utilized at the Kammer Power Plant in the production of electricity through the burning of coal and oil. According to appellant Mueller, boiler number 3, which had been shut down, was activated by the company without warning, resulting in Mueller being exposed to boiler gas and fumes while not wearing a protective respirator. Appellant Mueller, who was working alone at the time, began experiencing a burning in his nose and throat, nausea and other symptoms. He left the area immediately and reported the incident to appellee Mark C. Wilson. That evening at home, according to appellant Mueller, his symptoms continued and included a headache and coughing.

Appellant Mueller reported to work at the Kammer Power Plant the following day. His condition, however, had not improved, and he experienced shortness of breath. Around noon that day, Mueller went to Reynolds Memorial Hospital in Glen Dale, West Virginia, for emergency care. He was treated at the Hospital for excessive exposure to carbon monoxide. Subsequently, appellant Mueller, continuing to exhibit adverse respiratory symptoms, was seen by Dr. Robert G. Altmeyer, a pulmonologist. Dr. Altmeyer diagnosed Mueller with Reactive Airways Dysfunction Syndrome ("RADS") and concluded that Mueller contracted that injury during the exposure in question. As Dr. Altmeyer stated: "I believe that his RADS was caused by exposure to irritating or noxious substances / gases at work."

It should be noted that, at the time of the exposure on April 4, 1995, appellant Dennis G. Mueller, Jr., was a 24 year-old nonsmoker with no history of significant health problems.

In April 1997, the appellants filed a personal injury action in the Circuit Court of Marshall County against the appellees. Count 1 of the complaint, based upon negligence, alleged that Dennis G. Mueller, Jr., was permanently injured "when he was exposed, without warning, to a not yet identified gas, but a gas believed to have been composed at least in part of carbon monoxide and irritants." Count 2 of the complaint, based upon strict liability, alleged that the operation of the Kammer Power Plant by the appellees included the "generation, containment and discharge of gas containing toxic elements and / or irritants" which constituted an inherently dangerous activity and which rendered the appellees strictly liable for Mueller's injury. Count 3 of the complaint alleged loss of consortium. The appellees filed an answer denying liability to the appellants.

The appellants filed a pre-trial memorandum in the Circuit Court in which they alleged that, in addition to carbon monoxide, Dennis G. Mueller, Jr., had been exposed to "sulfur dioxide, inorganic arsenic and other gases and toxins." Nevertheless, on January 15, 2002, the appellees filed a motion for summary judgment alleging that the appellants failed to establish that the exposure at the Kammer Power Plant proximately caused Mueller to contract RADS. Specifically, the appellees pointed out that Dr. Altmeyer indicated that neither carbon monoxide nor fly ash could cause RADS, although those substances could cause other, unrelated health problems. In addition, the appellees asserted that, the appellants' pre-trial memorandum notwithstanding, the evidence of record failed to establish the identity of any other substance in the boiler gas and fumes or whether such substance, if identified, could cause RADS.

In response to the motion, the appellants asserted that Dennis G. Mueller, Jr., was exposed to carbon monoxide "and other toxic gases" at the Kammer Power Plant. Moreover, they emphasized the statement of Dr. Altmeyer, described above, that appellant Mueller's RADS "was caused by exposure to irritating or noxious substances / gases at work."

On April 17, 2002, the Circuit Court entered the order granting summary judgment in favor of the appellees, American Electric Power Energy Services, Inc., and Mark C. Wilson. The Circuit Court concluded that the appellants failed to show that Dennis G. Mueller, Jr.'s, exposure to boiler gas and fumes while working at the appellees' premises proximately caused his Reactive Airways Dysfunction Syndrome. As the Circuit Court found: "The plaintiffs failed to produce any evidence that Dennis Mueller was exposed to any substance at the Kammer Plant which caused RADS."

II. DISCUSSION

Pursuant to Rule 56 of the West Virginia Rules of Civil Procedure, summary judgment is proper where the record demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See generally, Cleckley, Davis and Palmer, Litigation Handbook on West Virginia Rules of Civil Procedure, 922-946 (Juris Pub.-2002); 11A M.J., Judgments and Decrees, sec. 217.1-217.5 (Michie-1997).

Our standards of review concerning summary judgments are well settled. As this Court held in syllabus point 3 of Aetna Casualty and Surety Company v. Federal Insurance Company of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963): "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. 2, Cantrell v. Cantrell, 213 W.Va. 372, 582 S.E.2d 819 (2003); syl. pt. 2, Conley v. Johnson, 213 W.Va. 251, 580 S.E.2d 865 (2003); syl. pt. 2, Chafin v. Gibson, 213 W.Va. 167, 578 S.E.2d 361 (2003). In that regard, this Court has observed that, in reviewing an order granting a motion for summary judgment, any permissible inferences from the underlying facts must be drawn in the light most favorable to the party opposing the motion. See, Zirkle v. Winkler, 214 W.Va. 19, 585 S.E.2d...