Mumaw v. US Silica Co.

Decision Date04 December 1998
Docket NumberNo. 25169.,25169.
Citation204 W.Va. 6,511 S.E.2d 117
CourtWest Virginia Supreme Court
PartiesTim MUMAW, Administrator for the Estate of Edward Mumaw, Deceased, Plaintiff Below, Appellant, v. U.S. SILICA COMPANY, a Corporation, Defendant Below, Appellee.

David M. Hammer, Hammer, Ferretti & Schiavoni, Harry P. Waddell, Wilkes & Waddell, Martinsburg, West Virginia, Attorneys for the Appellant.

Gary W. Hart, Mychal S. Schulz, Jackson & Kelly, Charleston, West Virginia, Attorneys for the Appellee.

PER CURIAM:

This is an appeal by Deborah Saunders, guardian, and Tim Mumaw, administrator for the estate of Edward Mumaw, deceased,1 plaintiffs below/appellants (hereinafter collectively referred to as Administrator Mumaw), from an adverse summary judgment ruling by the Circuit Court of Morgan County. This action was filed against U.S. Silica Company, Inc., defendant below/appellee (hereinafter U.S. Silica), by Ms. Saunders and Mr. Edward Mumaw after Edward was injured during his employment with U.S. Silica. On appeal, Administrator Mumaw contends genuine and material issues of fact existed in the case, which precluded summary judgment. For the reasons set forth below, we affirm the Circuit Court of Morgan County.

I. FACTUAL BACKGROUND

Edward Mumaw (hereinafter Mr. Mumaw) was an employee of U.S. Silica. On Saturday, August 6, 1994, Mr. Mumaw and two co-workers, James Peck and Dennis Somers, were scheduled to work during the morning hours at U.S. Silica's Berkeley Springs facility. The three employees came to work on that date specifically for the purpose of installing an "Alpine machine". The circuit court's order indicates that the Alpine machine weighed approximately 3,600 pounds.

The Alpine machine had to be lifted to the second floor from its position on the first floor of the facility. The ceiling on the first floor had a trapdoor cut into it for the purpose of hoisting the Alpine machine through the ceiling and onto the second floor. Mr. Mumaw and his two co-workers successfully pulled the Alpine machine through the trapdoor and onto the second floor. Once on the second floor, the Alpine machine had to be mounted and installed on a pedestal that was located a few feet from the trapdoor. Mr. Mumaw worked between the Alpine machine and the trapdoor. While using a crowbar to align a hole on the Alpine machine with a hole in the pedestal, Mr. Mumaw fell backwards through the trapdoor and landed on his head on the first floor. The fall was approximately eleven feet. Mr. Mumaw sustained serious head injuries which ultimately resulted in his death.

On July 26, 1996, the instant action was filed on behalf of Mr. Mumaw. The complaint alleged a deliberate intention cause of action against U.S. Silica pursuant to W.Va. Code § 23-4-2(c)(2)(ii) (1994). After the completion of discovery, U.S. Silica moved for summary judgment. On September 9, 1997, the circuit court entered an order granting summary judgment to U.S. Silica.

II. STANDARD OF REVIEW

The standard of appellate review of a circuit court's entry of summary judgment is de novo. Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). This Court has held that "[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 & Surety Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). "Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove." Syl. pt. 4, Painter, 192 W.Va. 189, 451 S.E.2d 755.

III. DISCUSSION
A. On a Motion for Summary Judgment, a Plaintiff Must Satisfy All Five Elements of W.Va.Code § 23-4-2(c)(2)(ii)

Mr. Mumaw, through his representatives, has alleged a cause of action against his employer under W.Va.Code § 2 3-4-2(c)(2)(ii)(1994). To establish liability against an employer pursuant to W.Va.Code § 23-4-2(c)(2)(ii), a plaintiff must prove the following:

(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 had a subjective realization and an appreciation of the existence of such specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by such specific unsafe working condition;
(C) That such 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 such employer, 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) hereof, such employer nevertheless thereafter exposed an employee to such specific unsafe working condition intentionally; and

(E) That such employee so exposed suffered serious injury or death as a direct and proximate result of such specific unsafe working condition.

In the instant proceeding, the circuit court's summary judgment order found that no genuine issue of material fact was in dispute as to factors A, B, D, and E. The circuit court's order was silent on factor C. Therefore, this Court must presume for summary judgment purposes that the circuit court found in favor of Administrator Mumaw regarding factor C.2 See Williams v. Precision Coil, Inc., 194 W.Va. 52, 59-60, 459 S.E.2d 329, 336-337 (1995) ("all inferences are viewed in the light most favorable to the nonmoving party"). On appeal to this Court, Administrator Mumaw contends that the circuit court's award of summary judgment to U.S. Silica should be reversed solely on the basis that a genuine issue of material fact was in dispute regarding factor C.

Our prior cases construing W.Va.Code § 23-4-2(c)(2)(ii) have always required the plaintiff to establish each of the statute's five factors. See Blake v. John Skidmore Truck Stop, Inc., 201 W.Va. 126, 134, 493 S.E.2d 887, 895 (1997) (involving directed verdict); Goodwin v. Hale, 198 W.Va. 554, 482 S.E.2d 171 (1996) (reversing plaintiff's jury verdict and awarding new trial); Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996) (involving certified question); Sias v. W-P Coal Co., 185 W.Va. 569, 408 S.E.2d 321 (1991) (reinstating jury verdict for plaintiffs); Blevins v. Beckley Magnetite, Inc., 185 W.Va. 633, 408 S.E.2d 385 (1991) (affirming lower court's order which set aside plaintiff's jury verdict and granted judgment as a matter of law for defendant); Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991) (affirming jury verdict for plaintiff); Mayles v.. Shoney's, Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990) (affirming jury verdict for plaintiff). Thus, in order to withstand a motion for summary judgment, a plaintiff must make a prima facie showing of dispute on each of the five factors. See Bell v. Vecellio & Grogan, Inc., 197 W.Va. 138, 475 S.E.2d 138 (1996) (reversing summary judgment holding that plaintiff was not covered by statute because injury occurred while he was working outside the state).

The purpose of these five factors is to show "deliberate intention" on the part of the employer. W.Va.Code § 23-4-2-(c)(2). In syllabus point 2 of Mayles v. Shoney's, Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990), this Court ruled that "[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) [1994]." Accord, Syl. pt. 4, Blake v. John Skidmore Truck Stop, Inc., 201 W.Va. 126, 493 S.E.2d 887 (1997); Syl. pt. 2, Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991).

Furthermore, the five factors set fourth in W.Va.Code § 23-4-2(c)(2)(ii) must be read in conjunction with W.Va.Code § 23-4-2(c)(2)(iii)(B) which provides, in part, that in cases alleging liability under W.Va.Code § 23-4-2(c)(2)(ii), "the court shall dismiss the action upon motion for summary judgment if it finds ... that one or more of the facts required to be proved by the provisions of subparagraphs (A) through (E) ... do not exist[.]"3 The language of W.Va.Code § 23-4-2(c)(2)(iii)(B) is clear and unambiguous. We stated recently in syllabus point 4 of McGraw v. St. Joseph's Hospital, 200 W.Va. 114, 488 S.E.2d 389 (1997), that "`"`[w]hen a statute is clear and unambiguous and the legislative intent is plain the statute should not be interpreted by the courts, and in such a case it is the duty of the courts not to construe but to apply the statute. Point 1, syllabus, State ex rel. Fox v. Board of Trustees of the Policemen's Pension or Relief Fund of the City of Bluefield, et al., 148 W.Va. 369[ 135 S.E.2d 262 (1964)].' Syllabus Point 1, State ex rel. Board of Trustees v. City of Bluefield, 153 W.Va. 210, 168 S.E.2d 525 (1969)." Syl. pt. 3, Central West Virginia Refuse, Inc. v. Public Service Com'n of West Virginia, 190 W.Va. 416, 438 S.E.2d 596 (1993).' Syl. Pt. 2, Keen v. Maxey, 193 W.Va. 423, 456 S.E.2d 550 (1995)."

This Court's decision in Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991), illustrates our Court's application of the unambiguous language of W.Va.Code § 23-4-2(c)(2)(iii)(B). In Helmick, two employers were named as defendants by the plaintiff. One of the employers, Potomac Edison, filed a crossclaim...

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