Nedley v. Consolidation Coal Co., Civ. A. No. 81-0061-W(K).

• Decision Date: 04 January 1984
• Docket Number: Civ. A. No. 81-0061-W(K).
• Citation: 578 F. Supp. 1528
• Court: U.S. District Court — Northern District of West Virginia
• Parties: James Brent NEDLEY, Plaintiff, v. CONSOLIDATION COAL COMPANY, a corporation, Defendant.

578 F. Supp. 1528

James Brent NEDLEY, Plaintiff, v. CONSOLIDATION COAL COMPANY, a corporation, Defendant.

Civ. A. No. 81-0061-W(K).

United States District Court, N.D. West Virginia, Wheeling Division.

January 4, 1984.

James G. Bordas, Jr., Wheeling, W.Va., for plaintiff.

Robert M. Steptoe, Jr., Clarksburg, W.Va., for defendant.

MEMORANDUM OPINION

KIDD, District Judge.

This diversity action, filed in October 1981, is before the Court upon the motion for summary judgment of the defendant (sometimes "Consol" or "Company").

The action can be characterized as a "Mandolidis-type"¹ case in which the plaintiff says he was injured while he was in the defendant's employ due to the "wilful, wanton and reckless misconduct of the defendant." In Mandolidis, West Virginia's highest court held that misconduct which is deliberately intended is excepted from the immunity granted employers who subscribe to the Worker's Compensation Fund.²

Facts

The facts reproduced here are taken from either the complaint or plaintiff's deposition unless otherwise identified.

The plaintiff (sometimes "Nedley") says that on October 15, 1979, he was injured while working underground for Consol at the McElroy Mine # 10 Coal Mine in Marshall County, West Virginia. At that time his job classification was that of "loader point operator" at the mine. In the proximity of his actual work place the Company had constructed a hut, shack or shanty made of "wood, brattice board and 16 penny nails" located along the "outside" of a railroad track which passed alongside the hut. The purpose for the hut in that location seems to be for the warmth and convenience of the point operator. The hut had a front and rear door and the rear exit is the subject of dispute. The incident giving rise to this action involved a trip of coal cars which broke loose and derailed near the location of the hut; none of the cars hit the shack. When Nedley observed the uncontrolled trip of cars he attempted to exit the hut by the rear door and this is when he says he sustained his injury. It seems that the door to the shack was stuck due to a chair and a build-up of rock dust which had accumulated at its base. He says that the following intentional misconduct of his employer caused his injury:

1. Construction and location of the hut.

2. Failure to install safety switches to prevent runaway trips from hitting the shack.

In his complaint, Nedley says he "suggested to and requested of" the Company that the underground shanty be reconstructed in a more substantial manner, that safety switches be installed to prevent the likelihood of coal cars striking the structure, that the shanty be relocated, that a study be conducted to determine the possible hazards imposed by the hut.

Nedley says he was very safety conscious while working in the mines and that he often reported observed unsafe conditions to his safety committee, the Company, and the Mine Safety and Health Administration. He says he became known to the Company as a complainer. He carried a copy of the mining laws when at work. Among his concerns were his "constant" complaints regarding the location and condition of the loader point hut. He said he did not know of anyone else being harmed while in the building. One of the plaintiff's witnesses said he remembered the shanty being struck by a coal car "years ago" (Skrypek Deposition at 7).

As to the location of the hut, Nedley says that due to run-away trips he had been "run out of that building seven times" prior to the occurrence giving rise to the injuries of which he now complains. However, he was never directly injured due to these run-aways.

Nedley stated in his deposition that he had never complained about the door of the hut because he "always kept it clean, free and clear of all obstruction." He says he cleaned around the door prior to his accident and, therefore, had no reason to believe the door was not working properly. Nedley acknowledged that it was the duty of the point loader operator to clean behind the door. It seems that the primary reason for the door not opening was a chair or "bar stool" located behind the door. Nedley did not know who placed the stool behind the door.

When he saw the cars leaving the track, Nedley ran against the door three times, or "pulled a Rocky Bleier on it", and was able to squeeze out through the top portion of the opening. This effort reportedly caused the back injury.

The plaintiff has not alleged that the defendant violated any state or federal statute or regulation and the defendant, through affidavit and argument, insists there was nothing improper or illegal about either the hut or its location.

Discussion

As stated, the defendant says there are no genuine issues of material fact in this case and says it is entitled to judgment as a matter of law. Consol has filed an affidavit and excerpts from various depositions, including the plaintiff's, in support of the motion.

The plaintiff has filed an argument in rebuttal of the Company's motion for summary judgment, affidavits and argument, but has not taken exception with the affidavits tendered by filing counter affidavits.³ Indeed, the material facts are not disputed but the only conflict involves the conclusions to be drawn from those facts.

For purposes of ruling upon the defendant's motion the Court will accept the truth of the following:

1. The hut housing the loader point operator was of flimsy construction and existed for the comfort of the operator on duty.

2. The hut was located on the outside of a rail curve upon which coal cars regularly traveled.

3. Nedley complained of the location and construction of the hut, in addition to voicing his concern that no safety switches were located at points adjacent to the hut.⁴ Nedley never complained regarding the doors to the hut.

4. On occasion, coal cars derailed near the location of the structure but such incidents never resulted in the hut being struck or any person being injured.

5. On October 15, 1979, the plaintiff observed a runaway trip of coal cars from his work place in the hut. In attempting to exit the hut and escape an anticipated collision of the cars with the hut, Nedley hurt his back. The reason for the injury was his efforts to knock open a rear door which was blocked shut by a build-up of rockdust and/or a stool lodged against the door.

6. The loader point operator was responsible for keeping the doors free and clear of obstructions.

As previously noted, West Virginia employers are immune from ordinary tort liability if they subscribe to the Worker's Compensation Fund and refrain from conduct deliberately intended to produce harm. § 23-4-2 W.Va.Code Ann. (1983 Cum. Supp.). The three key cases which discuss the notion of "deliberate intent" under this statute are: Mandolidis v. Elkins Industries, Inc., W.Va., 246 S.E.2d 907 (1978); Smith v. ACF Industries, 687 F.2d 40 (4th Cir.1982); Littlejohn v. ACF Industries, 556 F.Supp. 70 (D.C.W.Va.1982).

As stated by West Virginia's highest court, the employer loses its immunity under Worker's Compensation if the Company's conduct is "... undertaken with a knowledge and an appreciation of the high degree of risk of physical harm to another ...." Mandolidis v. Elkins Industries, Inc., 246 S.E.2d at 914. The Mandolidis Court construed the immunity exception to include "willful, wanton or reckless misconduct" which caused the injury. The Court was careful to mention that even gross negligence was not enough to pierce the immunity bar of the compensation laws.

In interpreting Mandolidis, the Fourth Circuit Court of Appeals noted that the West Virginia Court:

... did not intend to open its common law courts to every employee suffering injuries because of an unsafe working place or condition created or maintained by a negligent or grossly negligent employers. The Mandolidis standard requires substantially more than that.

Smith v. ACF Industries, Inc., 687 F.2d 40, 43 (4th Cir.1982). In Smith, Judge Haynsworth, in explaining the type of misconduct giving rise to a "Mandolidis-type" action, stated the following:

That the employer might have provided better protection for inattentive employees, may tend to prove negligence in some degree, but it does not prove the kind of intentional and unreasonable exposure of employees to great, recognized risk of serious harm, as contemplated by the Mandolidis standards. (emphasis added)

Id. at 43.⁵

What West Virginia and the Fourth Circuit are contemplating can best be seen by analyzing the facts of the lead cases.

In Mandolidis, the facts reveal that the plaintiff lost part of his hand while operating a power saw which was not equipped with a safety guard. The plaintiff's case was substantially as follows: A safety guard was required by state and federal law to be in place on all power saws. The defendant company knew that the saw had no guard in addition to knowing how dangerous this condition could be.⁶ Although objecting to operation of the saw without a guard, the plaintiff was told to use the equipment or be fired.⁷ OSHA inspectors had cited the company for failure to maintain such guards but the citations were ignored. The company's motive in requiring such operations was to increase production and profits. Under such allegations, the West Virginia Court believed these factors would support a trial and a verdict.

In Smith v. ACF Industries, supra, the plaintiff was struck by a rotating beam and suffered a broken collar bone and the Fourth Circuit said it was improper to allow the case to go to a jury where the proof established: The condition which caused the plaintiff's injury had existed for nine years and had resulted in no serious injury. The area of the rotation beam contained visual and audible warning systems. The plaintiff was aware of the condition in the area of his injury but did not heed the warning indicators and did not look before entering the area of danger. The evidence did not establish that...