Ramey v. Contractor Enter.S Inc

• Decision Date: 15 April 2010
• Docket Number: No. 34804.,34804.
• Citation: 225 W.Va. 424,693 S.E.2d 789
• Court: West Virginia Supreme Court
• Parties: Kyle D. RAMEY and Trina Ramey, Plaintiffs Below, Appellantsv.CONTRACTOR ENTERPRISES, INC., Defendant Below, Appellee.

225 W.Va. 424

693 S.E.2d 789

West Virginia.

Kyle D. RAMEY and Trina Ramey, Plaintiffs Below, Appellantsv.CONTRACTOR ENTERPRISES, INC., Defendant Below, Appellee.

No. 34804.

Supreme Court of Appeals of

Submitted Jan. 27, 2010.

Decided April 15, 2010.

Syllabus by the Court

1. “A circuit court's entry of summary judgment is reviewed de novo.” Syl. Pt. 1 Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. “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 Cas. & Sur. Co. v. Federal Ins. Co. Of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

3. “The question to be decided on a motion for summary judgment is whether there is a genuine issue of fact and not how that issue should be determined.” Syl. Pt. 5 Aetna Cas. & Sur. Co. v. Federal Ins. Co. Of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

4. “To establish ‘deliberate intention’ in an action [brought pursuant to W.Va.Code § 23-4-2(d)(2)(ii),] ... a plaintiff or cross-claimant must offer evidence to prove each of the five specific statutory requirements.” Syl. Pt. 2, in part Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991).

Thomas M. Plymale, Plymale & Maddox, PLLC, Huntington, WV, for Appellants.

Jeffrey M. Wakefield, Shawn C. Gillispie, Christopher A. Brumley, Eric L. Silkwood, Flaherty, Sensabaugh & Bonasso, Charleston, WV, for Appellee.

PER CURIAM:

Kyle D. Ramey and Trina Ramey (hereinafter jointly referred to as “Appellants”) appeal the June 27, 2008, summary judgment order of the Circuit Court of Logan County. As a result of this order, Appellants' deliberate intention action brought pursuant to West Virginia Code § 23-4-2(d)(2)(ii) ¹ against Contractor Enterprise, Inc. (hereinafter “Contractor Enterprise” or “employer”) was dismissed. Appellants claim that the lower court erred in its grant of summary judgment by not viewing the evidence in the light most favorable to them as the non-moving party, and concluding that no genuine issue of material fact existed regarding two of the five required statutory elements ² relevant to this deliberate intent action. Specifically, the lower court found there was insufficient evidence presented to support the existence of the elements of the employer having actual knowledge of the unsafe working condition and the employer's intentional exposure of Mr. Ramey to the unsafe working condition. W.Va.Code § 23-4-2(d)(2)(ii)(B) and (D). After due consideration of the arguments of the parties in light of the record before us and the relevant law, we affirm the decision of the circuit court.

I. Factual and Procedural Background

The basis of the deliberate intent action in this case is a job-related accident which occurred on March 3, 2005. Mr. Ramey was employed by Contractor Enterprise as a highwall drill operator at the Snap Creek # 1 Mine in Logan County and was operating a drill at the mine site on that date. Mr. Ramey's job as a drill operator required him to drill holes in a prescribed pattern set forth in a ground control plan.³

The accident investigation report completed by the federal Mine Safety and Health Administration (hereinafter “MSHA”) ⁴ regarding this incident addressed the operational ground control plan ⁵ as follows:

The operator's ground control plan in place at the time of the accident included a drill pattern to keep the drill operator and drill at least four feet from the highwall's edge. The drill operator did not follow normal operating procedures by positioning the drill parallel with the existing highwall. This action exposed the drill operator to a hazard of falling over the highwall. If the drill had been positioned as the ground control plan stated, the drill would have been at least six feet from the highwall.

The MSHA report also contained the following description of the accident:

On Wednesday, March 2, 2005, at approximately 6:00 a.m., the first shift crew arrived at the parking area and received instructions from Randy Maynard, pit foreman. Maynard gave the drill crew, composed of Ramey and John Chambers, instructions for drilling the Stockton Pit.

Ramey and Chambers traveled to the Stockton bench and began drilling. Ramey finished the row of drillholes and the drill was moved to the center of the next section to be drilled. Ramey exited the drill and marked the next row of holes to be drilled. Ramey then moved his drill towards the edge of the highwall, parallel with the existing highwall, in close proximity to the next hole to be drilled. Ramey got out of the driller's compartment and was last seen standing between the drill access ladder and the edge of the highwall. Ramey slipped ^[6] and fell over the 80-foot tall highwall. The distance between the highwall drill and the edge of the highwall was measured and found to be 23 inches.

The overall conclusion MSHA reached regarding the accident was summarized in the report as:

Ramey positioned himself between the highwall drill and the edge of the highwall when he slipped or fell over the 80-foot highwall. The fall, which resulted in serious injuries,^[7] occurred because the victim was positioned in a hazardous location without a safety belt or line, where there was a danger of falling.

In the “Root Cause Analysis” section of the MSHA report, the cause of the accident was identified as Mr. Ramey positioning himself “within twenty-three inches of the edge of the highwall without being tied off or secured in a manner that would have prevented falling over the embankment.” As a result of this finding the employer was cited for a violation of 30 C.F.R. § 77.1710(g), which requires mining employees to be equipped with safety belts and lines where there is danger of falling. As further noted in the “Root Cause” section of the MSHA report, the employer took corrective action after the accident by making “an addition to the ground control plan requiring persons working six feet or less from the edge of the highwall be tied off. Under no circumstances will anyone be working within four feet of the edge of the highwall.”

On March 2, 2007, Appellants filed a deliberate intent action pursuant to West Virginia Code § 23-4-2(d)(2)(ii) against Contractor Enterprise claiming that the employer exposed Mr. Ramey to a specific unsafe working condition without the proper training or safety equipment and with the knowledge that the unsafe condition presented a high degree of risk and strong probability of serious injury or death. Following the time period initially allocated for discovery by the trial court, Contractor Enterprise moved for summary judgment. Contractor Enterprise submitted a memorandum in support of its motion, with the following documents attached: the Rameys' complaint, MSHA Report of Investigation, deposition of Mr. Ramey, and a variety of training documentation the employer maintained on Mr. Ramey. Contractor Enterprise also submitted a Daily and Onshift Report and Preshift-Mine Examiner's Reports for the day of the accident as attachments to the reply it filed to Appellants' amended response ⁸ to the summary judgment motion. The evidence Appellants relied on and supplied as attachments to their amended response to the summary judgment motion included: Mr. Ramey's deposition, a Rule 26 Expert Witness Disclosure in which Appellants' attorney outlined what he believed the testimony of the named mine safety expert, H.S. Grose, would entail,⁹ and the affidavit of Mark Kennedy, a former employee of Contractor Enterprise who had left the company's employ as a bull dozer operator six weeks before the accident.¹⁰

A hearing was held on the summary judgment motion on May 14, 2008, and the order granting summary judgment to Contractor Enterprise was filed on June 27, 2008. The core ruling in the order was that even when viewed in the light most favorable to Appellants as the non-moving party, the evidence failed to demonstrate that a genuine issue of material fact existed with regard to the elements of a deliberate intent action as set forth in (B) and (D) of West Virginia Code § 23-4-2(d)(2)(ii).

Appellants thereafter petitioned this Court for review of the summary judgment decision, and the appeal was granted on April 8, 2009.

II. Standard of Review

As is clearly established, “[a] circuit court's entry of summary judgment is reviewed de novo.” Syl. Pt. 1 Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

According to the express provisions of Rule 56 of the West Virginia Rules of Civil Procedure, summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.” W.Va. R. Civ. P. 56(c). The concept of “material fact” and “genuine issue” were succinctly explained by the U.S. Court of Appeals in the Eleventh Circuit as follows:

[a]n issue of fact is “material” if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248[,] 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir.1992). “It is ‘genuine’ if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Id.

Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997). We have further explained that “[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of [material] fact to be tried and inquiry concerning the facts is not desirable to clarify the application of law.” Syl. Pt. 3 Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). Thus, “[t]he question to be decided on a motion...