Ryan v. Clonch Industries, Inc.

• Decision Date: 27 October 2006
• Docket Number: No. 33001.,33001.
• Citation: 639 S.E.2d 756
• Court: West Virginia Supreme Court
• Parties: Joseph E. RYAN, Plaintiff Below, Appellant, v. CLONCH INDUSTRIES, INC., A West Virginia Corporation; and H & D Lumber Distributor, Inc., A West Virginia Corporation, Defendants Below, Appellees.

639 S.E.2d 756

Joseph E. RYAN, Plaintiff Below, Appellant, v. CLONCH INDUSTRIES, INC., A West Virginia Corporation; and H & D Lumber Distributor, Inc., A West Virginia Corporation, Defendants Below, Appellees.

No. 33001.

Supreme Court of Appeals of West Virginia.

Submitted: September 19, 2006.

Decided: October 27, 2006.

Dissenting Opinion of Justice Benjamin December 15, 2006.

Syllabus by the Court

1. "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." Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992). Syllabus point 2, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. "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) (1983). Syl. pt. 2, Mayles v. Shoney's, Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990)." Syllabus point 1, Bell v. Vecellio & Grogan, Inc., 191 W.Va. 577, 447 S.E.2d 269 (1994).

3. The violation of a statute, rule, regulation or standard is a proper foundation for the element of deliberate intent found at W. Va.Code § 23-4-2(c)(2)(ii)(C) (1994) (Repl. Vol.1998), where such statute, rule, regulation or standard imposes a specifically identifiable duty upon an employer, as opposed to merely expressing a generalized goal, and where the statute, rule, regulation or standard asserted by the employee is capable of application to the specific type of work at issue.

4. "Given the statutory framework of W. Va.Code §§ 23-4-2(c)(2)(i) and (ii), (1983, 1991) which equates proof of the five requirements listed in W. Va.Code § 23-4-2(c)(2)(ii) with deliberate intention, a plaintiff attempting to impose liability on the employer must present sufficient evidence, especially with regard to the requirement that the employer had a subjective realization and an appreciation of the existence of such specific unsafe working condition and the strong probability of serious injury or death presented by such specific unsafe working condition. This requirement is not satisfied merely by evidence that the employer reasonably should have known of the specific unsafe working condition and of the strong probability of serious injury or death presented by that condition. Instead, it must be shown that the employer actually possessed such knowledge." Syllabus point 3, Blevins v. Beckley Magnetite, Inc., 185 W.Va. 633, 408 S.E.2d 385 (1991).

5. "To establish that an employer has acted with deliberate intention, no higher burden of proof exists beyond those five requirements set forth in W. Va.Code § 23-4-2(c)(2)(ii) [1994]. Under the statute, whether an employer has a `subjective realization and appreciation' of an unsafe working condition and its attendant risks, and whether the employer intentionally exposed an employee to the hazards created by the working condition, requires an interpretation of the employer's state of mind, and must ordinarily be shown by circumstantial evidence, from which conflicting inferences may often reasonably be drawn. Accordingly, while a plaintiff may choose to introduce evidence of prior similar incidents or complaints to circumstantially establish that an employer has acted with deliberate intention, evidence of prior similar incidents or complaints is not mandated by W. Va. Code, 23-4-2(c)(2)(ii) [1994]." Syllabus point 2, Nutter v. Owens-Illinois, Inc., 209 W.Va. 608, 550 S.E.2d 398 (2001).

6. Where an employee has instituted a deliberate intent action against an employer under W. Va.Code § 23-4-2(c)(2)(ii) (1994) (Repl.Vol.1998), and where the defendant employer has failed to perform a reasonable evaluation to identify hazards in the workplace in violation of a statute, rule or regulation imposing a mandatory duty to perform the same, the performance of which may have readily identified certain workplace hazards, the defendant employer is prohibited from denying that it possessed "a subjective realization" of the hazard asserted in the deliberate intent action, and the employee, upon demonstrating such violation, is deemed to have satisfied his or her burden of proof with respect to showing "subjective realization" pursuant to W. Va.Code § 23-4-2(c)(2)(ii)(B).

Marvin W. Masters, Andrew K. Chafin, The Masters Law Firm, L.C., Charleston, for the Appellant.

Robert A. Lockhart, Schuda & Associates, P.L.L.C., Charleston, for the Appellee.

DAVIS, Chief Justice.

Joseph E. Ryan, plaintiff below/appellant (hereinafter referred to as "Mr. Ryan"), appeals summary judgment granted in favor of his employer, Clonch Industries, Inc. and H & D Lumber Distributors, Inc., defendants below/appellees (hereinafter collectively referred to as "Clonch"),¹ in a deliberate intent action brought under W. Va.Code § 23-4-2(c)(2)(ii) (1994) (Repl.Vol.1998).² In granting summary judgment, the circuit court of Nicholas County concluded that Mr. Ryan had failed to establish a genuine issue of material fact as to (1) whether Clonch had a subjective realization and appreciation of the existence of a specific unsafe working condition, or a high degree of risk and strong probability of serious injury or death presented by the specific unsafe working condition, and (2) whether there was a specific safety statute violated. We find that Mr. Ryan has met his burden on these two issues and therefore reverse the summary judgment order and remand this case for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

Although there are many contentions between the parties with respect to what may be gleaned from the evidence in the record, there are a few undisputed facts. Basically, Mr. Ryan was hired by Clonch on August 19, 2002. Clonch is in the lumbering business, and Mr. Ryan was originally hired to perform the job of stacker. Mr. Ryan asserts that prior to this employment, he had never before worked in or around a sawmill or lumberyard. After three weeks of employment, Mr. Ryan was offered a position as a banding man. The job duties of a banding man included cutting measured lengths of metal banding from a coil using tin snips provided by Clonch, placing the bands around pallets of lumber, tightening the bands and crimping the ends together. While Mr. Ryan was cutting metal banding on September 17, 2002, his third day of performing the job of banding man, he was struck in the left eye by a sharp piece of the metal banding material, which caused a deep laceration. Mr. Ryan has undergone five surgeries on his injured eye. It has been determined that he has been rendered permanently blind in that eye.

Thereafter, Mr. Ryan filed a deliberate intent claim against Clonch under W. Va. Code § 23-4-2(c)(2)(ii). Prior to trial, by order entered April 21, 2005, the Circuit Court of Nicholas County granted summary judgment in favor of Clonch based upon its conclusion that Mr. Ryan had failed to establish two of the five elements of W. Va.Code § 23-4-2(c)(2)(ii). Specifically, the circuit court concluded that Mr. Ryan failed to establish a genuine issue of material fact as to (1) whether Clonch had a subjective realization and appreciation of the existence of a specific unsafe working condition, or a high degree of risk and strong probability of serious injury or death presented by the specific unsafe working condition, and (2) whether there was a specific safety statute, rule or regulation violated. It is from the circuit court's summary judgment order that Mr. Ryan now appeals.

II. STANDARD OF REVIEW

The instant case is before this Court on appeal of an order of the circuit court granting summary judgment in favor of Clonch. Accordingly, our review of this case is de novo. Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) ("A circuit court's entry of summary judgment is reviewed de novo."). In performing our plenary review, we are mindful 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.' Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963)." Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).

Syl. pt. 2, Painter. Finally, we note that "[t]he circuit court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial." Syl. pt. 3, Painter.

III. DISCUSSION

To overcome the immunity afforded Clonch under the West Virginia workers' compensation system and establish deliberate intent under the theory propounded by Mr. Ryan, he is required to establish each of the elements set out in W. Va.Code § 23-4-2(c)(2)(ii).³ This Court acknowledged the same when it held 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) (1983).' Syl. pt. 2, Mayles v. Shoney's, Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990)." Syl. pt. 1, Bell v. Vecellio & Grogan, Inc., 191 W.Va. 577, 447 S.E.2d 269 (1994). The aforementioned statutory provision states that

(2) The immunity from suit provided under this section and under section six-a, [§ 23-2-6a] article two of this chapter, may be lost only if the employer or person against whom liability is asserted acted with "deliberate intention". This requirement may be satisfied only if:

. . . .

(ii) The trier of fact determines, either through specific findings of fact...