Sias v. W-P Coal Co.
| Citation | 408 S.E.2d 321,185 W.Va. 569 |
| Decision Date | 19 July 1991 |
| Docket Number | W-P,No. 19672,19672 |
| Court | Supreme Court of West Virginia |
| Parties | Lilirose SIAS, Administratrix of the Estate of Gerry Sias, Deceased; Hollie Smith and Merry Smith; and John Starr and Brenda Starr, Plaintiffs Below, Appellants, v.COAL COMPANY, Defendant Below, Appellee. |
4. "In a case where the evidence is such that the jury could have properly found for either party upon the factual issues, a motion for judgment notwithstanding the verdict should not be granted." Syl. pt. 7, McClung v. Marion County Commission, 178 W.Va. 444, 360 S.E.2d 221 (1987).
Bradley J. Pyles, Grant Crandall, Perry D. McDaniel, Crandall & Pyles, Logan, for appellants, Lilirose Sias, Administratrix, and Hollie Smith and Merry Smith.
William S. Steele, Preiser Law Offices, Charleston, for appellants, John Starr and Brenda Starr.
Anita R. Casey, Meyer, Darragh, Buckler, Bebenek, Eck & Hall, E. Forrest Jones, Albertson & Jones, Charleston, for appellees.
This consolidated appeal by the plaintiffs from a judgment notwithstanding the verdict involves the "deliberate intention" statutory exception to employer immunity from work-related tort liability to employees under the West Virginia Workers' Compensation Act, , W.Va.Code, 23-4-2(c)(2)(ii) [1983, 1991]. 1 We believe the trial court, the Circuit Court of Logan County, West Virginia, improperly granted the defendant's motion for judgment notwithstanding
[185 W.Va. 572] the verdict on the issue of liability, for the reasons stated in this opinion. Therefore, we reverse the judgment on the issue of liability, reinstate the jury verdict in favor of the plaintiffs on that issue and remand this case for trial on the issue of damages. 2
On November 3, 1983, during the evening shift, a coal outburst ("mountain bump") occurred at the coal mine in question in Logan County, West Virginia, owned by W-P Coal Company, the defendant-appellee ("the coal operator" or "the employer"). At least two employees were injured; the "roadway" in the mine was covered with expelled coal; mine timbers were broken; and equipment was ordered moved to prevent damage to it from anticipated roof falls in the area. The outburst was reported to the section foreperson, to his supervisor and to the main office. It was established that at least one of the injured employees' workers' compensation application forms was reviewed and approved by the coal operator's management. Miners had withdrawn (fled) from the area and production had ceased for one and one-half to two hours.
On the morning after the November 3, 1983 coal outburst, virtually the entire chain of command inspected the area: the manager of the coal operator's mines, the manager of the mine in question, the day shift foreperson and the evening shift foreperson. Although the coal outburst was an "accident" required explicitly to be reported immediately under federal regulations, 30 C.F.R. §§ 50.2(h)(9), 50.10 (1990), the coal operator did not report this "accident."
Coal outbursts are caused by severe pressure from heavy overburden on pillars, especially where the overlying strata and the floor of the mine are made of thick, hard rock, thereby building up pressure and transferring it to the pillars. Unless the roof falls or the floor heaves to release the pressure, eventually the pillars release the pressure by exploding. The built-up pressure is usually indicated by "bumping" sounds.
After the November 3, 1983 coal outburst, no significant roof falls occurred to release the pressure. Management suddenly changed plans and, instead of removing the remainder of the row of pillars in question as part of retreat mining, began to mine "rooms" somewhat far to the right. Even after this change, no significant roof falls occurred to release the pressure on the remaining pillars in question. In addition, this mining in the rooms to the right exacerbated the problem by transferring more weight and pressure to the row of pillars in question. Ordinarily, in moving from "inby" (deep in the mine) to "outby" (toward the mouth of the mine) during "retreat" mining, the pillar recovery sequences would occur continuously in one general direction, such as left to right, which would transfer the weight and pressure in one direction (to the right) away from the miners (to the unmined area). Here, by temporarily ceasing the continuous left to right sequence, shifting to the rooms to the right and then coming back to the middle area in question, the weight and pressure from more than one direction (left and right) were transferred back to the middle area containing the row of pillars in question.
On November 28, 1983, management decided to go back and "recover," or extract, the remainder of the row of pillars in question, even though no significant roof falls had occurred in the area to release the pressure; timbers between pillars were broken; excessive "sloughing" of coal on the sides of the pillars had occurred; and numerous unusual "bumping" sounds had occurred in the area. In addition, visual inspection disclosed that the roof had severely "bellied" down in the area of these pillars. The miners expressed their reluctance to work in the area but were directed to proceed.
On November 29, 1983, as the last two of these pillars were being extracted, a violent coal outburst occurred at the site, exactly The coal operator never mentioned to federal and state inspectors the November 3, 1983 coal outburst at almost the same site as the November 29, 1983 outburst.
[185 W.Va. 573] one row of pillars (at the same point in the row) from ("outby") the site of the November 3, 1983 coal outburst. The force of the outburst threw Gerry Sias into a roofbolting machine, a projecting bar of which pierced his skull; he died three days later. The outburst also completely severed Hollie Smith's leg and threw a twenty-six ton continuous miner machine fifteen to twenty feet onto John Starr, crushing his legs and fracturing his ribs. Two other miners were less seriously injured.
The plaintiffs-appellants, the administratrix of the estate of Gerry Sias, as well as Hollie Smith and his wife and John Starr and his wife, brought these civil actions, consolidated for trial, against W-P Coal Company under the "deliberate intention" statutory exception to employer immunity from work-related tort liability to employees, W.Va.Code, 23-4-2(c)(2)(ii) [1983, 1991]. 3 The trial court denied the coal operator's motions for directed verdict made at the close of the plaintiffs' case and renewed at the close of all of the evidence.
The jury returned a verdict on liability in favor of the plaintiffs. The jury answered in the affirmative special interrogatories as to the existence of each of the five elements required by the relevant portion of the "deliberate intention" statute.
The coal operator timely moved for judgment notwithstanding the verdict. The trial court granted that motion. The trial court found that the plaintiffs had failed to establish three of the five required elements: (1) a specific unsafe working condition; (2) subjective realization; and (3) intentional exposure.
An employee who sustains a work-related personal injury ordinarily recovers "compensation" for that injury in the form of statutory workers' compensation only, when the employee's employer is either (1) subject to the Workers' Compensation Act and is current in payments into the workers' compensation fund or (2) is "self-insured," that is, elects to and does make direct payments under its own system In this case, as in Mayles v. Shoney's, Inc., we deal with the second method of proof contained in W.Va.Code, 23-4-2(c)(2)(ii)(A)-(E) [1983, 1991], see supra note 3. Paraphrased, these five elements are: (1) a specific unsafe working condition with a strong probability of serious injury or death; (2) subjective realization and appreciation of that condition by the employer; (3) that condition was a violation, whether cited or not, of a specifically applicable federal or state safety statute or regulation or of a commonly accepted and specifically applicable safety standard in the employer's type of business or industry; (4) intentional exposure by the employer of the employee to that specific unsafe working condition subjectively realized and appreciated by the employer; and (5) such exposure to that condition proximately caused the serious injury or death of the employee.
[185 W.Va. 574] of compensation, at least equivalent to workers' compensation, approved by the workers' compensation commissioner. In either of these situations such a "contributing" employer ordinarily is immune from common-law liability for a work-related employee's personal injury or death....To continue reading
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