Skaggs v. the Kroger Co./Kroger Ltd. P'ship I

• Decision Date: 21 April 2011
• Docket Number: Civil Action No. 2:10–0768.
• Citation: 788 F.Supp.2d 501,32 IER Cases 308
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Jason SKAGGS, Plaintiff,v.The KROGER COMPANY/KROGER LIMITED PARTNERSHIP I, an Ohio Corporation, Defendant.

788 F.Supp.2d 501

32 IER Cases 308

Jason SKAGGS, Plaintiff,

v.The KROGER COMPANY/KROGER LIMITED PARTNERSHIP I, an Ohio Corporation, Defendant.

Civil Action No. 2:10–0768.

United States District Court, S.D. West Virginia.

April 21, 2011.

Truman C. Griffith, Robert B. Warner, William B. Hicks, Warner Law Offices, Charleston, WV, for Plaintiff.Travis S. Haley, Pullin Fowler Flanagan Brown & Poe, Charleston, WV, for Defendant.

MEMORANDUM OPINION AND ORDER

JOHN T. COPENHAVER, JR., District Judge.

Pending is defendant's motion for summary judgment, filed March 18, 2011.

I. Background

This is a deliberate intention action in which plaintiff Jason Skaggs seeks to recover damages from defendant the Kroger Company/Kroger Limited Partnership I (“Kroger”) for injuries incurred on the job.¹ The following factual recitation is given in the light most favorable to the plaintiff.

Skaggs was formerly employed as a “stock person” at a Kroger grocery store in Beckley, West Virginia. (Pl.'s Resp. 2). When Skaggs was hired in November 2007, his job duties included stocking shelves and running the cash register when needed. (Def.'s Mot. Summ. J., Ex. B, Skaggs Dep. at 43–44). After a coworker suffered a heart attack in late 2007, Skaggs' duties were expanded to include separating groceries in the store's loading dock area and loading the groceries into carts for later stocking on the store's shelves. ( Id. at 43–45).

Loading the carts required Skaggs to use a motorized “pallet jack.” ² ( Id., Ex. H, Expert Report of George J. Wharton, P.E. (“Wharton Report”) at 10 (citing Skaggs Dep. at 46)). Skaggs testified, and Kroger does not dispute, that he never received formal training on how to operate a pallet jack. (Pl.'s Resp., Ex. 3, Skaggs Dep. at 34). Although he signed a “Safety Training Verification Form” which indicates that he did receive such training, Skaggs says that he did not read the verification form before signing it. ( Id.).

Skaggs testified that when he started working at the grocery store, Paul Goots, the store manager, asked him if he had ever used a pallet jack, and he told Goots that he had not. ( Id. at 51). On the day Skaggs took over the cart-loading duties, Goots again asked him if he had used a pallet jack, and Skaggs again said no. (Id. at 52). Skaggs also recalls a phone conversation in which he reminded Goots that he had received no training on operating the pallet jacks. “I had mentioned that I still hadn't been trained on them; I didn't know exactly how to use them, and [Goots] didn't say anything about it,” Skaggs testified. ( Id. at 53). Eventually, Skaggs figured out how to operate the pallet jacks on his own. As he stated, “When I was back there getting groceries, I had seen [a coworker] do it enough to kind of get the idea of how to run them.” ( Id. at 52).

Skaggs had been using the store's two pallet jacks for roughly four months prior to incurring the injuries that give rise to this action. (Def.'s Mot. Summ. J., Ex. B, Skaggs Dep. at 54). During this 4–month period, Skaggs had problems with one of the jacks and complained to Goots about it. ( Id. at 52). He told Goots that the machine would sometimes accelerate on its own and would even take off at top speed. ( Id., Ex. H, Wharton Report at 10 (citing Skaggs Dep. at 55)). The head night supervisor at the store, Reginald Green, noticed that not just one, but both of the store's pallet jacks were malfunctioning. Green, who used the machines every night that he was on duty, testified that “whenever you stop them sometimes, they'll keep on rolling, you know, like the brakes weren't catching, you know. One particular time, I turned around and it was still following me, you know, after I stopped it, you know.” (Pl.'s Resp., Ex. 1, Green Dep. at 9–10). Green also recounted a previous incident in which a pallet jack at the store pinned an employee “against the wall and hurt her hand.” ( Id. at 17). Unlike Skaggs, however, Green experienced no problems with sudden acceleration, and he never complained about the malfunctioning pallet jacks to his superiors at Kroger. ( Id. at 10–11).

On May 4, 2008, Skaggs was moving and separating grocery shipments in the store's loading dock area. (Compl. ¶ 9). One of the pallet jacks—specifically the one that Skaggs had previously complained to Goots about—was blocking access to a bay door, so Skaggs tried operating the machine to move it out of the way. ( Id. ¶¶ 8–9). He grasped the handle of the jack's tiller arm, which is used to maneuver the machine, and began engaging its motor. ( Id. ¶ 9; Pl.'s Resp., Ex. 3, Skaggs Dep. 61–64). Suddenly, the pallet jack began accelerating toward Skaggs. ( Id.). He pushed the tiller arm into the braking position so as to stop the machine, but the braking mechanism malfunctioned and the jack, which weighed over 2,000 pounds, continued moving toward him. ( Id.; id., Ex. 2, Wharton Dep. at 17). It then rolled over Skaggs' right foot, causing fractures to his second, third, and fourth metatarsals. (Def.'s Mot. Summ. J, Ex. B, Skaggs Dep. at 89). Skaggs was not wearing steel toe boots or any other type of protective footgear at the time of the incident. (Pl.'s Resp. 5–6).

Skaggs instituted this action in the Circuit Court of Kanawha County on May 3, 2010. Kroger removed on May 26, 2010, invoking the court's diversity jurisdiction. The complaint sets forth two counts against Kroger. Count one asserts a deliberate intention claim pursuant to West Virginia Code § 23–4–2(d)(2)(ii). (Compl.¶¶ 13–15). Count two asserts a claim for negligence. ( Id. ¶¶ 16–18).

On March 18, 2011, Kroger moved for summary judgment based upon the following grounds: (1) plaintiff has failed to satisfy the elements of his deliberate intention claim; and (2) Kroger is immune from plaintiff's negligence claim under West Virginia Code § 23–2–6. (Def.'s Mot. Summ. J. at 1).

II. Motion for Summary Judgment

A. Governing Standard

A party is entitled to summary judgment “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Material facts are those necessary to establish the elements of a party's cause of action. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A genuine issue of material fact exists if, in viewing the record and all reasonable inferences drawn therefrom in a light most favorable to the non-moving party, a reasonable factfinder could return a verdict for the non-movant. Id. The moving party has the burden of showing—“that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant satisfies this burden, then the non-movant must set forth specific facts as would be admissible in evidence that demonstrate the existence of a genuine issue of fact for trial. Id. at 322–23, 106 S.Ct. 2548. A party is entitled to summary judgment if the record as a whole could not lead a rational trier of fact to find in favor of the non-movant. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.1991).

A court must neither resolve disputed facts nor weigh the evidence, Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th Cir.1995), nor make determinations of credibility. Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir.1986). Rather, the party opposing the motion is entitled to have his or her version of the facts accepted as true and, moreover, to have all internal conflicts resolved in his or her favor. Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979). Inferences that are “drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

B. Deliberate Intention Claim

The West Virginia Workers' Compensation Act generally immunizes covered employers from employee suits for “damages at common law or by statute” resulting from work-related injuries. W. Va.Code § 23–2–6. This immunity is lost, however, if an employer acts with “deliberate intention.” Id. § 23–4–2(d)(2). If the deliberate intent exception applies, the employee may file an action for damages in excess of workers' compensation benefits. Id. § 23–4–2(c).

Subsections (d)(2)(i) and (d)(2)(ii) of § 23–4–2 provide two distinct methods of proving that an employer acted with “deliberate intention.” Skaggs' claim is asserted pursuant to § 23–4–2(d)(2)(ii). Under that provision, employer immunity is lost if the employee proves each of the following five elements:

(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, prior to the injury, had actual knowledge of the existence of the specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by the specific unsafe working condition;

(C) That the 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 the employer, as demonstrated by competent evidence of written standards or guidelines which reflect a consensus safety standard in the industry or business, 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), inclusive, of this paragraph, the employer...