Williamson v. Heartland Pub'ns, LLC, Case No. 2:09-cv-00965

• Decision Date: 06 August 2012
• Docket Number: Case No. 2:09-cv-00965
• Court: U.S. District Court — Southern District of West Virginia
• Parties: FARON WILLIAMSON, BARBARA ELAINE WILLIAMSON, his wife, and F.K.W., an infant who sues by and through his Next Friend and Mother, Barbara Elaine Williamson, Plaintiffs, v. HEARTLAND PUBLICATIONS, LLC, Defendant.

FARON WILLIAMSON,BARBARA ELAINE WILLIAMSON, his wife, andF.K.W., an infant who sues by andthrough his Next Friend and Mother, Barbara Elaine Williamson, Plaintiffs,

v.HEARTLAND PUBLICATIONS, LLC, Defendant.

Case No. 2:09-cv-00965

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON

ENTER: August 6, 2012

MEMORANDUM OPINION AND ORDER

Pending before the court is the defendant's Motion for Summary Judgment (ECF No. 69). The parties previously consented to proceed before a magistrate judge (ECF No. 10, at 3), and the then-presiding District Judge designated the undersigned to conduct all further proceedings. (Order entered December 15, 2009, ECF No. 16.)

Background

This is a deliberate intention action in which plaintiff Faron Williamson ("the plaintiff") seeks to recover damages from the defendant for injuries suffered on the job on April 13, 2007. He was injured while working as the Press Foreman for the defendant, at a newspaper printing facility in Williamson, West Virginia ("Daily News"). The plaintiff was injured when his right hand and forearm were caught between two printing press rollers that lacked any guards. The facts are presented in the light most favorable to the plaintiff.

The plaintiff's prior employment included approximately four years, from 1978 to 1982, as a "pressman" (non-supervisor) at the Logan Banner newspaper. (ECF No. 69-2, at 4, 6-7.) The Logan Banner and the Daily News are currently both owned by the defendant; the Logan Banner was not owned by the defendant when the plaintiff was employed there. The plaintiff's other prior employment was primarily devoted to auto mechanics. Id. at 5.

When the plaintiff began work at the Daily News, the printing press had not been used for months and the pressroom was "a mess." Id. at 15. He toured the pressroom with the then-Publisher, James Brown. Id. Mr. Brown told the plaintiff at some point that Mr. Brown knew nothing of the press. Id. at 16. The plaintiff explained that he wanted certain working conditions: employees in the pressroom were to have short hair and suitable clothing; access to the pressroom would be limited; the pressroom would be cleaned. Id.

The defendant owns approximately fifty newspapers at various locations in nine states, with its headquarters in Connecticut. (ECF No. 69-1, at 1.) A "Publisher" oversees the operations of each location and reports to the main office. Id. at 1-2. Each location has several departments; the supervisor of each department reports to the Publisher. Id. at 2. The Press Foreman reports to the Publisher. Id.

Two individuals, Noah May and "T.J.," worked in the pressroom prior to the plaintiff's employment. (ECF No. 69-2, at 17-18.) Within a month of the plaintiff's arrival, they were able to produce a paper. Id. at 18-19. The plaintiff took a copy of the paper to the Logan Banner pressroom to get their opinion of the print and its appearance. Id. at 18. While there, the plaintiff noticed that the Logan Banner's press was equipped with mesh gates covering the rollers. Id. He inquired about the mesh andwas told that "someone had got hurt and that they had to put those on for either OSHA reasons or insurance reasons, after that injury of that individual." Id. On an unknown date, during a conversation about adding a folder to the end of the pressline, the plaintiff mentioned to James Brown that mesh screen or netting should be added to cover the rollers. Id. at 18-19. The plaintiff thought that Brown was going to take care of the matter. Id. at 19. Within approximately a week of that conversation, the plaintiff noticed unfamiliar faces at the Daily News and Brown never returned, his employment having been terminated. Id. at 19-20. The next week, the plaintiff was injured. Id. at 35. The plaintiff had not mentioned adding the mesh guards to anyone else. Id.

When the plaintiff's hand and arm were drawn into the rollers, he was engaged in sprinkling water on a roller for the purpose of eliminating ink blotches and maintaining print quality. The plaintiff testified that "it wasn't uncommon for me to do that or it wasn't uncommon for any of them to have to do that. I mean, that's what we were taught, that's the way we always done it." Id. at 36-37. If there had been a mesh guard, the plaintiff believes that he would not have been caught in the rollers. Id. at 38.

The plaintiff filed this action in the Circuit Court of Mingo County, West Virginia, on April 13, 2009 (ECF No. 2-2.) Summonses were issued and then re-issued, with service of process accomplished on July 24, 2009 (ECF No. 1, at 1.) On August 24, 2009, the defendant removed the action to this court. Id. Proceedings were delayed for nine months while the defendant sought Chapter XI protection in Bankruptcy Court. (ECF Nos. 19-26.)

On May 31, 2012, the defendant moved for summary judgment arguing that "there is no actual evidence to prove that Heartland acted with 'deliberate intent' within the meaning of W. Va. Code § 23-4-2(d)(2)(ii)." (ECF No. 69.) The defendant'smemorandum contends that there is no "evidence that would tend to prove that Heartland had actual knowledge of a specific unsafe working condition and that Heartland intentionally exposed Mr. Williamson to a specific unsafe working condition as are required by the second and fourth elements of a deliberate intent cause of action." (ECF No. 70, at 1.) The plaintiffs filed a response in opposition (ECF No. 73), and the defendant filed a reply (ECF No. 75). With leave of court (ECF No. 79), the plaintiffs filed a surreply (ECF No. 87) and the defendant filed a response (ECF No. 89).

Summary Judgment Standard of Review

A party is entitled to summary judgment "if the movant shows that there is no genuine dispute as to any material fact and 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 (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 (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. 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 (1962).

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).

The plaintiff is proceeding under § 23-4-2(d)(2)(ii), which requires proof of 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 wasspecifically 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 nevertheless intentionally thereafter exposed an employee to the specific unsafe working condition; and

(E) That the employee exposed suffered serious compensable injury or compensable death as defined in section one, article four, chapter twenty-three whether a claim for benefits under this chapter is filed or not as a direct and proximate result of the specific unsafe working condition.

W. Va. Code §§ 23-4-2(d)(2)(ii)(A)-(E).

The deliberate intention statute directs that "the court shall dismiss the action upon motion for summary judgment if it finds . . . that one or more of the facts required to be proved by the provisions of subparagraphs (A) through (E), inclusive, para...