WEST VIRGINIA TAKING MORE EXPANSIVE VIEW OF DELIBERATE INTENT CASES
In McComas v. ACF Industries, LLC, the Supreme Court of Appeals reversed a circuit court’s dismissal in favor of an employer in a deliberate intent case. The plaintiff was a welder employed by ACF which operated an industrial plant for the construction of railroad cars. The plaintiff was directed by his foreman to go to a section of the ACF plant to begin building sides for railroad cars. The area where the plaintiff and other employees were sent to work was dark, and turning on the electric power was necessary for lighting the area and powering the welding machines used to build the cars. Initially, the employees attempted to turn the power on by using the individual circuit breakers. When that attempt was unsuccessful, the plaintiff approached an adjoining 480-volt fused, switch box. The box was enclosed and the side-handle was down in the “off” position. When plaintiff raised the handle to the “on” position, an arc blast blew him backwards and to the floor. Despite wearing protective gear, the plaintiff suffered severe burns to 25% of his body. The Plaintiff filed a deliberate intent suit against his employer under the 2005 version of W. Va. Code 23-4-2(d)(2)(ii). At that time, the deliberate intent action could be satisfied only if a plaintiff could prove the following:
(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 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.
The circuit court held that the plaintiff had failed to show under subparagraph (C) that ACF violated a specifically applicable safety regulation or safety standard and that he failed to show a question of material fact under subparagraph (D) concerning the intentional exposure of an employee to a specific unsafe condition. According to the circuit court, the inspection requirements that provided for the periodic inspection of electrical equipment in the workplace were general requirements of electrical safety in the workplace and were not specifically applicable to the plaintiff’s particular work or working conditions. The circuit court further ruled that an inadvertent or negligent exposure to the unsafe condition was not sufficient to sustain the plaintiff’s deliberate intent action with regard to subparagraph (D).
The Supreme Court of Appeals, in ruling that dismissal was inappropriate, determined that, when evaluating subparagraph (C), a regulation’s imposition of an “affirmative duty” on the employer was an important factor in distinguishing the regulation from general safety requirement. The Court found that the standard at issue in the case required the employer to inspect energized fused switch boxes every three to six months and, when not energized, cleaning and inspection was required every three to six years. Coupled with evidence that the electric boxes were often turned on and off by non-electrician employees, the Court found this made the statute specific to the work performed by the plaintiff. According to the Court, the analysis under subparagraph (B) was whether an employer was willfully ignorant of a specific unsafe working condition, as that would not be a defense to a deliberate intent action. The Court held that:
[W]hen a safety statute, rule or regulation, or a commonly accepted and well-known safety standard within the industry or business, imposes a specifically identifiable duty to inspect upon the employer, and the inspection would have revealed the unsafe working condition, the employer may be found to have had actual knowledge of the specific unsafe working condition within the meaning of this State’s deliberate intent statute.
Finally, with regard to subpart (D), the court held that proof that the employer had intentionally exposed the employee to the specific unsafe working condition could be found on the facts that the area was dark and that turning on the electric was necessary to light the area as well as run the welding machines used to build the railroad cars. Ultimately, it appears that with this ruling the Supreme Court of Appeals is taking a more expansive view of deliberate intent cases, and employers should take note.