In a case decided on June 2, 2010, Coleman Estate v. R.M. Logging, Inc., the Supreme Court of Appeals of West Virginia issued an important ruling on “deliberate intent,” which is a type of action brought by an employee to recover damages for a work-related injury.

There are five elements an employee must prove to prevail on a deliberate intent claim: (1) that a specific, unsafe working condition that posed a high degree of risk of injury existed; (2) that the employer had actual knowledge – also called “subjective realization” – of the specific unsafe working condition and the risk before the injury occurred; (3) that the unsafe working condition violated some law or established standard in the industry; (4) that even though the employer was aware of the first three conditions, the employer still intentionally exposed the employee to the unsafe condition; and (5) that the employee suffered a serious injury or death as a result.

In Coleman Estate, Clarence Coleman, who worked as a timber cutter for R.M. Logging, Inc., was killed when a tree he had cut and left suspended about 20 feet above the ground fell on him when he walked under it. The trial court dismissed the lawsuit because it found that the plaintiffs could not prove the second and fourth elements of the deliberate intent claim. In reaching this conclusion, the trial court held that the fact that the employer received an OSHA citation for failure to give the employee proper training did not constitute the type of evidence needed to meet the second element of the statute. In addition, the trial court found that the employee created the unsafe working condition by walking under the suspended tree.

In a ruling that many employers may find a bit perplexing, the Supreme Court overturned the trial court’s decision because it found that the unsafe working condition at issue was not the suspended tree. Rather, the Court held that the unsafe working condition was a lack of training and supervision by the employer. The suspended tree and Mr. Coleman’s decision to walk under the tree were simply manifestations of the inadequate training, the Court held. Thus, all the plaintiffs had to do to avoid dismissal of their case was to show that there was some question of fact as to whether the employer had a subjective realization that the employee was not properly trained and whether, knowing about this lack of training, the employer intentionally sent him out to cut trees.

The Supreme Court held that the plaintiffs met this burden by introducing evidence that OSHA cited the employer for not providing its employees adequate training. In addition, the plaintiffs’ expert testified that the employer should have been given an additional nine OSHA citations for failure to document any training or re-training of its employees. The expert also opined that Mr. Coleman and other employees had not received proper training or adequate supervision.

This case is significant because it highlights the importance of properly training employees and accurately documenting that training. On a practical level, the decision is discouraging for employers, especially small employers that may not have a sophisticated system in place for documenting training and the role of supervisors. With that in mind, take this opportunity to review your company’s internal processes for training and supervision. That way, if your company ever finds itself embroiled in this type of litigation, you can turn to your written policies and internal documentation to further support your position.

Joseph Leonoro concentrates his practice in matters involving labor and employment law.
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