In a recent Supreme Court of Appeals of West Virginia case decided on April 15, 2010, Ramey v. Contractor Enterprises, Inc., the Supreme Court issued an important ruling on “deliberate intent” actions that should prove to be helpful for West Virginia employers. A deliberate intent action is an action brought by an employee to recover damages for a work-related injury. The deliberate intent action allows the employee to recover beyond what he or she is entitled to under the workers’ compensation system.

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 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 Ramey, the plaintiff, who worked as a highwall drill operator at a coal mine, was drilling holes in a pattern set forth in a ground control plan, which is a document filed with the Mine Safety and Health Administration (“MSHA”) that outlines the procedures that will be used to address safety issues at the mine site. On the day he was injured, the plaintiff was working at the edge of the highwall. When he exited the drill, which was only 23 inches away from the edge of the highwall, he slipped and fell over the 80-foot tall highwall. He suffered serious injuries as a result of the fall and filed a deliberate intent action.

The circuit court granted the employer’s motion for summary judgment on the grounds that the plaintiff could not meet the second element and fourth element of the deliberate intent law as set forth above. On appeal, the Supreme Court affirmed.

In an effort to establish the “actual knowledge” requirement of the statute, the plaintiff relied on an affidavit of a former employee who stated that he warned supervisors that equipment was being operated too close to highwall edges several weeks before the accident. The Supreme Court of Appeals found that the affidavit was not sufficient to establish the requisite knowledge on the part of the employer.

With respect to the “intentional exposure” element, the Supreme Court of Appeals recognized that the plaintiff failed to provide any evidence that the employer instructed the plaintiff to operate his drill any closer to the edge of the highwall than the acceptable four-foot distance in the ground control plan that had been approved by MSHA. In addition, the Supreme Court of Appeals noted that the employer had provided all MSHA-required training.

This is an important decision because it helps to clarify the “actual knowledge” and “intentional exposure” elements of a deliberate intent action.

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