Respondent, James Muto, was employed by Petitioner, FirstEnergy, at its power station in Harrison County. On January 22, 2013, a maintenance crew was dispatched to replace a piece of equipment. To accomplish this, the crew had to remove the old equipment and lower it to a concrete floor located 14 feet below. Consequently, some of the floor grating had to be opened temporarily. Caution tape and barricades were placed at the access points. The crew was unable to complete its work because of flyash dust that reduced visibility to near zero, forcing them to evacuate. The grating on the floor remained open.
At the time same, Respondent was sent to check water levels in the dust collectors. Finding nothing unusual, Respondent began checking for other possible sources of the dust. Respondent was unaware of the work that was being done by the maintenance crew and assumed that the caution tape and barricades were meant to alert workmen to the dusty conditions. Respondent crossed the barricade and fell through the open grating, causing serious and permanent injuries.
Respondent sued under W.Va. Code 23-4-2, alleging that Petitioner was liable for acting with deliberate intent. The case was tried in April, 2016. The jury returned a verdict in Respondent’s favor in excess of $1,000,000. Petitioner moved for judgment as a matter of law under Rule 50, arguing that Respondent had failed to prove all the elements necessary to establish deliberate intent. The trial court denied Petitioner’s motion. This appeal followed.
Whether the trial court erred in finding that Respondent had, in fact, proved all of the deliberate intent elements?
To overcome an employer’s statutory immunity for workplace injuries, a plaintiff must prove that the employer acted with “deliberate intent.” This is done by proving each of the five statutory elements spelled out in W.Va. Code 23-4-2(d)(2).
The Supreme Court focused its analysis on two of the deliberate intent elements.
The first of these elements was proof that Petitioner had actual knowledge of an unsafe working condition. Respondent alleged two unsafe working conditions: (1) the open grating and (2) the excessive dust. Regarding the grating, the maintenance crew was instructed by supervisors not to leave the grating open. When the crew vacated the work area because of the dust levels, they did so on their own initiative and without notifying the control room. Regarding the dust, management clearly knew that dust levels were rising, but did not know that visibility had been impaired. Based on these facts, the Court found that Petitioner lacked actual knowledge.
The other element examined by the Court was that employer acted intentionally by exposing Respondent to the unsafe working condition. Here, there was no proof that Respondent was ordered to cross the barricade and enter into the area where the maintenance work was being performed. In fact, Respondent testified it was his decision to do so while searching for the source of the dust. Thus, the Court concluded that the Respondent had also failed to prove this element.
Justice Davis dissented. The uncontradicted testimony was that there would have been no dust in the area if Petitioner had shut down the “trains,” thereby eliminating the source of flyash. In a planning meeting, management recognized the danger posed by the dust. It was decided that if the work area became dusty the trains would, in fact, be shut down. The work crew advised the control room that the dust was affecting visibility and asked to have the trains shut down. Petitioner, however, failed to shut down the trains, though the exact reason for that failure was conflicting. Thus, it was up to the jury to resolve the liability issues: “It is the role of the jury to evaluate and sort out conflicts in the factual development, assess credibility, and resolve conflicts. My review instructs that the jury properly performed their role and duty.”
This is yet another reminder of how difficult it is to prevail in a deliberate intent case. The biggest takeaway for plaintiff firms is to be selective. Close cases may not be worth the investment of time and effort—not when you can so easily lose a favorable verdict after an appeal.