By JAY STONEKING

We've probably all heard Sergeant Shultz from Hogan's Heroes bellow out emphatically: "I see nothing!" In McComas vs. AFC Industries, LLC, No. 12-0548 (W.Va. October 17, 2013), the employer attempted to invent a Sergeant Shultz-type defense in deliberate intent cases.

Thankfully, the West Virginia Supreme Court rejected this attempt to avoid an employer's duty to conduct mandatory safety inspections.

The plaintiff, David McComas, was a welder by trade. His employer, AFC Industries, was a company that built railroad cars. McComas, joined by two other welders, was assigned to a part of AFC's plant that had been out of operation and all electrical power had been shut off.

When McComas attempted to restart the power at an electrical box, an arc blast occurred. McComas was thrown to the floor, and despite wearing all of the required safety equipment including hat, goggles and gloves, he suffered severe burns to 25 percent of his body. It turns out that the electrical box had been installed over 50 years before this tragic incident and, incredibly, that AFC had never inspected it.

McComas sued AFC for deliberate intent. Ordinarily, employees can't sue for workplace injuries but, instead, can only recover Workers' Compensation benefits. Where, however, the employer acts with deliberate intent, the employee can sue and recover all of the damages he sustained.

To recover for deliberate intent, an employee must prove, among other things, that the employer had actual knowledge of an unsafe working condition. AFC claimed that because it had never inspected the electrical box, it was like Sergeant Shultz: it knew nothing. Therefore, it couldn't be liable for deliberate intent.

Not surprisingly, the West Virginia Supreme Court rejected this argument out of hand. In fact, the Court pointed out that there was a specific safety standard requiring electrical boxes to be inspected every three to six months, if energized, and every three to six years, if deenergized.

Ironically, AFC's own expert conceded this safety standard applied to the electrical box in question. But AFC stubbornly insisted that it had never looked inside the box and, therefore, couldn't possibly have had knowledge of any defects.

The Court's response couldn't have been stated in stronger terms. "[T]he Legislature did not intend to allow employers to shirk responsibilities imposed by specific statutes, rules, regulations or standards by turning a blind eye to workplace hazards. Willful ignorance...is no defense..." The Court then summarized this principle in a new syllabus point:

"When 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 specific 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, W.Va. Code, 23-4-2(d)(2)(ii)(B) [2005]."

This is an important win for workplace safety. Employers do not get a free pass because they deliberately ignore mandatory safety inspections. To hold otherwise would render these inspections pointless and, even worse, place the lives of thousands of working West Virginians in jeopardy.

Sergeant Shultz was never meant to be taken seriously. Neither was AFC's argument that it could avoid its safety responsibilities without any legal consequences. The Court got it right - and it should continue to zealously protect the rights and safety of our workers.

Jay Stoneking is an attorney with Bordas & Bordas in Wheeling. This editorial appeared on the firm's blog.

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