Ketchum

Davis

CHARLESTON –- Three fathers on the state Supreme Court of Appeals rejected a lawsuit over a 16-year-old roofer's fall, but two mothers protested.

A majority opinion of Nov. 24 "insults one of the critical purposes of our Child Labor Act," Justice Robin Davis wrote in dissent.

"The Child Labor Act takes into account that children are more susceptible to injury in the work place precisely because of the inexperience that is inherent in youthfulness," she wrote.

Justice Margaret Workman joined the dissent.

The male majority affirmed Logan County Circuit Judge Roger Perry in denying a trial to Langley and Inez France, parents of Robert France.

Justice Menis Ketchum wrote that building owner Southern Equipment bore no liability under child labor law because Robert worked for a contractor.

That didn't matter to Davis and Workman, because a Southern Equipment employee testified that everyone knew there was a kid on the roof.

Davis and Workman would have let a jury decide whether Southern Equipment's silence contributed to Robert's death.

Davis and Workman also objected to a declaration in Ketchum's opinion that Southern Equipment didn't sanction the violation.

"The majority's definition completely overrules our line of cases that a person's silence can be deemed to be a ratification or sanctioning of conduct when that person has a duty to affirmatively disapprove of such conduct," Davis wrote.

In 2006, Southern Equipment contracted with Quality Metal Roof to replace a sheet metal roof.

Quality Metal Roof hired Danny Hensley of Royalty Builders to install the new roof.

Hensley sent eight workers to the job including tenth grader Robert, who had decided to earn money on spring break.

None of the workers wore safety equipment to prevent falling.

Robert stepped on a loose piece of the old roof, fell through, and dropped 25 feet to a concrete floor.

"The plaintiff sustained a serious head injury in the fall, and continues to suffer deficits as a result of the fall," Ketchum wrote.

His parents sued Quality Metal Roof and Southern Equipment.

They didn't sue Hensley, so Southern Equipment filed a third party suit against him.

Robert's parents dismissed Quality Metal Roof after settling for $875,000.

Judge Perry granted summary judgment to Southern Equipment in 2007, finding it owed Robert no duty of care.

He concluded that the parents could not hold Southern Equipment vicariously liable as Robert's employer, and three Justices affirmed him.

"Southern Equipment turned over a reasonably safe workplace to Royalty Builders and its employees, and thereafter exercised no control of the manner in which the roofing work was performed nor any control over the equipment used by Royalty Builders," Ketchum wrote.

Chief Justice Brent Benjamin and Justice Thomas McHugh joined Ketchum.

Gary Pullin and Molly Underwood, of Pullin, Fowler, Flanagan, Brown and Poe in Charleston, represented Southern Equipment.

Lee Javins, Guy Bucci, and Blake Carter, of Bucci, Bailey and Javins in Charleston, represented Langley and Inez France.

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Organizations in this Story

Bucci, Bailey and Javins
213 Hale St.
Charleston, WV 25301

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