WEST VIRGINIA RECORD

CHARLESTON – West Virginians cannot sue over injuries they suffer at work except when employers deliberately intend to expose them to risk.

What that means depends on the West Virginia Supreme Court of Appeals. And in a pair of Oct. 27 decisions, the Justices left no doubt.

In a case where flying metal robbed Joseph Ryan of an eye at a lumber mill, they pronounced the injury deliberate and condemned the mill's defense as unconscionable.

In a case where rolling coal hit William Sedgmer in a mine, they rejected deliberate intent and marveled at the injury as a freak accident.

Ryan can pursue his claim in court, but Sedgmer must resolve his claim the way employees normally do – through workers compensation insurance that employers must carry.

The Justices reached opposite conclusions because anyone could have predicted the mill accident and no one could have predicted the mine accident.

In the mill case, Ryan took a job in 2002 stacking lumber for Clonch Industries in Nicholas County. He had not worked in a saw mill or lumberyard.

After three weeks, Clonch Industries offered Ryan a job banding pallets. He accepted.

He learned to pull metal from a coil, measure it, snip it, wrap it around a pallet, tighten it and crimp the ends together.

On his third day of banding he snipped and a sliver hit his left eye.

"Mr. Ryan has undergone five surgeries on his injured eye," Chief Justice Robin Davis wrote for the Court. "It has been determined that he has been rendered permanently blind in that eye."

In 2003, Ryan filed a deliberate intent claim against Clonch Industries in Nicholas Circuit Court.

To prove deliberate intent Ryan needed enough facts to satisfy five elements that the Legislature has identified in workers compensation law. (See box.)

Clonch Industries moved for summary judgment, telling Circuit Judge Gary Johnson that Ryan offered no facts on two of the five elements.

First, the defense argued, Ryan could not prove Clonch Industries had "a subjective realization and an appreciation" of an unsafe condition with a high degree of risk and a strong probability of serious injury or death.

Second, the defense argued, Ryan could not prove Clonch Industries violated a law or regulation "specifically applicable" to the job.

Although Clonch Industries owners conceded that they failed to perform a required evaluation of hazards, they defined the requirement as general rather than specific.

Johnson accepted the definition. In 2005 he granted summary judgment.

Ryan appealed. Marvin Masters and Andrew Chafin of Charleston represented him before the Supreme Court of Appeals. Robert Lockhart of Charleston represented Clonch Industries.

Four of five Justices reversed Johnson. Davis wrote that he applied an unreasonably narrow meaning to the phrase, "specifically applicable."

Davis wrote that a federal regulation mandated the hazard assessment that Clonch Industries failed to perform.

She wrote, "It applies with equal force to the banding operation as it would to any other process that occurred within the employer's workplace."

She wrote, "…the Legislature did not intend for an employer to circumvent liability by purposefully avoiding the subjective knowledge element by violating a mandatory regulatory duty."

Although she agreed with Clonch Industries that Ryan lacked evidence of subjective knowledge, she wrote that failure to assess hazards required greater scrutiny on that point.

Then she unloaded:

"Had Clonch complied with this mandatory statute, as it was required to do, it would either have had documented evidence to support its claim that the banding operation was not hazardous and required no personal protective equipment, or, in the alternative, it would have discovered any hazards associated with the process and would then have been under a duty to prescribe appropriate protective equipment."

She wrote, "Clonch simply ignored this mandatory duty, and now seeks to avoid liability in a deliberate intent action by claiming a lack of subjective knowledge."

She wrote, "We find such conduct unconscionable."

Justices Joseph Albright and Spike Maynard concurred with Davis.

Justice Larry Starcher concurred and reserved the right to file a separate opinion. Justice Brent Benjamin dissented and reserved the right to file a dissent.

The decision does not spell complete victory for Ryan. Back in Nicholas County, he still must satisfy the other three elements of deliberate intent.

In the other case, Sedgmer worked for McElroy Coal at the Osage Mine in Marshall County. In 1994, he and other miners boarded three man buses.

The buses stopped in a passway to wait for a loaded train of coal cars to pass.

No one knew that a piece of tubing had somehow fallen into a car. No one saw the tube because a leveler had pressed it down.

Slowly the tube uncurled from the pressure of the leveler. As the train passed the buses the tube suddenly popped up and tripped an overhead switch.

The train broke in two. The front cars proceeded on the main track, but the rest of the cars diverted to the passway.

A radio warning sounded. A green signal turned yellow.

Foreman Eugene Saunders yelled to the miners on the buses to jump. Everyone made it to safety but Sedgmer. The runaway cars smashed his bus.

The collision injured his left shoulder, left arm and ribs.

In 1996, Sedgmer filed a deliberate intent action against McElroy Coal, Consolidation Coal, Consol Inc., and foreman Saunders in Marshall County circuit court.

The employers moved for summary judgment. They told Circuit Judge John Madden that Sedgmer did not satisfy any elements of deliberate intent.

Madden agreed. In January 2005, he granted summary judgment.

He called the crash a singular incident that did not indicate a specific unsafe condition.

He concluded that state law would not recognize Sedgmer's attempt to turn a negligence claim into a deliberate intent action.

Sedgmer appealed. Ronald Kasserman of Wheeling represented him before the Supreme Court of Appeals.

For the defense, James Miller and Rodger Puz of Pittsburgh argued that their clients had no subjective realization or appreciation of an unsafe condition.

Miller and Puz called the accident Rube Goldbergian, referring to an entertainer who designed amazing chain reactions.

Davis, Albright, Benjamin and Maynard agreed. They affirmed Madden, declaring the accident a freak.

In an unsigned opinion they wrote that the mine owners were aware of a danger of collisions and took measures to prevent them.

They wrote, "There is no evidence in the record before the Court that the mine exposed its employees to an unsafe working condition in violation of any state or federal safety statute, rule or regulation."

Nor did the majority find evidence that the owners exposed Sedgmer to an unsafe working condition.

They wrote, "It is an unfortunate reality that no employer will ever be able to prevent all possible accidents, no matter what its efforts."

While Sedgmer might prove negligence, they wrote, state law prohibits negligence claims in job accidents, "no matter how gross or aggravated."

In a footnote they wrote that Saunders was exposed to the same risks as Sedgmer.

They wrote, "There is no indication that can be gleaned from the record that Mr. Saunders intended himself or anyone else to be injured."

Starcher dissented and reserved the right to file a dissent.