Starcher
CHARLESTON – Justice Larry Starcher of the West Virginia Supreme Court of Appeals called his colleagues blind for throwing out a mangled miner's lawsuit.
According to Starcher a majority opinion in a McElroy Coal Company case "shields employers from responsibility for the employees who are crushed and killed by an employer's gross carelessness."
In a Dec. 12 dissent he wrote that the majority "has done nothing but make workplaces even more dangerous ..."
Four of the five Justices on Oct. 27 affirmed Marshall County Circuit Judge John Madden in granting summary judgment to McElroy Coal.
They rejected an argument of miner William Sedgmer Jr., that the company exposed him to danger with deliberate intention.
They decided that no one could have foreseen the accident that injured Sedgmer. They marveled at it as a "Rube Goldbergian" freak.
The accident happened in 1994. Loaded rail cars followed the wrong tracks after debris sprang up from a car and tripped an overhead toggle switch.
The loaded cars struck a lightweight "man bus" carrying Sedgmer.
Justice Starcher found nothing amazing in the accident.
He wrote, "... this court's own opinions are replete with horrific instances of miners being crushed and mangled while they were sitting inside passenger-carrying rail cars."
He wrote, "... this was not the first time the coal company had problems with these overhead toggle switches."
He wrote that after a 1989 accident the company replaced a toggle switch, but the company did not replace any others "until after the appellee was mangled ..."
He wrote that a jury should have decided if the company's failure to comply with rules and regulations constituted an unsafe condition known to the company.
He wrote, "It appears from the record that, if the employer had done what it was supposed to do, then Mr. Sedgmer would not have been injured."
He wrote that all branches of government "should vigorously work together to make it absolutely clear that workplace injuries and fatalities are unacceptable, intolerable and 100 percent preventable."
He wrote, "The state regulation and rules at issue in this case were plainly designed to further the goal of the total elimination of workplace injuries."
He wrote, "The appellees and the majority's opinion, however, shrug off this goal, and cast the plaintiff's injury as some sort of unforeseeable, 'Rube Goldbergian' freak accident."
He wrote, "I refuse to be so blind."
