WEST VIRGINIA RECORD

WHITE SULPHUR SPRINGS – The state Supreme Court continues to become more business-friendly, according to a state Chamber of Commerce annual report.

Court Watch, the state Chamber's annual report on Supreme Court business decisions, was presented Wednesday the group's Business Summit at The Greenbrier.

Of the 14 cases covered in the report from the fall 2006 and spring 2007 Court sessions, 10 were deemed favorable to business. Four was called bad for business.

One of the cases labeled bad for business was Joseph E. Ryan vs. Clonch Industries Inc. Ryan argued Clonch, his employer, deliberately caused his injuries which was covered by workers' compensation. A piece of metal injured his left eye when we was placing metal bands around pallets of lumber. He had surgeries, but lost vision in the eye.

Clonch admitted to not conducting an assessment of the job and not requiring Ryan to wear goggles.

"The Court held that where a defendant fails to perform a reasonable evaluation to identify hazards in the workplace in violation of a statute, rule or regulation imposing a mandatory duty to perform a hazard assessment, the performance of which may have readily identified certain workplace hazards, the employer is prohibited from denying it possessed subjective realization of the hazard asserted in the deliberate intent action," the report said, calling the impact disturbing.

"A reading of the case reflects that the Supreme Court may have concluded that when an employer is willfully, purposefully blind to its mandatory statutory duty to inspect, such wilful blindness cannot serve to shield the subjective realization element of a deliberate intention case. The Court's syllabus (the law of the case) is much broader and reflects that actual knowledge may be established through constructive knowledge.

"Hopefully, the Court will revisit this holding and restrict its application to situations where the employer may be found to circumvent liability by purposefully avoid the subjective knowledge element by violating a mandatory duty."

Since Brent Benjamin defeated Warren McGraw for a seat on the Supreme Court in 2004, Court Watch reports have grown increasingly pro-business.

The Court Watch report was prepared by Jill Cranston Bentz of Dinsmore & Shohl, Henry Bowen and Bryan Cokeley of Steptoe & Johnson, Michael Chaney of Kay Casto & Chaney, Timothy Huffman and Thomas Hurney Jr. of Jackson & Kelly, and Elizabeth Walker of Bowles Rice McDavid Graff & Love.