WEST VIRGINIA RECORD

CHARLESTON – Circuit Judge Paul Blake Jr. acted prematurely when he cleared R. M. Logging and foreman John Robinson of liability in the death of timber cutter Clarence Coleman, the West Virginia Supreme Court of Appeals ruled June 16.

Coleman, 24, died on Dec. 2, 2003, after a hickory tree struck his head.

The Justices remanded the case so Blake can decide if Coleman's death fits the "deliberate intention" exception to workers' compensation law.

The law prohibits court action over a workplace accident unless the victim proves five elements that combine to establish deliberate intention.

One element requires that an employer had a subjective realization and appreciation of an unsafe condition with a high degree of risk and a strong probability of serious or fatal injury.

Blake ruled that Coleman's parents, Clarence Coleman and Helen Adkins, failed to prove that element.

The Justices held that Blake can't make that decision until Coleman's parents have deposed a possible eyewitness to the accident.

Coleman worked for R. M. Logging in Cannelton Hollow, near Smithers. He had a year of timber cutting experience when R. M. Logging hired him.

On his last day he cut a maple that fell to the ground. He cut a hickory that partly fell but partly lodged on a limb with its butt end 20 feet above him.

He walked toward the maple, passing directly under the butt end of the hickory.

The limb holding the hickory snapped, and the hickory dropped on his head.

Skidder operator Kelcey Nicholas ran to Coleman, pulled him out from under the tree and placed him on his skidder.

Nicholas drove Coleman to foreman Robinson, who tried to resuscitate him.

Paramedics rushed Coleman to a hospital, where a doctor pronounced him dead.

The U. S. Occupational Safety and Health Administration investigated and cited R. M. Logging for failure to properly train timber cutters.

The agency also cited R. M. Logging for breaking a rule requiring removal of lodged and snagged trees with techniques that minimize employee exposure.

Coleman's parents sued in Fayette Circuit Court in 2005. They portrayed their son as a novice without training or supervision.

Their safety expert, Homer Grose, testified in a deposition that R. M. Logging had not trained Coleman to fully understand the hazard the situation presented.

R. M. Logging and Robinson maintained that they trained all employees.

"Every timber cutter I hire, I cut with them for two weeks right beside them," Robinson testified.

He said he gave employees safety literature and held safety meetings.

R. M. Logging and Robinson moved to exclude Grose's testimony, arguing that his experience was limited to the mining industry.

R. M. Logging and Robinson also moved for summary judgment. They argued that even if they were negligent, that didn't count as an element of deliberate intention.

Coleman's parents sought to depose Nicholas, but he had left his job and for a while no one could find him.

Blake set a trial date, but when R. M. Logging found Nicholas and reported his location to Coleman's parents, they asked for a 60-day delay so they could depose him.

In September 2006, Blake granted summary judgment and canceled the trial.

He wrote that Robinson had a year of experience when R. M. Logging hired him. He wrote that Coleman received training, guidance and instructional materials.

"Plaintiffs have failed to produce any evidence that R. M. Logging, Inc., through its supervisor, John Robinson, was aware that Decedent had felled a tree which became stuck and that Decedent would choose to walk under that tree," Blake wrote.

Coleman's parents appealed, successfully.

According to the Justices, Blake should have ruled on the motions to exclude Grose and depose Nicholas before granting summary judgment.

"Nicholas may have seen the tree strike Coleman," the Justices wrote.

They wrote that Coleman walked under the hickory "for reasons unknown."

They wrote, "Although the testimony of Kelcey Nicholas may or may not prove helpful in that regard, a reasonable time period for the taking of his deposition is warranted, especially if he is the sole eyewitness to the accident."

John R. Mitchell of Charleston represents the parents. So do Joshua Barrett, Lonnie Simmons and Heather Langeland of DiTrapano, Barrett and DiPiero of Charleston.

Mary Sanders, Shawn Nines and Ashley French of Huddleston Bolen in Charleston represent R. M. Logging and Robinson.