CHARLESTON – For the second time, the Supreme Court of Appeals has ordered Fayette Circuit Judge Paul Blake to hold trial for the parents of logger Clarence Coleman, who died when a tree fell on his head.

The Justices ruled that his parents raised a question of fact as to whether his employer, R. M. Logging, realized when they sent him out to cut trees that he lacked training.

"Although the plaintiffs' evidence is circumstantial rather than direct, we have recognized that states of mind must often be proved by circumstantial evidence," they wrote in an unsigned opinion.

The accident occurred in 2003, after Coleman cut three trees. The first fell to the ground, but the second and third became lodged above him.

As he walked toward the first tree, the second one broke loose and struck him.

His father, Clarence Coleman, and his mother, Helen Adkins, sued R. M. Logging.

Blake granted summary judgment to R. M. Logging last year, ruling that the accident did not create an exception to workers compensation law.

He granted summary judgment on the same grounds in 2006, and the Court reversed him in 2008.

Victim of work accidents must pursue claims through workers compensation rather than civil suits unless they allege that employers acted with deliberate intention.

Blake ruled that Coleman's parents established only three of five elements that the Legislature requires for deliberate intention.

He found they failed to prove that R. M. Logging had a subjective realization and an appreciation of the existence of a condition presenting a high risk of serious injury.

He found they failed to prove that R. M. Logging intentionally exposed Coleman to an unsafe condition.

He wrote that Coleman was properly trained and that, "but for the decedent's own negligence, the accident would not have occurred."

The Justices disagreed. "The hung tree and Mr. Coleman's decision to walk under said tree are simply manifestations of the allegedly inadequate training received by Mr. Coleman," they wrote.

They placed more stock than Blake in expert witness James Dougovito, who said hanging two out of three trees was a sign of inadequate training.

"Not saying that you will never hang a tree if you are properly trained, but to hang two out of three? Some work needed to be done with him on training," Dougovito said.

"It's kind of like a flashing red light," he said. "Continuing to work around two trees that are hung up is a flashing red light."

Justice Brent Benjamin dissented and reserved the right to file an opinion.

John Mitchell of Charleston represented the parents. So did Joshua Barrett, Lonnie Simmons and Heather Langeland, all of DiTrapano, Barrett and DiPiero of Charleston.

Mary Sanders and Jessica Wiley, of Huddleston Bolen in Charleston, represented R. M. Logging.

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