W.Va. high court says city can't be sued for injuries at trash station

By Jessica M. Karmasek | Feb 10, 2012


CHARLESTON - The West Virginia Supreme Court of Appeals, in a ruling last month, said the city of Buckhannon could not be sued for a man's injuries that resulted from unloading garbage at the city's transfer station.

The city owned and operated a solid waste disposal complex in Upshur County.

Although it did not include a refuse dump or sanitary landfill, the city maintained a transfer station at the complex for the collection of trash. The trash was then transported to an out-of-county dump.

On Jan. 4, 2008, Steven M. Posey was unloading trash bags and other material at the transfer station when he fell from the tailgate of his pickup truck and slide 18 feet down an open pit.

His injuries included various fractures, a head laceration and a compression of the spine. His medical expenses exceeded $112,000.

In November 2009, Posey filed a lawsuit in Upshur Circuit Court against the city of Buckhannon. He alleged the city was negligent in failing to provide assistance to individuals depositing trash at the transfer station and in failing to erect protective barriers along the exposed sides of the open pit.

In response, the city filed a motion to dismiss, alleging that it was entitled to immunity from liability under the West Virginia Governmental Tort Claims and Insurance Reform Act.

The act's purposes "are to limit liability of political subdivisions and provide immunity to political subdivisions in certain instances and to regulate the costs and coverage of insurance available to political subdivisions for such liability."

More specifically, "a political subdivision is immune from liability if a loss or claim results from... the operation of dumps, sanitary landfills, and facilities where conducted directly by a political subdivision."

Following a hearing, the circuit court granted the city's motion and dismissed Posey's complaint. Posey then filed an appeal with the state's high court.

The Court, in its Jan. 27 opinion, affirmed the lower court's ruling. Chief Justice Menis Ketchum authored the 11-page decision.

At issue, he explained, is whether a transfer station conducted directly by a political subdivision -- in this case, the city of Buckhannon -- as a temporary collection site for solid waste to be transported to a dump or sanitary landfill, constitutes a "facility" within the meaning of the immunity provisions in state code.

Posey contended that since the transfer stations only receive solid waste on a temporary basis, they are distinguishable from dumps and sanitary landfills where solid waste is permanently stored. Therefore, transfer stations are not facilities within the meaning of state code.

He also asserted that transfer stations constitute facilities under that statutory section if they are located "on and operated in connection with" a dump or sanitary landfill -- that is, if the city of Buckhannon's transfer station had been physically located on and operated in connection with a dump or landfill, it would have had immunity from liability in this case.

Posey pointed to the case of Calabrese v. City of Charleston.

However, nothing in Calabrese addresses immunity in the context of transfer stations, Ketchum said.

"In that regard, the following comment by the circuit court in the current matter is persuasive: 'It is both impractical and illogical to read Calabrese as applied to the facts underlying plaintiffs' claim in this action, to unnecessarily restrict the immunity conferred by West Virginia Code Section 29-12A-5(a)(16) to facilities located on the site of a dump or landfill,'" the chief justice wrote.

The Court also pointed to a copy of the city's Solid Waste Transfer Station Permit, which states that the permit for the station was issued, in part, pursuant to the West Virginia Solid Waste Management Act.

The act associates facilities, landfills and transfer stations together within the definition of solid waste facility.

The provision, Ketchum explained, contemplates both the processing and disposing of solid waste within the definition, "thereby depriving of significance the distinction between the temporary and permanent storing of solid waste for purposes of immunity considerations."

The Court said the circuit court properly determined that the phrase, "and facilities," was meant by the state Legislature to include a landfill-related and/or a dump-related facility, such as the city of Buckhannon's transfer station.

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