Loughry accuses fellow justices of activism, ignoring Legislature

By John O'Brien | Nov 14, 2013


CHARLESTON – State Supreme Court Justice Allen Loughry says his colleagues defied the Legislature’s wishes in a recent decision regarding a man injured by an electrical box that was in disrepair.

Loughry accused the majority in McComas v. ACF Industries of judicial activism in a dissenting opinion he filed Oct. 25, eight days after a 3-2 majority ruled against the company in a suit brought by an injured former employee.

David McComas alleged ACF, a company that operated an industrial plant in Huntington that built railroad cars until it was closed in 2009, was to blame for a 2007 incident in which he attempted to flip a power switch in an electrical box but ended up injured in an explosion, leading to severe burns on 25 percent of his body. His lawsuit was filed in Cabell Circuit Court.

The majority overturned a summary judgment ruling by Judge F. Jane Hustead in favor of ACF, deciding McComas could make a deliberate intent claim against the company.

“The majority’s opinion constitutes but yet another step toward its ultimate goal of rendering our deliberate intent statute a meaningless codification of simple workplace negligence standards,” Loughry’s dissent says.

“This effort began in 2006… and, despite the Legislature’s unmistakable attempt to combat such judicial activism via amendment to the statute, the majority continues to insert its own policy-making into (the statute).”

Part of the statute says an employer could be found to have had deliberate intent in a worker’s injury if:

“That the employer, prior to the injury, had actual knowledge of the existence of the specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by the specific unsafe working condition.”

Loughry says that is not the case in McComas’ claim. He says it is undisputed that ACF had actual knowledge of the condition of the electrical box because it performed no inspection or maintenance on it.

Loughry said ACF’s actions were negligent at best and reckless at worst.

“However, regardless of one characterizes this omission on the part of the ACF, the Legislature has expressly stated that the deliberate intent standards codified in West Virginia Code… provide a cause of action only upon violation of ‘more specific mandatory elements than the common law tort system concept and standard of willful, wanton and reckless misconduct,” Loughry wrote.

“Twenty years ago, this Court properly recognized that proof of what an employer ‘should have known’ was insufficient for purposes of the standard of ‘subjective realization.’”

Since that time, the Legislature has attempted to bolster the knowledge requirement for a deliberate intent claim, but the Supreme Court has done the opposite.

The majority opinion said the actual knowledge standard was different since the prior version of the statute that was before the court in 2005.

In that 2005 case, Justice Robin Davis, who was a part of the McComas majority, wrote said employers can’t avoid deliberate intent actions by acting like an ostrich with its head in the sand.

The majority opinion in McComas said the electrical box was subject to inspection.

“As we interpret (the deliberate intent statute), the Legislature did not intend to allow employers to shirk responsibilities imposed by specific statutes, rules, regulations or standards by turning a blind eye to workplace hazards,” Justice Menis Ketchum wrote for the majority.

“Willful ignorance of a specific unsafe working condition is no defense…”

Loughry wrote the majority opinion will have a wide-reaching effect.

“Many industries, such as mining or trucking, are heavily regulated and require a litany of generalized inspections,” he wrote.

“While such inspections are much-desired, it would be difficult to identify an alleged specific unsafe working condition that arguably ‘should have’ been discovered in the course of one of the inspections.

“The failure to discover any such condition is, obviously, the result of oversight or simple negligence. This is quite simply not the type of workplace oversight for which a statutory deliberate intent is designed to provide redress.”

Chief Justice Brent Benjamin joined Loughry in his dissent, while Justice Margaret Workman joined Davis and Ketchum in the majority.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

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