MARTINSBURG – A federal judge has dismissed a lawsuit that alleged workplace injuries and stricken it from the court’s docket.
In its motion to dismiss, the defendant aptly pointed to the Workers’ Compensation Act’s provision extending immunity to “every officer, manager, agent, representative or employee of such employer when he is acting in furtherance of the employer’s business and does not inflict an injury with deliberate intention,” a Aug. 31 memorandum opinion and order states.
The case was assigned to District Judge Gina Groh.
“Even construing Plaintiffs’ amended complaint in a light most favorable to their cause, the Court simply cannot find that any action, as alleged, against John Does one through ten could possibly survive absent a showing of deliberate intent,” the memo states. “Moreover, the Court has exhaustively explained supra why Plaintiffs amended complaint fails to adequately plead a deliberate intent action under West Virginia law. Thus, the second, and only remaining, claim in Plaintiffs’ amended complaint must be dismissed.”
The motion to dismiss was granted, the civil action was dismissed with prejudice and the case was ordered stricken from the court’s active docket.
Melvin Washington and Deborah Jean Brode filed their lawsuit against Ox Paperboard in Jefferson Circuit Court on Jan. 27. It was removed to federal court on April 28.
On Jan. 30, 2015, Washington was employed by Ox Paperboard as a utility man and was attempting to transport rolls of paper in the facility that were 70 inches high by five inches wide, each of which weighed between 350 and 380 pounds.
Washington claims while the rolls were being moved, they were unsecured and were stood on end and several rolls of paper fell off the skateboard-type device that he was transporting the rolls of paper on.
The plaintiff suffered numerous injuries as a result of the workplace incident, including fractures to his hip and foot, a laceration to his spleen and injuries to his lower back and other physical and mental injuries, according to the suit.
Ox had actual knowledge of the existence of specific unsafe working conditions and the high degree of risk and strong probability of serious injury or death presented by the specific unsafe working conditions that Washington was exposed to, according to the suit.
Washington and Brode were seeking compensatory and punitive damages. They were being represented by Christopher J. Wallace of the Wallace Firm; and David Hammer of Hammer, Ferretti & Schiavoni.
Ox was represented by Charles F. Printz Jr. and J. Tyler Mayhew of Bowles Rice.
U.S. District Court for the Northern District of West Virginia case number: 3:17-cv-00049