Court of Appeals of West Virginia reverses and remands summary judgment order in workers` compensation deliberate intention action

In a Per Curiam opinion dated June 2, 2010, the Supreme Court of Appeals of West Virginia reversed and remanded the Circuit Court of Fayette County’s entry of summary judgment in favor of defendant R.M. Logging.  In doing so, the Supreme Court of Appeals believed that plaintiff presented sufficient evidence to create a question of fact regarding two contested elements of a deliberate intention action under the West Virginia Workers’ Compensation Act found at W. Va. Code § 23-4-2(d)(2)(ii).
            On December 2, 2003, the plaintiffs’ decedent, Clarence Coleman was working as a timber cutter for R.M. Logging at a timber site near Smithers, West Virginia.  While at work on that date, Mr. Coleman cut a large maple tree that fell to the ground.  Shortly thereafter, Mr. Coleman cut two large hickory trees, one becoming lodged roughly twenty feet above ground.  After cutting the third tree, Mr. Coleman proceeded back to the cut down maple tree.  In doing so, Mr. Coleman walked underneath the lodged hickory tree.  At this exact moment, the lodged hickory tree broke loose and fell, hitting Mr. Coleman on the head.  Although he was wearing a hard hat, the injury sustained by Mr. Coleman resulted in his death.  A subsequent Occupational Safety & Health Administration (OSHA) inspection found eleven R.M. Logging infractions. 
            As a result of Mr. Coleman’s death and the subsequent OSHA findings, plaintiffs filed a workers’ compensation deliberate intention action against R.M. Logging.  After summary judgment was granted in favor of R.M. Logging by the Circuit Court of Fayette County and a subsequent reversal and remand of that summary judgment order by the Supreme Court of Appeals, defendants filed another summary judgment motion.  R.M. Logging’s second motion for summary judgment was granted by the Circuit Court and plaintiffs’ appealed.
            On appeal, two of the five essential factors were at issue: W. Va. Code § 23-4-2(d)(2)(ii)(B) and (D).  Subsection (B) requires proof “[t]hat the employer had a subjective realization and an appreciation 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[.]”  Subsection (D) requires proof “[t]hat notwithstanding the existence of the facts set forth in subparagraphs (A) through (C), inclusive, of this paragraph, the employer nevertheless thereafter exposed an employee to the specific unsafe working condition intentionally[.]” 
            The Supreme Court of Appeals began their analysis by explaining that “in order to withstand a motion for summary judgment, a plaintiff must make a prima facie showing of dispute on each of the five factors.”  Accordingly, to satisfy subsections (B) (D), the Court explained that each “requires an interpretation of the employer’s state of mind, and must ordinarily be shown by circumstantial evidence, from which conflicting inferences may often reasonably be drawn.”  Moreover, the Court asserted that “while a plaintiff may choose to introduce evidence of prior similar incidents or complaints to circumstantially establish that an employer has acted with deliberate intention, evidence of prior similar incidents or complaints is not mandated.” 
            After applying the facts of this case to the elicited principles, the Court determined that despite plaintiffs’ evidence being circumstantial, states of mind must often be proven by circumstantial evidence.  Thus, the Court asserted, plaintiffs’ abundance of circumstantial evidence regarding subsections (B) and (D) were more than sufficient.  Consequently, the Court concluded that because genuine questions of material fact existed in regards to R.M. Logging’s subjective knowledge of a specific unsafe working condition and intentional exposure of Mr. Coleman thereto, the Circuit Court of Fayette County erred in granting summary judgment to R.M. Logging in respect to W. Va. Code § 23-4-2(d)(2)(ii)(B) and (D).