VIDEO TRANSCRIPT
Hi, I’m David Morrison with Steptoe & Johnson, and I am going to give you a short primer on the law of deliberate intent in West Virginia. I will also make a couple of suggestions on ways to avoid liability under that theory.
If you do business here, you know that we have a mandatory workers’ compensation law. Every employer is required to give and provide workers’ compensation coverage for every employee. Therefore, if an employee is injured during the course of his or her employment, the employee will have his medical bills paid and will also have acts of replacement income. The quid pro quo for making employers provide this workers’ compensation coverage, which is expensive, is that employers are supposed to be immune from lawsuits for a workplace injury by employees. In other words, West Virginia statutes are written so that employers are not to be sued by employees for their injuries on the job.
However, there is what is supposed to be a very narrow exception to this lawsuit immunity. An employee may recover workers’ compensation benefits and also sue the employer for an on the job injury, if the employee can show that the employer acted with deliberate intent to cause the employee’s injury – that’s why it’s called a deliberate intent case. Although this exception was intended to be extremely narrow, our State Supreme Court has continuously broadened it over the years. In any event, there is a case law now in West Virginia that has developed that indicates the types of cases that can be successful if brought by an employee. I’m going to give you a couple of examples.
First, a Fayette County tree cutter “hangs up” three trees so that they are actually suspended above him. When he walks underneath them, the first one falls on him, hits him on the head and kills him.
The second case involves an employee of Captain D’s Restaurant in Star City in West Virginia. That employee was severely burned when he slipped and fell on a wet grassy slope while carrying a container of hot grease to a disposal unit, with the grease splashing on his right arm, left upper chest, left shoulder, face and legs.
In both of those accidents, there was not only a workers’ compensation claim brought, but also deliberate intent actions. Although deliberate intent is supposed to be a difficult type of case to prove, and although the statute itself directs the circuit courts to dismiss these claims on summary judgment if one or more of the required facts cannot be proven, a summary judgment that holds up is harder to obtain than you might imagine. Even if a circuit court grants summary judgment, the Supreme Court of Appeals can reverse the summary judgment and reinstate the lawsuit.
In both cases, counsel for the employer filed motions for summary judgment to dismiss the actions. In the tree cutter case, the motion was granted. In the restaurant case, the motion was denied. In the tree cutter, the Supreme Court reversed the summary judgment and reinstated the lawsuit. In the restaurant case, there was a substantial judgment against the defendant, and both of the cases, the primary issues involved training and to some extent inspection of the work site.
So how were the employees trained? What type of documentation could the employers produce to establish that training had in fact occurred? The West Virginia Supreme Court in both of those cases devoted much of their discussion to those two issues.
There is a statute in West Virginia that sets forth five elements that must be proven in order to establish a case of deliberate intent.
The first is that a specific unsafe working condition must exist in the workplace, which presents a high degree of risk and a strong probability of serious injury or death.
The second is that the employer must have a subjective realization and a real appreciation of the existence of the specific unsafe working condition, of the high degree of risk and of the strong probability of serious injury or death. We’re talking about a subjective realization of those elements.
Three, that the specific unsafe working condition was a violation of a state or federal safety regulation or statute, or of a commonly accepted and well-known safety standard within the industry or business of the employer.
Four, that notwithstanding the existence of the facts set forth in the first three elements, the employer nevertheless intentionally exposed an employee to the specific unsafe working condition; and
Five, that the employee suffered serious compensable injury or compensable death, as a direct result of the unsafe working condition.
Now that’s sort of a mouth full. But those five elements are set forth in the statute. There is another theory of liability also called deliberate intent. It’s an alternative way of proving the same thing. In that alternative type of case, the plaintiff must prove that the employer acted with a “consciously, subjectively and deliberately formed intention” to produce the injury. In other words, the standard requires that the employer actually intended the injury with the unsafe working condition.
Now back to my examples, in the tree cutter’s case, the tree cutter’s estate argued a case of inadequate training and negligent supervision. The logging company countered by arguing that the employee’s supervisor had personally cut with every timber cutter that he had hired for approximately two weeks before the timber cutter was removed to work on his own, and he made sure that they covered each and every standard that was required by the state in order to certify loggers. Unfortunately, however, the employer was unable to produce any records documenting the training or the dates of the training. The employee was also working with only one other employee at the time, and there were no managers or supervisors present at the time the work was being performed. The attorney for the employee’s estate produced an expert witness, who testified that three hung trees and a decision to walk underneath them, as well as the lack of intervention by any other employee working in the area was evidence of manifestly inadequate training and supervision.
In the restaurant case, the evidence was that the injured employee received absolutely no training regarding his duties in connection with the disposing of the hot grease, except to watch other employees and to follow their lead. No one apparently told the employee that he should wait until the grease had cooled before carrying it outside. Even though there was a paved sidewalk or pathway to follow in order to get to the bin into which the grease was to be dumped, the employee often used the shortcut of walking down over the hill because the grease was heavy. An expert witness testified that the employees lacked training in handling hazardous material, that they lacked proper personal protection equipment to be worn when handling hazardous material, and that the elevation of the grassy slope that was used, was too steep to use as a path in order to dump the heavy grease.
In both the tree cutting case and in the restaurant case, the Supreme Court said that the lack of training and supervision was sufficient to constitute “a subjective realization and an appreciation of the existence of the unsafe specific working condition.” Similarly, the court wrote in each case that the decision to allow the employee to work without adequate training or supervision would permit a jury to conclude that the employer nevertheless intentionally thereafter exposed the employees to the specific unsafe working condition.
Now certainly, reasonable minds can differ as to the soundness of these decisions. Even if the employers wrongly assumed that no logger would walk beneath three suspended trees, or that no employee would carry hot grease down over a slippery hill, before the grease cooled in order to dump it, that is vastly different than those assumptions are vastly different, in forming a subjective belief that this type kind of accident was going to happen. Nonetheless, the inability to demonstrate any sort of training that addressed these specific hazards was justification for the Supreme Court to permit liability against the employers.
The moral of the story is do not just train your employees, but to make sure that you have a strong safety training program, and make sure all of your efforts in safety are documented. Don’t depend upon the obvious nature of a hazard to insulate you from potential liability for deliberate intent. Cover all of the hazards in your training. What is obvious to some, may not be obvious to others. Thank you.