If you do business in West Virginia, you are probably familiar with the mandatory workers’ compensation law. The law provides immunity from a civil suit for an employer whose employee is injured on-the-job. The workers’ compensation system provides the employee with compensation for medical bills paid and lost wages. The employer is, however, entitled to a set-off of any amount received or receivable by the Plaintiffs from workers’ compensation.
However, there is an exception to an employer’s immunity under W. Va. Code §23-4-2(d)(2). If an employee can prove that the employer acted with “deliberate intent” to injure the employee, the employer is stripped of its workers’ compensation immunity. The traditional negligence standard is insufficient for the employee to prevail in a deliberate intent action. The employee may prevail under one of two methods: 1) by proving that the employer acted with a conscious, subjective and deliberate intention to produce the specific result of injury or death to an employee; or 2) the employee can prove deliberate intent by proving all of the following five elements:
(1) That a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death;
(2) 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;
(3) That the specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known safety standard within the industry or business of the employer, as demonstrated by competent evidence of written standards or guidelines which reflect a consensus safety standard in the industry or business, which statute, rule, regulation or standard was specifically applicable to the particular work and working condition involved, as contrasted with a statute, rule, regulation or standard generally requiring safe workplaces, equipment or working conditions;
(4) That notwithstanding the existence of the facts set forth in subparagraphs (A) through (C), inclusive, of this paragraph, the employer nevertheless intentionally thereafter exposed an employee to the specific unsafe working condition; and
(5) That the employee exposed suffered serious compensable injury or compensable death as defined in section one, article four, chapter twenty-three whether a claim for benefits under this chapter is filed or not as a direct and proximate result of the specific unsafe working condition.
In a recent opinion by the West Virginia Supreme Court of Appeals, the Court affirmed summary judgment where the Plaintiff was burned by hot oil from a fryer after she either slipped (or fainted) and pulled the fryer over. In Redman v. Federal Group, the Court held that there existed no “evidence that a formal hazard assessment would have prevented the fryer from flipping over. Accordingly, we do not believe the circuit court erred by refusing to bar the defendant from denying ‘actual knowledge’ of an alleged unsafe condition based on the lack of a formal hazard assessment regarding the fryer.” Moreover, the Court emphasized its approval of evidence of the lack of a safety violation by OSHA during its investigation.
The holding in Redman may be confusing to employers when other decisions from the West Virginia Supreme Court have emphasized that a lack of training and supervision was sufficient to constitute “a subjective realization and an appreciation of the existence of the unsafe specific working condition,” such as seen in Coleman Estate v. R.M. Logging. The court has previously stated 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.
The affirmative defenses of comparative negligence and assumption of the risk are not available to employers in a deliberate intent case. In another recent opinion, Master Mechanical v. Richard Simmons, our State Supreme Court authored a new syllabus point confirming that an employer “may introduce evidence that is relevant to the issues of whether an employee’s conduct created a specific unsafe working condition; whether the employer had actual knowledge of that alleged specific unsafe working condition; and whether the injuries at issue were the proximate result of that specific unsafe working condition.” The battleground during the dispositive motion and trial phases is the fine line between arguing Plaintiff’s comparative negligence and presenting evidence that the employee created the specific unsafe working condition.
Both of these recent decisions may seem to muddy the waters to employers when comparing to previous decisions by the Court. However, attorneys who defend deliberate intent cases should find that these decisions signify a positive step in the employer’s direction. Although reasonable minds may differ, defense counsel needs to be skilled in preparing for the battlegrounds and to prepare for the Plaintiff’s deposition in such a way as to draft a strong dispositive motion.