STATE v. TOMMY Y., Jr., No. 33055 (DAVIS, C.J.)(Starcher, J., concurring)(October 27, 2006). Petitioner, T. Y., Jr., a juvenile, appealed an order of the Circuit Court of Clay County upon convictions for the offense of assault on a school employee and brandishing. Affirming the convictions, and holding that the Rules of Criminal Procedure are applicable to juvenile delinquency proceedings, to the extent not inconsistent with applicable statutes. Also holding that challenges to charging instruments must be made prior to trial or be waived, absent jurisdictional grounds, and that failure to challenge lack of venue acted as a waiver in this case. Finally holding, in syllabus point 5, that: "When a defendant has knowledge of grounds or reason for a challenge for cause, but fails to challenge a prospective juror for cause or fails to timely assert such a challenge prior to the jury being sworn, the defendant may not raise the issue of a trial court[base ']s failure to strike the juror for cause on direct appeal."

HAROLD B. WOLFE, ET AL. v. VIPS ALPIZAR, No. 33093 (Per Curiam)(October 27, 2006). Petitioners filed an action to enjoin Vips Alpizar from blocking access across Turkey Creek and sought an order that the defendant construct a bridge across the creek. The Circuit Court of Monroe County granted summary judgment in favor of Vips Alpizar. Affirming, albeit on a different legal theory than the circuit court, and holding that Ms. Alpizar was a bona fide purchaser with neither actual nor constructive notice of the existence of any prescriptive easement at the location of the bridge.

JOSEPH E. RYAN v. CLONCH INUDSTRIES, INC., et al., No. 33001 (DAVIS, C.J.)(Benjamin, J., dissenting)(October 27, 2006). Joseph Ryan appealed an order of the Circuit Court of Nicholas County granting summary judgment in favor of defendant employers Clonch Industries, Inc. and H & D Lumber Distributors, Inc. in a deliberate intention workplace injury case. Appellant was working as a "bander," cutting and strapping metal bands around stacks of lumber for the employer sawmilling company, when he was struck in the eye with a piece of metal and lost the vision in his eye. Reversing the circuit court's grant of summary judgment, and holding that a regulation imposing a specifically identifiable duty upon employers, as opposed to a generalized safety goal, and being capable of application to the specific work at issue, is a proper foundation for the element of deliberate intent found at W.Va. Code 23-4-2(c)(2)(ii)(C). Accordingly, the employer's violation of a regulation requiring the employer to conduct a safety assessment and to require use of personal protective equipment satisfied the plaintiff's burden on that point. Further holding that the mandatory nature of the duty imposed, combined with the employer's admission that it violated that mandatory duty, satisfied the plaintiff's burden of establishing subjective realization. Declining to condone conduct where an employer can simply ignore a mandatory duty, and subsequently seek to avoid liability in a deliberate intent action by claiming a lack of subjective knowledge.

WILLIAM L. SEDGMER, JR., NEXT FRIEND, ETC. v. MCELROY COAL CO., et al., No. 32960 (Per Curiam)(Starcher, J., dissenting)(October 26, 2006). Plaintiffs appealed an order of the Circuit Court of Marshall County that granted summary judgment in favor of defendants in a deliberate intent case. Holding that the circuit court correctly determined that the accident was a singular incident not indicative of a specific unsafe working condition.