declared that enactment of this chapter and the establishment of
the workers' compensation system in this chapter was and is intended to remove from the common law tort system all
disputes between or among employers and employees regarding
the compensation to be received for injury or death to an
employee except as herein expressly provided, and to establish
a system which compensates even though the injury or death of
an employee may be caused by his or her own fault or the fault
of a co-employee; that the immunity established in sections six
and six-a, article two of this chapter, is an essential aspect of
this workers' compensation system; that the intent of the
Legislature in providing immunity from common law suit was
and is to protect those so immunized from litigation outside the
workers' compensation system except as herein expressly
provided; that, in enacting the immunity provisions of this
chapter, the Legislature intended to create a legislative
standard for loss of that immunity of more narrow application
and containing more specific mandatory elements than the
common law tort system concept and standard of willful,
wanton and reckless misconduct; and that it was and is the
legislative intent to promote prompt judicial resolution of the
question of whether a suit prosecuted under the asserted
authority of this section is or is not prohibited by the immunity
granted under this chapter.
W. Va. Code § 23-4-2 (c)(1) (emphasis added). See also, Syl. Pt. 2, Bell v. Vecellio &
Grogan, Inc., 197 W. Va. 138, 475 S.E.2d 138 (1996) (“W. Va. Code 23-4-2(c) (1991)
represents the wholesale abandonment of the common law tort concept of a deliberate
intention cause of action by an employee against an employer, to be replaced by a statutory
direct cause of action by an employee against an employer expressed within the workers'
compensation system.”); Mayles v. Shoney's Inc., 185 W. Va. 88, 92, 405 S.E.2d 15, 19
(1990) (recognizing that intent of deliberate intent statute was “to make it more difficult for
an employer to lose the immunity provided to him by the Workers' Compensation Act.”).
The statute provides two separate and distinct methods of proving “deliberate
intention” so as to remove Workers' Compensation immunity. The employee may prove the
employer “acted with a consciously, subjectively and deliberately formed intention to
produce the specific result of injury or death to an employee.” W. Va. Code § 23-4-
2(c)(2)(i). Or, the employee may offer evidence proving the five specific requirements set
forth in W. Va. Code § 23-4-2(c)(2)(ii). Syl. Pt. 2, Mayles; Syl. Pt. 3, Blevins v. Beckley
Magnetite, Inc., 185 W. Va. 633, 408 S.E.2d 385 (1991). Appellant has only relied upon
W. Va. Code § 23-4-2(c)(2)(ii) in the instant action. Thus, to survive summary judgment,
he is required to offer demonstrate that a material question exists as to whether each of the
following facts may be proven:
(A) 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;
(B) That the employer had a subjective realization and an
appreciation of the existence of such specific unsafe working
condition and of the high degree of risk and the strong
probability of serious injury or death presented by such specific
unsafe working condition;
(C) That such 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 such employer,
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;
(D) That notwithstanding the existence of the facts set forth in
subparagraphs (A) through (C) hereof, such employer
nevertheless thereafter exposed an employee to such specific
unsafe working condition intentionally; and
(E) That such employee so exposed suffered serious injury or
death as a direct and proximate result of such specific unsafe
working condition.
W. Va. Code § 23-4-2(c)(2)(ii). I believe the circuit court properly granted summary
judgment in light of Appellant's failure to offer sufficient proof that these five statutory
requirements may be met in the instant action.
The majority and the parties focus upon Appellant's evidence relating to
requirements (B) and (C), the “subjective realization” (See footnote 4) and “specifically applicable”
requirements. The majority opinion hinges upon a determination that a federal OSHA
regulation, 29 C.F.R. § 1910.132, requiring “employers” to conduct a hazard assessment and
determine the need for employees to use personal protective equipment satisfies the
“specifically applicable” requirement of subsection (C). To accomplish this, the majority
takes the statutory requirement in W. Va. Code §23-4-2(c)(2)(ii)(c), “ . . . which statute, rule,
regulation or standard was specifically applicable to the particular work or working
condition involved . . .”, and replaces it with the following phrase found at Syllabus Point
3 of the majority opinion: “Where such statute, rule, regulation or standard imposes a
specifically identifiable duty upon an employer . . . and where the statue, rule, regulation or
standard asserted by the employee is capable of application to the specific type of work
involved.” (Emphasis added.) This judicial modification of the standard necessary for
maintenance of a statutory cause of action is improper. I disagree with this judicial rewrite.
The general, rather than specific, nature of the OSHA regulation is evidenced
by its very title - which is “General requirements.” 29 C.F.R. § 1910.132 (2006). It is
applicable to all employers, not specifically to the lumber industry. To the contrary, W. Va.
Code § 23-4-2(c)(2)(ii)(C) requires the statute, rule or regulation relied upon to be
“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.” (See footnote 5) Our case law confirms the need for the standard to be specifically
applicable to the particular working condition involved. See, Mayles, 185 W. Va. at 95, 405
S.E.2d at 22 (noting subsection (C) requires “proof that the specific unsafe working
condition constituted a violation of a state or federal safety statute . . . specifically applicable
to the particular working condition involved, as contrasted with a statute or standard
generally requiring safe working conditions.”); Miller v. City Hospital, Inc., 197 W. Va. 403,
409-10, 475 S.E.2d 495, 501-2 (1996) (per curiam) (noting general knowledge does not
satisfy statutory specificity requirement); Tolley v. ACF Indusries, Inc., 212 W. Va. 548, 575
S.E.2d 158, 166-7 (2002) (per curiam) (finding generalized allegations of non-compliance
with safety regulations, including generalized notion of requiring safe work place
insufficient to satisfy statutory requirements). As noted by a federal district court discussing
the type of statute or rule needed to satisfy W. Va. Code § 23-4-2(c)(2)(ii)(C), “the statute
or standard must specifically address the unsafe working condition in question. It is not
enough to prove that a part on a piece of machinery was defective and that a statute or
regulation required all parts to be in good working order.” Greene v. Carolina Freight
Carriers, 663 F.Supp.112 (S.D.W. Va. 1987), aff'd, 840 F.2d 10 (4th Cir. 1988). In my
opinion, 29 C.F.R. § 1910.132 is an OSHA regulation which attempts to satisfy the general
goal of requiring a safe workplace and working conditions. As such, it does not meet
statutory specificity requirements.
I am deeply concerned regarding the potential breadth of the majority decision
in this matter; a result which would be completely at odds with the Legislature's expressed
intent in creating this statutory cause of action. Suppose the employer herein had performed
a hazard assessment as set forth in 29 C.F.R. § 1910.132, but had failed to identify the
purported eye hazard at issue herein (or whatever condition forms the basis of a claim).
Under the majority's reasoning, would an argument that the employer was negligent in
performing the hazard assessment now be sufficient to satisfy deliberate intent requirements?
I fear that is precisely the probability which will now occur by virtue of the majority's
actions herein, despite the clear legislative intent to immunize employers from mere
negligence.
As stated above, the majority has, in essence, negated the statutory “subjective
realization” requirement in those instances where an employee can argue there was some
general duty to discover a potential hazard. In my opinion, the rule outlined in Syllabus
Point 6 is also contrary to both statutory language and prior decisions of this Court. This
Court previously held that the subjective realization requirement “is not satisfied merely by
evidence that the employer reasonably should have known of the specific unsafe working
condition and of the strong possibility of serious injury or death presented by that condition.
Instead, it must be shown that the employer actually possessed such knowledge.” Syl. Pt.
3, in part, Blevins v. Beckley Magnetite, Inc., 185 W. Va. 633, 408 S.E.2d 385 (1991). See
also, Tolley, 212 W. Va. at 556, 575 S.E.2d at 165 (quoting Blevins); Deskins v. S.W. Jack
Drilling Co., 215 W. Va. 525, 530, 600 S.E.2d 237, 242 (2004) (per curiam) (same). At
most, an argument can be made that if a hazard assessment had been performed, the
employer reasonably should have known of the risk. Until now, that has not been enough
to satisfy the subjective realization requirement under our law. By negating this statutory
requirement, the majority likewise negates the possibility that the hazard assessment, if
performed, would not have identified the alleged unsafe working condition as a hazard.
Assuming a regulation requiring a hazard assessment satisfies statutory specificity
requirements, the better approach would have been to require a showing that a reasonable
hazard assessment would have identified the alleged unsafe working condition in question
before deeming W. Va. Code § 23-4-2(c)(2)(ii)(B) to have been be satisfied by default.
In my opinion, the circuit court properly granted summary judgment in this
matter. Accordingly, I dissent.