______________________________________________________________
Joshua I. Barrett, Esq.
Rudolph L. DiTrapino, Esq.
DiTrapano, Barrett & DiPiero
Charleston, West Virginia
Attorneys for Appellant
Timothy P. Rosinsky, Esq.
Huntington, West Virginia
Attorney for Appellant
R. Carter Elkins, Esq.
Dustin C. Haley, Esq.
Campbell, Woods, Bagley, Emerson, McNeer & Herndon
Huntington, West Virginia
Attorneys for Appellee
Mennis E. Ketchum, II, Esq.
Greene, Ketchum, Bailey & Tweel
Huntington, West Virginia
Attorney for Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE MCGRAW dissents.
1. “Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.” Syllabus Point 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).
2. “'As a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion. By contrast, the question of whether a jury was properly instructed is a question of law, and the review is de novo.' Syl. pt. 1, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996).” Syllabus Point 2, Foster v. Sakhai, 210 W.Va. 716, 559 S.E.2d 53 (2001).
3. “The formulation of jury instructions is within the broad discretion of a circuit court, and a circuit court's giving of an instruction is reviewed under an abuse of discretion standard. A verdict should not be disturbed based on the formulation of the language of the jury instructions so long as the instructions given as a whole are accurate and fair to both parties.” Syllabus Point 6, Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995).
4. “In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.” Syllabus Point 3, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963).
5. “In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.” Syllabus Point 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983).
6. “In determining the excess or ultimate recovery in a deliberate intent suit against an employer under W.Va.Code [§] 23-4-2(b) (1983), the amount of the workers' compensation benefits paid or due to be paid the plaintiff must be subtracted from that particular plaintiff's award of damages.” Syllabus Point 1, Powroznik v. C. & W. Coal Co., 191 W.Va. 293, 445 S.E.2d 234 (1994).
7. “The collateral source rule normally operates to preclude the offsetting of payments made by health and accident insurance companies or other collateral sources as against the damages claimed by the injured party.” Syllabus Point 7, Ratlief v. Yokum, 167 W.Va. 779, 280 S.E.2d 584 (1981).
8. “The collateral source rule also ordinarily prohibits inquiry as to whether the plaintiff has received payments from collateral sources. This is based upon the theory that the jury may well reduce the damages based on the amounts that the plaintiff has been shown to have received from collateral sources.” Syllabus Point 8, Ratlief v. Yokum, 167 W.Va. 779, 280 S.E.2d 584 (1981).
9. “Evidence of the remarriage of a surviving spouse, or the possibility of such remarriage, ordinarily is not admissible to mitigate damages in a wrongful death action.” Syllabus Point 4, Addair v. Bryant, 168 W. Va. 306, 314, 284 S.E.2d 374, 380 (1981) .
10. “'No party may assign as error the giving or the refusal to give an instruction unless he objects thereto before the arguments to the jury are begun, stating distinctly, as to any given instruction, the matter to which he objects and the grounds of his objection; but the court or any appellate court, may, in the interest of justice, notice plain error in the giving or refusal to give an instruction, whether or not it has been made subject of an objection.' Rule 51, in part, W.Va.RCP.” Syllabus Point 1, Shia v. Chvasta, 180 W.Va. 510, 377 S.E.2d 644 (1988).
11. “'A litigant may not silently acquiesce to an alleged error, or actively contribute to such error, and then raise that error as a reason for reversal on appeal.' Syllabus point 1, Maples v. West Virginia Department of Commerce, 197 W.Va. 318, 475 S.E.2d 410 (1996).” Syllabus Point 6, Page v. Columbia Natural Resources, Inc., 198 W.Va. 378, 480 S.E.2d 817 (1996).
12. “'To trigger application of the 'plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.' Syllabus point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).” Syllabus Point 7, Page v. Columbia Natural Resources, Inc., 198 W.Va. 378, 480 S.E.2d 817 (1996).
13. “[The plain error] doctrine is to be used sparingly and only in those circumstances where substantial rights are affected, or the truth-finding process is substantially impaired, or a miscarriage of justice would otherwise result.” Syllabus Point 4, in part, State v. England, 180 W.Va. 342, 376 S.E.2d 548 (1988).
14. “A trial court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not misle[d] by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. A trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to a trial court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion.” Syllabus Point 4, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
15. “A plaintiff may establish 'deliberate intention' in a civil action against an employer for a work-related injury by offering evidence to prove the five specific requirements provided in W.Va.Code § 23-4-2(c)(2)(ii) (1983).” Syllabus Point 2, Mayles v. Shoney's, Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990).
16. “Pursuant to West Virginia Rules of Evidence Rule 407, evidence of subsequent remedial measures may be introduced for purposes of impeachment (1) when inferences other than the defendant's prior negligence may be drawn therefrom or (2) when the defendant introduces evidence to prove that the condition alleged to have caused the plaintiff's injury was as safe as the circumstances would permit, and (3) the probative value of such evidence outweighs its potential prejudicial effect.” Syllabus Point 4, Doe v. Wal-Mart Stores, Inc., 210 W.Va. 664, 558 S.E.2d 663 (2001).
Per Curiam:
In the instant case, the
appellant, Buddy Keesee, individually, and as the administrator of the estate
of Douglas Boyd Saville, (See
footnote 1) instituted a suit against General
Refuse Service, Inc. (“GRS”) asserting a deliberate intention action
pursuant to W.Va. Code § 23-4- 2(c)(2) (1994) (See
footnote 2) , arising from the death of Mr. Saville on December
1, 1998. Mr. Keesee alleged an unsafe working condition existed at GRS because
employees purportedly rode on the side step of the Pak-Rat (See
footnote 3) and that the side step was not intended
to be a riding step. A jury trial commenced on October 29, 2002, and concluded
on November 4, 2002, when the jury found that a specific unsafe working condition
which presented a high degree of risk and strong probability of serious injury
or death did not exist in the workplace of Mr. Saville. On December 10, 2002,
the Circuit Court of Cabell County entered judgment in favor of GRS. Thereafter,
on February 26, 2003, the circuit denied Mr. Keesee's subsequent motion for
a new trial. Before this Court, Mr. Keesee appeals the adverse jury verdict
and the circuit court's subsequent denial of his motion for a new trial. After
reviewing the facts of the case, the issues presented, and the relevant statutory
and case law, this Court affirms the decision of the circuit court.
On December 1, 1998, twenty-two-year-old
Douglas Saville was killed in Cabell County while working in the employ of appellee,
General Refuse Service, Inc. (“GRS”). He was run over and crushed to
death by the Pak-Rat, a refuse collection truck, while he was working as a groundman (See
footnote 4) for GRS. No one witnessed the accident, however,
there was no dispute that the death of Mr. Saville resulted from an impact with
the vehicle that Mr. Danny Johnson was driving. (See
footnote 5) Instead, the dispute surrounded how the accident
occurred.
In this case, Mr. Keesee contended that Mr. Saville was exposed to a specific unsafe working condition by riding on a loading step of the vehicle. Conversely, GRS argued that Mr. Saville was not riding on the step in question, and thus, the alleged specific unsafe working condition did not exist. GRS further argued that Mr. Saville's death was caused by the negligent acts of his co-employee, Mr. Johnson. In addition, GRS maintained that there was never a groundman assigned to the Pak-Rat as it was a single operation vehicle consisting solely of a driver who gets out of the vehicle to pick up trash or recyclables. As such, GRS argued that Mr. Saville was not trained to work around the Pak-Rat, nor was he assigned to the Pak-Rat. Instead, GRS stated that Mr. Saville was a groundman for a large rear-loader garbage truck and had received on-the-job training from an employee who had been with GRS for a time of between twenty and twenty-five years.
On the day of the accident, Mr. Saville had been assigned to work with Mr. Daniel Meadows on a truck driven by Mr. Verl Goodpasture. During trial, Mr. Johnson testified that Mr. Ronnie Finley, a member of GRS's management team, delivered Mr. Meadows and Mr. Saville to assist Mr. Johnson on the Pak-Rat as they had both completed their assigned route. Conversely, Mr. Meadows testified that he and Mr. Saville volunteered to help Mr. Johnson without the knowledge of Mr. Finley or any other management personnel. Later that day, Mr. Saville was killed when he was run over by the Pak-Rat.
After five days of trial,
the jury returned a verdict in GRS's favor, answering “no” to the
first interrogatory: “Do you find by a preponderance of the evidence,
that a specific unsafe working condition existed in the workplace of Douglas
Saville, which presented a high degree of risk and a strong probability of serious injury
of death?” On December 10, 2002, judgment was entered for GRS.
Thereafter, Mr. Keesee filed a motion for a new trial which was denied on
February 26, 2003. This appeal followed.
II.
STANDARD OF REVIEW
In Syllabus Point 1 of State
v. Paynter, 206 W.Va. 521, 526 S.E.2d 43 (1999), we held, “Where the
issue on an appeal from the circuit court is clearly a question of law or involving
an interpretation of a statute, we apply a de novo standard of review.
Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d
415 (1995).” We have further indicated that a circuit court's final order
and ultimate disposition are reviewed under the abuse of discretion standard. State
ex rel. Hechler v. Christian Action Network, 201 W.Va. 71, 491 S.E.2d 618
(1997). Moreover, in Tennant v. Marion Health Care Foundation, 194 W.Va.
97, 104, 459 S.E.2d 374, 381 (1995), we explained:
We review
the rulings of the circuit court concerning a new trial and its conclusion as
to the existence of reversible error under an abuse of discretion standard, and
we review the circuit court's underlying factual findings under a clearly erroneous
standard. Questions of law are subject to a de novo review.
We have also held that:
Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.
Syllabus Point 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976). Accord, Stillwell v. The City of Wheeling, 210 W. Va. 599, 604, 558 S.E.2d 598, 603 (2001); Syllabus Point 1, Andrews v. Reynolds Mem'l Hosp., Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997). Moreover, in Rollyson v. Jordan, 205 W.Va. 368, 379, 518 S.E.2d 372, 383 (1999), we provided that: “Ordinarily, when a circuit court is afforded discretion in making a decision, this Court accords great deference to the lower court's determination. However, when we find that the lower court has abused its discretion, we will not hesitate to right the wrong that has been committed.”
Additionally, when we are
asked to decide if a jury received the proper instructions in a given trial
our review is de novo. “As a general rule, the refusal to give
a requested jury instruction is reviewed for an abuse of discretion. By contrast,
the question of whether a jury was properly instructed is a question of law,
and the review is de novo.' Syl. pt. 1, State v. Hinkle,
200 W.Va. 280, 489 S.E.2d 257 (1996).” Syllabus Point 2, Foster v.
Sakhai, 210 W.Va. 716, 559 S.E.2d 53 (2001). Moreover, “[t]he
formulation of jury instructions is within the broad discretion of a circuit
court, and a circuit court's giving of an instruction is reviewed under an abuse of discretion standard. A verdict
should not be disturbed based on the formulation of the language of the jury
instructions so long as the instructions given as a whole are accurate and
fair to both parties.” Syllabus Point 6, Tennant v. Marion Health
Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995). We proceed
with our examination of the assigned errors with these standards in mind.
We believe that Mr. Keesee's
argument ignores the primary theory of GRS's defense which was that Mr. Saville
was not on the side step of the Pak-Rat immediately prior to the fatal accident,
and thus, an unsafe working condition did not exist. During trial, GRS provided
evidence that its employees were trained effectively through on-the-job training
and that there had been the absence of serious injuries in general at GRS
for many years. In fact, Mr. Lawson testified that in his seventeen years
with GRS no one had been “run over” or seriously injured in a work-related
incident. Additionally, Mr. Finley testified that during his twenty-one years
with the company there had not been an injury at GRS that was serious enough
to require overnight hospitalization. Jurors further discovered that Mr.
Saville was not trained to work around the Pak-Rat because he was not assigned
to the Pak-Rat. Moreover, while one witness testified that Mr. Saville may
have been riding on the step prior to having been run over by the truck,
other testimony depicted that Mr. Saville was not riding on the Pak-Rat step
immediately prior to the accident and that he had both feet on the ground.
Additionally, it was GRS's contention that Mr. Johnson may have carelessly
and negligently operated the Pak-Rat leading to Mr. Saville's death.
In Syllabus Point 3 of Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963), we held:
In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.
Moreover, we similarly explained that,
In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.
Syllabus Point 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983); accord, Pinnacle Mining v. Duncan Aircraft Sales, 182 W.Va. 307, 387 S.E.2d 542 (1989); Pote v. Jarrell, 186 W.Va. 369, 412 S.E.2d 770 (1991) (per curiam); Dodrill v. Nationwide Mut. Ins. Co., 201 W.Va. 1, 11, 491 S.E.2d 1, 11 (1996); Finley v. Norfolk and Western Ry. Co., 208 W.Va. 276, 540 S.E.2d 144 (1999) (per curiam).
The jurors were charged
with the task of assessing the credibility of the witnesses surrounding Mr.
Saville's death and found that he was not exposed to a specific unsafe
working condition. After reviewing the facts of this case in light
of the authority cited, we cannot conclude that the jury's verdict was, in any regard, against
the clear weight of the evidence.
Initially, Mr. Keesee notes
that the jury was aware that Doug Saville earned a gross income of $15,600
per year ($1,300 per month) prior to his death and that Ms. Saville was now
receiving widow's benefits through workers' compensation in the amount of
$628.58 per month. Mr. Keesee declares, however, that due to an improper
inquiry by GRS, jurors were informed that Ms. Saville receives additional
compensation from social security benefits, the amount of which they were
free to speculate. Furthermore, Mr. Keesee states that GRS repeated this
information during closing arguments and that jurors were led to believe
Ms. Saville was most likely receiving as much or more money than Mr. Saville
had earned prior to his death.
In Syllabus Point 1 of Powroznik v. C. & W. Coal Co., 191 W.Va. 293, 445 S.E.2d 234 (1994), we provided: “In determining the excess or ultimate recovery in a deliberate intent suit against an employer under W.Va.Code [§] 23-4-2(b) (1983), the amount of the workers' compensation benefits paid or due to be paid the plaintiff must be subtracted from that particular plaintiff's award of damages.” In Syllabus Point 7 of Ratlief v. Yokum, 167 W.Va. 779, 280 S.E.2d 584 (1981), we held: “The collateral source rule normally operates to preclude the offsetting of payments made by health and accident insurance companies or other collateral sources as against the damages claimed by the injured party.” In Syllabus Point 8 of Ratlief, we further provided:
The
collateral source rule also ordinarily prohibits inquiry as to whether the plaintiff
has received payments from collateral sources. This is based upon the theory
that the jury may well reduce the damages based on the amounts that the plaintiff
has been shown to have received from collateral sources.
Clearly, we expressed in Ratlief,
the concern that a jury may inaccurately or unfairly determine the amount of
damages to which a plaintiff is entitled. With that in mind, we believe that
Mr. Keesee was entitled to present evidence with regard to the amount of damages
necessary for just compensation without reference to other collateral sources
such as Ms. Saville's social security income. Furthermore, it is our opinion
that due to the introduction of an undetermined collateral income, jurors were
left to speculate as to the exact amount of money Ms. Saville actually received
above and beyond the workers' compensation benefits. Such speculation with regard to Ms. Saville's financial
status was furthered by GRS's counsel's closing argument. GRS argued:
The statute,
ladies and gentlemen, the statute is designed for things beyond Workers' Compensation.
We know that Workers' Compensation is being paid. That's because Mr. Lawson met
his obligation under the law of West Virginia to pay the premium on behalf of
Douglas Saville to the Bureau of Employment Programs. We also know that Mr. Lawson
made his payments of that portion of Doug Saville's social security and we know,
as Daniel Selby told us, the full truth is what benefits she's receiving from
those two sources.
We believe that the introduction
of such collateral source evidence would have been prejudicial to Mr. Keesee
had the jury found in his favor on the issue of liability. Nonetheless, by finding
against Mr. Keesee on the issue of GRS's liability, the jury did not reach the
issue of damages. In Ratlief, the plaintiff argued that it was error for
the circuit court to allow evidence to go to the jury concerning his medical
insurance payments. In that case, during cross-examination of the plaintiff,
it was induced that eighty percent of his medical bills had been paid by his
own medical insurance company. 167 W.Va. at 787, 280 S.E.2d at 589. With Ratlief,
it was our first occasion to determine whether evidence of payment from collateral
sources constituted reversible error. After determining that such evidence was
error in Ratlief, we decided that the error was harmless because the jury
did not reach the damage issue as it had disposed of the case against the plaintiff
on the liability issue. 167 W.Va. at 788, 280 S.E.2d at 590.See
also Daniel B. by Richard B. v. Ackerman, 190 W.Va. 1, 4, 435 S.E.2d 1, 4 (1993) (“Because the jury found in
favor of Appellant on the issue of liability, the reference to insurance
had no impact on any damages the jury might have awarded had it reached the
issue of damages.”).
Similar to the situation in Ratlief, the jury in this case found against Mr. Keesee on the issue of liability when it decided that Mr. Saville was not exposed to a specific unsafe working condition, which presented a high degree of risk and strong probability of serious injury or death. As such, while we find that the introduction of evidence that Ms. Saville receives social security benefits due to the death of her husband was error, it was harmless error, and thus, not reversible error.
Mr. Keesee further contends that the evidence was irrelevant and highly prejudicial, and should have been excluded.
In Addair, the defendants' argument, with regard to the excessiveness of the $40,000 verdict, rested on the fact that the victim's wife had remarried during the six-year interval between the time of the accident and the date of the trial. In that case, to avoid any inference that the surviving spouse had or would financially benefit from remarriage, the circuit court declined to permit the introduction of evidence of her remarriage to mitigate her claim for pecuniary loss resulting from the death of her husband. 168 W. Va. at 313, 284 S.E.2d at 380.
In the case at hand, the introduction of the evidence did not violate the principles of Addair as such testimony did not touch upon any pecuniary matters and was admissible due to Ms. Saville's testimony relating to her emotional distress in the months following the accident. Thus, as Ms. Saville's new relationship was formed shortly after Mr. Saville's death, it was relevant to the claim for sorrow, mental anguish, and emotional distress damages permitted by the wrongful death statute as outlined by W.Va. Code § 55-7-6 (c)(1)(A) (1992). (See footnote 6) Throughout her testimony, Ms. Saville dramatically described her sorrow and mental anguish during the months following the death of Mr. Saville. As such, her testimony made it permissible for GRS to recall Ms. Saville and question her regarding her relationship with Mr. Shepherd to show that despite her claims as to her suffering in the months following Mr. Saville's death, she began a new relationship within five months after the accident. Moreover, given the fact that Ms. Saville's relationship with another man was so intimate that she became pregnant within five months of her husband's death, it was reasonable for jurors to conclude that the relationship had actually commenced earlier than five months after her husband's death, and that her grief during the ensuing months may not have been as great as described by her during her direct examination. Therefore admission of such evidence was proper in the context of Ms. Saville's testimony regarding her emotional distress during the months immediately following the accident. In Syllabus Point 9 of Tudor v. Charleston Area Medical Center, Inc., this court provided:
The West Virginia Rules of Evidence . . . allocate significant discretion to the trial court in making evidentiary . . . rulings. Thus, rulings on the admission of evidence . . . are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary . . . rulings of the circuit court under an abuse of discretion standard.”
Thus, the circuit court did not abuse its discretion as such evidence was admissible
under the limited circumstances as presented by the facts of this case.
Syllabus Point 1, Maples v. West Virginia Department of Commerce, 197 W.Va. 318, 475 S.E.2d 410 (1996).”
After reviewing the record in the case at hand, we conclude that Mr. Keesee's counsel did not properly object to the instructions in question that were presented to the jury. Accordingly, for Mr. Keesee's argument to survive it would be necessary for this Court to invoke the plain error doctrine. This Court explained the use of the plain error doctrine as follows in Syllabus Point 7 of Page: “'To trigger application of the 'plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.' Syllabus point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).” Moreover, in Syllabus Point 4, in part, of State v. England, 180 W.Va. 342, 376 S.E.2d 548 (1988), this court stated that the plain error “doctrine is to be used sparingly and only in those circumstances where substantial rights are affected, or the truth-finding process is substantially impaired, or a miscarriage of justice would otherwise result.” We have further explained:
A trial
court's instructions to the jury must be a correct statement of the law and supported
by the evidence. Jury instructions are reviewed by determining whether the charge,
reviewed as a whole, sufficiently instructed the jury so they understood the
issues involved and were not misle[d] by the law. A jury instruction cannot be
dissected on appeal; instead, the entire instruction is looked at when determining
its accuracy. A trial court, therefore, has broad discretion in formulating its
charge to the jury, so long as the charge accurately reflects the law. Deference
is given to a trial court's discretion concerning the specific wording of the instruction, and the precise extent and character
of any specific instruction will be reviewed only for an abuse of discretion.
Syllabus Point 4, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163
(1995).
With those standards in mind, Mr. Keesee argues that the circuit court committed plain error in giving the jury an instruction on the history of the deliberate intent statute based upon this Court's decision in Mayles v. Shoney's, Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990). In this regard, Mr. Keesee contends that this Court has repeatedly held that the only elements to be proven by a plaintiff in a deliberate intent case are the five elements set forth in W.Va. Code § 23-4-2(c)(2)(ii)(1994). (See footnote 7) As such, Mr. Keesee states that by informing the jury of the legislative history of the statute and instructing the jury that “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[,]” the jury was misled as to Mr. Keesee's true burden.
In Syllabus Point 2 of Mayles v. Shoney's, Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990), we recognized that “[a] plaintiff may establish 'deliberate intention' in a civil action against an employer for a work-related injury by offering evidence to prove the five specific requirements provided in W.Va.Code § 23-4-2(c)(2)(ii) (1983).” Mr. Keesee's case against GRS is distinguishable from our decision in Mayles. (See footnote 8)
In Mayles, we approved
a jury instruction that provided that a plaintiff “need only prove” the
five statutory elements of W.Va.Code, 23-4-2(c)(2)(ii), because such words “were
used to explain that no higher burden [of proof] existed.” 185 W.Va. at
97, 405 S.E.2d at 24. We believe that our decision in Mayles is a correct
statement of law and is not inconsistent with the instruction as provided in
Mr. Keesee's case. In fact, in Mayles, we did not
overrule or discuss any instruction similar to the one given in the case at hand.
As such, after reviewing the instructions presented to the jury in this
case, we reject Mr. Keesee's contention that such instruction required him to
introduce evidence of factors beyond those stated in W.Va. Code § 23-4-2(c)(2)(ii). In
fact, the circuit court's instructions simply provided a brief explanation of
a deliberate intention action and accurately stated the law as provided by W.Va.
Code § 23-4-2(c)(1). (See
footnote 9) Moreover, we find that the information provided by the instructions was helpful in explaining the five statutory elements
to the jury. Thus, because the first element of our review for ascertaining
whether reversible error resulted from the jury instruction has not been
satisfied, i.e., whether the instruction correctly stated the applicable
law, we need not further address this matter. As such, based on our thorough
review of the record, we decline Mr. Keesee's invitation to apply the plain
error doctrine as we cannot say that the trial court's instruction was in
fact “error” much less “plain error.”
1. OSHA Letter
Initially, Mr. Keesee
argues that the circuit court committed error by failing to admit a letter
explaining an agreed upon abatement written by GRS to the Occupational
Safety and Health Administration (OSHA). Mr. Keesee contends that the absence
of the letter prevented the jury from knowing the true nature of the settlement
and the promises made by GRS to correct the violations as cited by OSHA.
Conversely, GRS contends that the exact subsequent remedial measures taken
by them were not necessary nor relevant to prove the deliberate intention
claim. >We disagree with Mr. Keesee's contention that
the correspondence between GRS and OSHA should have been entered into evidence.
In this case, the jury was specifically informed that a settlement had occurred between GRS and OSHA based upon an OSHA citation requiring GRS to pay a penalty. Jurors learned that “[t]he Employer agrees to correct the violations as cited in the above citation or as amended below.” We held in Syllabus Point 4 of Doe v. Wal-Mart Stores, Inc., 210 W.Va. 664, 558 S.E.2d 663 (2001):
Pursuant
to West Virginia Rules of Evidence Rule 407, evidence of subsequent remedial
measures may be introduced for purposes of impeachment (1) when inferences other
than the defendant's prior negligence may be drawn therefrom or (2) when the
defendant introduces evidence to prove that the condition alleged to have caused
the plaintiff's injury was as safe as the circumstances would permit, and (3)
the probative value of such evidence outweighs its potential prejudicial effect.
After a thorough review of the
record, we find that the circuit court did not commit error with regard to admittance
of the OSHA letter. The jury in this case was sufficiently informed of the contents
of the letter, including the fact that GRS had to pay a penalty as well
as the fact that the citation issued by OSHA was not dismissed. The circuit court properly weighed the probative value of the evidence and found that
it was outweighed by its potential prejudicial effect, i.e., to convince
the jury that GRS was culpable for not taking such measures before the accident
involving Mr. Saville.
2. Testimony
Lastly, Mr. Keesee contends that
he was prejudiced by the circuit court's refusal to allow him to testify that
Mr. Lawson and Mr. Finley told him that Mr. Saville was riding on the step just
before the accident. Mr. Keesee argues that such comments constituted
an admission by a party opponent and were not hearsay.
Upon reviewing the record,
we believe that such statements from Mr. Lawson or Mr. Finley, even if accurate,
were not admissions by GRS, and simply were not admissible. It is undisputed
that neither Mr. Lawson nor Mr. Finley were present when the accident occurred
and thus, any comments they may have made were based on comments relayed
to them by others. Therefore, such statements do not meet the requirements
of W. Va. R. Evid. 801(d)(2) (See
footnote 10) as an exception to the hearsay rule. Moreover,
even though the circuit court specifically refused to allow such hearsay testimony, Mr.
Keesee's counsel nevertheless questioned Mr. Finley, in front of the jury,
as to whether or not he told Mr. Keesee that Mr. Saville was killed because
he fell off the step. As such, even though Mr. Finley denied that he made
those statements, Mr. Keesee was still able to inform the jury that he was
told that Mr. Saville had fallen off the step. Consequently, we find that
the circuit court did not commit error.
For the reasons set forth above, the December 10, 2002, final order of the Circuit Court of Cabell County is affirmed.
Affirmed.
The verdict of the jury shall include, but may not be limited to, damages for the following: (A) Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent; (B) compensation for reasonably expected loss of (i) income of the decedent, and (ii) services, protection, care and assistance provided by the decedent; (C) expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death; and (D) reasonable funeral expenses.