Spilman
Alert: W.Va. Supreme Court Decision Could Have Significant
Implications for Employer Liability Under Deliberate Intent Statute
The Supreme Court of Appeals' recent decision in McComas v. ACF Indus., Inc.
could have significant implications for employer liability under West
Virginia's deliberate intention statute. In McComas, the
plaintiff was a welder who was injured by an arc blast emanating from
an electrical box. Apparently, the electrical box had not been
inspected since its installation in the 1950s or 1960s and the
electrical insulation had deteriorated over the years, which caused
the arc blast when the plaintiff attempted to switch it to the
"On" position. During discovery, the plaintiff developed
evidence that American National Standards Institute / National Fire
Protection Association ("ANSI/NFPA") standards provided for
maintenance and periodic inspection of electrical equipment. The
plaintiff further developed evidence that periodic inspection of
electrical equipment, like the electrical box that caused his injury,
likely would have revealed the faulty insulation. Nevertheless, the
trial court dismissed the plaintiff's deliberate intention action on
the basis that he had not identified a safety statute, regulation,
rule, or standard that was specifically applicable to the work or
working condition at issue and, further, that he had not proved that
he was intentionally exposed to the specific unsafe working condition
by his employer. The plaintiff appealed.
Readers might recall that one of the five elements of a
deliberate intention action is evidence that the unsafe working
condition violated a safety statute, regulation, rule, or standard
that is specifically applicable to the work or working condition at
issue. Although the statute's plain language suggests that the
statute, regulation, rule, or standard must specifically apply to the
work or working condition, the Supreme Court of Appeals held in 2006
that the statute, regulation, rule, or standard must only be capable
of specific application. Ryan
v. Clonch, 219 W.Va. 665, 639 S.E.2d 756 (2006). For
instance, in Clonch,
the Supreme Court of Appeals held that an OSHA regulation requiring
employers to assess the need in the workplace for personal protective
equipment was capable of specific application to the lumbering
business. Central to the Supreme Court of Appeals' reasoning in Clonch was the
fact that the OSHA regulation imposed a mandatory duty on the
employer.
Relying on Clonch,
the Supreme Court of Appeals held in McComas that the trial court had
erred in its finding regarding the ANSI/NFPA standard introduced by
the plaintiff. Because the trial court had found that the ANSI/NFPA
standard imposed a specific identifiable duty on the employer to
inspect its electrical equipment, the Supreme Court of Appeals held
that the standard met the "specifically-applicable" element
of the deliberate intention statute.
After finding that the ANSI/NFPA standard imposed a
specifically-applicable, mandatory duty on the employer, the Supreme
Court of Appeals next turned to the deliberate intention statute's
"actual knowledge" requirement. Under the deliberate
intention statute, the employee must prove that the employer had
actual knowledge of the specific unsafe working condition and the high
degree of risk and strong probability of serious injury or death
which it presented. In Clonch,
the Supreme Court of Appeals had held that an employer was precluded
from denying awareness of the specific unsafe working condition where
it had failed to comply with a mandatory duty to perform a hazard
evaluation. Relying on Clonch,
the Supreme Court of Appeals accordingly held in McComas that an
employer's failure to comply with a mandatory duty to inspect - where
inspection would have revealed the specific unsafe working condition
- will meet the "actual knowledge" requirement under the
deliberate intention statute. This leads to a perverse holding where
an employer is deemed to have actual knowledge of something which it
is fully unaware.
McComas's
holdings have significant implications for employers. Under the
Supreme Court of Appeals' gloss, an employee can satisfy the
"specifically applicable" element by introducing evidence
of any mandatory inspection requirement, so long as it might have revealed
the specific unsafe working condition. Following McComas, it is
not even necessary that the requirement be legally binding upon the
employer; a commonly accepted and well-known safety standard is
acceptable. Moreover, McComas
only requires that the employer have "some awareness" of
those standards. And, if an employee can introduce a mandatory
inspection requirement, then he almost certainly will be able to
satisfy the statute's "actual knowledge" requirement, as
well.
Following McComas,
then, an employer will need to be aware of any safety statute,
regulation, rule, or standard that could impose a mandatory
inspection requirement capable of application to its business.
Moreover, an employer should conscientiously perform any required
inspections or else risk a court imputing actual knowledge of a
hazard which an inspection might have disclosed. Future deliberate
intention actions undoubtedly will attempt to stretch the holding in McComas to apply
any mandatory inspection requirement and require perfect compliance.
Accordingly, employers are cautioned to review their hazard
inspection programs following McComas
to forestall future deliberate intention actions.
