Hoschar v. Appalachian Power Co.
906 F. Supp. 2d 560
S.D.W. Va2012Background
- Plaintiff Roger Hoschar worked as a boilermaker for Industrial Contractors, Inc. at the Philip Sporn power facility owned by APC from March 2006 to April 2007 in Mason County, WV.
- During that period, he spent around five months working on Unit 5 precipitator, a tall outdoor steel structure with drainage channels.
- Plaintiff performed welding and patching repairs, accessed areas via an elevated pick platform, and wore a respirator while cleaning channels.
- Bird droppings and ash deposits accumulated in Unit 5’s channels; APC implemented deterrence measures but did not eliminate manure buildup.
- Plaintiff later developed a mass in his lung; surgery removed it and biopsy showed benign histoplasmosis; no active infection elsewhere.
- Plaintiffs allege injuries from histoplasmosis due to exposure to aerosolized bird manure; Judy Hoschar seeks loss of consortium.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether APC owed a duty to Plaintiff regarding histoplasmosis risk. | Plaintiff alleges APC knew or should have known of histoplasmosis risk. | APC did not have actual or constructive knowledge of histoplasmosis risk from bird manure. | No genuine duty; no foreseeability of histoplasmosis risk established. |
| Whether APC’s knowledge creates liability under premises-liability standards. | Knowledge of birds alone implies knowledge of histoplasmosis danger. | Knowledge of birds did not prove knowledge of fungus or risk. | Absent knowledge of H. capsulatum, no premises liability. |
| Whether ICI’s claim under WV workers’ compensation deliberate-intention statute survives summary judgment. | NIOSH histoplasmosis guidelines show a known hazardous condition. | NIOSH guidance not commonly accepted; no applicable safety standard proven. | NIOSH guidelines not a commonly accepted standard; element C failed. |
| Whether the NIOSH publication constitutes a commonly accepted safety standard for the industry. | NIOSH guidelines are widely adopted and thus well known. | Publication not shown to be commonly accepted in boilermaking or construction. | Not established as a commonly accepted standard. |
Key Cases Cited
- Mallet v. Pickens, 522 S.E.2d 436 (W. Va. 1999) (duty arises from foreseeability, abolishing licensee/invitee distinction)
- Pasquale v. Ohio Power Co., 418 S.E.2d 738 (W. Va. 1992) (employer duty to warn about latent defects known to employer)
- Senkus v. Moore, 535 S.E.2d 724 (W. Va. 2000) (premises liability elements for duty and causation)
- Marcus v. Holley, 618 S.E.2d 517 (W. Va. 2005) (five-factor test for deliberate-intent claim under WV Code § 23-4-2(d)(2)(ii))
- Mumaw v. U.S. Silica Co., 511 S.E.2d 117 (W. Va. 1998) (summary-judgment standard for deliberate-intent analysis)