*1 ARNAZZI, Plaintiff James W.

Below, Appellant QUAD/GRAPHICS, INC., Robert Below,

Knighten, Defendants Appellees No. 31860. Supreme Appeals Virginia. May Submitted 2005. Decided June 2005.

37 cause, probable of fact we reverse the circuit court’s decision.

I. entry summary

“A circuit court’s Syllabus judgment is reviewed de novo.” 1, 189, Peavy, Point Painter v. 192 W.Va. 451 (1994). summary S.E.2d 755 “A motion for judgment granted only should be when is genuine clear there is issue fact to inquiry concerning be tried and the facts is clarify application of the not desirable 2, Syllabus Peavy, Point v. law.” Painter (1994) (cita- 189, 451 W.Va. S.E.2d 755 omitted). tions “The circuit court’s function summary judgment stage is not to weigh the and determine the truth matter, of the but is to determine whether genuine Syllabus there trial.” is issue for 3, 189, Peavy, Point Painter 192 W.Va. (1994). “Summary judgment S.E.2d 755 appropriate taken where record could not a rational of fact whole lead trier nonmoving party, find for the such as where nonmoving party has failed to make a showing sufficient on an essential element of prove.” the case that it has the burden Syllabus Peavy, Point Painter v. West Attorneys Johnson, Esq., Ancil G. Harry Virginia, Attorney Scott Patton PLLC, Ramey, Esq., Bryan E. Appellees. Waddell, Esq., Martinsburg, Johnson, Charleston, Esq., Steptoe Appellant. R. Virginia, Cokeley, & ployees in the instant case tain stances. The suits for W.Va.Code, narrow, who are damages statutory 23-4-2(2) statutorily-defined against employers requires circumstance on the ^[2003] job authorizes cer-—-in at circum- issue em- suit, ee, prevail prove: in such a PER CURIAM: (A) specific working That a con- unsafe workplace pre- dition existed In the instant the Circuit Court of high degree strong sented a of risk and Berkeley County granted summary judg- death; probability injury or serious below, ment for the and defendants (B) subjective That had a Quad Graphics, Knighten, Inc. and Robert appreciation realization and exis- Quad Graphics supervisor. The circuit court specific working tence of the unsafe condi- below, plaintiff ruled that the high degree of risk and the tion and of the Arnazzi, James did not establish the exis- strong probability of serious tence of a material issue of fact on the ele- presented by death brought ment of cause in a case condition; working W.Va.Code, 4—2(d)(2)(ii) present under 23— (C) [2003]; and that the therefore had That a state or pnma not made out a case that would condition was a violation of facie statute, regulation, rule or allow a to find for the Find- federal not, commonly ing that the evidence before the circuit court cited or whether accepted a material standard did establish the existence of issue well-known (E) employee exposed suffered industry of the em- That the or business within the injury or death as a direct and regulation or serious ployer, which applicable specifically standard was working condition in- condition.

particular work *3 volved, contrasted with as 23-4-2(d)(2)(ii) W.Va.Code, [2003]. generally requiring regulation or standard specific working condition at The equipment workplaces, safe the circuit court in the instant issue before conditions; training legally-required lack of case was the (D) appellant the on the safe use of a forklift.1 notwithstanding the existence of That (A) training— subparagraphs showing The this lack of set forth in of the facts inclusive, (C), paragraph, training qualified the lack of through of this and and met thereafter ex- nevertheless forth in the statute —was posed employee to the the standards intentionally; working condition and substantial.2 ability successfully complete employer's We note failure in this case demonstrated his to 1. job-specific provide statutorily-mandated safe- the obstacle course. to training general ty mere breach of a The record contains information on the man- was not a datory safety training Compare Harper, forklift sufficient estab- statute. Kizer 47, 58, (2001) (Davis, job-specific designed and to avert 561 S.E.2d lish it is J., injuries dissenting). type experienced accidents and appellant permitted to The was light at in the most favorable to the 2. Looked operator day work as a forklift from his first of appellant, evidence before the circuit employment until he was three weeks tending following: appel- The court to show the appellees The at the time later. were aware forklift, experience operating a lant had no required appellant was hired that federal law operation, prior training in forklift and was not operators properly forklift to be trained and cer- operator. Appellant a forklift certified as tified. day put operating work a forklift on his first awareness, begin Despite appellees did not By permitting appellant operate work. training certifying operators and forklift in com- completing specific training forklift without pliance appellant’s with federal law until after examination, appellees program passing and appellant seriously injured The three contrary requirements Occupa- of an acted began operating Prior weeks after he a forklift. regula- Safety tional Heath and tion, Administration injury, during his several times each of his to shifts, C.F.R.1910.178(1), requires which fork- appellant pallets would knock over successfully complete operators lift formal operating his forklift. The su- instruction, training, practical and a classroom pervisors operating him forklift in observed his performance by an before evaluation instructor Despite knowledge an unsafe manner. being operate allowed to a forklift. lack of and un- lant's mandated practices, permitted regulation question required appellees The in safe him to contin- instructions, (1) training operating warnings, operating injured. ue he On in: forklift until was opera- supervisor precautions types injury, appellant's for the of truck the the date of his (2) operate; truck instructed him to maneuver a forklift down a tor would be authorized two, they passageway where are narrow stacked, controls and instrumentation: located, between rows work; do, (3) they they pallets. appellant reported what and how loaded The (4) (includ- steering maneuvering; visibility supervisor to his that he was concerned about his (5) loading); operating ability safely operate ing limitations; con- restrictions due to forklift instructions, (6) any operating space pallets. fined (There created the stacked other warnings, operator’s precautions listed was no evidence that closeness condition.) stacking per types for the of vehicle that the was a se an unsafe work manual being operate. regulation proceeding passageway, appel- While trained to also down provide specific training pinned required appellees on lant’s left foot became between fork- particular pallets. encountered in the lift and a wall of He sustained a severe conditions (1) multiple workplace, including: surface conditions crush fractures of his left foot knee, operated; derangement nar- and internal which where the vehicle will be surgery. places and other where the row aisles restricted operated. recognize many will The OSHA-mandated We of these factual con- vehicle pallets appellant's course of tentions based on the evidence are included an obstacle through appellant vigorously disputed appellees, have been re- and that should quired evidence in the record con- to maneuver a forklift to demonstrate his there is substantial tradicting any proficiency. If had knocked a number of them. But sum- over, passed mary judgment stage, pallets the issue is not what the he would not have course are, certified until he had facts but whether there are triable issues arid would not purposes summary deposition, For their motion for said he judgment, appellees personally conceded that there what information or did know evidence, light taken in was sufficient other content would have been the re- most appellant, favorable to establish quired safety training.

the existence issue of triable material speculate that he would not on said how the fact with 2(d)(2)(ii) as a cause to withstand a ^[2003] action (“A” to the first four “elements” motion under through “D” W.Va.Code, summary judg- above) 23-4- —so training might perhaps so careful that he fused to than by possibly go into the narrow aisle where the have averted his maldng him would have re- more careful— injury, other ment on It those elements. was also con- accident occurred. purposes of ceded their *4 appellant deposition The in also stated his appellant motion that the had suffered a he engaging that had no recollection of ever serious reprimanded in or being any improper However, appellees argued the that on the forklift, driving conduct while the and that he element, “proximate fifth or cause” there was any certainty not did know with how the presented pointed no evidence or the speculated accident had He occurred. that a tending appellant appellant’s show the piece extending of or cardboard wood from a injury proximately lack was of pallet the narrow aisle have stuck (The required safety training., element, fifth operator’s into the forklift “cab” area and (E) above, out in requires proof section caught appellant’s appellant the foot. The that the inju- “... suffered serious driving ever forklift having denied his ry or proximate death direct as result his foot outside the confines of the forklift’s condition.”) the working cab. added). (emphasis agreed The circuit court appellees’ argument, granted with the appellant’s Based on the failure ac- summary judgment appellees. for the knowledge any potentially actual or part, inability conduct on his and on his II. point specifically to how Virgi It is well established in West (that receive) might he did have averted ordinarily nia that proximate the issue of injury, appellees argue the accident and question jury cause is a to be decided based proximately that no can causal connection n totality upon the of the evidence: established between the unsafe work- Questions care, negligence, proxi- due place mandatory condition of a lack of forklift mate negligence cause and concurrent safety training and the accident and present issues of fact for determina- Therefore, argue appel- tion pertaining when the to such evidence lees, summary judgment appropriate. was facts, conflicting issues is or where the However, appellant’s failure at his de- though undisputed, even are such that rea- poten- or position acknowledge admit to may sonable men draw different conclu- tially only unsafe conduct not the evi- sions from them. report dence on issue. An accident on Syllabus George, Point Stewart v. the incident that prepared (citations Quad/Graphics appellee ee listed .the omitted). being cause the accident as a violation of a appellees argue appel The appellant and stated that the had lant failed to establish triable issue foot his outside the cab. material fact on the issue cause deposi Additionally, appellees’ designated because the not in cor- did point any specific porate deposition tion fashion in which the witness testified driving had been with would have observed question. tended to avert accident foot outside the cab. Another of the upon conflicting material fact that are based evidence or inferences. testified, III. employees

lee’s so suggesting other evidence expands ampli- Nothing opinion always operated his forklift had not statutory the narrow circumstances fies care, caution, attention, proper etc.3 permit against of a bringing suit had employer on claim that deposition state- appellant’s uncertain knowledge condi- may ments about how accident occurred nothing problem. did tion and correct impair credibility or otherwise diminish his that knowl- purposes For the instant fact, the force of his case before finder of nar- edge and inaction was conceded. nullify erase they but do not effect whether issue before this row appellees, fair from the nor the could be specific unsafe from all of the circumstances inferences having fairly determined a trier fact as permits itself. This evidence accident a direct and cause accident the conclusion arose injury. Upon all of the evidence and conduct that the omitted of risks considering appellees’ the court before sought training specifically to reduce summary judgment, could be so motion avert. Accordingly, the circuit court’s determined. *5 grant summary judgment is and reversed there Thus was evidence before proceedings for further this case is remanded specif court tend that that would to show opinion. consistent with this ic of a lack of fork and Remanded. Reversed training proximate safety lift was a cause of question.4 proxi The issue the accident and one Justice ALBRIGHT concurs

mate cause was to be decided Chief right concurring file a upon trier of fact all of the to evidence reserves parties.5 opinion. argument presented by both valuable, training argue any make less appellees 3. The cannot does not such any point its less to issues the evidence and of the nor make omission relevant to contentions (cid:127) appellees support argu- their witnesses causation. material fact with ment that a issue of exists They proximate argument, appellees suggested cite Prosser cause. that 5.At oral Ross, (8th Cir.1995) required v. 1005 v. 70 F.3d and Kiser an the least to have was at Caudill, 403, (2004), 215 W.Va. give required expert opinion an that the lack of "creating plaintiff address issue was a cause by contradicting plaintiff's an own issue" any appellees provide do the accident. The not evidence to show that there is an issue of materi- authority proposition. in We are not plain- al a fact. Neither those cases involved testimony adopt expert is clined to a rule that pointing tiff evidence to show necessary prove defendant's a law in as matter of all cases instance, that an issue In such an such exists. safety training proximate a lack of that material cannot be have issue of fact said to injury. ly or contributed to an accident or "unilaterally plaintiff. induced” Kis- cases, fact In the finder of must look such er, 833, 411, supra, W.Va. 215 at 599 S.E.2d at training of the and the accident or nature Coil, 52, quoting Williams v. 194 W.Va. Precision proximately causal determine if there is a 12, 329, (1995). n. 60 n. 459 S.E.2d 337 12 State, 88, 93 Lewis v. 73 S.W.3d connection. Cf. (inadequate training (Tenn.App.2001) was a 4. The court in its order that circuit stated workplace injury); also proximate cause of cf. —Pinok, S.W.3d-(Tex.App. v. Wald-Tinkle appellee] ... [the if it is assumed that Even 23, 2004, 01-02-01100-CV, 2004), Slip No. Dec. provided employees its with the should have mandatory 7, expert could Op. 2004 WL 2966293. An at training it OSHA forklift because certainly of fact in this determi assist the finder training knew that such lack of would cause training safety an advanced accidents, nation. Industrial is guarantee no more there is still experts discipline, and can accidents show how training provided would OSHA formal, mandatory are reduced and averted including [appellant], employees, the Plaintiff Likewise, might training programs. experts ex would enable them to with information that training program not plain would how workplace injuiy as the avoid a such Plaintiff's. any given added.) But in in a case. have made difference (Emphasis appellant nor the neither the reasoning the instant misapprehends the This nature proffered expert; were safety training. such an nor purpose No injury. they required guarantee to do so. That fact can absence Industries, Inc., 548, 558, MAYNARD dissents and Justice reserves 158, (2002), dissenting opinion. law is clear right file a S.E.2d “the possibility is not mere causation suffi- BENJAMIN dissents and Justice reserves juror cient to allow reasonable to find right dissenting opinion. file a causation.” MAYNARD, Justice, dissenting: majority upon seizes an incident re- I dissent because case port prepared presented permit that would rea- appellant might er which indicated that the employer’s sonable to conclude have had foot outside of forklift cab comply failure to OSHA forklift when the accident occurred and finds that training regulation awas cause of permits this evidence the conclusion that the place work ma- accident arose as a result of conduct that the yet jority’s presents decision another exam- training sought omitted to reduce or avert. ple how this Court will strain to reach me, sticking foot To one’s outside of a plaintiffs in favorable outcome for deliberate moving vehicle is a matter common sense. intention The end actions. is necessary employer It not be for an should plaintiffs get recovery these a double —work- tell a forklift driver that his foot compensation damages. ers’ benefits and civil places crushed if he outside cab of driving his forklift while he Inc., down narrow Mayles Shoney’s 185 W.Va. simply things aisles. so (1990), Some are obvious 15, 19 recog 405 S.E.2d this Court necessary. that no instruction should be To Legislature nized de amended the employer hold this liable in this deliberate § liberate intention 23- W.Va.Code ease train failing intention 4-2, an attempt to “make it more difficult lant basic patently to use common sense is immunity provid for an to lose the *6 unjust. Obviously, unfair West Vir- him Compensation ed to the Workers’ ginia disability machine is still well-oiled and However, beginning Mayles, Act.” Accordingly, running smoothly. respectful- I ignored Legislature’s has intent ly dissent. consistently weakening five-part test of 23-4-2(d)(2)(ii) making § W.Va.Code I am that Justice authorized state Ben- plaintiffs easier creative to defeat jamin joins in this dissent. immunity Legislature intended to afford employers participate who the Workers’ system.

Compensation ma jority by lowering has done so the standard proving causation as forth 23-4-2(d)(2)(ii)(E). §

in W.Va.Code Contrary majority, I do not believe fact failed comply training regu- with the OSHA forklift Rosilyn BENNETT, Kenneth G. K. Ben- lation and the fact that Bennett, nett, A. and Bob Ben- Rebecca a operating forklift automatical- Homes, Inc., Virginia corpo- nett A West ly a concerning proxi- created triable issue Appellants ration, Below, Plaintiffs causation. bur- mate had the presenting den of credible evidence that his SERVICES, INC., Virginia injuries proximately were em- a ASCO Group, ployer’s corporation; such a training. failure to offer How- Ademco Division Pittway foreign ever, Corporation, corpo- only speculate able to Pittway foreign ration; Corporation, warnings have Sensor, may corporation; System foreign prevented in such included Inc., Honeywell, foreign being injured. speculation corporation; Such him from Inc., certainly corporation; proof Chemetronics Caribe causation. corporation; foreign explained Tolley As this Court v. ACF Kidde-Fenwal