MEMORANDUM OPINION AND ORDER
Pеnding before the Court are Defendant Appalachian Power Company’s Motion for Summary Judgment, (ECF No. 88), and Defendant Industrial Contractors, Ine.’s Motion for Summary Judgment, (ECF No. 90). Because Plaintiffs’ claims against Defendants share the same relevant facts, the Court will address both motions in a single opinion. For the following reasons, the Court GRANTS summary judgment in favor of Defendants.
I. FACTUAL BACKGROUND
Plaintiff
Because Unit 5 is an outdoor facility, birds (particularly pigeons) sometimes perch on the supporting girders and leave their droppings behind. Id. at 118-19. APC implemented severаl measures to reduce the birds’ presence, including the use of a chemical to irritate the birds’ feet when they landed on the beams, placing an animated owl decoy to scare the birds away, and playing recordings of bird distress calls. APC Ans. to Interr. No. 10, Ex. F, ECF No. 88-1. Nonetheless, Plaintiff observed accumulations of bird manure mixed with ash deposits in the channels, as high as four inches. Hoschar Dep. at 131, 144-45, ECF No. 104-2. To prepare the area for welding, Plaintiff cleared the manure out of the channels using different methods, such as his gloved hands, a wire brush, and an air hose. Id. at 134. Clearing away the manure resulted “in aerosolized dust particles which accumulated on his person and clothing.” Compl. ¶ 2. Each time Plaintiff performed his work on the pick and cleaned his tools, he wore a protective respirator. Hoschar Dep. at 232-35, ECF No. 88-1.
In 2009, after Plaintiff had left his work at the Sporn facility, doctors performed a routine chest x-ray in preparation for unrelated knee surgery. Id. at 156. Doctors observed a four-centimeter mass in Plaintiffs lung. Id. Believing it could be cancerous, Plaintiffs physician recommended that Plaintiff undergo surgery to remove the portion of his lung containing the mass. Guberman Dep. at 37, Ex. B, ECF No. 88-1; Ducatman Dep. at 44, Ex. C, ECF No. 88-1. Accordingly, doсtors removed that portion of Plaintiffs lung. Biopsy results on the mass ultimately revealed that it was not cancer, but rather benign histoplasmosis. Guberman Dep. at 37, ECF No. 88-1. Because the mass was removed and there was no evidence of active histoplasmosis elsewhere in his body, Plaintiff was not treated for histoplasmosis. Ducatman Report at 1, Ex. L, ECF No. 88-1.
Histoplasmosis is an infectious disease caused by inhaling the spores of the Histoplasma capsulatum fungus. National Institute for Occupational Safety and Health, Histoplasmosis: Protecting Workers at Risk, Revised Edition at 1, Ex. S, ECF No. 88-1. The disease cannot be transmitted from an infected person or animal to someone else. Id. Histoplasmosis gеnerally affects a person’s lungs, and the vast majority of people with the disease have no ill effects and may not even realize they
Plaintiff and his wife filed the instant suit on January 31, 2011, alleging that he developed histoplasmosis after being exposed to aerosolized bird manure while working at the Sporn facility.
Second, Plaintiff asserts a claim against ICI pursuant to the West Virginia’s Workers’ Compensation Act, W. Va.Code § 23-4 — 2(d)(ii). That provision subjects employers to liability for a plaintiff-employee’s injury if the employer “acted with deliberate intention” to “produce the specific result of injury or death to an employee.” W. Va.Code § 23-4-2(d)(2). In this case, Plaintiff claims that ICI had actual knowledge that accumulations of bird manure were present at the worksite and that there was a high degree of risk of injury from histoplasmosis. Compl. ¶ 16. Additionally, Plaintiff contends that ICI violated industry safety standards and thus “intentionally exposed [him] to a working condition in which he was not educated to the dangers of bird manure....” Id. ¶¶ 17, 22. Plaintiffs wife asserts claims for loss of consortium.
This matter has been fully briefed and is ripe for disposition. Accordingly, the Court now turns to the parties’ arguments and applicable legal standards.
II. ANALYSIS
A. Summary Judgment Standard of Review
To obtain summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the evidence and determine the truth of the matter[.]” Anderson v. Liberty Lobby, Inc.,
Although the Court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the non-moving party nonetheless must offer some “concrete evidence from which a reasonable juror could return a verdict in his [or her] favor[.]” Anderson, 477 U.S. at 256,
B. Appalachian Power Company’s Motion for Summary Judgment
To prevail on a negligence claim based on premises liability in West Virginia, a plaintiff must show: (1) the owner or occupier owed a duty to the person injured; (2) that duty was breached; and (3) the breach of the duty caused (4) an injury. Senkus v. Moore,
The West Virginia Supreme Court of Appeals has abolished the licensee/invitee distinction for the duty owed by a landowner. Mallet v. Pickens,
Here, the relevant question is: did APC have actual or constructive knowledge that the bird manure on the Unit 5 precipitator presented a risk of histoplasmosis? Plaintiffs acknowledge that they “must prove that APC had actual or constructive knowledge” of the histoplasmosis risk. ECF No. 103 at 18. Plaintiff relies exclusively on a publication of the National Institute for Occupational Health аnd Safety (“NIOSH publication”) to argue that APC had knowledge of a danger of histoplasmosis, which gave rise to a duty owed to Plaintiff. In 1997, the National Institute of Occupational Safety and Health published a document called Histoplasmosis: Protecting Workers at Risk, which was revised in December 2004. See APC Mot. Summ. J., Ex. S, ECF No. 88-1. The NIOSH publication was available on the website of the Occupational Safety & Health Administration during the time Plaintiff worked at the Sporn facility, specifically in 2006. See OSHA Website, Ex. 10, ECF Ño. 102-10; Neill Dep. at 77, ECF No. 102-9. Plaintiff argues that the
First, Plaintiffs have offered no evidence that APC or any of its employees had actual knowledge of the NIOSH publication, or knowledge from any other source that H. capsulatum spores are associated with accumulations of bird manure and can lead to histoplasmosis. Two APC employees at the Sporn facility— Jeffrey Atkinson, a maintenance supervisor, and John Chaney, an assistant steam process owner — testified that they had received no training or instruction from any source about histoplasmosis. Atkinson Dep. at 49-50, Ex. H, ECF No. 88-1; Chaney Dep. at 82, Ex. E, ECF No. 88-1. The only evidence of actual knowledge that Plaintiffs provide is actual knowledge that birds were present at the Sporn facility— not actual knowledge of the associated presence of H. capsulatum. APC does not contest that it knew about the presence of birds at the Sporn facility; it acknowledges employing certain measures to keep them away. APC Ans. to Interr. No. 10, Ex. F, ECF No. 88-1; Atkinson Dep. at 24-25, Ex. 5, ECF No. 99-5.
Mere knowledge of the presence of birds and their droppings, however, does not imply knowledge of the presence of H. capsulatum spores. APC cites several supporting cases that bear striking resemblance to the case here. In Henderson v. Volpe-Vito, Inc., No. 266515,
Second, the Court concludes that Plaintiffs have not sufficiently demonstrated that APC had the requisite constructive knowledge of the histoplasmosis risk. Plaintiffs argue that APC had сonstructive knowledge of the risk of histoplasmosis from bird manure because of the NIOSH publication. While Plaintiff asserts that “NIOSH has disseminated its Histoplasmosis Guidelines through various means,” ECF No. 103 at 9, he relies almost exclusively on the OSHA website as being the source of constructive knowledge, id. at 8-10, 18-19.
The NIOSH publication describes the H. capsulatum fungus, where it can be found, and the associated risk of histoplasmosis. Plaintiffs specifically direct the Court’s attention to one statement in particular: “The organism can be carried on the wings, feet, and beaks of birds and infect soil under roosting sites or manure accumulations inside or outside buildings.” ECF No. 103 at 19; NIOSH Publication at 3. This statement and other portions of the NIOSH publication, Plaintiffs contend, should have put APC on notice that the accumulations of bird manure at the Unit 5 precipitator “were hazardous and likely to contain the histoplasmosis fungus.” ECF No. 103 at 19. Yet, statements within the NIOSH publication cannot serve to put APC on notice if APC had no reason to be aware of the existence of the publication.
In this case, the mere existence of the NIOSH publication and its availability on a government website is insufficient to charge APC with constructive knowledge of the histoplasmosis risk. Constructive knowledge is “knowledge that one using reasonable care or diligence should have, and therefore that is attributed by law to a given person.” Black’s Law Dictionary (9th ed.2009). Under these circumstances, Plaintiff has not shown that using reasonable care, APC should have known about the histoplasmosis risk, such that the law should attribute such knowledge to APC. Plaintiffs claim that the NIOSH guidelines have achieved “general acceptance” based on the following information on a NIOSH wеbsite:
The NIOSH recommendations on preventing histoplasmosis have been adopted by other agencies and organizations, including: Laborers’ Health and Safety Fund of North America (AG-128); Clemson University Research Medical Surveillance Program (A6-129); Defense Supply Center Richmond, Defense Logics Agency, Hazardous Technical Information Services (A6-130); StaffScapes Professional Employer Organization (A6-131); Korean Radiological Society (A6-132); and New Jersey Department of Health and Senior Services, Division of Epidemiology, Environmental, and Occupational Health, Public Employees Occupational Safety and Health Program (A6-133). The new RDRP NIOSH publication on protecting workers against histoplasmosis is cited on the OSHA Respiratory Protection Hazard Recognition Web page (A6-134). The CPWR electronic library of construction occupational safety and health replicates verbatim “Histoplasmosis: Protecting Workers at Risk” (revised edition) in both English and Spanish (A6-135, A6-136).
ECF No. 103 at 9 (citing http://www.cdc. gov/niosh/nas/rdrp/ch6.5.htm). APC is not listed among these organizations, nor do Plaintiffs offer proof that APC is a member of any of the organizations that have adopted the guidelines. Plaintiffs offer no evidence that the NIOSH publication is
Furthermore, as APC argues in its motion, others in Plaintiffs own industry were unaware of any relationship between bird manure, H. capsulatum, and histoplasmosis. While the knowledge of others is not dispositive of the knowledge attributed to APC regarding histoplasmosis, it is nonetheless useful as an indication of whether knowledge is so common that APC should have known about the risk. The Boilermakers Union, of which Plaintiff was a member, did not provide training or instruction regarding histoplasmosis risks. King Dep. at 14-15, Ex. P, ECF No. 88-1. Nor did any union members file complaints with the union related to histoplasmosis generally, or at the Sporn facility specifically. Id. at 19-20. Leadership of ICI, the independent contractor that employed Plaintiff, similarly had no experience with histoplasmosis prior to Plaintiffs condition. See Hieronymous Dep. at 120-21, Ex. I, ECF No. 88-1; Landis Dep. at 126, Ex. R, ECF No. 88-1. A safety resource employee at ICI testified regarding histoplasmosis that “[t]here’s never been a сomplaint about it by the employee, by the union hall, by the foreman, anybody. I’ve never been contacted about a problem or a complaint about histoplasmosis on any job site.” Landis Dep. at 132-33, ECF No. 88-1. Taken together, the evidence from APC, the union, and ICI shows no indication that knowledge of H. capsulatum and histoplasmosis was widespread even in Plaintiffs own industry and therefore there is insufficient evidence that APC, as a premises owner, had constructive knowledge of the risk.
Because the risk of Plaintiff contracting histoplasmosis was not reasonably foreseeable to APC, the Court concludes that Plaintiff has not produced evidence sufficient to demonstrate that APC violated a duty owed to Plaintiff. There is no genuine issue of material fact as to APC’s knowledge regarding the presence of H. capsulatum spores and the related risk of histoplasmosis at the Unit 5 precipitator. Plaintiff cannot satisfy the first element of its negligence claim against APC and it is thus unnecessary for the Court to evaluate the other elements. Therefore, the Court GRANTS Defendant APC’s Motion for Summary Judgment regarding Roger Hoschar’s claim. Because Judy Hoschar’s claim for loss of consortium is dependent upon Roger Hoschar’s claim, the Court also GRANTS summary judgment in favor of APC on the loss of consortium claim.
C. Industrial Contractors, Inc.’s Motion for Summary Judgment
Generally, an employer participating in West Virginia’s workers’ compensation system is immune from suit by employees who suffered injury or death on the job. W. Va.Code § 23-2-6. There is an exception to this general immunity where an injury to an employee occurs as a result of “the deliberate intention of his or her employer to produce the injury or death.” W. Va.Code § 23-4-2(c). There are two ways a plaintiff may establish “deliberate intention.” First, a plaintiff can show that 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(d)(2)(i). Second, a plaintiff can establish a deliberate intention claim by showing all of the following elements:
*568 (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, prior to the injury, had actual knowledge of the existence of the specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by the specific unsаfe working condition;
(C) That the 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 the employer, as demonstrated by competent evidence of written standards or guidelines which reflect a consensus safety standard in the industry or business, 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), inclusive, of this paragraph, the employer nevertheless intentionally thereafter exposed an employee to the specific unsafe working condition; and
(E) That the employee exposed suffered serious compensable injury or compensable death as defined in section one, article four, chapter twenty-three whether a claim for benefits under this chapter is filed or not as a direct and proximate result of the specific unsafe working condition.
W. Va.Code § 23^4-2(d)(2)(ii); see also Syl. pt. 2, Mayles v. Shoney’s, Inc.,
Plaintiff seeks to establish his deliberate intention claim under West Virginia Code § 23^T-2(d)(2)(ii). To survive the motion for summary judgment, Plaintiff “must make a prima facie showing of dispute on each of the five factors.” Marcus v. Holley,
As a preliminary question, the Court must first identify the “specific unsafe working condition” of which Plaintiff complains, because each of the five elements requires the Court to analyze Defendant’s knowledge of, and actions related to, the alleged specific unsafe working condition. Here, Plaintiff claims that the specific unsafe working condition was requiring Plaintiff to work in an area with “large accumulations of bird manure” without: (1) warning of the risk of histoplasmosis; (2) removing the bird manure; and (3) instructing workers about safe methods of cleaning thе manure and providing the appropriate equipment to do so. Compl. ¶ 15.
Element (C) of the five-part deliberate intention statute requires Plaintiff to demonstrate that the alleged specific unsafe
Plaintiff claims that in this case, ICI violated a commonly accepted and well-known safety standard, rather than a statute, rule, or regulation. ECF No. 100 at 21-23. Indeed, Plaintiffs industrial hygiene expert acknowledged that “there is no enforceable regulation in terms of a specific standard for histoplasmosis.” Neill Dep. at 121-22, Ex. 9, ECF No. 99-9. Therefore, Plaintiff again relies exclusively on the existence of the NIOSH publication, arguing that it constitutes a “commonly accepted and well-known safety standard,” which ICI violated. ECF No. 100 at 21-23.
The Court finds that Plaintiff has not demonstrated that the NIOSH publication is commonly accepted or well known within the industry, for many of the same reasons articulated in the discussion of APC’s Motion for Summary Judgment supra, at Section II.B. Plaintiff argues that because the publication was available to the public on OSHA’s website on a page titled “Respiratory Protection: Hazard Recognition,” it was well known and ICI should have been aware of its recommendations. See ECF No. 100 at 22-23; OSHA Website, Ex. 10, ECF No. 102-10. The fact that the NIOSH publication was available online, however, does not establish that it was commonly aсcepted or well known throughout ICI’s industry.
Plaintiff again attempts to demonstrate common acceptance of the NIOSH publication by showing that NIOSH’s website notes that the “recommendations on preventing histoplasmosis have been adopted by other agencies and organizations.” ECF No. 100 at 22 (citing http://www.cdc. gov/niosh/nas/rdrp/ch6.5.htm). Plaintiffs have offered no evidence, however, that ICI is a member of any of the six listed organizations that adopted the recommendations. Additionally, the fact that these few organizations in various industries have specifically adopted the recommendations but others have not indicates that the NIOSH publication has not been commonly accepted within ICI’s industry. Nor does Plaintiffs industrial hygiene expert, Harry Neill, testify that the guidelines are commonly accepted and well known. Neill cited the NIOSH publication repeatedly in his expert report and deposition tеstimony. See Neill Dep. at 18, 23, 24-25, 52, 86-87, 106, ECF No. 99-9 (referring to the “guid
At the end of oral argument on this matter, Plaintiffs counsel cited a 1981 decision of the Occupational Safety Health Review Commission in which the Commission determined that an employer committed a serious violation of OSHA’s regulations regarding respiratory protection. Mahone Grain Corp.,
In that case, the employer was cited for failing to establish and maintain a respiratory protection program after several employees developed histoplasmosis while cleaning and refurbishing a grain elevator. Specifically, the Administrative Law Judge affirmed a citation for violating several subparts of 29 C.F.R. § 1910.134, which requires employers to establish and maintain a respiratory protection program, provide respirators to employees “when such equipment is necessary to protect the health of the employee,” and to keep respirators in proper working condition. The employer there had no respiratory program, did not provide all its employees with respirators, and did not keep respirators in proper working condition. Mahone Grain Corp.,
Title 29 C.F.R. § 1910.134 is a regulation that requires safe equipment and working conditions generally. It is not a regulation that is “specifically applicable to the particular work and working condition involved.” W. Va.Code § 23-4-2(d)(2)(ii)(C). The regulation is not specifically applicable to the potential hazard of accumulated bird droppings and histoplasmosis. Instead, it generally requires employers to develop and maintain a respiratory protection program and provide respirators to workers. Even if ICI violated this regulation — a question not before this Court and which the Court need not reach- — such a violation would not satisfy element (C) of the deliberate intent statute.
To summarize, the Court concludes that Plaintiff has not demonstrated that the NIOSH publication constitutes a “commonly accepted and well-known safety standard within the industry.” The mere availability of the publication on a government website does not equate to the industry’s acceptance of the guidelines therein. The deliberate intention statute requires Plaintiff to show that the specific unsafe working condition was a violation of a commonly accepted and well-known safety standard within the industry. Plaintiff has not made such a showing in this case. Consequently, the Court GRANTS summary judgmеnt for Defendant ICI on both Plaintiffs’ claims.
For the foregoing reasons, the Court GRANTS Defendants’ Motions for Summary Judgment. In accordance with the accompanying Judgment, the Court ORDERS that Judgment be entered in favor of Defendants Appalachian Power Company and Industrial Contractors, Inc., and that this case be DISMISSED and stricken from the docket of this Court. The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to counsel of record and any unrepresented parties.
Notes
. There are two plaintiffs in this case — Roger and Judy Hoschar. Judy’s claim against Defendants is for loss of consortium as a result of her husband’s injuries. For simplicity, the Court will use the singular "Plaintiff,” to refer to Roger Hoschar.
. A precipitator is a structure that removes ash and other particles from the gasses produced by burning coal. APC Mot. Summ. J. at 4, ECF No. 89.
. Plaintiffs originally filed this action in the Circuit Court of Mason County, West Virginia. Defendants removed the case to this Court based on diversity jurisdiction. The Court has previously concluded that jurisdiction is proper. ECF No. 10.
. In addition to the NIOSH publication already referenced, the NIOSH website cited by Plaintiffs indicates that its histoplasmosis research results have been disseminated through: (1) two Health Hazard Evaluation reports (these reports, one for a Catholic Church in Indiana, and the other for a building in Florida, bear the disclaimer that the report and "any recommendations made herein are for the specific facility evaluated
. The parties disagree as to the relevant "industry” for purposes of the deliberate intention statute. ICI contends that the relevant industry is boilermaking, which is what Plaintiff was hired to do at the Sporn facility, while Plaintiff contends that the more general construction industry is the relevant industry. The distinction makes no difference here, because the Court concludes that Plaintiff has offered insufficient evidence that the NIOSH publication recommendations are well known or commonly accepted in either industry.
. Unlike the employer in Mahone Grain Corp., ICI did have a written respiratory protection program in place. See Neill Dep. at 116, ECF No. 99-9. Additionally, Plaintiff acknowledges that ICI required him and other workers to wear a respirator and other protective gear while performing their work. Hoschar Dep. at 120-22, Ex. 8, ECF No. 90-8.