Mumaw v. U.S. Silica Co.Mumaw v. U.S. Silica Co.
This is an appeal by Deborah Saunders, guardian, and Tim Mumaw, administrator for the estate of Edward Mumaw, deceased, 1 plaintiffs below/appellants (hereinafter collectively referred to as Administrator Mumaw), from an adverse summary judgment ruling by the Circuit Court of Morgan County. This action was filed against U.S. Silica Company, Inc., defendant below/appellee (hereinafter U.S. Silica), by Ms. Saunders and Mr. Edward Mumaw after Edward was injured during his employment with U.S. Silica. On appeal, Administrator Mumaw contends genuine and material issues of fact existed in the case, which precluded summary judgment. For the reasons set forth below, we affirm the Circuit Court of Morgan County.
I.
FACTUAL BACKGROUND
Edward Mumaw (hereinafter Mr. Mumaw) was an employee of U.S. Silica. On Saturday, August 6,1994, Mr. Mumaw and two coworkers, James Peck and Dennis Somers, were scheduled to work during the morning hours at U.S. Silica’s Berkeley Springs facility. The three employees came to work on that date specifically for the purpose of in
stalling
The Apiñe machine had to be lifted to the second floor from its position on the first floor of the facility. The ceiling on the first floor had a trapdoor cut into it for the purpose of hoisting the Apiñe machine through the ceiling and onto the second floor. Mr. Mumaw and his two co-workers successfully pulled the Apiñe machine through the trapdoor and onto the second floor. Once on the second floor, the Apiñe machine had to be mounted and installed on a pedestal that was located a few feet from the trapdoor. Mr. Mumaw worked between the Apiñe machine and the trapdoor. While using a crowbar to align a hole on the Apiñe machine with a hole in the pedestal, Mr. Mumaw fell backwards through the trapdoor and landed on his head on the first floor. The fall was approximately eleven feet. Mr. Mumaw sustained serious head injuries which ultimately resulted in his death.
On July 26, 1996, the instant action was filed on behalf of Mr. Mumaw. The complaint alleged a deliberate intention cause of action against U.S. Silica pursuant to
II.
STANDARD OF REVIEW
The standard of appellate review of a circuit court’s entry of summary judgment is de novo. Syl. pt. 1,
Painter v. Peavy,
III.
DISCUSSION
A. On a Motion for Summary Judgment, a Plaintiff Must Satisfy All Five Elements of
Mr. Mumaw, through his representatives, has alleged a cause of action against his employer under
(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 had a subjective realization and an appreciation of the existence of such specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by such specific unsafe working condition;
(C) That such 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 such employer, 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) hereof, such employer nevertheless thereafter exposed an employee to such specific unsafe working condition intentionally; and
(E) That such employee so exposed suffered serious injury or death as a directand proximate result of such specific unsafe working condition.
In the instant proceeding, the circuit court’s summary judgment order found that no genuine issue of material fact was in dispute as to factors A, B, D, and E. The circuit court’s order was silent on factor C. Therefore, this Court must presume for summary judgment purposes that the circuit court found in favor of Administrator Mu-maw regarding factor C.
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See Williams v. Precision Coil, Inc.,
Our prior cases construing
The purpose of these five factors is to show “deliberate intention” on the part of the employer.
Furthermore, the five factors set fourth in
This Court’s decision in
Helmick v. Potomac Edison Co.,
This Court has also discussed the relationship of the motion for summary judgment clause and the motion for directed verdict clause contained in
With respect to the impact of
The portion of the statute which authorizes “prompt judicial resolution” of “deliberate intention” actions against employers, specifically,W.Va.Code § 23-4-2(c)(2)(iii)(B) [1994], relates to plaintiffs’ more specific substantive law burden under the five-element test ofW.Va.Code § 23-4-2(c)(2)(ii)(A) -(E) [1994], but the preexisting procedural law still applies for granting employers’ motions for summary judgment, directed verdict and judgment notwithstanding the verdict.
Sias
clearly states that preexisting-procedural law governs the granting of employers’ dispositive motions under
This proposition is not new. We noted in
Blake,
In the instant proceeding, Administrator Mumaw contends that the circuit court’s grant of summary judgment to U.S. Silica should be reversed solely on the basis that a genuine issue of material fact was in dispute regarding factor C. In view of our longstanding law on summary judgment and our past decisions involving
B. The Circuit Court Correctly Found that No Material Issue of Fact was in Dispute Regarding Factors A, B, D and E Of
1. Specific Unsafe Working Condition. To sustain a cause of action under
Next, Administrator Mumaw contends that U.S. Silica knew that relocating the Alpine machine presented a fall hazard. . U.S. Silica’s employees regularly received hazard fall training. Additionally, employees were given safety-harnesses.
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Notwithstanding Administrator Mumaw’s efforts to take deposition testimony out of context, all of the evidence clearly proved that U.S. Silica’s method of moving the Alpine machine was safe. In
Moreover, the situation herein presented is similar to the facts and our decision in
Blevins v. Beckley Magnetite, Inc.,
2. Specific Realization. To sustain a cause of action under
Given the statutory framework ofW.Va. Code §§ 23 — 4—2(c)(2)(i) and (ii) [1994] which equates proof of the five requirements listed inW.Va.Code § 23-4-2(c)(2)(ii) with deliberate intention, a plaintiff attempting to impose liability on the employer must present sufficient evidence, especially with regard to the requirement that the employer had a subjective realization and an appreciation of the existence of such specific unsafe working condition and the strong probability of serious injury or death presented by such specific unsafe working condition. This requirement is not satisfied merely by evidence that the employer reasonably should have known of the specific unsafe working condition and of the strong probability of serious injury or death presented by that condition. Instead, it must be shown that the employer actually possessed such knowledge.
The standard established by
Blevins
to satisfy
3. Intentional Exposure. Finally, to sustain a cause of action under
IV.
CONCLUSION
The circuit court’s ruling granting summary judgment to U.S. Silica is affirmed.
Affirmed.
Notes
. Edward Mumaw died two days after the circuit court granted summary judgment to U.S. Silica. Tim Mumaw was then substituted as a party for Edward Mumaw as administrator for his estate.
. After the accident, U.S. Silica was given a citation by federal regulators that required U.S. Silica to post a sign stating that the trapdoor should be kept closed.
.
Notwithstanding any other provision of law or rule to the contrary, and consistent with the legislative findings of intent to promote prompt judicial resolution of issues of immunity from litigation under this chapter, the court shall dismiss the action upon motion for summary judgment if it finds, pursuant to Rule 56 of the Rules of Civil Procedure that one or more of the facts required to be proved by the provisions of subparagraphs (A) through (E) of the preceding paragraph (ii) do not exist, and the court shall dismiss the action upon a timely motion for a directed verdict against the plaintiff if after considering all the evidence and every inference legitimately and reasonably raised thereby most favorably to the plaintiff, the court determines that there is not sufficient evidence to find each and every one of the facts required to be proven by the provisions of subpara-graphs (A) through (E) of the preceding paragraph (ii)[.j
(Emphasis added).
. As a result of amendments to the West Virginia Rules of Civil Procedure in 1998, the legal phrase "directed verdict” has been replaced under Rule 50 by the phrase "judgment as a matter of law.”
. Obviously, a material issue of fact may not be in dispute on a factor, but the undisputed factor may be favorable to the plaintiff employee.
. However, because of the small working space in which the Alpine machine was mounted, it was not practical to use safety-harnesses during the mounting process.
. After Mr. Mumaw’s fall, U.S. Silica was advised by the United States Mine Safety and Health Administration (MSHA) to post a sign indicating the trapdoor had to be closed when not in use. However, the procedure for hoisting and mounting the Alpine machine was not changed. Also, MSHA did not require U.S. Silica’s employees to wear safety-harnesses while hoisting and mounting the Alpine machine.
. While it would have been insufficient to meet Administrator Mumaw’s burden of proof on this issue, there was similarly no evidence to prove that U.S. Silica inadvertently or negligently exposed Mr. Mumaw to an unsafe working condition associated with aligning the Alpine machine.
.Under