In Ryan, the court held that an employee who was not required to wear safety glasses while performing his job as a lumber bander could prosecute a deliberate intent claim arising out of his permanent eye injury where the employer admittedly failed to conduct a hazard assessment required by federal regulations. The OSHA regulation in question requires employers to conduct a hazard assessment “to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment (PPE,)” 29 C.F.R. § 1910.132(d)(1). The Court held that this seemingly broad and non-specific OSHA regulation is a "statute, rule, regulation, or standard [that is] specifically applicable to the particular work and working condition involved" and not a "statute, rule, regulation or standard generally requiring safe workplaces, equipment or working conditions." W.Va. Code 23-4-2(c)(2)(ii)(C).
It would seem that a statute stating, "Thou shalt have a safe workplace" merely expresses a generalized goal while, "Thou shalt look for unsafe conditions and eliminate them" presents a specifically identifiable duty that will support a deliberate intent cause of action.
Ordinarily, workers' compensation is the exclusive remedy for employees injured in workplace accidents. However, an employee can hold his employer liable for tort-type damages if he can prove all of the following elements:
(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;The circuit court in this case found that the (B) and (C) elements were not satisfied by a showing that the employer violated 29 C.F.R. § 1910.132(d)(1). The circuit court granted summary judgment to the employer.
(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 direct and proximate result of such specific unsafe working condition.
W. Va. Code § 23-4-2(c)(2)(ii).
Reversing the judgment, the state supreme court held that both the (B) and (C) elements were satisfied. Regarding the (C) element, the court held that "the violation of a statute, rule, regulation or standard is a proper foundation for the element of deliberate intent found at W. Va. Code § 23-4-2(c)(2)(ii)(C) (1994) (Repl. Vol. 1998), where such statute, rule, regulation or standard imposes a specifically identifiable duty upon an employer, as opposed to merely expressing a generalized goal, and where the statute, rule, regulation or standard asserted by the employee is capable of application to the specific type of work at issue."
In this case, the Court found that "Clonch's violation of the OSHA regulation ... which required Clonch to conduct a hazard assessment and to require the use of personal protective equipment where hazards were identified by virtue of the assessment, satisfied Mr. Ryan's burden..." under subsection (C).
Regarding the (B) element, the Court held:
[W]e now hold that where an employee has instituted a deliberate intent action against an employer under W. Va. Code § 23-4-2(c)(2)(ii) (1994) (Repl. Vol. 1998), and where the defendant employer has failed to perform a reasonable evaluation to identify hazards in the workplace in violation of a statute, rule or regulation imposing a mandatory duty to perform the same, the performance of which may have readily identified certain workplace hazards, the defendant employer is prohibited from denying that it possessed “a subjective realization” of the hazard asserted in the deliberate intent action, and the employee, upon demonstrating such violation, is deemed to have satisfied his or her burden of proof with respect to showing “subjective realization” pursuant to W. Va. Code § 23-4-2(c)(2)(ii)(C).
It's hard to overestimate the ramifications of this decision. Try as the legislature might to create a narrow exception to workers' compensation immunity, our state supreme court has continually interpreted the exception liberally in favor of finding liability at nearly every opportunity. This particular OSHA regulation is classified as one relating to "labor," which covers a whole host of industries, not just the lumber industry. Where any employer subject to OSHA fails to perform the hazard assessment required by this regulation, it may not deny that it had a subjective realization of the unsafe working condition that might have been noticed and remedied by personal protective equipment. One might imagine that any of the other hundreds of OSHA regulations that impose any sort of specific duty on an employer are going to be fair game for subsection (B), regardless of the breadth of their scope.
So the moral to the story is, "be careful out there." With decisions like this, workers' compensation insurance may soon be the exception rather than the rule for any significant workplace accident.