Wednesday, December 27, 2006

Deliberate intent - the narrow exception you can drive a truck through

The West Virginia Supreme Court's opinion in Ryan v. Clonch Indus., Inc., No. 33001 (Oct. 27, 2006) has such wide-reaching implications that I almost forgot to blog about it. I have been thinking about it since I read it, but when I went to see what I wrote about it, I found no posts. Let's fix that.

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;

(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).

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.

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.

Monday, December 18, 2006

City police officer's termination reversed

In State ex rel. Dickerson v. City of Logan, No. 33174 (Per Curiam)(November 29, 2006), the West Virginia Supreme Court of Appeals reinstated with back pay a probationary city police officer where the city failed to give the officer a written statement of the reasons for his termination, and it failed to offer him a hearing.

The case is a fairly unremarkable application of established statutory law, and to some extent, the holding in syllabus point 6 of Major v. DeFrench, 169 W.Va. 241, 286 S.E.2d 688 (1982), which stated that “A police civil service employee who is dismissed from employment at the end of her probationary term, is entitled to the procedural protections set out in W.Va. Code § 8-14-20.” West Virginia Code § 8-14-20(a) requires that a police officer be "furnished with a written statement of the reasons for the action" taken against him, and also, if the officer demands it, "a public hearing."

The statute creating the "probationary" classification for new officers is reasonably clear as it applies to officers in the middle of their probationary period: "All original appointments to any positions in a paid police department subject to the civil service provisions of this article shall be for a probationary period of one year: Provided, That at any time during the probationary period the probationer may be discharged for just cause, in the manner provided in section twenty of this article." W.Va. Code §8-14-11 (emphasis added). This statute controls the outcome of this case. The officer was fired eight months into his one-year probationary period, and not at the conclusion.

Of course, in Major, the court went on to hold that that even if an officer does complete his probationary period, he is still entitled to written notice of the reasons for his termination and a public hearing, not because the statute requires it, but because of his constitutional right to due process. For officers who have completed their probationary period, the statute itself gives only the right to written notice of the decision: "If, at the close of this probationary term, the conduct or capacity of the probationer has not been satisfactory to the appointing officer, the probationer shall be notified, in writing, that he will not receive absolute appointment, whereupon his employment shall cease; otherwise, his retention in the service shall be equivalent to his final appointment." W.Va. Code § 8-14-11. This would appear to mean that the officer could be terminated without a hearing. "Not so fast," said the Court in Major. Regardless of the clear legislative intent not to require a hearing for those officers completing their probationary term, the Court found that the probationer, having been employed for a year, had a property interest in continued employment giving rise to certain due process protections. And what "due process" is he entitled to? All the rights set forth in § 8-14-20, of course.

But, in this case, constitutional due process did not come into play because the officer had not completed his probationary term. Instead, §8-14-11 controlled and required the process of §8-14-20 to be afforded. I'm not sure why the Court even cited Major v. DeFrench in the first place, other than to pour salt into old wounds.

Friday, December 15, 2006

Three new circuit judges appointed

This article in the State Journal notes that Governor Manchin has filled the three circuit court vacancies with the following individuals:

4th Circuit: J.D. Beane, a Parkersburg attorney and member of the House of Delegates, will replace retiring Judge George W. Hill, Jr.

9th Circuit: William J. Sadler, a Princeton attorney, will replace retiring Judge John R. Frazier ; and

23rd Circuit: Gina M. Groh, a Charles Town attorney, will fill a newly created judgeship in my home circuit, which will now have five judges. Judge Groh will be only the third female circuit judge in the state.

Thursday, December 14, 2006

Judges talk about technology in the courtroom

A friend sent me a link to this article written by Sensei Enterprises, Inc. titled "Three Strikes and You’re Out: Judges Talk About Technology in the Courtroom." It contains a number of practical tips about using technology to present your case at trial. Here is one tip I especially liked:

Don’t do anything that requires dimming the lights after lunch. You’re sure
to encourage siestas. Also, don’t start using any technology at the point where
jurors are antsy to go home for the day. They will be impatient and unreceptive.