Michael McGovern v. PPG Industries, Inc

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:14-cv-00069-IMK Copies to all parties and the district court/agency. [999638982].. [14-2149]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2149

MICHAEL J. MCGOVERN,
Plaintiff – Appellant,
v.
PPG INDUSTRIES, INC.,
Defendant - Appellee.

Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.
Irene M. Keeley,
District Judge. (5:14-cv-00069-IMK)

Submitted:

July 28, 2015

Decided:

August 12, 2015

Before MOTZ, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Teresa C. Toriseva, Joshua D. Miller, TORISEVA LAW, Wheeling,
West Virginia, for Appellant. William D. Wilmoth, STEPTOE &
JOHNSON PLLC, Wheeling, West Virginia; Christopher A. Lauderman,
STEPTOE & JOHNSON PLLC, Bridgeport, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Michael

J.

McGovern

appeals

the

district

court’s

order

dismissing his personal injury complaint against PPG Industries,
Inc., for failure to state a claim.

McGovern claims that he

suffered injury while working for PPG due to an unsafe working
condition.

Finding no reversible error, we affirm.

We review de novo a district court’s dismissal for failure
to state a claim, accepting the complaint’s factual allegations
as true and drawing all reasonable inferences in favor of the
nonmoving party.

Kensington Volunteer Fire Dep’t v. Montgomery

Cty., 684 F.3d 462, 467 (4th Cir. 2012); see Fed. R. Civ. P.
12(b)(6).

To

survive

a

motion

to

dismiss,

“[f]actual

allegations [in the complaint] must be enough to raise a right
to relief above the speculative level,” with “enough facts to
state a claim to relief that is plausible on its face.”
Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).

Bell
Under

this standard, bare legal conclusions “are not entitled to the
assumption

of

truth”

and

are

insufficient

to

state

a

claim.

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
McGovern

seeks

recovery

pursuant

to

West

Virginia’s

deliberate-intent statute, W. Va. Code Ann. § 23-4-2 (LexisNexis

2

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2010). *

To

plaintiff

Filed: 08/12/2015

recover

must

from

prove,

an

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employer

among

other

under

this

statute,

requirements,

that

a

“the

specific unsafe working condition was a violation of a state or
federal

safety

statute,

commonly

accepted

industry

or

and

business

§ 23-4-2(d)(2)(ii)(C).

rule

or

regulation,

well-known
of

the

Such

safety

.

.

standard

employer.”
a

.

W.

statute,

of

a

within

Va.

rule,

or

the

Code

Ann.

regulation

or

standard must be “specifically applicable to the particular work
and working condition involved, as contrasted with a statute,
rule,

regulation

or

standard

generally

workplaces, equipment or working conditions.”

requiring
Id.

safe

The district

court dismissed McGovern’s complaint, finding that he failed to
allege any violation of a statute, rule, regulation, or standard
pursuant to § 23-4-2(d)(2)(ii)(C).
We agree with the district court that McGovern’s complaint
does

not

satisfy

statute.

the

requirements

of

the

deliberate-intent

McGovern alleged that PPG violated W. Va. Code Ann.

§§ 21-3-1,

21-3A-5

(LexisNexis

“generally

requir[e]

safe

2010),

but

workplaces,

these

two

equipment

statutes

or

working

conditions” and lie outside the scope of § 23-4-2(d)(2)(ii)(C).
Because

McGovern’s

complaint

fails

*

to

plausibly

allege

a

The statute recently was amended. See 2015 W. Va. Legis.
Serv. 243.
We applied the prior version of the statute to the
facts of this case.

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violation of § 23-4-2(d)(2)(ii)(C), he cannot recover from PPG
for his injuries.
Accordingly, we affirm the judgment of the district court.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

AFFIRMED

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