Nestor v. CENTURY STEEL ERECTORS, INC.

Filing 82

MEMORANDUM OPINION AND ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND DENYING MOTION FOR LEAVE TO FILE SURREBUTTAL RESPONSE: It is ORDERED that Defendant's #66 Motion for Summary Judgment is denied; Plaintiff's #74 Motion for Leave to File Surrebuttal Response is denied. Signed by District Judge Irene M. Keeley on 9/4/12. (cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TERESA L. NESTOR, individually,
and as Personal Representative
of the Estate of Kelly R. Nestor,
deceased, and as parent and next
friend for the benefit of her minor
Children, GJN, EPN and KDN, and
for the benefits of others,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:11CV26
(Judge Keeley)

CENTURY STEEL ERECTORS, INC.,
a Non-Resident Corporation
incorporated under the Laws
of Pennsylvania,
Defendant.
MEMORANDUM OPINION AND ORDER
DENYING MOTION FOR SUMMARY JUDGMENT [DKT. NO. 66] AND DENYING
MOTION FOR LEAVE TO FILE SURREBUTTAL RESPONSE [DKT. NO. 74]
On May 23, 2012, the defendant, Century Steel Erectors, Inc.
(“Century Steel”), filed a Motion for Summary Judgment, which is
fully briefed. For the reasons that follow, the Court DENIES the
motion (dkt. no. 66), as well as the plaintiff, Teresa L. Nestor’s
(“Nestor”), Motion for Leave to File a Surrebuttal Reponse (dkt.
no. 74).
I.
A.
Nestor commenced this action against Century Steel to recover
damages for the death of her husband, Kelly R. Nestor (“Mr.
Nestor”), who died as a result of a fall at a construction site on

NESTOR v. CENTURY STEEL ERECTORS, INC.

1:11CV26

MEMORANDUM OPINION AND ORDER
March 3, 2009. At the time, Century Steel was the subcontractor for
ironwork in the construction of an addition to the Armed Forces
Readiness Center at Camp Dawson in Kingwood, West Virginia (“the
Kingwood project”). Century Steel hired several union ironworkers,
including Mr. Nestor, to erect steel columns, beams, bar joists,
and decking for the project. It designated its own employee, Darryl
Beton (“Beton”), to served as foreman.
On the morning of March 3, 2009, Mr. Nestor was welding bar
joists on a roof for the Kingwood project while seated on a beam
approximately eighteen feet above the ground. The roof did not have
guardrails or any other installed fall protection system. Although
Mr. Nestor was wearing a personal safety harness, he was not “tiedoff” or otherwise secured. For unknown reasons, Mr. Nestor fell
from his seated position on the beam to the ground below. Beton,
who was on the ground approximately thirty to forty feet away, did
not see Mr. Nestor fall, but turned to find him on the ground and
unconscious.

(Dkt.

No.

70-19).

Mr.

Nestor

sustained

serious

injuries to his legs and back, and ultimately died from his
injuries on April 9, 2009.
Approximately two weeks before Mr. Nestor’s accident, on
February 19, 2009, an Occupational Safety and Health Administration
(“OSHA”) inspector happened to drive past another Century Steel
work site in Ambridge, Pennsylvania, where he observed ironworkers
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MEMORANDUM OPINION AND ORDER
working without fall protection. He videotaped the workers for
approximately ten minutes and showed the footage to Century Steel
management. As a result of the incident, OSHA cited Century Steel
for violating a regulation that, in pertinent part, requires:
[E]ach employee engaged in a steel erection activity who
is on a walking/working surface with an unprotected side
or edge more than 15 feet (4.6 m) above a lower level
shall be protected from fall hazards by guardrail
systems, safety net systems, personal fall arrest
systems, positioning device systems, or fall restraint
systems.
29 C.F.R. § 1926.760; (Dkt. No. 70-14).
In response to the OSHA citation, Century Steel’s Safety
Director, Dan Grove (“Grove”), issued a memorandum dated February
25, 2009 to all employees, including those at the Kingwood project,
which discussed the incident at the Ambridge work site and reminded
them

of

memorandum

the

seriousness

described

the

of

using

nature

of

fall

protection.

the

infraction

Grove’s
and

consequences for such violations:
Not only were the workers not tied off, they did not even
have their harnesses on. There was no fall protection in
place . . . .
. . .
The Foreman and Ironworkers that were not wearing their
harnesses have been suspended until further notice. There
are no written warnings or verbal warnings. You will be
terminated
from
employment
for
fall
protection
violations.
. . .
3

the

NESTOR v. CENTURY STEEL ERECTORS, INC.

1:11CV26

MEMORANDUM OPINION AND ORDER
This is a serious matter, it’s not a joke.
. . .
This inspection took place in the afternoon after lunch.
But I’m sure that they did not know that in the morning
at the Arena project, an Ironworker installing metal deck
had slipped on some ice and fell into his harness. After
climbing back up onto the steel he got a new harness and
lanyard and returned back to work. This employee did his
job correctly and lost no time or his life and went home
at the end of the day.
Foreman [sic], it is your responsibility to make sure
that your job sites are working in compliance with OSHA
standards and Century Steel’s safety policy.
(Dkt. No. 70-13) (emphasis in original).
The day after Grove issued this memorandum, Beton held a
safety meeting at the Kingwood work site with the ironworker crew,
including Mr. Nestor. During this meeting, he discussed Grove’s
memorandum

and

reiterated

Century

Steel’s

policy

requiring

employees to use full body harnesses and shock absorbing lanyards,
in addition to other methods of fall protection, as circumstances
warrant. See (Dkt. No. 70-11 at 3). Beton further informed the crew
of the safety equipment that was available on site.
During this safety meeting, however, Beton also informed the
crew that he was comfortable if the men moved about the beams using
a method known as “cooning,” in which a worker straddles a beam,
placing a foot on the bottom flanges of either side of the beam.
Importantly, cooning is not an acceptable method of fall protection

4

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MEMORANDUM OPINION AND ORDER
under either OSHA regulations or Century Steel’s policy. See (Dkt.
Nos. 70-6 at 34-35; 70-12 at 11-14).
During his deposition, Beton recounted the substance of the
safety meeting:
We read the memo, and basically the memo is telling [sic]
we have to wear or [sic] harnesses and lanyards when
you’re on the building.
We discussed building height. And I believe there was two
areas of 18 foot 8 that were high. The lower part of the
high roof was 17-9. A little bit of beam height puts our
feet in the general area of 15 foot with the ground level
being up and down, the two vaults. We’ll just move around
on the building cooning, cooning the beams. I don’t want
to see any walking on the top beams, walking up on top of
the beams. And we’ll just move around, we’ll just crawl
around on this building in a nice orderly fashion.
(Dkt. No. 67-1 at 8).
Following
discussion

the

with

the

safety

meeting,

Kingwood

project

Beton
crew

memorialized
in

a

his

handwritten

memorandum:
Thursday, Feb. 26, 2009. Held safety meeting after lunch
at 12:30 P.M. I read the memo of OSHA insp. at Ambridge
High School. . . . After reading we talked about wearing
our harnesses. I informed them that I have 3/8" cable
available to run static lines, 3/8" chokers, retractable
beamers to use to tie-off with. I’m comfortable that the
upper roof is 18' if we crawl around on bottom flange
(cooning). We all agreed, and they said it would be ok.
(Dkt. No. 70-17).
Beton and the other ironworkers in his crew generally agree
that, although they knew it was not an authorized method of fall

5

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MEMORANDUM OPINION AND ORDER
protection, cooning was a common practice among ironworkers, and
they felt comfortable with the practice. Id.; (Dkt. Nos. 67-3 at 6;
67-4 at 7). None of the crew, including Mr. Nestor, had previously
complained about a lack of safety equipment or that they felt
unsafe working on the Kingwood project. (Dkt. No. 67-3 at 5). Beton
did not require them to use this equipment or to tie-off their
safety

harnesses,

and

the

foreman

himself

never

used

fall

protection. (Dkt. Nos. 70-22 at 7; 70-23 at 2; 70-24 at 2).
Beton denies that he authorized cooning as an alternative to
using fall protection, or that he ever directed anyone to work
without fall protection (dkt. no. 70-12 at 14). He concedes,
however, that during the time between the February 26, 2009 safety
meeting and Mr. Nestor’s fall on March 3rd, neither he nor any of
his crew tied-off while working. (Id. at 15-16). He also admits
that he was aware of this fact and took no action to compel his
workers to tie-off. Id.
Following Mr. Nestor’s fall, OSHA investigated the accident
and issued two citations against Century Steel:
29 C.F.R. § 1926.20(b)(2): The employer did not initiate
and maintain programs which provided for frequent and
regular inspections of the job site, materials and
equipment to be made by a designated competent
persons(s):
(a)

Armed
Forces
Readiness
Center
addition,
Kingwood, WV: Employees spacing and connecting
open web joists were exposed to hazards such
6

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1:11CV26

MEMORANDUM OPINION AND ORDER
as but not limited to falls over 15 feet. The
competent person did not know the height the
employees were working at1 and did not make
frequent and regular inspections of the job
site to ensure fall protection was utilized
when working over 15 feet, as determined on
04/13/09.
29 C.F.R. § 1926.760(b)(3): Each employee engaged in a
steel erection activity who is on a walking/working
surface with an unprotected side or edge more than 15
feet (4.6 m) above a lower level were not protected from
fall hazards by guardrail systems, safety net systems,
personal fall arrest systems, positioning device systems
or fall restraint systems:
(a)

Armed
Forces
Readiness
Center
addition,
Kingwood, WV: Employees were exposed to a fall
of greater than 15 feet while performing work
on top of roof beams. An employee was not
protected from falling by the use of guardrail
systems, safety net systems, or personal fall
arrest systems and fell approximately 18 feet
to the ground, as determined on 04/13/09.

(Dkt. No. 70-8 at 7, 8).
In response, Century Steel suspended Beton for one week for failing
to enforce the company’s policy requiring employees to use safety
harnesses and lanyards. (Dkt. Nos. 9 at 4; 18 at 3).
B.
On

February

25,

2011,

Nestor,

individually,

as

personal

representative of the Estate of Kelly R. Nestor, and as parent and

1

Beton apparently informed the OSHA inspector that he was not aware
Mr. Nestor had been working above fifteen feet. See (Dkt. No. 70-8 at
26). The plaintiff disputes that fact and cites to evidence in the record
that indicates Benton was aware Mr. Nestor was working at a height of
approximately eighteen feet.

7

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MEMORANDUM OPINION AND ORDER
next friend of G.J., E.P. and K.D., filed this action against
Century

Steel

in

the

Circuit

Court

of

Preston

County,

West

Virginia. She asserts a deliberate intent claim pursuant to W. Va.
Code § 23-4-2(d)(ii) and seeks damages for Mr. Nestor’s wrongful
death pursuant to W. Va. Code § 55-7-6(b). (Dkt. No. 4-1).
On March 10, 2011, pursuant to 28 U.S.C. §§ 1331 and 1441,
Century Steel timely removed the case to this Court. Following the
close of discovery, on May 23, 2012 it filed a Motion for Summary
Judgment, which argues that Nestor cannot establish all of the
elements required to prove a deliberate intent claim. (Dkt. No.
66). That motion is now fully briefed and ripe for review.2
II.
A.
A

moving

party

is

entitled

to

summary

judgment

“if

the

pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, 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(c).
A genuine issue of material fact exists “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving

2

The plaintiff also filed a Motion for Leave to File a Surrebuttal
Response, arguing that the defendant cited to evidence in its reply that
it had not included with its motion. (Dkt. No. 74). As discussed later,
the Court denies that motion.

8

NESTOR v. CENTURY STEEL ERECTORS, INC.

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MEMORANDUM OPINION AND ORDER
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The moving party has the burden of showing “that there is an
absence of evidence to support the nonmoving party’s case.” Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the movant satisfies
this burden, then the nonmovant must set forth specific facts as
would be admissible in evidence that demonstrate the existence of
a genuine issue of fact for trial. Fed. R. Civ. P. 56(c); id. at
322-23. Even if there is no dispute as to the evidentiary facts,
however, summary judgment is not appropriate where the ultimate
factual conclusions are in dispute. Overstreet v. Ky. Cent. Life
Ins. Co., 950 F.2d 931, 937 (4th Cir. 1991).
In applying the standard for summary judgment, the Court must
review all the evidence “in the light most favorable to the
nonmoving party.” Celotex, 477 U.S. at 322-23. The Court must avoid
weighing the evidence or determining the truth and limit its
inquiry solely to a determination of whether genuine issues of
triable fact exist. Anderson, 477 U.S. at 248.
B.
The

West

Virginia’s

Workers’

Compensation

Act

generally

immunizes covered employers from employee suits for “damages at
common law or by statute” resulting from work-related injuries. W.
Va. Code § 23-2-6. An employer loses this immunity, however, when
it acts with “deliberate intention,” id. § 23-4-2(d)(2), and an
9

NESTOR v. CENTURY STEEL ERECTORS, INC.

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MEMORANDUM OPINION AND ORDER
employee may file an action for damages in excess of workers’
compensation benefits. Id. § 23-4-2(c).
Subsections (d)(2)(i) and (d)(2)(ii) of § 23-4-2 provide two
distinct methods of proof by which a plaintiff may establish that
an employer acted with “deliberate intention.” Here, the plaintiff
has asserted her claim pursuant to subsection (d)(2)(ii). Under
that provision, employer immunity is lost if the plaintiff proves
each of the following five 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, prior to
knowledge of the existence of the
condition and of the high degree
probability of serious injury or
specific unsafe working condition;

the injury, had actual
specific unsafe working
of risk and the strong
death presented by the

(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

10

NESTOR v. CENTURY STEEL ERECTORS, INC.

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MEMORANDUM OPINION AND ORDER
(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).
The deliberate intent statute expressly directs that “the
court shall dismiss the action upon a motion for summary judgment
if it finds . . . that one or more of the facts required to be
proved

by

the

provisions

of

subparagraphs

(A)

through

(E),

inclusive, paragraph (ii) of this subdivision do not exist.” Id.
§ 23-4-2(d)(2)(ii)(B). “‘Thus, in order to withstand a motion for
summary judgment, a plaintiff must make a prima facie showing of
dispute on each of the five factors.’” Marcus v. Holley, 618 S.E.2d
517, 529 (W. Va. 2005) (quoting Mumaw v. U.S. Silica Co., 511
S.E.2d 117, 120 (W. Va. 1998).
III.
Century Steel argues that the plaintiff cannot establish the
prima

facie

elements

of

the

second

and

fourth

of

these

requirements: that the employer 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;”

and

that

the

employer

“nevertheless

intentionally

thereafter exposed an employee to the specific unsafe working
condition.” W. Va. Code § 23-4-2(d)(2)(ii)(B), (D). Nestor contends
11

NESTOR v. CENTURY STEEL ERECTORS, INC.

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MEMORANDUM OPINION AND ORDER
that genuine issues of material fact exist that preclude summary
judgment as to both issues.
The defendant does not dispute the plaintiff’s ability to
establish the three remaining elements of § 23-4-2(d)(2)(ii).
However, because the facts underlying these elements are relevant,
they

warrant

brief

discussion.

Nestor

contends

that

she

has

established the first requirement because working in the absence of
fall protection at a height of approximately eighteen feet created
“a specific unsafe working condition . . . which presented a high
degree of risk and a strong probability of serious injury or
death.” See id. § 23-4-2(d)(2)(ii)(A). She further contends that
the two OSHA citations issued to Century Steel following the
accident satisfy the third requirement, that “the specific unsafe
working condition was a violation of a state or federal safety
statute.” See id. § 23-4-2(d)(2)(ii)(C). Finally, the plaintiff
asserts that Mr. Nestor’s death was the “direct and proximate
result” of his exposure to the specific unsafe working condition.
See id. § 23-4-2(d)(2)(ii)(E).
A.
1.
Century Steel first argues that Nestor cannot establish the
“actual knowledge” requirement in subsection (B), which requires
that an employer must know of both the specific unsafe working
12

NESTOR v. CENTURY STEEL ERECTORS, INC.

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MEMORANDUM OPINION AND ORDER
condition and that it presents a “high degree of risk and the
strong probability of serious injury or death.” See id. § 23-42(d)(2)(ii)(B). The West Virginia Supreme Court of Appeals has
described the “actual knowledge” standard as “a high threshold that
cannot be successfully met by speculation or conjecture.” Mumaw,
511 S.E.2d at 123. Moreover, “[t]his requirement is not satisfied
merely by evidence that the employer reasonably should have known
of

the

specific

probability

of

unsafe
serious

working

condition

and

injury

or

presented

death

of

the

strong

by

that

condition.” Id. “Instead, it must be shown that the employer
actually possessed such knowledge.” Id.
“[T]he type of evidence presented to establish the requisite
subjective knowledge on the part of the employer often has been
presented as evidence of prior injuries or of prior complaints to
the employer regarding the unsafe working condition.” Ryan v.
Clonch Indus., 639 S.E.2d 756, 765 (W. Va. 2006). Cases addressing
the “actual knowledge” requirement have considered several factors,
including:
(1) whether any prior injuries had occurred because of
the condition; (2) whether the employer previously had
been cited by government officials for the violation; and
(3) whether there had been any prior complaints that
would have put the employer on notice of the high degree
of risk and strong probability of serious injury or death
created by the condition.

13

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MEMORANDUM OPINION AND ORDER
Baisden v. Omegal Coal Co., No. 2:11-079, 2012 WL 259949, at *9
(S.D.W. Va. Jan. 27, 2012) (Copenhaver, J.) (citing Blevins, 408
S.E.2d

at

391-93).

Evidence

of

prior

similar

incidents

or

complaints, however, is not mandated by § 23-4-2(d)(2)(ii). Syl.
Pt. 2, Nutter v. Owens-Illinois, Inc., 550 S.E.2d 398, 399 (W. Va.
2001).
2.
Century Steel asserts it did not have actual knowledge of
either

the

specific

unsafe

working

condition

or

the

strong

probability of serious injury or death. In its view, Mr. Nestor
created the

unsafe

condition

himself

by

failing

to

use fall

protection available to him, and Century Steel, therefore, could
not have had actual knowledge of its existence. It argues that the
facts in this case closely resemble the facts in Mumaw, in which
the West Virginia Supreme Court of Appeals held that a deliberate
intent action cannot be maintained “where an employee creates a
specific

unsafe

procedures.”

working

condition

by

not

following

expected

See 511 S.E.2d at 123 (citing Blevins v. Beckley

Magnetite, Inc., 408 S.E.2d 385, 391 (W. Va. 1991)).
In Mumaw, an employee died after falling through a trap door
that he had failed to close, despite having been instructed three
times to do so. Id. The court concluded that Mumaw, rather than his
employer, created the specific unsafe working condition, and,
14

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MEMORANDUM OPINION AND ORDER
therefore, the plaintiff could not sustain a cause of action under
§ 23-4-2(d)(ii). Although Century Steel argues that Mr. Nestor
similarly created the unsafe condition at issue here by failing to
use fall protection in spite of company policy requiring him to do
so, there are significant distinctions between this case and Mumaw.
While Mumaw’s coworker explicitly instructed him three times
to close the trap door and never suggested that it would be
acceptable to work with it open, Beton’s apparent acquiescence to
the ironworkers’ practice of not using fall protection contradicted
Century Steel’s written policy instructing employees to use it.
See id. Additionally, in Mumaw, the evidence established that the
employer believed all of its workers were complying with the
applicable safety policies, and no agency had cited or warned the
company about a safety violation. See id. Here, in contrast, only
two weeks prior to the accident OSHA had cited Century Steel for
the same violation that later resulted in Mr. Nestor’s fall. Based
upon

this

citation

and

Century

Steel’s

internal

memorandum

discussing the incident, a reasonable juror could conclude that
Century Steel recognized that its employees were working above
fifteen feet without fall protection and that this presented a risk
of serious injury or death.
Additionally, unlike the isolated incident in Mumaw, the
evidence here suggests that the ironworkers at the Kingwood project
15

NESTOR v. CENTURY STEEL ERECTORS, INC.

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MEMORANDUM OPINION AND ORDER
consistently worked without fall protection and that Beton not only
knew about it, but failed to use fall protection himself. Evidence
that a company has a “general practice” of unsafe conduct can
support a finding that the employer had actual knowledge of the
condition. See Mayles v. Shoney’s Inc., 405 S.E.2d 15, 21 (W. Va.
1990); cf. Baisden, 2012 WL 259949, at *11 (finding employer lacked
actual knowledge because there was no evidence that the unsafe
“practice was widespread, let alone encouraged–directly or tacitlyby the defendant”).
Century Steel also argues that, even had it known Mr. Nestor
was working without fall protection, it lacked actual knowledge
that this condition presented a “high degree of risk and the strong
probability of serious injury or death.” See W. Va. Code § 23-42(d)(2)(ii)(B).
experienced

It

suggests

ironworker

that,

who

had

because

never

Mr.

Nestor

complained

was

about

an

safety

standards on the Kingwood project, he did not face a strong
probability of serious injury or death by working above fifteen
feet without fall protection.
This argument belies both common sense and Century Steel’s own
statements

recognizing

memorandum

circulated

Discussing

OSHA

the
two

citations

risk

weeks
for

contained
prior

workers’

to

in

Mr.

its

internal

Nestor’s

failure

to

use

fall.
fall

protection, Century Steel’s memorandum aptly explained that such a
16

NESTOR v. CENTURY STEEL ERECTORS, INC.

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MEMORANDUM OPINION AND ORDER
violation is a “serious matter,” and one that could result in a
loss of life. (Dkt. No. 70-13). Both OSHA and Century Steel require
all ironworkers, regardless of experience, to wear fall protection
to

safeguard

them

from

serious

injury

or

death;

thus,

the

contention that Mr. Nestor’s experience level somehow immunized him
from risk, is unavailing. This case presents facts from which a
reasonable

juror

could

infer

that

Century

Steel

had

actual

knowledge of a specific unsafe working condition that presented the
strong probability of serious injury or death. See W. Va. Code
§ 23-4-2(d)(2)(ii)(B).
B.
1.
Century Steel next contends that there is no evidence that it
“intentionally exposed” Mr. Nestor to a specific unsafe working
condition,

as

required

by

subsection

(D).

See

id.

§

23-4-

2(d)(2)(ii)(D). To establish the fourth element of a deliberate
intent action, there “must be some evidence that, with conscious
awareness of the unsafe working condition . . ., an employee was
directed to continue working in that same harmful environment.”
Tolley v. ACF Indus., Inc., 575 S.E.2d 158, 168 (W. Va. 2002). “In
other words, this element, which is linked particularly with the
[actual knowledge] element, is not satisfied if the exposure of the
employee to the condition was inadvertent or merely negligent.”
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MEMORANDUM OPINION AND ORDER
Sias v. W-P Coal Co., 408 S.E.2d 321, 327 (W. Va. 1991). The
employer need not specifically intend to injure the employee, but
must intend to expose the employee to the actually known specific
unsafe working condition. Id.
In

Tolley,

discussed

the

the
type

West
of

Virginia

evidence

Supreme

necessary

Court
to

of

Appeals

establish

the

“intentional exposure” element:
In Mayles, we found sufficient evidence was introduced
where “management at the restaurant knew how the
employees were disposing of the grease, knew that a
previous employee had been injured by such practice, had
received employee complaints about the practice, and
still took no action to remedy the situation.” 405 S.E.2d
at 23. Similarly, in Sias, we held that the requisite
intentional exposure prong had been met where the
plaintiff produced evidence that his coal employer
directed him to work in an unsafe mining area despite
having actual knowledge of the probability and risk of a
coal outburst in that particular section of the mine. 408
S.E.2d at 327-28.
Tolley, 575 S.E.2d at 167-68. Conversely, West Virginia’s highest
court has rejected an employee’s deliberate intent claim where
there was no evidence that he “was ordered, directed, or even had
it suggested to him” that he was to engage in the unsafe conduct.
Blevins,

408

S.E.2d

at

389.

At

bottom,

“[t]he

‘deliberate

intention’ exception to the Workers’ Compensation system is meant
to deter the malicious employer, not to punish the stupid one.”
Deskins v. S.W. Jack Drilling Co., 600 S.E.2d 237, 243 (W. Va.

18

NESTOR v. CENTURY STEEL ERECTORS, INC.

1:11CV26

MEMORANDUM OPINION AND ORDER
2004) (citing Helmick v. Potomac Edison Co., 406 S.E.2d 700, 705
(W. Va. 1991)).
2.
Century Steel argues that Beton never specifically directed
Mr. Nestor to work without fall protection, and, therefore, the
plaintiff

cannot

establish

that

Century

Steel

“intentionally

exposed” Mr. Nestor to an unsafe condition. In the defendant’s
view, its conduct was, at worst, negligent because it instructed
its workers to use fall protection and provided them with the
necessary equipment; failing to enforce its safety policies does
not evince an intention to direct Mr. Nestor not to use fall
protection.
On summary judgment, all inferences must be drawn in favor of
the nonmovant. Celotex, 477 U.S. at 322-23. Here, there are facts
in the record from which a reasonable juror could conclude that
Beton authorized, endorsed, or even directed the practice of
cooning as an alternative to using fall protection. Moments after
reviewing the company’s safety policies with the Kingwood project
crew, Beton nevertheless told them he was “comfortable” with the
practice of cooning at a height of eighteen feet. (Dkt. No. 70-17).
Beton admits he did not enforce the use of fall protection even
after this meeting, and that he himself rarely used it. (Dkt. No.
70-12 at 15-16).
19

NESTOR v. CENTURY STEEL ERECTORS, INC.

1:11CV26

MEMORANDUM OPINION AND ORDER
Although it is true that a deliberate intent claim is not
intended to punish an employer who is merely negligent, Deskins,
600 S.E.2d at 243, a reasonable juror could infer from the facts of
this case that Beton made a conscious decision not to remedy a
known dangerous condition. See Mayles, 405 S.E.2d at 23. At bottom,
Beton’s

intent

is

a

disputed

question

of

fact

that

must

be

determined by a jury based upon the evidence of his statements,
actions, and failures to act. Therefore, because a reasonable jury
could find that Century Steel intentionally exposed Mr. Nestor to
an unsafe working condition, the plaintiff has made a prima facie
showing of her deliberate intent claim. See W. Va. Code § 23-42(d)(2)(ii).
IV.
The Court turns next to the plaintiff’s Motion for Leave to
File a Surrebuttal Response. Nestor argues that she is entitled to
respond to deposition testimony that the defendant cited for the
first time in its reply brief. A surreply is not warranted in this
case, however. Even if the defendant did raise a new matter for the
first time, the Court did not rely on the new material to reach a
decision in this matter. Therefore, a surreply is “superflous and
unnecessary.” Suskso v. Cox Enters., Inc., No. 5:07CV144, 2008 WL
4279671, at *2 (N.D.W. Va. Sept. 16, 2008) (citing E.E.O.C. v. LA
Weight Loss, 509 F. Supp. 2d 527, 540 (D. Md. 2007)).
20

NESTOR v. CENTURY STEEL

1:11CV26

MEMORANDUM OPINION AND ORDER
V.
In conclusion, the Court DENIES the defendant’s Motion for
Summary Judgment (dkt. no. 66), and DENIES the plaintiff’s Motion
for Leave to File a Surrebuttal Response (dkt. no. 74).
It is so ORDERED.
The Court directs the Clerk of Court to transmit copies of
this Order to counsel of record.
DATED: September 4, 2012
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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