Smith v. Metso Paper USA, Inc. et al

Filing 26

MEMORANDUM OPINION AND ORDER denying defendant's 15 Motion to Dismiss. Signed by District Judge Irene M. Keeley on 4/10/14. (jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MITCHELL SMITH,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:13CV266
(Judge Keeley)

METSO PAPER USA, INC., a foreign
corporation doing business as Metso
Power, also known as VALMET, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER DENYING
DEFENDANT’S MOTION TO DISMISS [DKT. NO. 15]
Pending before the Court is the motion to dismiss (dkt. no.
15), filed by the defendant, Metso Paper USA, Inc. (“Metso”),1
pursuant to Fed. R. Civ. P. 12(b)(6).

For the reasons that follow,

the Court DENIES the motion.
I.
On January 10, 2014, the plaintiff, Mitchell Smith (“Smith”),
filed an amended complaint against Metso, which operates a facility
in Fairmont, West Virginia, where it fabricates and stores pressed
metal barriers.

This Court has diversity jurisdiction pursuant to

28 U.S.C. § 1332(a).
Metso receives sheet metal shipped to it on wooden pallets
measuring 120" in length and 48" in width.

The sheet metal is then

pressed into barriers, measuring approximately 120" in length and

1

Effective January 1, 2014, the name of the defendant changed from
Metso to Valmet, Inc.
(Dkt. No. 11).
The Court uses “Metso” for
purposes of this memorandum opinion and order.

SMITH V. METSO PAPER USA, INC.

1:13CV266

MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION TO DISMISS
24" in width, which are placed back on the wooden pallets for
storage. The loaded pallets then are stacked on 4"x4" wooden beams
that are approximately 48" long. The stacked pallets and the beams
are then placed on waist-high, homemade, 4'x4' metal work tables.
Notably, Metso never tested the suitability of the pallets for
storage purposes.
In October, 2011, Smith’s job placement agency, United Talent,
LLC, placed him on a temporary work assignment at Metso’s Fairmont
facility.
the

Without providing Smith with safety training regarding

fabrication

and

storage

of

the

metal

immediately put him to work in that capacity.

barriers,

Metso

On December 13,

2011, Smith was assisting a co-worker when a pallet, loaded with
over one ton of pressed barriers, fell off the stack and crushed
Smith’s leg.

As a result, Smith suffered severe and permanent

injuries for which he has undergone various medical procedures,
examinations, and physical therapy.

He alleges that, in causing

his injuries, Metso acted with “deliberate intent,” and thus
violated W. Va. Code § 23-4-2(d)(2)(ii).
On January 24, 2014, Metso filed a motion to dismiss Smith’s
amended complaint for failure to state a claim upon which relief
can be granted.

Specifically, it argued that Smith “fail[ed] to

set forth factual allegations which would show any plausible claim
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MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION TO DISMISS
that [Metso] acted with actual, specific intent necessary to
support a claim” under the statute.
Smith

asserted

that

he

had

“met

(Dkt. No. 15).
[his]

plausible and factually supported claim.”

burden

in

In response,
pleading

(Dkt. No. 21).

a

Metso’s

motion is fully briefed and ripe for review.
II.
In reviewing the sufficiency of a complaint, a district court
“‘must accept as true all of the factual allegations contained in
the complaint.’”

Anderson v. Sara Lee Corp., 508 F.3d 181, 188

(4th Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89, 94
(2007)). However, while a complaint does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action
will not do.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Indeed, courts “are not bound to accept as true a legal conclusion
couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265,
286 (1986).
In considering whether the facts alleged are sufficient, “a
complaint must contain ‘enough facts to state a claim to relief
that is plausible on its face.’”
(quoting

Twombly,

550

U.S.

at
3

Anderson, 508 F.3d at 188

547).

“A

claim

has

facial

SMITH V. METSO PAPER USA, INC.

1:13CV266

MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION TO DISMISS
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). This requires “more than a sheer possibility that
a defendant has acted unlawfully.”

Id.

III.
The West Virginia Workers’ Compensation Act generally provides
broad immunity to qualifying employers against employees’ tort
actions.

See § 23-2-6.

However, the “deliberate intention”

statute carves out an exception to that immunity and allows an
employee to recover damages from an employer in a deliberate intent
case by proving 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 the injury, 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 presented by the
specific unsafe working condition;
(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
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SMITH V. METSO PAPER USA, INC.

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MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION TO DISMISS
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
(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.
§ 23-4-2(d)(2)(ii)(A)-(E).
The issue here is whether Smith has pled sufficient facts to
satisfy the five prima facie elements of his deliberate intent
claim.

See Syl. Pt. 2, Helmick v. Potomac Edison Co., 406 S.E.2d

700, 702 (W. Va. 1991) (“To establish ‘deliberate intention’ in an
action under [W. Va. Code § 23-4-2(d)(2)(ii)], a plaintiff or
cross-claimant must offer evidence to prove each of the five
specific statutory requirements.”).
A. Specific Unsafe Working Condition
Metso first contends that Smith’s allegations regarding an
alleged unsafe working condition lack the requisite specificity.
Contrary to Metso’s argument, however, Smith describes in detail
the barriers stacked upon the pallets stacked upon the beams
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MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION TO DISMISS
stacked upon the table.

He also alleges that Metso failed to

provide adequate safety training, and did not test the suitability
of the re-purposed pallets.

The specificity contemplated by the

statute does not require Smith to point to a single item of the
several described as the unsafe working condition.

See Skaggs v.

Kroger Co./Kroger LP I, 788 F. Supp. 2d 501, 505-06 (S.D.W. Va.
2011)

(rejecting

a

similar

argument

and

finding

that

the

plaintiff’s allegations of “several unsafe working conditions,”
including failure to train, satisfied element (A)’s specificity
requirement). Rather, Smith’s amended complaint satisfies this
element by specifically describing multiple conditions at Metso’s
Fairmont facility that culminated in an untested tower of wood and
metal tottering over an untrained worker.

The strong probability

of serious injury resulting from this alleged hazard speaks for
itself.
B. Actual Knowledge
Next,

Metso

argues

that,

other

than

in

boilerplate

or

conclusory allegations that are not properly accepted for purposes
of a Rule 12(b)(6) motion,

Smith’s amended complaint “fails to

allege . . . that [Metso] had actual knowledge of a predicate
condition, actual knowledge that the condition presented a high
degree of risk and actual knowledge of the strong probability of
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SMITH V. METSO PAPER USA, INC.

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MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION TO DISMISS
serious injury.”

(Dkt. No. 22 at 3).

In support, Metso cites a

number of cases examining the actual knowledge requirement; but all
are in the context of summary judgment or a jury verdict.

See

Smith v. Apex Pipeline Svcs., Inc., 741 S.E.2d 845 (W. Va. 2013);
Ryan v. Clonch Indus., Inc., 639 S.E.2d 756 (W. Va. 2006); Nutter
v. Owens-Illinois, Inc., 550 S.E.2d 398 (W. Va. 2001); Mumaw v.
U.S. Silica Co., 511 S.E.2d 117 (W. Va. 1998); Blevins v. Beckley
Magnetite, Inc., 408 S.E.2d 385 (W. Va. 1991).

Significantly,

Metso cites no cases examining whether a plaintiff has sufficiently
pled actual knowledge at the pleading stage.
As Metso correctly observes, the substantive requirements for
actual knowledge are set forth in state law. Federal cases, on the
other hand, provide guidance as to whether a plaintiff has met his
burden under the Twombly/Iqbal pleading standards.

The several

cases to examine the issue of whether actual knowledge under § 234-2(d)(2)(ii)(B) was sufficiently pled have answered universally in
the affirmative.

See Williams v. Schauenburg Flexadux Corp., No.

1:11CV60, 2011 WL 6748999, *3 (N.D.W. Va., Dec. 23, 2011); Mills v.
Aetna Bldg. Maint., Inc., No. 2:09CV0910, 2009 WL 3063450, *2
(S.D.W. Va., Sept. 17, 2009); and Kirkhart v. PPG Indus., Inc., No.
5:06CV21, 2006 WL 3692643, *5 (N.D.W. Va., Dec. 12, 2006).

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SMITH V. METSO PAPER USA, INC.

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MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION TO DISMISS
In Kirkhart, the plaintiffs withstood the defendant’s motion
to dismiss by pleading that the defendant “violated federal and
state safety regulations when it modified the Kalamazoo, which was
manufactured as a burden carrier, to be used as a passenger carrier
for its employees.”

2006 WL 3692643 at *5.

Judge Stamp held that,

“[b]ecause [the defendant] made these modifications itself, it
cannot be said to a certainty that [the defendant] had no actual
knowledge of any potential danger posed by using a burden carrier
to transport people.”

Id.

In Mills, Judge Copenhaver summarily

determined that “it is apparent from the complaint, as well as from
plaintiffs’ opposition to Aetna’s motion to dismiss, that actual
knowledge of the unsafe condition is thereby alleged.”
3063450 at *2.

2009 WL

Finally, in Williams, the plaintiffs alleged that

the defendant “manufactured the machine and thus was aware of its
allegedly unsafe design and other defects,” and that one of the
plaintiffs
inadequate.

had

advised

the

defendant

2011 WL 6748999 at *3.

Id.

that

his

training

was

This Court held that,

“[f]rom a pleading perspective, both of these allegations satisfy
the ‘actual knowledge’ requirement of § 23-4-2(d)(2)(ii)(B).”

Id.

Here, Smith’s allegations regarding Metso’s actual knowledge
are no less adequate than those in any of the three cases discussed
above.

According to Smith’s amended complaint, Metso failed to
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SMITH V. METSO PAPER USA, INC.

1:13CV266

MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION TO DISMISS
provide

him

with

safety

training,

and

failed

suitability of the pallets for storage purposes.

to

test

the

Moreover, Smith

alleges that the stacking of the materials was done “according to
the policies and procedures created and/or ratified by Defendant
Metso.”

(Dkt. No. 8 at 4).

Metso’s

conduct

standards.

violated

Critically, Smith also asserts that
federal

regulations

and

industry

Taken together, these allegations satisfy the pleading

requirement that Metso actually knew of the high degree of risk and
the strong probability of serious injury posed by an untrained
worker storing metal barriers in the manner described.
C. Violation of Statute, Rule, Regulation, or Standard
As

to

allegations

the

third

regarding

element,
Metso’s

Metso

contends

violations

of

that

federal

regulations and industry standards are too vague.

Smith’s
safety

In his amended

complaint, however, Smith alleges that Metso violated 29 C.F.R.
§

1910.176(b)

and

“commonly

standards within the industry.”

accepted

and

well-known

(Dkt. No. 8 at 5).

safety

Because Smith

cites a specific regulation, vagueness is not the issue with his
pleading.

Rather, the West Virginia Supreme Court of Appeals

focuses on the regulation itself to determine whether it imposes an
“affirmative duty” on the employer or, instead, constitutes a mere

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SMITH V. METSO PAPER USA, INC.

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MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION TO DISMISS
“general safety requirement.”

See McComas v. ACF Indus., LLC, 750

S.E.2d 235, 241 (W. Va. 2013) (citing Clonch, 639 S.E.2d at 763).
In

McComas,

the

Supreme

Court

applied

this

analysis

to

Electrical Equipment Maintenance Standard 70B of the American
National Standards Institute/National Fire Protection Association,
which

required

the

maintenance

and

electrical equipment in the workplace.

periodic

inspection

750 S.E.2d at 239.

of
The

trial court had granted summary judgment to the employer on the
basis that, “while Standard 70B generally required electrical
safety in the workplace, [it] was not a standard specifically
applicable to the particular work and working conditions pertaining
to McComas.”

Id.

Reversing the trial court’s decision, the

Supreme Court concluded that Standard 70B did, in fact, impose an
affirmative duty on the employer.

Id. at 242.

Alternatively, it

determined that Standard 70E, which provided that “[i]nsulation
integrity shall be maintained to support the voltage impressed,”
satisfied element (C).

Id.

Without the benefit of McComas, the United States District
Court for the Southern District of West Virginia in 2012 had
addressed whether 29 C.F.R. § 1910.134 satisfied element (C) on
summary judgment.

See Hoschar v. Appalachian Power Co., 906 F.

Supp. 2d 560, 570 (S.D.W. Va. 2012).
10

That regulation requires

SMITH V. METSO PAPER USA, INC.

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MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION TO DISMISS
employers to provide respirators to employees when necessary.
29 C.F.R. § 1910.134(a)(2).
lung disease

by

inhaling

See

The plaintiff, who had contracted a
particles

of

bird

droppings

at

the

worksite, did not specifically cite the regulation, but alleged
that his employer violated Occupational Health and Safety Act
(“OSHA”)

regulations

regarding

Hoschar, 906 F. Supp. 2d at 570.

respiratory

protection.

See

The district court concluded that

29 C.F.R. § 1910.134(a) did not satisfy element (C) because “[t]he
regulation is not specifically applicable to the potential hazard
of accumulated bird droppings and histoplasmosis.”

Id.

Here, Smith alleges the violation of an OSHA regulation that
provides as follows: “Secure storage.
not create a hazard.

Storage of material shall

Bags, containers, bundles, etc., stored in

tiers shall be stacked, blocked, interlocked and limited in height
so that they are stable and secure against sliding or collapse.”
29

C.F.R.

§

1910.176(b).

By

use

of

the

word

“shall”,

the

regulation imposes an affirmative duty on employers, such as Metso,
who store materials in stacked tiers, to do so in a safe and
specific manner.
from

Hoschar

Moreover, the instant case is distinguishable

because

the

regulation

at

issue

specifically at the tiered stacking of materials.

here

is

aimed

Thus, Smith has

sufficiently pled the violation of a federal safety regulation.
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SMITH V. METSO PAPER USA, INC.

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MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION TO DISMISS
D. Intentional Exposure
Metso does not seriously challenge this element of Smith’s
deliberate intent claim.

The Court has already determined that,

when taken as true, Smith’s allegations demonstrate Metso’s actual
knowledge of a specific unsafe working condition and the high
degree of risk and strong probability of injury associated with
that condition.

Moreover, Smith has sufficiently alleged Metso’s

violation of a federal safety regulation.

Thus, element (D)

requires Smith to plead that, notwithstanding elements (A)-(C),
Metso intentionally exposed him to the unsafe condition. Smith has
satisfied this pleading burden by alleging that Metso, knowing he
was untrained, directed him to work in the fabrication and storage
of the pressed metal barriers.

See Tolley v. ACF Indus., Inc., 575

S.E.2d 158, 168 (W. Va. 2002) (explaining that the “intentional
exposure” element requires that, “with conscious awareness of the
unsafe working condition . . . , an employee was directed to
continue working in that same harmful environment”).
E. Compensable Injury as a Proximate Result
As with the previous element, Metso does not dispute that
Smith has sufficiently pled compensable injury as a direct and
proximate result of the unsafe working condition.

Indeed, Smith’s

amended complaint identifies several personal injuries, including
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DENYING DEFENDANT’S MOTION TO DISMISS
“blunt

crushing

injury

with

hematoma

to

his

left

posterior

popliteal fossa,” “transection of his left popliteal artery with
occlusion,” and “left tibial plateau fracture.” (Dkt. No. 8 at 7).
Moreover,

he alleges

that

these

injuries

were

“a

direct

and

proximate result of Defendant Metso’s violation of W. Va. Code §
23-4-2(d)(2)(ii).”

Id.
IV.

For the reasons discussed, the Court is satisfied that Smith
has met his burden of pleading the five elements of his deliberate
intent claim at the dismissal stage.

Therefore, the Court DENIES

Metso’s motion to dismiss.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this order
to counsel or record.
DATED: April 10, 2014.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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