Skaggs v. The Kroger Co., Inc.
Filing
46
MEMORANDUM OPINION AND ORDER denying defendant's 41 MOTION for Summary Judgment as to Skaggs' deliberate intention claim (count one); granting said motion as to Skaggs' negligence claim (count two). Signed by Judge John T. Copenhaver, Jr. on 4/21/2011. (cc: attys; any unrepresented parties) (cbo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
JASON SKAGGS,
Plaintiff,
v.
Civil Action No. 2:10-0768
THE KROGER COMPANY/KROGER LIMITED
PARTNERSHIP I, an Ohio Corporation,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending is defendant’s motion for summary judgment,
filed March 18, 2011.
I.
Background
This is a deliberate intention action in which
plaintiff Jason Skaggs seeks to recover damages from defendant
the Kroger Company/Kroger Limited Partnership I (“Kroger”) for
injuries incurred on the job.1
The following factual recitation
is given in the light most favorable to the plaintiff.
Skaggs was formerly employed as a “stock person” at a
Kroger grocery store in Beckley, West Virginia.
1
(Pl.’s Resp. 2).
The complaint also alleges a negligence claim that is
plainly barred under the Workers’ Compensation Act, W. Va. Code §
23-2-6.
When Skaggs was hired in November 2007, his job duties included
stocking shelves and running the cash register when needed.
(Def.’s Mot. Summ. J., Ex. B, Skaggs Dep. at 43-44).
After a
coworker suffered a heart attack in late 2007, Skaggs’ duties
were expanded to include separating groceries in the store’s
loading dock area and loading the groceries into carts for later
stocking on the store’s shelves.
(Id. at 43-45).
Loading the carts required Skaggs to use a motorized
“pallet jack.”2
(Id., Ex. H, Expert Report of George J. Wharton,
P.E. (“Wharton Report”) at 10 (citing Skaggs Dep. at 46)).
Skaggs testified, and Kroger does not dispute, that he never
received formal training on how to operate a pallet jack.
Resp., Ex. 3, Skaggs Dep. at 34).
(Pl.’s
Although he signed a “Safety
Training Verification Form” which indicates that he did receive
such training, Skaggs says that he did not read the verification
form before signing it.
(Id.).
Skaggs testified that when he started working at the
grocery store, Paul Goots, the store manager, asked him if he had
ever used a pallet jack, and he told Goots that he had not.
2
(Id.
The parties and various deponents interchangeably refer
to the machine as a pallet jack, pallet truck, pallet lift, and
power jack. The court will refer to the machine as a pallet
jack.
2
at 51).
On the day Skaggs took over the cart-loading duties,
Goots again asked him if he had used a pallet jack, and Skaggs
again said no.
(Id. at 52).
Skaggs also recalls a phone
conversation in which he reminded Goots that he had received no
training on operating the pallet jacks.
“I had mentioned that I
still hadn’t been trained on them; I didn’t know exactly how to
use them, and [Goots] didn’t say anything about it,” Skaggs
testified.
(Id. at 53).
Eventually, Skaggs figured out how to
operate the pallet jacks on his own.
As he stated, “When I was
back there getting groceries, I had seen [a coworker] do it
enough to kind of get the idea of how to run them.”
(Id. at 52).
Skaggs had been using the store’s two pallet jacks for
roughly four months prior to incurring the injuries that give
rise to this action.
at 54).
(Def.’s Mot. Summ. J., Ex. B, Skaggs Dep.
During this 4-month period, Skaggs had problems with one
of the jacks and complained to Goots about it.
(Id. at 52).
He
told Goots that the machine would sometimes accelerate on its own
and would even take off at top speed.
(Id., Ex. H, Wharton
Report at 10 (citing Skaggs Dep. at 55)).
The head night
supervisor at the store, Reginald Green, noticed that not just
one, but both of the store’s pallet jacks were malfunctioning.
Green, who used the machines every night that he was on duty,
3
testified that “whenever you stop them sometimes, they’ll keep on
rolling, you know, like the brakes weren’t catching, you know.
One particular time, I turned around and it was still following
me, you know, after I stopped it, you know.”
1, Green Dep. at 9-10).
(Pl.’s Resp., Ex.
Green also recounted a previous incident
in which a pallet jack at the store pinned an employee “against
the wall and hurt her hand.”
(Id. at 17).
Unlike Skaggs,
however, Green experienced no problems with sudden acceleration,
and he never complained about the malfunctioning pallet jacks to
his superiors at Kroger.
(Id. at 10-11).
On May 4, 2008, Skaggs was moving and separating
grocery shipments in the store’s loading dock area.
9).
(Compl. ¶
One of the pallet jacks -- specifically the one that Skaggs
had previously complained to Goots about -- was blocking access
to a bay door, so Skaggs tried operating the machine to move it
out of the way.
(Id. ¶¶ 8-9).
He grasped the handle of the
jack’s tiller arm, which is used to maneuver the machine, and
began engaging its motor.
Dep. 61-64).
Skaggs.
(Id. ¶ 9; Pl.’s Resp., Ex. 3, Skaggs
Suddenly, the pallet jack began accelerating toward
(Id.).
He pushed the tiller arm into the braking
position so as to stop the machine, but the braking mechanism
malfunctioned and the jack, which weighed over 2,000 pounds,
4
continued moving toward him.
17).
(Id.; id., Ex. 2, Wharton Dep. at
It then rolled over Skaggs’ right foot, causing fractures
to his second, third, and fourth metatarsals.
J, Ex. B, Skaggs Dep. at 89).
(Def.’s Mot. Summ.
Skaggs was not wearing steel toe
boots or any other type of protective footgear at the time of the
incident.
(Pl.’s Resp. 5-6).
Skaggs instituted this action in the Circuit Court of
Kanawha County on May 3, 2010.
Kroger removed on May 26, 2010,
invoking the court’s diversity jurisdiction.
forth two counts against Kroger.
The complaint sets
Count one asserts a deliberate
intention claim pursuant to West Virginia Code § 23-42(d)(2)(ii).
negligence.
(Compl. ¶¶ 13-15).
Count two asserts a claim for
(Id. ¶¶ 16-18).
On March 18, 2011, Kroger moved for summary judgment
based upon the following grounds: (1) plaintiff has failed to
satisfy the elements of his deliberate intention claim; and (2)
Kroger is immune from plaintiff’s negligence claim under West
Virginia Code § 23-2-6.
(Def.’s Mot. Summ. J. at 1).
5
II.
A.
Motion for Summary Judgment
Governing Standard
A party is entitled to summary judgment “if the
pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.”
Fed. R. Civ. P. 56(c).
Material facts are those
necessary to establish the elements of a party’s cause of action.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A genuine issue of material fact exists if, in viewing
the record and all reasonable inferences drawn therefrom in a
light most favorable to the non-moving party, a reasonable factfinder could return a verdict for the non-movant.
Id.
The
moving party has the burden of showing -- “that is, pointing out
to the district court -- that there is an absence of evidence to
support the nonmoving party’s case.”
477 U.S. 317, 325 (1986).
Celotex Corp. v. Catrett,
If the movant satisfies this burden,
then the non-movant must set forth specific facts as would be
admissible in evidence that demonstrate the existence of a
genuine issue of fact for trial.
Id. at 322-23.
A party is
entitled to summary judgment if the record as a whole could not
6
lead a rational trier of fact to find in favor of the non-movant.
Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991).
A court must neither resolve disputed facts nor weigh
the evidence, Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th
Cir. 1995), nor make determinations of credibility.
Murphy, 797 F.2d 179, 182 (4th Cir. 1986).
Sosebee v.
Rather, the party
opposing the motion is entitled to have his or her version of the
facts accepted as true and, moreover, to have all internal
conflicts resolved in his or her favor.
Charbonnages de France
v. Smith, 597 F.2d 406, 414 (4th Cir. 1979).
Inferences that are
“drawn from the underlying facts . . . must be viewed in the
light most favorable to the party opposing the motion.”
United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
B.
Deliberate Intention Claim
The West Virginia 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.
This immunity is lost, however, if an
employer acts with “deliberate intention.”
Id. § 23-4-2(d)(2).
If the deliberate intent exception applies, the employee may file
an action for damages in excess of workers’ compensation
7
benefits.
Id. § 23-4-2(c).
Subsections (d)(2)(i) and (d)(2)(ii) of § 23-4-2
provide two distinct methods of proving that an employer acted
with “deliberate intention.”
to § 23-4-2(d)(2)(ii).
Skaggs’ claim is asserted pursuant
Under that provision, employer immunity
is lost if the employee 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 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
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
8
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)(A)-(E).
The deliberate intention statute directs that “the
court shall dismiss the action upon 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.”
§ 23-4-2(d)(2)(iii)(B).
Id.
“‘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)).
The court considers each
statutory requirement in turn.
1.
Specific Unsafe Working Condition
Kroger first contends that Skaggs has offered no
evidence identifying “a specific unsafe working condition” that
presented “a high degree of risk and a strong probability of
serious injury or death,” as required by W. Va. Code § 23-42(d)(2)(ii)(A).
Skaggs responds that the record reveals several
9
unsafe working conditions, including the malfunctioning pallet
jack about which he had complained and by which he was injured,
as well as Kroger’s failure to train Skaggs on the operation of
the pallet jack and Kroger’s failure to provide Skaggs with
protective footwear.3
It appears that Skaggs has offered sufficient evidence
to show that the malfunctioning pallet jack created a specific
unsafe working condition.
Skaggs’ testified in his deposition
that the pallet jack had recurring acceleration and braking
problems.
(Skaggs Dep. at 48, 52-54).
As earlier noted, the
testimony of Reginald Green, the store’s night supervisor,
similarly shows that both of the store’s pallet jacks had been
malfunctioning in a dangerous manner.
(Green Dep. at 9-10
(“whenever you stop them sometimes, they’ll keep on rolling . .
.like the brakes weren’t catching . . . One particular time, I
turned around and it was still following me . . . after I stopped
it”)).
And considering that the machine weighed over 2,000
pounds, (Wharton Dep. at 17), the foregoing testimony indicates
3
Although Skaggs initially identifies the failure to
provide him with proper footwear as a specific unsafe working
condition, he provides little to no analysis of this unsafe
condition under the remaining four elements of his deliberate
intention claim. The court thus does not discuss the matter
further.
10
that the malfunctioning pallet jack created a “strong probability
of serious injury,” see W. Va. Code § 23-4-2(d)(2)(ii)(A).
Furthermore, Skaggs’ testimony concerning Kroger’s
failure to train him on the operation of the pallet jack
constitutes evidence of yet another specific unsafe working
condition.
In Arnazzi v. Quad/Graphics, Inc., 621 S.E.2d 705 (W.
Va. 2005), the trial court found that “the lack of
legally-required training of the [plaintiff-employee] on the safe
use of a forklift . . . qualified as a specific unsafe working
condition” within the meaning of the deliberate intention
statute.
Id. at 707.
Although the defendant-employer conceded
this issue on appeal, the West Virginia Supreme Court nonetheless
observed that substantial evidence supported the trial court’s
conclusion that the employer’s failure to provide legallymandated training amounted to “a specific unsafe working
condition.”
Id.
As Skaggs points out, regulations promulgated by the
Occupational Safety and Health Administration (“OSHA”) direct
that “[t]he employer shall ensure that each powered industrial
11
truck4 operator is competent to operate a powered industrial
truck safely, as demonstrated by the successful completion of the
training and evaluation specified in this paragraph (l).”
C.F.R. § 1910.178(l)(1)(i).
29
The OSHA regulations further provide
that “[p]rior to permitting an employee to operate a powered
industrial truck (except for training purposes), the employer
shall ensure that each operator has successfully completed the
training required by this [section].”
Id. § 1910.178(l)(1)(ii).
It seems, then, that the OSHA regulations required
Kroger to provide Skaggs with formal training on the operation of
the pallet jack.
Yet Skaggs testified, and Kroger does not
4
Regarding the scope of the term “powered industrial
trucks,” the OSHA regulation provides as follows:
(1) This section contains safety requirements relating to
fire protection, design, maintenance, and use of fork
trucks, tractors, platform lift trucks, motorized hand
trucks, and other specialized industrial trucks powered
by electric motors or internal combustion engines. This
section does not apply to compressed air or nonflammable
compressed gas-operated industrial trucks, nor to farm
vehicles, nor to vehicles intended primarily for earth
moving or over-the-road hauling.
29 C.F.R. § 1910.178(a)(1). The pallet jack appears to fall
within the class of “specialized industrial trucks powered by
electric motors.” Id. Kroger does not dispute this point, and
it acknowledges in its own rules and regulations that employees
must obtain formal training and OSHA certification before
operating powered equipment. (Def.’s Mot. Summ. J., Ex. F,
Kroger Rules and Regulations, Rule 7).
12
dispute, that he never received such training.
34).5
(Skaggs Dep.
Accordingly, just as the employer’s failure to provide
legally-required forklift training constituted a specific unsafe
working condition in Arnazzi, Kroger’s failure to provide Skaggs
with training on the pallet jack as mandated by OSHA regulations
qualifies as a specific unsafe working condition in this case.
In sum, viewing the record in the light most favorable
to the plaintiff, genuine issues of fact arise as to the
existence of at least two specific unsafe working conditions at
the Kroger store: the malfunctioning pallet jack and Skaggs’ lack
of training on the pallet jack.
2.
Actual Knowledge
Kroger next maintains that it had no “actual knowledge
of the existence of the specific unsafe working condition and of
the high degree of risk and the strong probability of serious
5
While Kroger emphasizes that Skaggs signed verification
forms indicating that he had been trained in the use of the
pallet jack, it does not contend that he actually received such
training and in fact concedes that he did not. (See Def.’s Reply
at 4 (noting that the Kroger managers “believed incorrectly” that
Skaggs had received proper training). Moreover, the fact that
Skaggs signed the verification forms is relevant only to Kroger’s
knowledge of his lack of training. The court therefore discusses
this fact under the “actual knowledge” element of Skaggs’
deliberate intention claim.
13
injury or death presented by the specific unsafe working
condition” within the meaning of § 23-4-2(d)(2)(ii)(B).
It
relies on the testimony of several Kroger managers -- including
Paul Goots, Reginald Green, and Jason Lambert -- who all
testified that they did not know that Skaggs lacked training in
use of the pallet jacks.
Skaggs, on the other hand, asserts that
the record reveals questions of fact regarding Kroger’s
knowledge.
The actual knowledge requirement “is not satisfied
merely by evidence that the employer reasonably should have known
of the specific unsafe working condition and of the strong
probability of serious injury or death presented by that
condition.
Instead, it must be shown that the employer actually
possessed such knowledge.”
Syl. Pt. 3, Blevins v. Beckley
Magnetite, Inc., 408 S.E.2d 385 (W. Va. 1991).6
6
“This is a high
The legislature amended § 23-4-2(d)(2)(ii)(B) in 2005,
substituting the language “[t]hat the employer, prior to the
injury, had actual knowledge of the existence of the specific
unsafe working condition,” in the place of “[t]hat the employer
had a subjective realization and appreciation of the existence of
the specific unsafe working condition.” Coleman Estate ex rel.
v. R.M. Logging, Inc., 664 S.E.2d 698, 702 n.7 (W. Va. 2008)
(emphasis added). This change made no practical difference in
interpreting the statute, however, because in Blevins the West
Virginia Supreme Court of Appeals read the terms “subjective
realization” and “appreciation” to require a showing of “actual
knowledge.” Syl. Pt. 3, Blevins, 408 S.E.2d at 385.
14
threshold that cannot be successfully met by speculation or
conjecture.”
Mumaw v. U.S. Silica Co., 511 S.E.2d 117, 123 (W.
Va. 1998) (per curiam).
Making the “actual knowledge”
determination “requires an interpretation of the employer’s state
of mind, and must ordinarily be shown by circumstantial evidence,
from which conflicting inferences may often reasonably be drawn.
Accordingly, while a plaintiff may choose to introduce evidence
of prior similar incidents or complaints to circumstantially
establish that an employer has acted with deliberate intention,
evidence of prior similar incidents or complaints is not mandated
by W. Va. Code, 23-4-2([d])(2)(ii).”
Syl. Pt. 2, Nutter v.
Owens-Illinois, Inc., 550 S.E.2d 398 (W. Va. 2001).
Regarding the first unsafe working condition, the
malfunctioning pallet jack, it appears that Skaggs has offered
sufficient evidence to show actual knowledge on the part of
Kroger, by and through its supervisors.
In his deposition,
Skaggs testified that he complained to Paul Goots, the store
manager, about how the pallet jack that later injured him would
sometimes accelerate on its own and take off at top speed.
(Skaggs Dep. at 55).
And Reginald Green, the Kroger night
supervisor, testified that the store’s pallet jacks had braking
problems and that a prior employee had been injured by one when
15
it pinned her against a wall, (Green Dep. at 9-10), further
indicating that supervisory-level employees knew that the
machines were both malfunctioning and potentially dangerous.
Viewed in the light most favorable to the plaintiff, Skaggs’ and
Green’s testimony create factual issues as to Kroger’s actual
knowledge of both (1) a specific unsafe working condition (i.e.,
the malfunctioning pallet jack) and (2) the strong probability of
serious injury presented by that condition.
Skaggs has also offered sufficient evidence regarding
Kroger’s actual knowledge of his lack of training on the pallet
jack, the second unsafe working condition.
Skaggs testified that
Goots twice asked him if he had ever used a pallet jack, and that
both times he told Goots he had not.
(Skaggs Dep. at 51-52).
Skaggs also said that he reminded Goots of his lack of training
in a phone conversation.
(Id. at 53 (“I had mentioned that I
still hadn’t been trained on them; I didn’t know exactly how to
use them, and [Goots] didn’t say anything about it.”)).
Kroger
points out that, contrary to Skaggs’ testimony, Goots testified
that he did not know of Skaggs’ lack of training.
Kroger further
notes that Skaggs signed forms stating that he had received
training on heavy machinery.
But this conflicting evidence only
confirms that there are genuine issues of fact as to Kroger’s
16
knowledge of the unsafe working condition.
In addition, Kroger does not dispute that it had actual
knowledge of the “strong probability of serious injury” presented
by a failure to train employees in operating the pallet jacks.
Indeed, considering that Kroger’s own rules and regulations
require employees to obtain training and OSHA certification
before they can operate powered equipment such as the pallet
jack, (see Def.’s Mot. Summ. J., Ex. F, Kroger Rules and
Regulations, Rule 7), one could fairly conclude that Kroger
appreciated the probability of injury that could result from a
lack of such training.
This conclusion is also supported by the
following exchange from Goots’ deposition:
Q
. . . I’m just wondering if you as a representative
of Kroger take any responsibility for ensuring that
these employees are trained before operating
dangerous equipment?
A
Yes. I mean, I want everyone to be trained. I want
everybody to be safe as much as possible,
absolutely.
If I had known [Skaggs] was not
trained, he’d never been put in the position.
(Goots Dep. at 25).
This testimony shows that Goots, a Kroger
manager, was aware of the safety risks created by allowing
untrained employees to operate pallet jacks.
Thus, genuine issues of fact remain as to Kroger’s
actual knowledge of the specific unsafe working conditions at the
17
Kroger store and the probability that these conditions could
create serious injuries.
3.
Violation of State or Federal Safety Law
To establish the third element of his deliberate
intention claim, Skaggs must offer evidence showing that the
specific unsafe working condition violated a “state or federal
safety statute, rule or regulation . . . which . . . 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.”
2(d)(2)(ii)(C).
W. Va. Code §§ 23-4-
Kroger does not directly challenge Skaggs’
ability to satisfy this element.
Regarding the malfunctioning pallet jack, this specific
unsafe working condition appears to have violated the OSHA
regulations governing “powered industrial trucks.”
See 29 C.F.R.
§ 1910.178(p)(1) (“If at any time a powered industrial truck is
found to be in need of repair, defective, or in any way unsafe,
the truck shall be taken out of service until it has been
restored to safe operating condition.”); id. § 1910.178(q)(1)
(“Any power-operated industrial truck not in safe operating
18
condition shall be removed from service.”).
And as discussed
supra Part II.B.1, Kroger’s failure to train Skaggs on using the
pallet jacks violated the OSHA regulations as well.
1910.178(l)(1)(i)-(ii).
See id. §
The foregoing regulations were,
moreover, “specifically applicable” to the particular working
condition at issue here (i.e., the operation of “powered
industrial trucks”) rather than being general safety regulations.
Skaggs has therefore satisfied the third element of his
deliberate intention claim by showing that the unsafe working
conditions at Kroger’s store violated specifically applicable
safety regulations.
4.
Intentional Exposure
Kroger next contends that there is no evidence that it
“intentionally exposed” Skaggs to a specific unsafe working
condition as required by W. Va. Code § 23-4-2(d)(2)(ii)(D).
It
relies on Goots’ deposition testimony, wherein he stated that no
one forced Skaggs to use the pallet jack and that he chose to do
so on his own accord.
In response, Skaggs asserts that the
intentional exposure requirement is satisfied because Kroger
management knew that he was untrained and that the machines
malfunctioned, and because they directed Skaggs to do his job
that evening, which necessarily entailed use of the pallet jack.
19
To satisfy the “intentional exposure” requirement,
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.”
ACF Indus., Inc., 575 S.E.2d 158, 168 (W. Va. 2002).
Tolley v.
As
explained in Tolley:
This Court has previously discussed what type of evidence
is necessary to meet the fourth prong of the “deliberate
intention” standard. In Mayles [ v. Shoney’s Inc., 405
S.E.2d 15, 23 (W. Va. 1990)], 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.” . . . Similarly, in Sias [ v. W-P Coal Co.,
408 S.E.2d 321, 327-28 (W. Va. 1991)], 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.
Tolley, 575 S.E.2d at 167-68.
Skaggs has offered evidence showing that, like the
employer in Mayles, Kroger management (1) knew of the
malfunctioning pallet jack and Skaggs’ lack of training (i.e.,
both of the specific unsafe working conditions), (2) knew that a
previous employee had been injured by one of the store’s
malfunctioning pallet jacks, and (3) had received employee
20
complaints (specifically from Skaggs to Goots) about the
particular malfunctioning pallet jack that injured Skaggs and
Skaggs’ lack of training.
Furthermore, Skaggs testified that
Goots directed him to take over cart-loading duties, (Skaggs Dep.
at 48), a job which required use of the store’s pallet jacks,
despite management’s knowledge of the unsafe working conditions.
Having found “some evidence that, with conscious awareness of the
unsafe working condition . . . , an employee was directed to
continue working” in a harmful environment, Tolley, 575 S.E.2d at
168, the court concludes that Skaggs has provided sufficient
evidence to make a prima facie showing of intentional exposure
under W. Va. Code § 23-4-2(d)(2)(ii)(D).
5.
Proximate Cause
Kroger argues that there is no evidence satisfying the
fifth and final element of Skaggs’ deliberate intention claim,
which requires Skaggs to show that he “suffered serious
compensable injury . . . as a direct and proximate result of the
specific unsafe working condition,” W. Va. Code §§ 23-42(d)(2)(ii)(E).
Quoting a passage from Mumaw v. U.S. Silica Co.,
511 S.E.2d 117, 123 (W. Va. 1998), Kroger further asserts that
“where an employee creates a specific unsafe working condition by
not following expected procedures, a deliberate intention action
21
cannot be maintained.”
18).
(Def.’s Mem. in Supp. Mot. Summ. J. at
Skaggs contends, in response, that he has offered
sufficient evidence of proximate cause, and that Kroger is
improperly attempting to raise the defense of contributory
negligence in a deliberate intention case.
While the requirement of “proximate cause in a
deliberate intent cause of action is statutory, the definition of
proximate cause set out in the statute is the common law
definition” adopted by the West Virginia Supreme Court.
v. Carboline Co., 617 S.E.2d 508, 512 (W. Va. 2005).
Tolley
That court
has held that “‘the proximate cause of an event is that cause
which in actual sequence, unbroken by any independent cause,
produces the event and without which the event would not have
occurred.’”
Id. (quoting Johnson v. Mays, 447 S.E.2d 563, 568
(W. Va. 1994)).
“It is well established in West Virginia that
ordinarily the issue of proximate cause is a jury question to be
decided based upon the totality of the evidence.”
Arnazzi v.
Quad/Graphics, Inc., 621 S.E.2d 705, 708 (W. Va. 2005).
More
specifically, proximate cause presents “‘issues of fact for jury
determination when the evidence pertaining to [proximate cause]
is conflicting or where the facts, even though undisputed, are
such that reasonable men may draw different conclusions from
22
them.’”
Id. (quoting Syl. Pt. 7, Stewart v. George, 607 S.E.2d
394 (2004)).
Viewing the evidence in the proper light, there appear
to be issues of material fact as to whether the specific unsafe
working conditions proximately caused Skaggs’ foot injuries.
With respect to the malfunctioning pallet jack, Skaggs has
presented evidence -- in the form of his and Green’s deposition
testimony -- showing that the machine had recurring braking and
acceleration problems which could have foreseeably resulted in
the machine unexpectedly rolling over an employee’s foot.
And
Kroger does not dispute that the pallet jack did actually roll
over Skaggs’ foot, and that it did in fact cause Skaggs’
injuries.
Although Kroger does dispute Skaggs’ assertion that
the machine was defective, this only shows that there is
conflicting evidence regarding proximate cause, thus revealing a
factual issue for jury determination.
See Arnazzi, 621 S.E.2d at
708.
As to whether Skaggs has offered sufficient evidence
showing that his lack of training on the pallet jack proximately
caused his injuries, the West Virginia Supreme Court’s decision
in Arnazzi is relevant to this issue.
There the plaintiff
claimed that his employer’s failure to provide him with forklift
23
safety training was the proximate cause of injuries he incurred
while operating the forklift.
Speaking generally on the issue of
proximate cause in cases involving an employer’s failure to
provide safety training, the court explained that “the finder of
fact must look at the nature of the training and the accident or
injury and determine if there is a proximately causal
connection.”
Id. at 709 n.5.
The relevant evidence in Arnazzi
included (1) an accident report prepared by the defendant’s
employee identifying the cause of the accident as being
plaintiff’s violation of a safety rule while driving the
forklift, and (2) testimony of the plaintiff’s coworkers
suggesting that the plaintiff had not always operated the
forklift with proper caution, care, and attention.
09.
Id. at 708-
After finding that this evidence “permits the conclusion
that the accident arose as a result of risks and conduct that the
omitted training specifically sought to reduce and avert,” the
court concluded that “[t]he issue of proximate cause was one to
be decided by the trier of fact.”
Id. at 709.
The court finds that Skaggs has offered sufficient
evidence for a jury to find a “proximately causal connection”
upon examining both the “nature of the training and the accident
or injury.”
See id.
The OSHA regulations set forth the content
24
of the required training program that Kroger failed to provide to
Skaggs.
Those regulations provide that “[p]owered industrial
truck operators shall receive initial training in,” among other
things, “[t]ruck controls and instrumentation: where they are
located, what they do, and how they work” and “[s]teering and
maneuvering.”
29 C.F.R. § 1910.178(l)(3).
Since the nature of
this training concerned truck controls and maneuvering, and
inasmuch as the evidence shows that Skaggs incurred his injuries
while attempting to maneuver the pallet jack using the machine’s
controls, a reasonable jury could find that Skaggs’ accident
arose as a result of “risks and conduct that the omitted training
specifically sought to reduce and avert.”
708.
Arnazzi, 621 S.E.2d at
And so, the question of whether Kroger’s failure to train
Skaggs proximately caused his injuries raises disputed issues of
fact to be resolved by the jury.
Lastly, the court rejects Kroger’s assertion that
Skaggs’ deliberate intention claim fails on the grounds that he
created the specific unsafe working conditions.
Although it does
not expand upon this argument, Kroger appears to be contending
that Skaggs was the proximate cause of his injuries because he
mishandled the pallet jack.
Regarding Skaggs’ improper usage of
the machine, Kroger’s mechanical engineering expert, George
25
Wharton, concluded that “Skaggs created a hazardous condition by
parking the lift in a careless manner with the control handle up
against the loading dock door,” and that “Skaggs caused his own
injury by working in a confined space and then backing the lift
up onto his foot instead of driving the lift forward.”
Mot. Summ. J., Ex. H, Wharton Report at 18).
(Def.’s
Additionally,
photographs of the incident indicate that Skaggs was improperly
attempting to maneuver the pallet jack from the front of the
machine rather than from the rear.
(See id., Ex. J).
As Skaggs
correctly notes, however, the West Virginia Supreme Court has
held that “[w]hen an employee asserts a deliberate intention
cause of action against his/her employer . . . the employer may
not assert the employee’s contributory negligence as a defense to
such action.”
Syl. Pt. 8, Roberts v. Consolidation Coal Co., 539
S.E.2d 478 (W. Va. 2000).
Kroger’s reliance on Mumaw v. U.S. Silica Co., 511
S.E.2d at 123, is unavailing.
The court in Mumaw referenced its
prior ruling in Blevins v. Beckley Magnetite, Inc., 408 S.E.2d
385 (W. Va. 1991), where an employee who was injured while
cleaning out a conveyor tail pulley claimed that the employer’s
method of cleaning out the pulley presented a specific unsafe
working condition.
The court rejected this argument after
26
finding that “[a] specific unsafe working condition . . . only
existed when the [employee] went into the guarded area, without
first turning off the equipment, to clean up the ore spillage,
failing to comply with safety procedures.”
at 391.
Blevins, 408 S.E.2d
Applying the principle adopted in Blevins, the court in
Mumaw, in a case where an employee was injured by falling through
an opening when he failed to close the trap door designed to
cover the opening despite both his training and his duty to do
so, concluded that “where an employee creates a specific unsafe
working condition by not following expected procedures, a
deliberate intention action cannot be maintained against the
employer.”
511 S.E.2d at 123 (emphasis added).
Here, Kroger is
hard put to argue that Skaggs failed to follow “expected”
procedures regarding the operation of the pallet jack in light of
its concession that it failed to provide him with proper training
on such procedures.
Nor can it be said that Skaggs “created” the
specific unsafe working conditions of either the malfunctioning
pallet jack or his lack of pallet jack training.
In sum, Skaggs has shown genuine issues of material
fact as to each element of his deliberate intention claim.
Summary judgment as to count one of Skaggs’ complaint is
accordingly denied.
27
C.
Negligence Claim
Count two of Skaggs’ complaint asserts a negligence
claim against Kroger.
As the parties acknowledge, Kroger is
immune from this simple negligence claim inasmuch as (1) it paid
into the state’s workers’ compensation fund, and (2) it was
Skaggs’ employer on the date of the incident in question.
Va. Code § 23-2-6.
See W.
Thus, Kroger is entitled to summary judgment
as to count two.
III.
Conclusion
For the foregoing reasons, the court ORDERS as follows:
1.
That Kroger’s motion for summary judgment as to
Skaggs’ deliberate intention claim (count one)
be, and it hereby is, denied.
2.
That Kroger’s motion for summary judgment as to Skaggs’
negligence claim (count two) be, and it hereby is,
granted.
The Clerk is directed to transmit copies of this
written opinion and order to all counsel of record and any
unrepresented parties.
ENTER: April 21, 2011
John T. Copenhaver, Jr.
United States District Judge
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