Hoschar et al v. Appalachian Power Company and Industrial Contractors, Inc.

Filing 146

MEMORANDUM OPINION AND ORDER granting Defendant Appalachian Power Company's 88 MOTION for Summary Judgment and Defendant Industrial Contractors, Inc.'s 90 MOTION for Summary Judgment; directing that Judgment be entered in favor of Defendants Appalachian Power Company and Industrial Contractors, Inc. and that this case be DISMISSED and stricken from the docket of this Court. Signed by Judge Robert C. Chambers on 11/30/2012. (cc: attys; any unrepresented parties) (mkw)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

ROGER HOSCHAR AND
JUDY HOSCHAR,
Plaintiffs,
v.

CIVIL ACTION NO. 3:11-00152

APPALACHIAN POWER COMPANY
AND INDUSTRIAL CONTRACTORS, INC.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendant Appalachian Power Company’s Motion for
Summary Judgment, (ECF No. 88), and Defendant Industrial Contractors, Inc.’s Motion for
Summary Judgment, (ECF No. 90). Because Plaintiffs’ claims against Defendants share the same
relevant facts, the Court will address both motions in a single opinion. For the following reasons,
the Court GRANTS summary judgment in favor of Defendants.
I.

FACTUAL BACKGROUND

Plaintiff1 has lived in Mason County, West Virginia, for most of his life. Hoschar Dep. at
18-26, APC Mot. Summ. J., Ex. D, ECF No. 88-1. From approximately March 2006 to April
2007, Plaintiff was employed as a boilermaker for Industrial Contractors, Inc. (“ICI”). Hoschar
Dep. at 100-01, Pl.’s Resp., Ex. 1, ECF No. 104-1. During that time he worked exclusively at the

1

There are two plaintiffs in this case—Roger and Judy Hoschar. Judy’s claim against
Defendants is for loss of consortium as a result of her husband’s injuries. For simplicity, the
Court will use the singular “Plaintiff,” to refer to Roger Hoschar.

Philip Sporn power facility (“Sporn facility”) in Mason County, West Virginia. The Sporn
facility was owned and operated by Defendant Appalachian Power Company (“APC”).
Approximately five months of Plaintiff’s time there was spent working in and around the Unit 5
precipitator at the Sporn facility. 2

Hoschar Dep. at 111, ECF No. 104-1.

Unit 5 is a

213-foot-high open-air structure composed of steel plates reinforced by steel girders at regular
intervals. APC Ans. to Interr. No. 13, Ex. F, ECF No. 88-1; Photos of Unit 5, Exs. G-2, G-3, ECF
No. 88-1. The horizontal girders are approximately eight inches wide and two and one half inches
deep (creating “channels”), with drainage holes at regular intervals. Photos of Unit 5, Exs. G-2,
G-3, ECF No. 88-1. Plaintiff’s work on the Unit 5 precipitator included patching the large ducts
leading into and out of the precipitator by welding sheets of steel over corroded portions, to
prevent leakage of gas and ash. Hoschar Dep. at 119-20, 124, ECF No. 104-2. To access the
parts of the structure needing repair, Plaintiff and his co-workers were elevated in a “pick,” which
is an elevated platform similar to those used by window washers.
Because Unit 5 is an outdoor facility, birds (particularly pigeons) sometimes perch on the
supporting girders and leave their droppings behind. Id. at 118-19. APC implemented several
measures to reduce the birds’ presence, including the use of a chemical to irritate the birds’ feet
when they landed on the beams, placing an animated owl decoy to scare the birds away, and
playing recordings of bird distress calls. APC Ans. to Interr. No. 10, Ex. F, ECF No. 88-1.
Nonetheless, Plaintiff observed accumulations of bird manure mixed with ash deposits in the
channels, as high as four inches. Hoschar Dep. at 131, 144-45, ECF No. 104-2. To prepare the
area for welding, Plaintiff cleared the manure out of the channels using different methods, such as

2

A precipitator is a structure that removes ash and other particles from the gasses produced by
burning coal. APC Mot. Summ. J. at 4, ECF No. 89.

2

his gloved hands, a wire brush, and an air hose. Id. at 134. Clearing away the manure resulted
“in aerosolized dust particles which accumulated on his person and clothing.” Compl. ¶ 2. Each
time Plaintiff performed his work on the pick and cleaned his tools, he wore a protective respirator.
Hoschar Dep. at 232-35, ECF No. 88-1.
In 2009, after Plaintiff had left his work at the Sporn facility, doctors performed a routine
chest x-ray in preparation for unrelated knee surgery.
four-centimeter mass in Plaintiff’s lung.

Id.

Id. at 156.

Doctors observed a

Believing it could be cancerous, Plaintiff’s

physician recommended that Plaintiff undergo surgery to remove the portion of his lung
containing the mass. Guberman Dep. at 37, Ex. B, ECF No. 88-1; Ducatman Dep. at 44, Ex. C,
ECF No. 88-1. Accordingly, doctors removed that portion of Plaintiff’s lung. Biopsy results on
the mass ultimately revealed that it was not cancer, but rather benign histoplasmosis. Guberman
Dep. at 37, ECF No. 88-1. Because the mass was removed and there was no evidence of active
histoplasmosis elsewhere in his body, Plaintiff was not treated for histoplasmosis. Ducatman
Report at 1, Ex. L, ECF No. 88-1.
Histoplasmosis is an infectious disease caused by inhaling the spores of the Histoplasma
capsulatum fungus. National Institute for Occupational Safety and Health, Histoplasmosis:
Protecting Workers at Risk, Revised Edition at 1, Ex. S, ECF No. 88-1. The disease cannot be
transmitted from an infected person or animal to someone else. Id. Histoplasmosis generally
affects a person’s lungs, and the vast majority of people with the disease have no ill effects and
may not even realize they have the disease. Id. The minority that does exhibit ill effects presents
flu-like symptoms. Id. H. capsulatum grows in soil and the proportion of people infected by the
fungus is particularly high in the Ohio River Valley region, where the soil is rich in nitrogen. Id.
at 3. The organism can be carried on the wings, feet, and beaks of birds and infect soil under

3

roosting sites or manure accumulations inside or outside buildings. Id. Fresh bird droppings on
surfaces like windowsills and sidewalks, however, have not been shown to present a health risk for
histoplasmosis because birds themselves do not appear to be infected by the fungus. Id. Bird
manure rather acts as a nutrient source for H. capsulatum that is already present. Id. Those at
risk of developing histoplasmosis are those present near activities where material contaminated
with H. capsulatum becomes airborne. Id. at 4.
Plaintiff and his wife filed the instant suit on January 31, 2011, alleging that he developed
histoplasmosis after being exposed to aerosolized bird manure while working at the Sporn
facility.3 First, Plaintiff asserts a common law negligence claim against APC. Plaintiff claims
that as owner of the Sporn facility, APC breached a duty to provide a safe place to work.
Specifically, Plaintiff alleges that APC failed to post health risk warnings concerning the
accumulations of bird manure at the plant; failed to notify workers of the health risks associated
with bird manure and histoplasmosis; and failed to clean and remove accumulated bird manure
prior to Plaintiff beginning the repair work. Compl. ¶¶ 10-13.
Second, Plaintiff asserts a claim against ICI pursuant to the West Virginia’s Workers’
Compensation Act, W. Va. Code § 23-4-2(d)(ii). That provision subjects employers to liability
for a plaintiff-employee’s injury if the employer “acted with deliberate intention” to “produce the
specific result of injury or death to an employee.” W. Va. Code § 23-4-2(d)(2). In this case,
Plaintiff claims that ICI had actual knowledge that accumulations of bird manure were present at
the worksite and that there was a high degree of risk of injury from histoplasmosis. Compl. ¶ 16.
Additionally, Plaintiff contends that ICI violated industry safety standards and thus “intentionally

3

Plaintiffs originally filed this action in the Circuit Court of Mason County, West Virginia.
Defendants removed the case to this Court based on diversity jurisdiction. The Court has
previously concluded that jurisdiction is proper. ECF No. 10.
4

exposed [him] to a working condition in which he was not educated to the dangers of bird manure
. . . .” Id. ¶¶ 17, 22. Plaintiff’s wife asserts claims for loss of consortium.
This matter has been fully briefed and is ripe for disposition. Accordingly, the Court
now turns to the parties’ arguments and applicable legal standards.
II.
A.

ANALYSIS

Summary Judgment Standard of Review

To obtain summary judgment, the moving party must 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(a). In considering a motion for summary judgment, the Court will not “weigh the
evidence and determine the truth of the matter[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). Instead, the Court will draw any permissible inference from the underlying facts in
the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587-88 (1986).
Although the Court will view all underlying facts and inferences in the light most favorable
to the nonmoving party, the nonmoving party nonetheless must offer some “concrete evidence
from which a reasonable juror could return a verdict in his [or her] favor[.]” Anderson, 477 U.S.
at 256. Summary judgment is appropriate when the nonmoving party has the burden of proof on
an essential element of his or her case and does not make, after adequate time for discovery, a
showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). The nonmoving party must satisfy this burden of proof by offering more than a mere
“scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252.

5

B.

Appalachian Power Company’s Motion for Summary Judgment

To prevail on a negligence claim based on premises liability in West Virginia, a plaintiff
must show: (1) the owner or occupier owed a duty to the person injured; (2) that duty was
breached; and (3) the breach of the duty caused (4) an injury. Senkus v. Moore, 535 S.E.2d 724,
727 (W. Va. 2000). APC argues that Plaintiff failed to meet his burden with respect to the duty
and causation elements. ECF No. 89 at 8. The Court will first address whether APC owed
Plaintiff a duty regarding the risk of histoplasmosis.
The West Virginia Supreme Court of Appeals has abolished the licensee/invitee distinction
for the duty owed by a landowner. Mallet v. Pickens, 522 S.E.2d 436, at 446 Syl. pt. 4 (W. Va.
1999). Consequently, for both types of plaintiffs, “[t]he ultimate test of the existence of a duty to
use care is found in the foreseeability that harm may result if it is not exercised. The test is, would
the ordinary man in the defendant’s position, knowing what he knew or should have known,
anticipate that harm of the general nature of that suffered was likely to result?” Id. at 446 (citing
Sewell v. Gregory, 371 S.E.2d 82, Syl. pt. 3 (W. Va. 1988)); see also Neely v. Belk, Inc., 668
S.E.2d 189, 198-99 (W. Va. 2008) (citation omitted). “An employer owes a duty to provide a
reasonably safe place to work to employees of independent contractors who are on the premises.
This duty includes the duty to warn of latent defects existing before the work is started that are
known to the employer, but are not readily observable by the employee.” Pasquale v. Ohio
Power Co., 418 S.E.2d 738, 751 (W. Va. 1992).
Here, the relevant question is: did APC have actual or constructive knowledge that the bird
manure on the Unit 5 precipitator presented a risk of histoplasmosis? Plaintiffs acknowledge that
they “must prove that APC had actual or constructive knowledge” of the histoplasmosis risk.
ECF No. 103 at 18. Plaintiff relies exclusively on a publication of the National Institute for

6

Occupational Health and Safety (“NIOSH publication”) to argue that APC had knowledge of a
danger of histoplasmosis, which gave rise to a duty owed to Plaintiff. In 1997, the National
Institute of Occupational Safety and Health published a document called Histoplasmosis:
Protecting Workers at Risk, which was revised in December 2004. See APC Mot. Summ. J., Ex.
S, ECF No. 88-1. The NIOSH publication was available on the website of the Occupational
Safety & Health Administration during the time Plaintiff worked at the Sporn facility, specifically
in 2006. See OSHA Website, Ex. 10, ECF No. 102-10; Neill Dep. at 77, ECF No. 102-9.
Plaintiff argues that the contents of this publication, which discusses the disease, its cause, and
protective measures for those at risk, gave rise to a duty by APC towards its contractors. The
Court concludes that Plaintiff has not satisfied his burden of demonstrating that APC breached a
duty owed to Plaintiff.
First, Plaintiffs have offered no evidence that APC or any of its employees had actual
knowledge of the NIOSH publication, or knowledge from any other source that H. capsulatum
spores are associated with accumulations of bird manure and can lead to histoplasmosis. Two
APC employees at the Sporn facility—Jeffrey Atkinson, a maintenance supervisor, and John
Chaney, an assistant steam process owner—testified that they had received no training or
instruction from any source about histoplasmosis. Atkinson Dep. at 49-50, Ex. H, ECF No. 88-1;
Chaney Dep. at 82, Ex. E, ECF No. 88-1. The only evidence of actual knowledge that Plaintiffs
provide is actual knowledge that birds were present at the Sporn facility—not actual knowledge of
the associated presence of H. capsulatum. APC does not contest that it knew about the presence
of birds at the Sporn facility; it acknowledges employing certain measures to keep them away.
APC Ans. to Interr. No. 10, Ex. F, ECF No. 88-1; Atkinson Dep. at 24-25, Ex. 5, ECF No. 99-5.

7

Mere knowledge of the presence of birds and their droppings, however, does not imply
knowledge of the presence of H. capsulatum spores. APC cites several supporting cases that bear
striking resemblance to the case here. In Henderson v. Volpe-Vito, Inc., No. 266515, 2006 WL
1751832 (Mich. Ct. App. June 27, 2006), a premises liability action in Michigan, the plaintiff sued
the owner of a recreational park for injuries associated with histoplasmosis. She claimed to have
contracted the disease as a result of goose droppings at the park. The court determined that the
defendant’s acknowledgment of the presence of geese did not “attenuate into an implied
knowledge of the fungus, the spores and the dangerous condition of defendant’s land.”
Henderson, 2006 WL 1751832, at *3-4.

Similarly, the Eighth Circuit found that actual

knowledge of histoplasmosis and its association with bird droppings did not equate to knowledge
that the defendants knew or should have known that their attic would contain spores of the fungus
and present a risk to the plaintiff, whom they had hired to clean their attic. Mowry v. Schmoll, 441
F.2d 1271, 1273 (8th Cir. 1971) (affirming the district court’s granting a directed verdict for
defendants).

APC’s actual knowledge of the presence of birds, therefore, did not make

foreseeable any risk of contracting histoplasmosis from working at the Unit 5 precipitator.
Second, the Court concludes that Plaintiffs have not sufficiently demonstrated that APC
had the requisite constructive knowledge of the histoplasmosis risk. Plaintiffs argue that APC
had constructive knowledge of the risk of histoplasmosis from bird manure because of the NIOSH
publication. While Plaintiff asserts that “NIOSH has disseminated its Histoplasmosis Guidelines
through various means,” ECF No. 103 at 9, he relies almost exclusively on the OSHA website as

8

being the source of constructive knowledge, id. at 8-10, 18-19.4 Therefore, Plaintiff’s argument
goes, the risk of histoplasmosis was foreseeable and gave rise to a duty to exclude the birds and
their droppings from the Unit 5 precipitator, and a duty to warn Plaintiff of the manure and risks of
histoplasmosis. ECF No. 103 at 16.
The NIOSH publication describes the H. capsulatum fungus, where it can be found, and the
associated risk of histoplasmosis. Plaintiffs specifically direct the Court’s attention to one
statement in particular: “The organism can be carried on the wings, feet, and beaks of birds and
infect soil under roosting sites or manure accumulations inside or outside buildings.” ECF No.
103 at 19; NIOSH Publication at 3. This statement and other portions of the NIOSH publication,
Plaintiffs contend, should have put APC on notice that the accumulations of bird manure at the
Unit 5 precipitator “were hazardous and likely to contain the histoplasmosis fungus.” ECF No.
103 at 19. Yet, statements within the NIOSH publication cannot serve to put APC on notice if
APC had no reason to be aware of the existence of the publication.
In this case, the mere existence of the NIOSH publication and its availability on a
government website is insufficient to charge APC with constructive knowledge of the
histoplasmosis risk. Constructive knowledge is “knowledge that one using reasonable care or
diligence should have, and therefore that is attributed by law to a given person.” Black’s Law

4

In addition to the NIOSH publication already referenced, the NIOSH website cited by Plaintiffs
indicates that its histoplasmosis research results have been disseminated through: (1) two Health
Hazard Evaluation reports (these reports, one for a Catholic Church in Indiana, and the other for a
building in Florida, bear the disclaimer that the report and “any recommendations made herein are
for the specific facility evaluated and may not be universally applicable”); (2) two peer-reviewed
scientific papers published in The Pediatric Infectious Disease Journal and Applied Occupational
and Environmental Hygiene; (3) an industry trade journal paper (Poultry Grower News); (4) a fact
sheet; (5) an article in the Center for Disease Control’s Morbidity and Mortality Weekly Report;
and (6) presentations at three industrial hygiene conferences. In their opposition brief, Plaintiffs
do not detail these methods and do not argue that APC should have had constructive knowledge
based on any of these specific documents.
9

Dictionary (9th ed. 2009).

Under these circumstances, Plaintiff has not shown that using

reasonable care, APC should have known about the histoplasmosis risk, such that the law should
attribute such knowledge to APC.

Plaintiffs claim that the NIOSH guidelines have achieved

“general acceptance” based on the following information on a NIOSH website:
The NIOSH recommendations on preventing histoplasmosis have
been adopted by other agencies and organizations, including:
Laborers’ Health and Safety Fund of North America (A6-128);
Clemson University Research Medical Surveillance Program
(A6-129); Defense Supply Center Richmond, Defense Logics
Agency, Hazardous Technical Information Services (A6-130);
StaffScapes Professional Employer Organization (A6-131); Korean
Radiological Society (A6-132); and New Jersey Department of
Health and Senior Services, Division of Epidemiology,
Environmental, and Occupational Health, Public Employees
Occupational Safety and Health Program (A6-133). The new RDRP
NIOSH publication on protecting workers against histoplasmosis is
cited on the OSHA Respiratory Protection Hazard Recognition Web
page (A6-134). The CPWR electronic library of construction
occupational safety and health replicates verbatim “Histoplasmosis:
Protecting Workers at Risk” (revised edition) in both English and
Spanish (A6-135, A6-136).
ECF No. 103 at 9 (citing http://www.cdc.gov/niosh/nas/rdrp/ch6.5.htm). APC is not listed
among these organizations, nor do Plaintiffs offer proof that APC is a member of any of the
organizations that have adopted the guidelines. Plaintiffs offer no evidence that the NIOSH
publication is authoritative in the power industry, or that any other applicable statutes or
regulations require it to be aware of the histoplasmosis risk. See Neill Dep. at 77, 121-22, Ex. A,
ECF No. 88-1 (Plaintiff’s industrial hygiene expert testifying that OSHA has no regulation
regarding histoplasmosis and no other statutes or regulations require facilities to take actions
regarding bird manure to prevent histoplasmosis).
Furthermore, as APC argues in its motion, others in Plaintiff’s own industry were unaware
of any relationship between bird manure, H. capsulatum, and histoplasmosis.

10

While the

knowledge of others is not dispositive of the knowledge attributed to APC regarding
histoplasmosis, it is nonetheless useful as an indication of whether knowledge is so common that
APC should have known about the risk. The Boilermakers Union, of which Plaintiff was a
member, did not provide training or instruction regarding histoplasmosis risks. King Dep. at
14-15, Ex. P, ECF No. 88-1. Nor did any union members file complaints with the union related to
histoplasmosis generally, or at the Sporn facility specifically. Id. at 19-20. Leadership of ICI,
the independent contractor that employed Plaintiff, similarly had no experience with
histoplasmosis prior to Plaintiff’s condition. See Hieronymous Dep. at 120-21, Ex. I, ECF No.
88-1; Landis Dep. at 126, Ex. R, ECF No. 88-1. A safety resource employee at ICI testified
regarding histoplasmosis that “[t]here’s never been a complaint about it by the employee, by the
union hall, by the foreman, anybody. I’ve never been contacted about a problem or a complaint
about histoplasmosis on any job site.” Landis Dep. at 132-33, ECF No. 88-1. Taken together,
the evidence from APC, the union, and ICI shows no indication that knowledge of H. capsulatum
and histoplasmosis was widespread even in Plaintiff’s own industry and therefore there is
insufficient evidence that APC, as a premises owner, had constructive knowledge of the risk.
Because the risk of Plaintiff contracting histoplasmosis was not reasonably foreseeable to
APC, the Court concludes that Plaintiff has not produced evidence sufficient to demonstrate that
APC violated a duty owed to Plaintiff. There is no genuine issue of material fact as to APC’s
knowledge regarding the presence of H. capsulatum spores and the related risk of histoplasmosis
at the Unit 5 precipitator. Plaintiff cannot satisfy the first element of its negligence claim against
APC and it is thus unnecessary for the Court to evaluate the other elements. Therefore, the Court
GRANTS Defendant APC’s Motion for Summary Judgment regarding Roger Hoschar’s claim.

11

Because Judy Hoschar’s claim for loss of consortium is dependent upon Roger Hoschar’s claim,
the Court also GRANTS summary judgment in favor of APC on the loss of consortium claim.
C.

Industrial Contractors, Inc.’s Motion for Summary Judgment

Generally, an employer participating in West Virginia’s workers’ compensation system is
immune from suit by employees who suffered injury or death on the job. W. Va. Code § 23-2-6.
There is an exception to this general immunity where an injury to an employee occurs as a result of
“the deliberate intention of his or her employer to produce the injury or death.” W. Va. Code §
23-4-2(c).

There are two ways a plaintiff may establish “deliberate intention.” First, a plaintiff

can show that the employer “acted with a consciously, subjectively and deliberately formed
intention to produce the specific result of injury or death to an employee.” W. Va. Code §
23-4-2(d)(2)(i). Second, a plaintiff can establish a deliberate intention claim by showing all of the
following elements:
(A) That a specific unsafe working condition existed in the workplace which
presented a high degree of risk and a strong probability of serious injury or death;
(B) That the employer, 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

12

(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); see also Syl. pt. 2, Mayles v. Shoney’s, Inc., 405 S.E.2d 15 (W. Va.
1991).
Plaintiff seeks to establish his deliberate intention claim under West Virginia Code §
23-4-2(d)(2)(ii). To survive the motion for summary judgment, 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)). If ICI
“establish[es] that no material issue of fact is in dispute on any one of the five factors, and such a
finding is in favor of the defendant, summary judgment must be granted to the defendant.”
Mumaw, 511 S.E.2d at 122. ICI asserts that Plaintiff has failed to prove a material issue of fact as
to any of the five elements of § 23-4-2(d)(2)(ii). The Court concludes that at least for element (C),
Plaintiff has failed to prove a genuine dispute of material fact. Consequently, even assuming the
other elements are satisfied, summary judgment is nonetheless appropriate.
As a preliminary question, the Court must first identify the “specific unsafe working
condition” of which Plaintiff complains, because each of the five elements requires the Court to
analyze Defendant’s knowledge of, and actions related to, the alleged specific unsafe working
condition.

Here, Plaintiff claims that the specific unsafe working condition was requiring

Plaintiff to work in an area with “large accumulations of bird manure” without: (1) warning of the
risk of histoplasmosis; (2) removing the bird manure; and (3) instructing workers about safe
methods of cleaning the manure and providing the appropriate equipment to do so. Compl. ¶ 15.
Element (C) of the five-part deliberate intention statute requires Plaintiff to demonstrate
that the alleged specific unsafe working condition violated either: (1) “a state or federal safety

13

statute, rule or regulation;” or (2) “a commonly accepted and well-known safety standard within
the industry or business of the employer.” W. Va. Code § 23-4-2(d)(2)(ii)(C). In drafting this
statute, “[t]he legislature apparently has recognized that many industries or businesses observe
safety standards whether or not they are the subject of governmental regulation. Subsection (C)
takes this into account and permits relief for the violations of such of these safety standards as are
‘commonly accepted’ and ‘well-known.’” Handley v. Union Carbide Corp., 804 F.2d 265, 273
(4th Cir. 1986).
Plaintiff claims that in this case, ICI violated a commonly accepted and well-known safety
standard, rather than a statute, rule, or regulation. ECF No. 100 at 21-23. Indeed, Plaintiff’s
industrial hygiene expert acknowledged that “there is no enforceable regulation in terms of a
specific standard for histoplasmosis.” Neill Dep. at 121-22, Ex. 9, ECF No. 99-9. Therefore,
Plaintiff again relies exclusively on the existence of the NIOSH publication, arguing that it
constitutes a “commonly accepted and well-known safety standard,” which ICI violated. ECF
No. 100 at 21-23.
The Court finds that Plaintiff has not demonstrated that the NIOSH publication is
commonly accepted or well known within the industry, for many of the same reasons articulated in
the discussion of APC’s Motion for Summary Judgment supra, at Section II.B. Plaintiff argues
that because the publication was available to the public on OSHA’s website on a page titled
“Respiratory Protection: Hazard Recognition,” it was well known and ICI should have been aware
of its recommendations. See ECF No. 100 at 22-23; OSHA Website, Ex. 10, ECF No. 102-10.
The fact that the NIOSH publication was available online, however, does not establish that it was

14

commonly accepted or well known throughout ICI’s industry.5 Furthermore, OSHA’s website
describes the NIOSH publication and other documents provided there as “references [that] aid in
recognizing and evaluating respiratory hazards in the workplace.” Id. It thus appears to the
Court that OSHA considers the NIOSH publication to be a useful “reference,” rather than a
definitive industry standard.
Plaintiff again attempts to demonstrate common acceptance of the NIOSH publication by
showing that NIOSH’s website notes that the “recommendations on preventing histoplasmosis
have been adopted by other agencies and organizations.”

ECF No. 100 at 22 (citing

http://www.cdc.gov/niosh/nas/rdrp/ch6.5.htm). Plaintiffs have offered no evidence, however,
that ICI is a member of any of the six listed organizations that adopted the recommendations.
Additionally, the fact that these few organizations in various industries have specifically adopted
the recommendations but others have not indicates that the NIOSH publication has not been
commonly accepted within ICI’s industry. Nor does Plaintiff’s industrial hygiene expert, Harry
Neill, testify that the guidelines are commonly accepted and well known. Neill cited the NIOSH
publication repeatedly in his expert report and deposition testimony. See Neill Dep. at 18, 23,
24-25, 52, 86-87, 106, ECF No. 99-9 (referring to the “guidance from NIOSH” and relying on the
guidelines to form his opinion). He referred to the publication as “guidelines,” but never stated
that the construction industry or boilermaker industry has adopted the guidelines, or that the
guidelines are even well known throughout those industries. Without evidence of common

5

The parties disagree as to the relevant “industry” for purposes of the deliberate intention statute.
ICI contends that the relevant industry is boilermaking, which is what Plaintiff was hired to do at
the Sporn facility, while Plaintiff contends that the more general construction industry is the
relevant industry. The distinction makes no difference here, because the Court concludes that
Plaintiff has offered insufficient evidence that the NIOSH publication recommendations are well
known or commonly accepted in either industry.
15

acceptance, the Court concludes that Plaintiff cannot make out a prima facie claim under the
deliberate intention statute.
At the end of oral argument on this matter, Plaintiff’s counsel cited a 1981 decision of the
Occupational Safety Health Review Commission in which the Commission determined that an
employer committed a serious violation of OSHA’s regulations regarding respiratory protection.
Mahone Grain Corp., 10 BNA OSHC 1275, 1981 WL 18939 (No. 77-3041 1981). Although
Plaintiff did not cite this decision in any of the summary judgment pleadings, the Court will
nonetheless address its applicability and explain why it is not persuasive here.
In that case, the employer was cited for failing to establish and maintain a respiratory
protection program after several employees developed histoplasmosis while cleaning and
refurbishing a grain elevator. Specifically, the Administrative Law Judge affirmed a citation for
violating several subparts of 29 C.F.R. § 1910.134, which requires employers to establish and
maintain a respiratory protection program, provide respirators to employees “when such
equipment is necessary to protect the health of the employee,” and to keep respirators in proper
working condition. The employer there had no respiratory program, did not provide all its
employees with respirators, and did not keep respirators in proper working condition. Mahone
Grain Corp., 1981 WL 18939, at *1 n.2. This case, however, does not support Plaintiff’s
assertion that he has satisfied element (C) of the deliberate intention statute.
Title 29 C.F.R. § 1910.134 is a regulation that requires safe equipment and working
conditions generally. It is not a regulation that is “specifically applicable to the particular work
and working condition involved.” W. Va. Code § 23-4-2(d)(2)(ii)(C). The regulation is not
specifically applicable to the potential hazard of accumulated bird droppings and histoplasmosis.
Instead, it generally requires employers to develop and maintain a respiratory protection program

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and provide respirators to workers. Even if ICI violated this regulation—a question not before
this Court and which the Court need not reach—such a violation would not satisfy element (C) of
the deliberate intent statute.6
To summarize, the Court concludes that Plaintiff has not demonstrated that the NIOSH
publication constitutes a “commonly accepted and well-known safety standard within the
industry.” The mere availability of the publication on a government website does not equate to
the industry’s acceptance of the guidelines therein. The deliberate intention statute requires
Plaintiff to show that the specific unsafe working condition was a violation of a commonly
accepted and well-known safety standard within the industry. Plaintiff has not made such a
showing in this case. Consequently, the Court GRANTS summary judgment for Defendant ICI
on both Plaintiffs’ claims.
III.

CONCLUSION

For the foregoing reasons, the Court GRANTS Defendants’ Motions for Summary
Judgment. In accordance with the accompanying Judgment, the Court ORDERS that Judgment
be entered in favor of Defendants Appalachian Power Company and Industrial Contractors, Inc.,
and that this case be DISMISSED and stricken from the docket of this Court. The Court
DIRECTS the Clerk to send a copy of this written Opinion and Order to counsel of record and any
unrepresented parties.
ENTER:

November 30, 2012

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE
6

Unlike the employer in Mahone Grain Corp., ICI did have a written respiratory protection
program in place. See Neill Dep. at 116, ECF No. 99-9. Additionally, Plaintiff acknowledges
that ICI required him and other workers to wear a respirator and other protective gear while
performing their work. Hoschar Dep. at 120-22, Ex. 8, ECF No. 90-8.
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