Ellis v. Pinnacle Mining Company, LLC et al

Filing 156

MEMORANDUM OPINION AND ORDER: The Court ORDERS that Defendant Pinnacle Mining Company, LLC's 94 MOTION for Summary Judgment and Plaintiffs' 102 MOTION for Partial Summary Judgment on the Issue of Liability for Deliberate Intent be DENIED; the Court ORDERS that the 151 MOTION for Leave to File Surreply in Opposition to Pinnacle Mining Company, LLC's Motion for Summary Judgment be DENIED. Signed by Judge Irene C. Berger on 1/11/2017. (cc: attys; any unrepresented party) (slr)

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

EDWARD ELLIS, JR., et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 5:15-cv-16228

PINNACLE MINING COMPANY,
LLC, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

The Court has reviewed Defendant Pinnacle Mining Company, LLC’s Motion for Summary
Judgment (Document 94) and Memorandum of Law in Support (Document 95), the Plaintiffs’
Response in Opposition to Defendant, Pinnacle Mining Company’s Motion for Summary Judgment
(Document 125) and Memorandum in Support (Document 126), and Defendant Pinnacle Mining
Company, LLC’s Reply to Plaintiff’s Response in Opposition to Defendant Pinnacle Mining
Company’s Motion for Summary Judgment (Document 150). In addition, the Court has reviewed
the Plaintiffs’ Motion for Leave to File Surreply in Opposition to Pinnacle Mining Company,
LLC’s Motion for Summary Judgment (Document 151). The Court has further reviewed all
attached exhibits.
The Court has also reviewed the Plaintiffs’ Motion for Partial Summary Judgment on the
Issue of Liability for Deliberate Intent (Document 102) and Memorandum of Law in Support
(Document 103), the exhibits attached to Document 104, Defendants Cliffs Natural Resources,

Inc., Cliffs North American Coal LLC, Cliffs Logan County Coal LLC, Cliffs West Virginia Coal
Inc., and Cliffs Mining Services Company LLC’s Response in Opposition to Plaintiffs’ Motion for
Partial Summary Judgment (Document 124), Defendant Pinnacle Mining Company, LLC’s
Response to Plaintiffs’ Motion for Partial Summary Judgment (Document 129), and all attached
exhibits. For the reasons stated herein, the Court finds that both motions for summary judgment
should be denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Plaintiffs, Edward Ellis and his wife, Tina Ellis, initiated this action in the Circuit
Court of Wyoming County on August 3, 2015. They named as Defendants Pinnacle Mining
Company, LLC (Pinnacle), Cliffs Natural Resources Inc., Cliffs North American Coal LLC, Cliffs
Logan County Coal, LLC, Cliffs West Virginia Coal Inc., and Cliffs Mining Services Company
(collectively, “Cliffs Defendants”). 1 The Defendants removed the matter to federal court on
December 17, 2015, asserting diversity jurisdiction. The Plaintiffs filed an Amended Complaint
(Document 18) on January 20, 2016, asserting the following causes of action: (1) Deliberate Intent
– Pinnacle; (2) Unsafe Workplace/Negligence – Cliffs Defendants; (3) Deliberate Intent – Cliffs
Defendants; (4) Loss of Consortium – all Defendants, on behalf of Tina Ellis.
Mr. Ellis was employed by Pinnacle as a general laborer at Pinnacle Mine, beginning in
April 2013.

He had over twenty years of mining experience, and had attained various

certifications over the years, including his foreman certification. He was hired as an hourly
employee on the evening shift, and worked on the longwall, as a general laborer wherever he was

1 Pinnacle is a subsidiary of Cliffs North American Coal LLC, which is a subsidiary of CLF Pinnoak LLC, which is
in turn a subsidiary of Cliffs Mining Company. Cliffs Natural Resources, Inc., is the ultimate parent company.

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assigned, or filled in as a fireboss if needed. Pinnacle provided him with newly employed
experienced miner training when he began, as well as task training when he was assigned new
tasks. The training included some discussion of appropriate protective gear, as well as safety
instructions for passengers on mantrips traveling in the mine. Those instructions specify that, if
the pole detaches, passengers should not rise up or attempt to grab it until the mantrip has fully
stopped, and that passengers should not rise up and should keep all limbs inside the mantrip. In
addition to the formal training, Pinnacle supervisors held safety meetings before each shift to
discuss general safety protocol as well as any violations or issues management had noticed.
On August 3, 2013, while riding the mantrip at the beginning of his shift, Mr. Ellis hit his
head on a roof bolt and was seriously injured. He lost consciousness, and the impact broke
through his hardhat. He recalls the impact pushing his head down and back. He suffered injury
to his cervical spine, which left him with little feeling in his legs, reduced control of his arms,
bowel and bladder dysfunction, and sexual dysfunction. Though he can walk very short distances
with a walker, he is unsteady and at risk of falling. Mr. Ellis will need a wheelchair for the rest
of his life due to his injuries, and will always need someone to assist him with personal hygiene,
eating, and other aspects of daily life. His wife currently acts as his caregiver.
The accident took place near Break 142 in the mine, about forty minutes from the mine
entrance. Mr. Ellis had been doing rehab work for two to four weeks to prepare an area to have
seals put in, and had travelled the same route during that time. A small number of other miners
worked with him, and he acted as the fireboss for the work area. However, Mr. Ellis stated that
he was not responsible for firebossing the section of the track where he was injured. A member
of the union Safety Committee explained that the area where Mr. Ellis was injured is not travelled

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regularly, even by inspectors, and is not generally part of safety checks performed jointly by the
union and mine management. Mr. Ellis was usually a passenger on the trip to the work site, and
a miner who had worked at Pinnacle longer usually drove. On August 3, 2013, Ronnie Walters
drove a jeep (a small, open mantrip), and Mr. Ellis was the only passenger.
The height of the mine roof changed from more than six feet to somewhat over four feet
over a distance of between seventy and ninety feet, approaching Break 142. Mr. Ellis thought he
heard a noise like the pole on the mantrip detaching and turned to check. Another miner provided
testimony explaining that the pole could swing dangerously when it detached, and finding out
where it was would be prudent. There is dispute regarding whether Mr. Ellis rose up in the
mantrip or remained in a low, seated position.2 His forehead hit a protruding roof bolt, which
penetrated his hardhat. The Mine Safety and Health Administration (MSHA) later determined
that Mr. Ellis’ hardhat did not meet required standards. The parties dispute whose responsibility
it was to ensure that miners’ hardhats were compliant, as well as whether the non-compliant
hardhat contributed to the severity of Mr. Ellis’ injuries. Mr. Ellis was wearing a hardhat he had
purchased from a fellow miner at a different mine sometime in the late 1990s. About a week
before the incident at issue here, he had struck his head on a roof bolt and cracked another hardhat,
which was identical except for color. He took the hardhat he was wearing at the time of the
August 3 accident to someone in the safety department to have a tracking signal installed after the
prior incident, which was less than one week before his August 3 injury.

2 Some medical records suggest that, in describing the accident in the hours after it took place, Mr. Ellis said he rose
up to grab the pole. Mr. Ellis denies that he said that and maintains that he remained in a low position. The parties
conducted a site inspection wherein they took measurements of the mantrip and the location of the accident, but dispute
exactly what those measurements indicate (i.e., whether it was twenty-eight inches from the seat of the mantrip to the
mine roof, or from the top of the seatback to the mine roof). Thus, although the measurements and whether someone
of Mr. Ellis’s height would make contact with the mine roof while in a seated position on the mantrip should be readily
verifiable, it remains the subject of dispute for purposes of the instant motions for summary judgment.

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The parties also dispute whether the change in clearance is properly considered “abrupt,”
for the purposes of regulations requiring warning signs or reflectors when there is an abrupt
change. However, several members of management stated that they were familiar with the area,
that “everyone knew” there was a low top there, and that they believed there were signs warning
of the decrease in roof height. For example, Dave Meadows, then the Safety Manager for
Pinnacle, agreed that “before Mr. Ellis got hurt, the mine recognized that there was descending
roof in that entry between the sizer and down the slope and that it was necessary to put up those
reflectors to warn miners of the changes in overhead clearance.” (Meadows Depo. at 37::1-5)
(Document 104-4.) He indicated, however, that he did not believe there was a problem with the
signage at Break 142 because the area had been travelled for thirty years without incident and
without citation, to the best of his recollection. Bill Kissinger, the evening shift foreman, likewise
agreed that “if the area goes from seven feet to four feet…in the 100 feet approaching where Mr.
Ellis was injured, there should have been a sign or reflector.” (Kissinger Depo at 42::11-14)
(Document 104-10). He also indicated that a change in roof height over one hundred feet would
not be abrupt, but that if there was not a sign warning of the low clearance, there should have been.
Mr. Kissinger stated that it was a mine wide policy that miners should stay low while travelling in
mantrips. He could not recall any citations regarding the roof height or the lack of warning signs
at Break 142.
Several miners testified that there was an abrupt change in overhead clearance without
appropriate signs or warning indicators in the area where Mr. Ellis was injured. They also
indicated that there had been previous incidents in which miners struck or grazed their heads in
that area, though without significant injury, and that those incidents were discussed in safety

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meetings by members of management. None of the miners had discussed the dangers presented
by the low roof and lack of warning signs with management, although they may have complained
amongst themselves. Some miners, including Mr. Walters, the mantrip driver on August 3, stated
that they were not familiar with a track haulage policy for the mine and no such policy had been
distributed. The miners and the members of management all indicated that warning signs were
necessary when there were abrupt changes in clearance because of the risk of miners hitting their
heads and being seriously injured or killed.
Pinnacle filed its motion for summary judgment on November 23, 2016, and the Plaintiff
filed his on November 28, 2016. The Plaintiffs responded to Pinnacle’s motion on December 12,
2016, and Pinnacle responded to the Plaintiff’s motion on December 14, 2016. Pinnacle filed a
reply in support of its motion on December 19, 2016. The Plaintiff did not file a reply on his own
motion, but seeks to file a surreply to Pinnacle’s motion. The motions are fully briefed and ripe
for the Court’s consideration.
STANDARD OF REVIEW
The well-established standard in consideration of a motion for summary judgment is that
“[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a)–(c); see also Hunt v. Cromartie, 526 U.S. 541, 549 (1999); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Hoschar v.
Appalachian Power Co., 739 F.3d 163, 169 (4th Cir. 2014). A “material fact” is a fact that could
affect the outcome of the case. Anderson, 477 U.S. at 248; News & Observer Publ’g Co. v.
Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). A “genuine issue” concerning
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a material fact exists when the evidence is sufficient to allow a reasonable jury to return a verdict
in the nonmoving party’s favor. FDIC v. Cashion, 720 F.3d 169, 180 (4th Cir. 2013); News &
Observer, 597 F.3d at 576.
The moving party bears the burden of showing that there is no genuine issue of material
fact, and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp.,
477 U.S. at 322–23. When determining whether summary judgment is appropriate, a court must
view all of the factual evidence, and any reasonable inferences to be drawn therefrom, in the light
most favorable to the nonmoving party. Hoschar, 739 F.3d at 169. However, the non-moving
party must offer some “concrete evidence from which a reasonable juror could return a verdict in
his favor.” Anderson, 477 U.S. at 256. “At the summary judgment stage, the non-moving party
must come forward with more than ‘mere speculation or the building of one inference upon
another’ to resist dismissal of the action.” Perry v. Kappos, No.11-1476, 2012 WL 2130908, at
*3 (4th Cir. June 13, 2012) (unpublished decision) (quoting Beale v. Hardy, 769 F.2d 213, 214
(4th Cir. 1985)).
In considering a motion for summary judgment, the court will not “weigh the evidence and
determine the truth of the matter,” Anderson, 477 U.S. at 249, nor will it make determinations of
credibility. N. Am. Precast, Inc. v. Gen. Cas. Co. of Wis., 2008 WL 906334, *3 (S.D. W. Va.
Mar. 31, 2008) (Copenhaver, J.) (citing Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986). If
disputes over a material fact exist that “can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party,” summary judgment is inappropriate. Anderson,
477 U.S. at 250. If, however, the nonmoving party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case,” then summary judgment should be

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granted because “a complete failure of proof concerning an essential element . . . necessarily
renders all other facts immaterial.” Celotex, 477 U.S. at 322–23.
When presented with motions for summary judgment from both parties, courts apply the
same standard of review. Tastee Treats, Inc. v. U.S. Fid. & Guar. Co., 2008 WL 2836701 (S.D.
W. Va. July 21, 2008) (Johnston, J.) aff'd, 474 F. App'x 101 (4th Cir. 2012). Courts “must review
each motion separately on its own merits to determine whether either of the parties deserves
judgment as a matter of law,” resolving factual disputes and drawing inferences for the nonmoving party as to each motion. Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003)
(internal quotation marks and citations omitted); see also Monumental Paving & Excavating, Inc.
v. Pennsylvania Manufacturers' Ass'n Ins. Co., 176 F.3d 794, 797 (4th Cir. 1999).

APPLICABLE LAW
“West Virginia law expressly provides an exemption from employee civil liability claims
for work-related injuries to employers who are in good standing with the Workers' Compensation
laws of the state W. Va. Code § 23-2-6 (1991).” Sedgmer v. McElroy Coal Co., 640 S.E.2d 129,
132 (W. Va. 2006) (per curiam.) “The Legislature also expressly provided that this immunity is
not absolute in the area of “deliberate intention” injuries, setting forth mandatory requirements at
[W. Va. Code § 23-4-2(d)], which must be met before an employer’s immunity is lost and an
employee may recover outside the workers’ compensation system.” Id. at 133.
W. Va. Code § 23-4-2(d)(ii) sets forth the five elements that a Plaintiff must prove to
establish a deliberate intent cause of action:

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(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
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 suffered serious compensable
injury or compensable death . . . as a direct and proximate
result of the specific unsafe working condition.

W. Va. Code § 23-4-2(d)(ii)(A)-(E).3
Proximate cause is “that cause which in actual sequence, unbroken by any independent
cause, produces the event and without which the event would not have occurred.” Skaggs v.
Kroger Co./Kroger Ltd. P'ship I, 788 F. Supp. 2d 501, 510 (S.D.W. Va. 2011) (quoting Johnson
v. Mays, 447 S.E.2d 563, 568 (W. Va. 1994) (Copenhaver, J.)

Where there is conflicting

3 West Virginia’s deliberate intent statute was amended effective June 12, 2015. The parties have cited, and the
Court has applied, the version of the statute effective prior to that date.

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evidence, or the undisputed evidence permits conflicting interpretations, proximate cause is a
question for the jury. Id. However, the West Virginia Supreme Court of Appeals has held that
employers may not assert an employee’s contributory negligence as a defense in deliberate intent
actions. Syl. Pt. 8, Roberts v. Consolidation Coal Co., 539 S.E.2d 478, 483 (W. Va. 2000). In
any case “where an employee creates a specific unsafe working condition by not following
expected procedure, a deliberate intention action cannot be maintained against the employer.”
Mumaw v. U.S. Silica Co., 511 S.E.2d 117, 123 (W. Va. 1998) (after hoisting a piece of equipment
through a trapdoor, the employee responsible for closing the trapdoor failed to do so and fell).
DISCUSSION
A. Surreply
As an initial matter, the Court finds that the Plaintiff’s motion to file a surreply should be
denied. To the extent Pinnacle’s reply brief contained new arguments or raised new issues, the
Court will disregard those arguments and issues.

The proposed surreply largely reiterates

previous arguments regarding whether Mr. Ellis raised up at the time of the accident. The facts
and evidence supporting each party’s position were presented in the initial briefing, and, therefore,
the Court finds that no surreply is necessary.
B. Deliberate Intent
Pinnacle argues that Mr. Ellis was injured only because he rose up to grab the trolley pole,
in violation of Pinnacle’s training. Thus, Pinnacle asserts, the proximate cause of Mr. Ellis’ injury
was his own unsafe behavior, rather than the lack of signs and reflectors warning of the low roof
at Break 142. Any unsafe condition was created by the Plaintiff, according to Pinnacle. Pinnacle
stresses that the low clearance around Break 142 has not resulted in either citations or reportable
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incidents similar to Mr. Ellis’ accident in the approximate thirty years the haulage road has been
in use. Therefore, Pinnacle argues, “if Break 142 presented a high degree of risk and a strong
probability of serious injury…someone else would have been seriously injured in the 30 years the
area has existed.” (Pinnacle Mem. in Supp. of Summary J. at 14) (emphasis in original). In
addition, Pinnacle asserts that there is no evidence that Mr. Ellis’ hardhat provided deficient
protection or that any deficiency contributed to his spinal injury, and that even if it did, miners
were responsible for procuring their own approved hardhats. Pinnacle argues that Mr. Ellis has
not made a prima facie showing for each of the five elements required to prove deliberate intent,
and seeks summary judgment.
Mr. Ellis relies on the affidavits and depositions, from miners and management alike,
indicating that there was an abrupt change in clearance at Break 142, that warning signs or
reflectors should have been posted in the area, and that the low roof presented a risk of serious
injury or death. Mr. Ellis further stresses that there had been prior incidents that did not result in
serious injuries, but did prompt management to discuss the area during safety huddles, indicating
knowledge of the unsafe condition. He maintains that he did not raise up, and asserts that
“comparative fault is barred and assuming Mr. Ellis ‘raised up,’ ‘raising up’ is the precise action
that warning signs are intended to prevent.” (Pl.’s Resp. to Def.’s Mot. for Summary J. at 15.)
Because members of management admitted that the area was low, that warning signs were
required, and that miners could be seriously injured or killed by striking their heads on the low
roof, Mr. Ellis asserts that he is entitled to summary judgment.
The Court finds that the bar against deliberate intent actions when the injured employee
created the unsafe condition is not applicable. First, there is a factual dispute regarding whether

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Mr. Ellis raised up or remained seated. More importantly, however, the “unsafe condition” at
issue is the lack of warning signs or reflectors at an area with rapidly decreasing clearance. Mr.
Ellis did not create the low clearance, nor did he fail to post warning signs or reflectors.
Therefore, Mr. Ellis cannot be said to have created the unsafe condition by raising up to hit his
head. As Pinnacle managers recognized, indicators of low clearance are required precisely to
alert miners of the need to take extra care to remain low and avoid hitting their heads on the roof.
The Court finds that Mr. Ellis has made a prima facie case as to each element, precluding
summary judgment in favor of the Defendant, but that issues of fact bar summary judgment in
favor of Mr. Ellis. There was testimony from miners and from Mr. Meadows and Mr. Kissinger
that would permit a reasonable juror to conclude that the lack of warning signs or reflectors at
Break 142 constituted an unsafe working condition presenting a high degree of risk and a strong
probability of serious injury or death. A jury could conclude that Pinnacle had actual knowledge
of the condition and the risks it presented based on (a) testimony from managers that they knew it
was low, (b) managers’ observation of the long-standing condition during their travel in the area,
and (c) testimony that managers mentioned the area during pre-shift safety meetings after prior
incidents of miners hitting or grazing their heads in the same area. Likewise, there was testimony
indicating that the decrease in clearance at Break 142 was abrupt, and regulations require signs or
reflectors to mark abrupt changes in clearance. Mr. Ellis was directed to work in an area that
required him to travel through Break 142. A jury finding that Pinnacle had knowledge of the risks
posed by the lack of warning signs or reflectors could find that Pinnacle intentionally exposed Mr.
Ellis to the unmarked low clearance at Break 142. Finally, there is no dispute that Mr. Ellis

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suffered serious compensable injuries. A reasonable jury could conclude that the lack of warning
signs proximately caused his injuries. Thus, Pinnacle is not entitled to summary judgment.
However, a reasonable jury could also conclude that the change in clearance at Break 142
was not “abrupt” within the meaning of the regulations, as Pinnacle’s expert contends, or that the
area did not present a high degree of risk and a strong probability of serious injury or death, given
the absence of citations or serious previous incidents. A reasonable jury could find that Pinnacle,
having trained employees to remain low in the mantrip at all times, did not intentionally expose
Mr. Ellis to the unsafe condition. Or a jury could conclude that the lack of signs or reflectors did
not proximately cause Mr. Ellis’s injuries. Thus, Mr. Ellis is not entitled to summary judgment
as to deliberate intent.
CONCLUSION
Wherefore, after thorough review and careful consideration, the Court ORDERS that
Defendant Pinnacle Mining Company, LLC’s Motion for Summary Judgment (Document 94) and
the Plaintiffs’ Motion for Partial Summary Judgment on the Issue of Liability for Deliberate Intent
(Document 102) be DENIED. In addition, the Court ORDERS that the Motion for Leave to File
Surreply in Opposition to Pinnacle Mining Company, LLC’s Motion for Summary Judgment
(Document 151) be DENIED.
The Court DIRECTS the Clerk to send a certified copy of this Order to counsel of record
and to any unrepresented party.
ENTER:

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January 11, 2017