United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. United States District Judge.
is the motion for summary judgment filed on February 20,
2017, by defendant The Kroger Co., d/b/a Kroger
(“Kroger”). This case presents a deliberate
intent claim brought by an employee under the West Virginia
Workers' Compensation Act.
is a limited partnership created under the laws of Ohio with
its principal place of business in Cincinnati, Ohio.
Plaintiff Freda Bays is a resident of Huntington, West
Virginia and was formerly employed by Kroger as a customer
service manager in the Huntington, West Virginia store
located at Seventh Avenue and First Street. Amended Compl. at
II; see also Exhibit 1 to Pl.'s Resp. to Mot. for Summary
Judgment (“Gandee Deposition”) at 5.
first amended complaint, which is the operative complaint,
alleges that on September 9, 2013, Kroger “caused a
floor fan to be placed in the workplace.” Id.
at IV. The floor fan “did not allow for
safe clearance of the aisle and/or doorway, as it obstructed
said area, and caused an unsafe working condition.”
Id. Plaintiff alleges that Kroger had actual
knowledge of the unsafe working condition and of the
“strong probability of serious injury or death”
presented by the fan because “employees had informed
management of the hazard posed by the floor fan.”
Id. Although Kroger was aware of the unsafe working
condition, Kroger “nevertheless intentionally
thereafter exposed” plaintiff to it. Id.
“As a result of being exposed to the unsafe working
condition caused by the improperly placed floor fan,
[plaintiff] was seriously injured and required medical
attention when she tripped and fell over the floor fan cord
while on her way from the [customer] service area to the
accounting area of the store.” Id.
alleges that as a result of her fall, she suffered from and
will continue to suffer from: (1) “serious personal
injuries of a permanent and indefinite duration;” (2)
“pain and suffering, physical and mental, past, present
and future;” (3) “loss of enjoyment of life,
past, present and future;” (4) “loss of capacity
to earn an income, and perform household and other related
duties, past, present and future;” (5) “past,
present and future medical expenses of a sum which can be
made certain;” and (6) “annoyance, inconvenience,
embarrassment and humiliation.” Id.
deposition was taken on November 3, 2015. During the
deposition, she explained in further detail how the accident
occurred. Plaintiff stated that she was working in the
customer service area, which adjoins the accounting area of
the store, and that she was walking from the customer service
area to the accounting area, which is connected by a door.
See Exhibit 2 to Pl.'s Resp. (“Plaintiff's
Deposition”) at 33-34. According to her,
I don't know why I was going back to the office, but
evidently - maybe to get the pharmacy till to give to the
person working in the pharmacy, but I went through the door
and my left foot got caught on the fan cord and it threw me,
and when it threw me, I grabbed the doorknob. I grabbed the
doorknob to keep from hitting the safe and hitting my head,
and when I grabbed the doorknob, the door just kept walking,
so I had to walk on my knees. . . . And when I fell, I
chattered my teeth. I went (indicating) like that real hard.
Id. at 34-35.
stated that for 10 to 12 years, employees would take a fan
from Kroger's inventory during the summertime to cool the
customer service and accounting areas. Id. at 35.
Stephen Gandee, the general manager of the store,
additionally stated that a fan from the store had been used
in the customer service and accounting areas for years to
cool the areas because those areas got extremely hot in the
summer. See Plaintiff's Deposition at 34-36; see also
Gandee Deposition at 24, 34-36. Plaintiff testified that
employees moved the fan around in the customer service and
accounting areas depending on where they were working.
Plaintiff's Deposition at 35-36.
judgment is appropriate only “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). “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); see also News & Observer Publ'g
Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576
(4th Cir. 2010) (same). A “genuine” dispute 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 fact-finder
could return a verdict for the non-moving party. Anderson,
477 U.S. at 248.
moving party has the initial burden of showing --“that
is, pointing out to the district court -- that there is an
absence of evidence to support the non-moving party's
case.” Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986). If the moving party satisfies this burden, then
the non-moving party must set forth specific facts,
admissible in evidence, that demonstrate the existence of a
genuine issue of material fact for trial. See Id. at
322-23; Fed.R.Civ.P. 56(c), (e).
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). A party is entitled to summary judgment
if the record as a whole could not lead a rational trier of
fact to find for the non-moving party. Williams v.
Griffin, 952 F.2d 820, 823 (4th Cir. 1991). Conversely,
summary judgment is inappropriate if the evidence is
sufficient for a reasonable fact-finder to return a verdict
in favor of the non-moving party. Anderson, 477 U.S.
Deliberate Intent Requirements
West Virginia Workers' Compensation Act (“the
Act”) was designed to provide a simple, expeditious
method of resolving disputes arising from workplace injuries.
Mitchell v. State Workmen's Comp. Comm'r,
163 W.Va. 107, 117, 256 S.E.2d 1, 9 (1979); Meadows v.
Lewis, 172 W.Va. 457, 469, 307 S.E.2d 625, 637 (1983).
To that end, the Act “remove[s] from the common law
tort system all disputes between or among employers and
employees regarding the compensation to be received for
injury or death to an employee.” W.Va. Code §
23-4-2(d)(1). Section 23-2-6 of the Act thus specifically
provides that covered employers - as well as any
“officer, manager, agent, representative, or
employee” of such employers, are “not liable to
respond in damages at common law or by statute for the injury
or death of any employee, however occurring. . . .”
Id. at § 23-2-6.
immunity is not absolute. It “may be lost . . . if the
employer or person against whom liability is asserted acted
with deliberate intention.” W.Va. Code §
23-4-2(d)(2). Deliberate intent may be established in either
of two “separate and distinct” ways. Syl. Pt. 1,
Mayles v. Shoney's Inc., 185 W.Va. 88, 405
S.E.2d 15 (1990) (referring to W.Va. Code § 23-4-
2(d)(2)(i) (requiring specific intent to injure or result in
death) and (ii) (requiring strong probability of serious
injury or death)). Only the second method is at issue here.
See Def.'s Mot. for Summary Judgment and Pl.'s Resp.
to Mot. for Summary Judgment.
plaintiff must prove the following five elements to establish
a deliberate intent cause of action pursuant to §
(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
(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;
(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