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Bays v. The Kroger Co.

United States District Court, S.D. West Virginia, Charleston

May 12, 2017

FREDA BAYS, Plaintiff,
v.
THE KROGER CO., d/b/a Kroger, Defendant.

          MEMORANDUM OPINION AND ORDER

          John T. Copenhaver, Jr. United States District Judge.

         Pending 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.

         I. Background

         Kroger 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.

         The 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.[1] 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.

         Plaintiff 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.

         Plaintiff's 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.

         Plaintiff 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.

         II. Governing Standard

         Summary 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.

         The 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).

         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). 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. at 248.

         III. Discussion

         A. Deliberate Intent Requirements

         The 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.

         This 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.

         A plaintiff must prove the following five elements to establish a deliberate intent cause of action pursuant to § 23-4-2(d)(2)(ii):

(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 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 ...

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