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Adkins v. Kiah Creek Transportation, LLC

Supreme Court of West Virginia

May 22, 2017

Thomas Adkins, Plaintiff Below, Petitioner
v.
Kiah Creek Transportation, LLC, Defendant Below, Respondent

         (Wayne County 15-C-97)

          MEMORANDUM DECISION

         Petitioner Thomas Adkins, by counsel Scott W. Andrews, appeals the Circuit Court of Wayne County's May 19, 2016, order granting respondent Kiah Creek Transportation, LLC's motion for summary judgment and dismissing petitioner's deliberate intention suit. Respondent, by counsel Cy A. Hill, Jr., filed a response. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in granting respondent's motion for summary judgment and in denying his request for additional discovery.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In May of 2013, petitioner was employed by respondent and operated a coal truck at a mine in Wayne County, West Virginia, when he was involved in a single-vehicle accident. Petitioner was operating a 2009GV Mack Granite Coal Truck, otherwise known as the no. 10 truck. According to petitioner, this specific truck previously had multiple mechanical issues, including the fuel shutting off, and a weak compression release engine brake and service brakes. According to petitioner's testimony, he reported these issues to supervisors several months prior to the eventual accident. Petitioner also testified that he refused to drive this very truck sometime in 2012. As such, respondent assigned petitioner a different truck to drive. According to discovery, several other drivers operated this truck in the period leading up to petitioner's accident without incident. Moreover, evidence established that respondent regularly serviced and maintained the truck in question. This maintenance included adjustment of the brakes in the period leading up to the accident in question. None of the other drivers who drove the truck in question made any notations on their inspection reports about any safety issues with the truck. In fact, the reports consistently reflected that the truck's condition was satisfactory.

         On the date of petitioner's accident in May of 2013, he was reassigned to the truck at issue and noted no issues pursuant to his inspection. In fact, petitioner testified that he specifically checked the brakes and found no issues. Petitioner drove the truck approximately one mile and obtained a load without incident. On his way back to the shop, petitioner alleges that the truck shut off while he was climbing a hill. The truck then began rolling backward, at which point petitioner attempted to engage all of the brakes. Petitioner was unable to stop the truck and it continued to roll down the hill. The truck then collided with a rock wall at the bottom of the hill, where petitioner alleged that he was knocked unconscious and sustained injuries to his back, head, left elbow, and right shoulder/clavicle. According to the circuit court, the discovery below reflected that respondent was not cited by any state or federal regulatory agency as a result of the accident. Similarly, the record lacked any evidence of safety issues found in the truck following the accident.

         In May of 2015, petitioner filed a complaint against respondent and alleged a deliberate intention cause of action. In April of 2016, respondent filed a motion for summary judgment. Following petitioner's response, the circuit court held a hearing on the motion that same month. In May of 2016, the circuit court entered an order granting respondent's motion for summary judgment. According to the circuit court, petitioner failed to present prima facie proof of each of the five elements of a deliberate intention cause of action. It is from the circuit court's order that petitioner appeals.

         We review de novo petitioner's appeal of the circuit court's summary judgment order. "A circuit court's entry of summary judgment is reviewed de novo." Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Our review is guided by the principle that

"'[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963)." Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).

Painter, 192 W.Va. at 190, 451 S.E.2d at 756, Syl. Pt. 2. Furthermore,

"[s]ummary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove." Syllabus point 4, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

Syl. Pt. 5, Toth v. Bd. of Parks & Recreation Comm'rs, 215 W.Va. 51, 593 S.E.2d 576 (2003). Upon our review, we find no error below.

         First, petitioner argues that the circuit court erred in finding that he failed to establish a prima facie case of deliberate intention because he created a genuine issue of material fact below.[1] We do not agree. We have previously held that

"'[a] plaintiff may establish a "deliberate intention" in a civil action against an employer for a work-related injury by offering evidence to prove the five specific requirements provided in [W.Va.Code § 23-4-2(d)(2)(ii) (2010)].' Syl. Pt. 2, Mayles v. Shoney's, Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990)." Syl. Pt. 3, Tolley v. ACF Industries, Inc., 212 W.Va. 548, 575 S.E.2d 158 (2002).

Syl. Pt. 5, Smith v. Apex Pipeline Serv., Inc., 230 W.Va. 620, 741 S.E.2d 845 (2013).[2] Moreover, we ...


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