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.
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.
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
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.
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
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
"'[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.
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. We do not agree. We have previously held
"'[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). Moreover, we ...