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Firstenergy Generation, LLC v. Muto

Supreme Court of West Virginia

March 12, 2018

FIRSTENERGY GENERATION, LLC, Defendant Below, Petitioner,
v.
JAMES J. MUTO AND CAROL MUTO, Plaintiffs Below, Respondents.

          Submitted: January 17, 2018

          Appeal from the Circuit Court of Harrison County Honorable John Lewis Marks, Jr., Judge Civil Action No. 14-C-532-1

          Stephen M. LaCagnin, Esq. Seth P. Hayes, Esq. David R. Stone, Esq. Jackson Kelly PLLC Morgantown, West Virginia Attorneys for Petitioner

          Michael D. Crim, Esq. Jeffrey D. Van Volkenburg, Esq. Stanley A. Heflin III, Esq. McNeer, Highland, McMunn and Varner, L.C. Clarksburg, West Virginia, Attorneys for Respondents

          JUSTICE LOUGHRY delivered the Opinion of the Court.

          JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.

          SYLLABUS BY THE COURT

         1. "The appellate standard of review for an order granting or denying a renewed motion for a judgment as a matter of law after trial pursuant to Rule 50(b) of the West Virginia Rules of Civil Procedure [1998] is de novo." Syl. Pt. 1, Fredeking v. Tyler, 224 W.Va. 1, 680 S.E.2d 16 (2009).

         2. "When this Court reviews a trial court's order granting or denying a renewed motion for judgment as a matter of law after trial under Rule 50(b) of the West Virginia Rules of Civil Procedure [1998], it is not the task of this Court to review the facts to determine how it would have ruled on the evidence presented. Instead, its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, when considering a ruling on a renewed motion for judgment as a matter of law after trial, the evidence must be viewed in the light most favorable to the nonmoving party." Syl. Pt. 2, Fredeking v. Tyler, 224 W.Va. 1, 680 S.E.2d 16 (2009).

         3. "'To establish "deliberate intention" in an action under [W.Va. Code § 23-4-2(d)(2)(ii)], a plaintiff or cross-claimant must offer evidence to prove each of the five specific statutory requirements.' Syllabus point 2, Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991)." Syl. Pt. 3, Mumaw v. U.S. Silica Co., 204 W.Va. 6, 511 S.E.2d 117 (1998).

          LOUGHRY, Justice

         The petitioner and defendant below, FirstEnergyGeneration, LLC, appeals the December 27, 2016, order of the Circuit Court of Harrison County denying its post-trial motions following an adverse jury verdict in this "deliberate intention" action filed pursuant to West Virginia Code § 23-4-2(d)(2)(ii) (2005)[1] by the respondents and plaintiffs below, James and Carol Muto. In this appeal, FirstEnergy asserts multiple assignments of error. Having considered the parties' briefs and oral arguments, the submitted appendix record, and the applicable authorities, we find the evidence presented at trial was insufficient to establish two of the required elements of a "deliberate intention" claim. Accordingly, we reverse the circuit court's final order and remand this case for entry of an order granting FirstEnergy's post-trial motion for judgment as a matter of law.

         I. Factual and Procedural Background

         On January 22, 2013, James Muto suffered permanent injuries when he fell approximately fourteen feet and landed on a concrete floor while attempting to inspect a rotary flyash feeder in a flyash silo at FirstEnergy's Harrison Power Station.[2] At the time of the accident, Mr. Muto had been an employee of FirstEnergy for twenty-three years. On January 26, 2014, he filed this action against FirstEnergy to recover damages for his injuries and, his wife, Carol Muto, asserted a claim for loss of consortium. The case was tried before a Harrison County jury in April 2016. The following is a brief summary of the evidence presented at trial. The evidence pertinent to the issues in this appeal will be addressed more fully in the discussion section.

         On the morning of January 22, 2013, a FirstEnergy maintenance crew under the direction of John Rapp, a maintenance supervisor, went into the flyash silo in the solid waste processing building of the Harrison Power Station to replace a piece of equipment known as a rotary feeder. [3] The entrance to the flyash silo is located on the fifth floor of the six-story waste processing building. The rotary feeder is housed on the second level of an elevated platform constructed of metal grating inside the flyash silo. In order to replace the rotary feeder, the crew had to remove the old rotary feeder, attach it to a chain, and lower it to the concrete floor, which required them to open portions of the grating on both levels of the elevated platform. Upon arrival, the maintenance crew proceeded to remove the old rotary feeder from its housing. The crew then left the silo for a mid-morning break. When the crew returned, they put steel cable barricades and yellow caution tape, labeled "Caution Do Not Enter, " across the access points to both the first and second levels of the elevated platform. The crew then opened a portion of the grating on both levels of the elevated platform in order to lower the old feeder to the floor below. The crew noticed that dust had become more prevalent inside the silo since removing the old feeder.[4] Tom Hamilton, the maintenance crew member who was in charge, called the control room[5] and requested that the flyash "train"[6] be shutdown to decrease the dust.

         The maintenance crew was informed that the "train" was not going to be shutdown and that alternative measures for reducing the dust were being taken. The crew proceeded to lower the old rotary feeder to the ground floor of the flyash silo. By that time, the dust had increased to the point of causing near zero visibility inside the silo. The maintenance crew decided to evacuate the silo and did so without closing the floor grating on either the first or second levels of the elevated platform; however, the barricades and yellow caution tape remained in place. The crew did not inform anyone that they were leaving the silo, that they had left the floor grating open, or that the amount of dust in the air had increased.

         In the meantime, Mr. Muto, a control room employee, had been dispatched from the control room to the pug mill, which is located one floor below the flyash silo, to check the water levels in the pug mill dust collectors. Jim Harley, the control room supervisor, had decided to try to alleviate the dust problem by adjusting the water levels in the pug mill dust collectors rather than shutting down the "train." According to Mr. Muto, he did not know that the maintenance crew was replacing the rotary feeder; therefore, when he found nothing unusual on the pug mill floor, he proceeded to climb the steps to the flyash silo to find the source of the dust. Through a window in the door to the silo, Mr. Muto observed that the dust had caused near zero visibility conditions and the maintenance crew was no longer inside. Although he was carrying a radio that allowed him to communicate with the control room, Mr. Muto did not notify anyone of the conditions inside the silo. Instead, he opened the door, climbed the two flights of steps to the top of the elevated platform and ducked under the barricade and yellow caution tape, which he assumed were erected due to the dusty conditions. Mr. Muto was going to inspect the rotary feeder when he fell through the open grating, landing two levels below on the concrete floor. Mr. Muto acknowledged during his testimony at trial that he had not been asked to inspect the rotary feeder and that he made the decision to do so himself. Although he sustained a head injury, Mr. Muto was able to call for help, and he was subsequently transported to a hospital for treatment. Prior to trial, Mr. Muto was granted workers' compensation permanent partial disability benefits.

         After a multi-day trial, the jury returned a verdict in favor of the Mutos, finding that FirstEnergy acted with "deliberate intent." The jury awarded Mr. Muto $350, 000.00 for past pain and suffering; $150, 000.00 for future pain and suffering; $275, 000.00 in past lost wages; and $420, 000.00 in future lost wages. The jury awarded Carol Muto $25, 000.00 for loss of consortium. The total verdict amount was $1, 220, 000.00. Prior to trial, the parties agreed that FirstEnergy was entitled to an offset for medical payments and indemnity of lost wages paid through workers compensation in the respective amounts of $21, 338.25 and $56, 047.75. Accordingly, after the offsets were applied, the total verdict was $1, 142, 614.00, to which the trial court added pre-judgment interest in the amount of $49, 497.90.

         Upon entry of the verdict, FirstEnergy filed a renewed motion for judgment as a matter of law[7] and, alternatively, filed a motion for a new trial and a motion to alter or amend the judgment. After a hearing, the trial court denied the motions, and this appeal followed.

          II. Standard of Review

         FirstEnergy contends the circuit court erred by denying its post-trial motions. Our standards of review with respect to such motions are well-established. "The appellate standard of review for an order granting or denying a renewed motion for a judgment as a matter of law after trial pursuant to Rule 50(b) of the West Virginia Rules of Civil Procedure [1998] is de novo." Syl. Pt. 1, Fredeking v. Tyler, 224 W.Va. 1, 680 S.E.2d 16 (2009). We have explained that

[w]hen this Court reviews a trial court's order granting or denying a renewed motion for judgment as a matter of law after trial under Rule 50(b) of the West Virginia Rules of Civil Procedure [1998], it is not the task of this Court to review the facts to determine how it would have ruled on the evidence presented. Instead, its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, when considering a ruling on a renewed motion for judgment as a matter of law after trial, the evidence must be viewed in the light most favorable to the nonmoving party.

Fredeking, 224 W.Va. at 2, 680 S.E.2d at 17, syl. pt. 2.

Regarding a motion for a new trial, we have held that,
[a]lthough the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.

Syl. Pt. 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976). Therefore,

[t]his Court reviews the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syl. Pt. 1, Burke-Parsons-Bowlby Corp. v. Rice, 230 W.Va. 105, 736 S.E.2d 338 (2012).

         With these standards in mind, we consider the parties' arguments.

         III. Discussion

         As set forth above, the Mutos filed this "deliberate intention" action pursuant to West Virginia Code § 23-4-2(d)(2)(ii). "When 'deliberate intention' is proven, an employer loses his immunity from civil liability for work-related injuries to employees provided by the Workers' Compensation Act." [8] Deskins v. S.W. Jack Drilling Co., 215 W.Va. 525, 528, 600 S.E.2d 237, 240 (2004). "'To establish "deliberate intention" in an action under [W.Va. Code § 23-4-2(d)(2)(ii)], a plaintiff or cross-claimant must offer evidence to prove each of the five specific statutoryrequirements.' Syllabus point 2, Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991)." Syl. Pt. 3, Mumaw v. U.S. Silica Co., 204 W.Va. 6, 511 S.E.2d 117 (1998). Simply stated, "[e]ach of the five statutory [requirements] is an essential element of a 'deliberate intention' cause of action, which a plaintiff has the ultimate burden to prove." Smith v. Apex Pipeline Services, Inc., 230 W.Va. 620, 628, 741 S.E.2d 845, 853 (2013) (internal quotations and citation omitted).

         The five requirements that must be established to prove that an employer acted with "deliberate intention" are set forth in West Virginia Code § 23-4-2(d)(2)(ii), as follows:

(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 [§ 23-4-1], article four, chapter twenty-three whether a claim for benefits under this section is filed or not as a direct and proximate result of the specific unsafe working condition.

         In this appeal, FirstEnergy argues that the Mutos failed to present sufficient evidence at trial to establish the requirements set forth in subsections (B) and (D) of West Virginia Code § 23-4-2(d)(2)(ii) and, therefore, it was entitled to judgment as a matter of law. We will consider the parties' arguments with respect to the evidence presented at trial on each of these requirements below.

         A. Employer's Actual Knowledge of a Specific Unsafe Working Condition

         In order to establish the second requirement of a "deliberate intention" claim, the employee has the burden of proving that the employer had actual knowledge of a specific unsafe working condition. W.Va. Code § 23-4-2(d)(2)(ii)(B). At trial, Mr. Muto asserted that two unsafe working conditions existed on January 22, 2013, which resulted in his injuries: (1) open floor grating in an elevated platform inside the flyash silo, which was improperly barricaded with yellow, instead of red, caution tape and (2) excessive dust inside the flyash silo causing near zero visibility. Therefore, in this instance, Mr. Muto had to present sufficient evidence to show that FirstEnergy, through his supervisor, Mr. Harley or another management employee, actually knew that the grating in the elevated platform had been left open without a proper barricade in place[9] or that FirstEnergy actually knew that dust inside the silo had resulted in near zero visibility conditions.

         We have recognized that "a determination of whether an employer had actual knowledge 'requires an interpretation of the employer's state of mind, and must ordinarily be shown by circumstantial evidence, from which conflicting inferences may often reasonably be drawn.'" Smith, 230 W.Va. at 630, 741 S.E.2d at 855 (quoting Syl. Pt. 2, in part, Nutter v. Owens-Illinois, Inc., 209 W.Va. 608, 609, 550 S.E.2d 398, 399 (2001)). We have also made clear, however, that the actual knowledge requirement "is a high threshold that cannot be successfully met by speculation and conjecture." Id. (quoting Mumaw v. U.S. Silica Co., 204 W.Va. 6, 12, 511 S.E.2d 117, 123 (1998); see also Coleman Estate ex rel. Coleman v. R. M. Logging, Inc., 226 W.Va 199, 207, 700 S.E.2d 168, 176 (2010). In that regard, we have held that

the actual knowledge requirement "is not satisfied merely by evidence that the employer reasonablyshould have known of the specific unsafe working condition and of the strong probability of serious injury or death presented by that condition. Instead, it must be shown that the employer actually possessed such knowledge." Syl. Pt. 3, in part, Blevins v. Beckley Magnetite, Inc., 185 W.Va. 633, 634, 408 S.E.2d 385, 386 (1991).

Smith, 230 W.Va. at 630, 741 S.E.2d at 855.

         With respect to the open floor grating, FirstEnergy asserts that there was no evidence presented at trial from which the jury could have reasonably concluded that FirstEnergy, through Mr. Harleyor another management employee, knew that the grating had been left open and unattended without a proper barricade in place. Indeed, members of the maintenance crew testified at trial that they were told by their supervisor, Mr. Rapp, during the pre-job briefing that morning not to leave the floor grates open. Tom Hamilton, who was in charge of the crew inside the silo, testified that when discussing the job with Mr. Rapp, he was told "whenever we had the grating open, just to make sure that we had the barricades up, and they didn't want us to leave the area with the grating open."[10]

          Critically, Mr. Hamilton testified that when the crew made the decision to leave the silo without closing the grating, they ...


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