Christopher W. Runyan, Plaintiff Below, Petitioner
Lowe's Home Centers, LLC, Defendant Below, Respondent
Kanawha County 16-C-730
Christopher W. Runyan, by counsel Timothy J. Lafon and Keisha
D. May, appeals the Circuit Court of Kanawha County's
August 24, 2017, order granting respondent's motion for
summary judgment. Respondent Lowe's Home Centers, LLC, by
counsel Andrew B. Cooke and Jason A. Proctor, filed a
response. On appeal, petitioner argues that the circuit court
erred in finding that he failed to prove the factors required
to show deliberate intention pursuant to West Virginia Code
§ 23-4-2 and in denying his motion for a continuance.
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,
this 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.
February of 2016, petitioner sustained a work-related injury
when he pushed a rolling ladder into a clearance bar
suspended in front of an exterior door. The clearance bar was
a plastic pipe suspended as a clearance warning for drivers
attempting to enter or exit the door and was connected to the
ceiling via chains and S-hooks. Upon colliding with the
clearance bar, it fell and struck petitioner on the head,
causing injuries. Petitioner received medical treatment
through respondent's workers' compensation program
and remained off work for several months.
filed an initial and amended complaint against respondent in
May of 2016, generally alleging negligence. Respondent moved
to dismiss the petition, arguing that it was immune from
claims for work-related injuries caused by negligence and
that petitioner failed to state a claim under the deliberate
intention exception. The circuit court permitted petitioner to
file a second amended petition, which he did in September of
2016. Petitioner's second amended petition alleged that
respondent had knowledge that the clearance bar was a safety
hazard which it failed to correct. It incorporated a letter
from Winn Forensics, which cited regulations from the
Occupational Safety and Health Administration and the
American National Standards Institute allegedly violated by
the course of several months, petitioner underwent three
independent medical evaluations to determine his whole person
impairment resulting from the work-related incident. All of
the evaluators opined that petitioner incurred zero percent
whole person impairment. In July of 2017, respondent moved
the circuit court to dismiss the case or, in the alternative,
grant it summary judgment. Respondent argued that petitioner
failed to satisfy the elements required to prove deliberate
intention. A hearing on the matter was set for July 19, 2017.
One day prior to the hearing, petitioner filed a response to
respondent's motion, arguing that he had demonstrated the
required elements for deliberate intention and, in support of
his argument, attached two affidavits from former employees
of respondent. A third affidavit authored by another former
employee was submitted to the circuit court on the day of the
hearing. The former employees stated that they, along with
assistant managers, had previously observed the clearance bar
in its detached state. During the hearing, petitioner moved
the circuit court to grant a continuance for further
discovery. However, the circuit court denied petitioner's
motion and later entered an order granting respondent's
motion for summary judgment, finding that petitioner failed
to prove the requisite elements for deliberate intention
under West Virginia Code § 23-4-2. It is from the August
24, 2017, order that petitioner appeals.
standards of review for cases concerning summary judgment are
well settled. "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). In conducting our de novo review, we apply the same
standard for granting summary judgment that is applied by the
circuit court. Under that standard,
"'[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. In other words,
[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.
Id. at 190, 451 S.E.2d at 756, Syl. Pt. 4. We note
that "[t]he circuit court's function at the summary
judgment stage is not to weigh the evidence and determine the
truth of the matter, but is to determine whether there is a
genuine issue for trial." Id. at 190, 451
S.E.2d at 756, Syl. Pt. 3. With respect to deliberate
intention claims specifically, this Court has held that
a court shall dismiss a deliberate intention action
"upon motion for summary judgment if it finds . . . that
one or more of the facts required to be proved by the
provisions of subparagraphs (A) through (E), inclusive,
paragraph (ii) of this subdivision do not exist." W.Va.
Code § 23-4-2(d)(iii)(B). Each of the five statutory
factors "is an essential element of a 'deliberate
intention' cause of action, which a plaintiff has the
ultimate burden to prove. Therefore, at the summary judgment
stage, if a defendant should establish that no material issue
of fact is in dispute on any one of the factors, and such a
finding is in favor of the defendant, summary judgment must
be granted to the defendant." Mumaw v. U.S. Silica
Co., 204 W.Va. 6, 11, 511 S.E.2d 117, 122 (1998).
Finally, "'in order to withstand a motion for
summary judgment, a plaintiff must make a prima facie showing
of dispute on each of the five factors.'" Marcus
v. Holley, 217 W.Va. 508, 520, 618 S.E.2d 517, 529
(2005) (citation omitted) (footnote omitted).
Smith v. Apex Pipeline Services, Inc., 230 W.Va.
620, 628, 741 S.E.2d 845, 853 (2013).
appeal, petitioner first argues that the circuit court erred
in finding that he failed to satisfy the five elements of
deliberate intention, and thus in granting respondent summary
judgment. Petitioner specifically argues that he submitted
sufficient evidence to prove that a state or federal safety
statute, rule, or regulation was violated; that respondent
had actual knowledge of a specific unsafe working condition
and intentionally exposed petitioner ...