Ryan v. Clonch Industries, Inc.

Joseph E. Ryan, plaintiff below/appellant (hereinafter referred to as “Mr. Ryan”), appeals summary judgment granted in favor of his employer, Clonch Industries, Ine. and H & D Lumber Distributors, Inc., defendants below/appellees (hereinafter collectively referred to as “Clonch”),1 in a deliberate intent action brought under W. Va.Code § 23 — 4—2(c)(2)(ii) (1994) (Repl.Vol.1998).2 In granting summary judgment, the circuit court of Nicholas County concluded that Mr. Ryan had failed to establish a genuine issue of material fact as to (1) whether Clonch had a subjective realization and appreciation of the existence of a specific unsafe working condition, or a high degree of risk and strong probability of serious injury or death presented by the specific unsafe working condition, and (2) whether there was a specific safety statute violated. We find that Mr. Ryan has met his burden on these two issues and therefore reverse the summary judgment order and remand this ease for further proceedings.

I.

FACTUAL AND PROCEDURAL HISTORY

Although there are many contentions between the parties with respect to what may be gleaned from the evidence in the record, there are a few undisputed facts. Basically, Mr. Ryan was hired by Clonch on August 19, 2002. Clonch is in the lumbering business, and Mr. Ryan was originally hired to perform the job of stacker. Mr. Ryan asserts that prior to this employment, he had never before worked in or around a sawmill or lumberyard. After three weeks of employment, Mr. Ryan was offered a position as a banding man. The job duties of a banding *668man included cutting measured lengths of metal banding from a coil using tin snips provided by Clonch, placing the bands around pallets of lumber, tightening the bands and crimping the ends together. While Mr. Ryan was cutting metal banding on September 17, 2002, his third day of performing the job of banding man, he was struck in the left eye by a sharp piece of the metal banding material, which caused a deep laceration. Mr. Ryan has undergone five surgeries on his injured eye. It has been determined that he has been rendered permanently blind in that eye.

Thereafter, Mr. Ryan filed a deliberate intent claim against Clonch under W. Va. Code § 23-4-2(c)(2)(ii). Prior to trial, by order entered April 21, 2005, the Circuit Court of Nicholas County granted summary judgment in favor of Clonch based upon its conclusion that Mr. Ryan had failed to establish two of the five elements of W. Va.Code § 28 — 4—2(c)(2)(ii). Specifically, the circuit court concluded that Mr. Ryan failed to establish a genuine issue of material fact as to (1) whether Clonch had a subjective realization and appreciation of the existence of a specific unsafe working condition, or a high degree of risk and strong probability of serious injury or death presented by the specific unsafe working condition, and (2) whether there was a specific safety statute, rule or regulation violated. It is from the circuit court’s summary judgment order that Mr. Ryan now appeals.

II.

STANDARD OF REVIEW

The instant case is before this Court on appeal of an order of the circuit court granting summary judgment in favor of Clonch. Accordingly, our review of this case is de novo. Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) (“A circuit court’s entry of summary judgment is reviewed de novo.’’). In performing our plenary review, we are mindful 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).

Syl. pt. 2, Painter. Finally, 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.” Syl. pt. 3, Painter.

III.

DISCUSSION

To overcome the immunity afforded Clonch under the West Virginia workers’ compensation system and establish deliberate intent under the theory propounded by Mr. Ryan, he is required to establish each of the elements set out in W. Va.Code § 23-4-2(c)(2)(ii).3 This Court acknowledged the same when it held that “ ‘[a] plaintiff may establish “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. *669Code, § 23 — 4—2(c)(2)(ii) (1983).’ Syl. pt. 2, Mayles v. Shoney’s, Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990).” Syl. pt. 1, Bell v. Vecellio & Grogan, Inc., 191 W.Va. 577, 447 S.E.2d 269 (1994). The aforementioned statutory provision states that

(2) The immunity from suit provided under this section and under section six-a, [§ 23-2-6a] article two of this chapter, may be lost only if the employer or person against whom liability is asserted acted with “deliberate intention”. This requirement may be satisfied only if:

(ii) The trier of fact determines, either through specific findings of fact made by the court in a trial without a jury, or through special interrogatories to the jury in a jury trial, that all of the following facts are proven:

(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 had a subjective realization and an appreciation of the existence of such specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by such specific unsafe working condition;

(C) That such 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 such employer, 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) hereof, such employer nevertheless thereafter exposed an employee to such specific unsafe working condition intentionally; and

(E) That such employee so exposed suffered serious injury or death as a direct and proximate result of such specific unsafe working condition.

W. Va.Code § 23-4-2(e)(2)(ii).

Because the circuit court based its summary judgment ruling on its determination that Mr. Ryan failed to establish elements (B) and (C) above,4 our discussion will be limited to those two criteria.5 We will first discuss subsection (C).

A. Violation of Safety Statute, Rule, Regulation or Industry Standard

In order to overcome Clonch’s motion for summary judgment as to W. Va.Code § 23-4-2(c)(2)(ii)(C), Mr. Ryan was required to establish a question of fact existed with respect to whether the specific unsafe working condition of which he complained

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 such employer, which statute, rule, regulation or standard was specifically applicable to the particular work and working condition involved, as contrasted with a statute, rule, regulation *670or standard generally requiring safe workplaces, equipment or working conditions.

In granting summary judgment to Cloneh in the instant case, the circuit court found that “[t]he safety regulations cited by [Mr. Ryan] regarding the use of safety glasses and a hazard assessment are general regulations that do not apply specifically to the cutting of bands.” Accordingly, the circuit court concluded that Mr. Ryan had failed to establish “the violation of a safety statute, rule, regulation, or industry standard specifically applicable to the band cutting process.” We disagree with the circuit court’s conclusion that Mr. Ryan failed to submit evidence that Cloneh had violated a regulation specifically applicable to the band cutting process.

Mr. Ryan has provided expert testimony that Cloneh violated several regulations; however we will focus our attention only on a regulation of the Occupational Safety and Health Administration. (hereinafter referred to as “OSHA”), found at 29 C.F.R. § 1910.132(d)(1) (2006),6 which required Cloneh to conduct a hazard assessment “to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment (PPE).” This regulation further directs that “[i]f such hazards are present, the employer shall: ... (i) Select, and have each affected employee use, the types of PPE that will protect the affected employee from the hazards identified in the hazard assessment^]” 29 C.F.R. § 1910.132(d)(1).

Cloneh has conceded that it failed to perform the hazard evaluation mandated by 29 C.F.R. § 1910.132(d)(1),7 and that it did not require Mr. Ryan to wear safety goggles or any other personal protective equipment.8 Cloneh argues, however, that this regulation is merely a regulation “generally requiring safe workplaces, equipment or working conditions.” W. Va.Code § 23-4-2(c)(2)(ii)(C). Therefore, Cloneh asserts that its violation of this regulation is insufficient to establish the violation of a regulation “specifically applicable to the particular work and working condition [herein] involved.” W. Va.Code § 23-4-2(c)(2)(ii)(C). Again, we disagree.

W. Va.Code § 23-4-2(c)(2)(ii)(C) expressly states that the type of statute, rule, regulation or standard, the violation of which is adequate to establish this prong of the five part test for this type of deliberate intent action, is a “statute, rule, regulation or standard [that is] 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.” (Emphasis added). We find no ambiguity in this language. Thus, we must apply its plain terms.

“ “Where the language of a statute is free from ambiguity, its plain meaning is to *671be accepted and applied without resort to interpretation.’ Syl. Pt. 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970).” Syllabus Point 4, Syncor International Corp. v. Palmer, 208 W.Va. 658, 542 S.E.2d 479 (2001).

Syl. pt. 4, Charter Communs. VI, PLLC v. Community Antenna Serv., Inc., 211 W.Va. 71, 561 S.E.2d 793 (2002).

Contrary to what the circuit court order indicates, the OSHA regulation found at 29 C.F.R. § 1910.132(d)(1) is not rendered a regulation “generally requiring safe workplaces, equipment or working conditions,” merely because it does not expressly identify the banding process. W. Va.Code § 23-4-2(c)(2)(ii)(C). A regulation “generally requiring safe workplaces, equipment or working conditions,” would merely require safety in a broad sense, without imposing a specific affirmative duty upon an employer.9 W. Va. Code § 23 — 4—2(e)(2)(ii)(C). This Court has rejected deliberate intent actions based upon these types of regulations or standards. See, e.g., Miller v. City Hosp., Inc., 197 W.Va. 403, 409, 475 S.E.2d 495, 501 (1996) (rejecting proof of violation “based on the general knowledge of the ‘cause and effect between high stress and clinical depression and other disorders,’ ” and commenting that a general allegation is not a “ ‘specific unsafe worldng condition [which] was a violation of a state or federal safety statute ....’” (footnote omitted) (emphasis added)); Tolley v. ACF Indus., Inc., 212 W.Va. 548, 557, 575 S.E.2d 158, 167 (2002) (per curiam) (commenting, after noting the absence of any regulation requiring an employer to monitor for isocya-nates, that “[ajrguably, any such duty [to separately monitor, for isocyanates] would only arise under a generalized notion of providing a safe workplace and ... a violation of such a general duty does not rise to the level of a ‘deliberate intention’ action”).

By contrast, 29 C.F.R. § 1910.132(d)(1) does not merely require a safe workplace, or safe equipment or working conditions. Instead, it imposes a specific mandatory duty upon employers in the labor industry to assess their workplaces for the purpose of identifying hazards, assessing the need for protective equipment, and, where a need is identified, requiring employees to use the requisite safety equipment.10 Because 29 C.F.R. § 1910.132(d)(1) prescribes specifically identified duties, as opposed to merely expressing a generalized goal of safety, we conclude that it is not the type of regulation “generally requiring safe workplaces, equipment or working conditions” that is rejected as a foundation for a deliberate intent action under W. Va.Code § 23-4-2(c)(2)(ii)(C). Cf. Zuniga v. Stam Realty, 647 N.Y.S.2d 426, 430, 169 Misc.2d 1004, 1009 (1996) (finding, in connection with a labor law case that required violation of a specific administrative rule as opposed to broad regulatory standard, that “the Industrial Code provision ... which mandates ‘continuing inspections ... made by designated persons as the work progresses to detect any hazards to any person resulting from ... loosened material,’ is ... a specific safety regulation — ‘a concrete specification’ — in contrast to a general safety standard. It directs those subject to its protective scope to take definitive, affirmative *672action. Plainly, it does far more than impose a general, nonspecific regulatory or safety standard-”).

This conclusion does not end our analysis, however. Under W. Va.Code § 23-4-2, the specific duty imposed by the statute, rale, regulation or standard must also be “specifically applicable to the particular work and working condition involved.” W. Va.Code § 23-4~2(c)(2)(ii)(C) (emphasis added). The circuit court’s conclusion that 29 C.F.R. § 1910.132(d)(1) is not “specifically applicable” to the banding process because such process is not expressly mentioned therein applies an unreasonably narrow meaning to the phrase “specifically applicable.” It is well established that “[generally the words of a statute are to be given their ordinary and familial* significance and meaning, and regard is to be had for their general and proper use.” Syl. pt. 4, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353 (1959). We interpret W. Va.Code § 23-4-2(c)(2)(ii)(C) as simply requiring that the statute, rule, regulation or standard asserted by an employee be capable of application to the specific type of work at issue. For example, a regulation directed specifically to coal mining could not be used as a basis for establishing a violation by an employer operating exclusively in the lumber industry, while a regulation falling under a more general classification, such as labor, might be applicable to several different industries.

Based upon the foregoing discussion, we now hold that the violation of a statute, rule, regulation or standard is a proper foundation for the element of deliberate intent found at W. Va.Code § 23-4-2(c)(2)(ii)(C) (1994) (Repl.Vol.1998), where such statute, rule, regulation or standard imposes a specifically identifiable duty upon an employer, as opposed to merely expressing a generalized goal, and where the statute, rule, regulation or standard asserted by the employee is capable of application to the specific type of work at issue.

Turning to the instant case, 29 C.F.R. § 1910.132(d)(1) is classified as a regulation relating to labor. There is no dispute that the work performed by Mr. Ryan falls into the category of labor. Moreover, insofar as 29 C.F.R. § 1910.132(d)(1) requires, in mandatory terms, that employers “assess the workplace to determine if hazards are present,” it applies with equal force to the banding operation as it would to any other process that occurred within the employer’s workplace. Thus, we conclude, that Cloneh’s violation of the OSHA regulation found at 29 C.F.R. § 1910.132(d)(1), which required Clonch to conduct a hazard assessment and to require the use of personal protective equipment where hazards were identified by virtue of the assessment, satisfied Mi*. Ryan’s burden of establishing the violation of a regulation in connection with his deliberate intent action pursuant to W. Va.Code § 23-4-2(c)(2)(ii)(C). Accordingly, we find that the circuit court erred in granting summary judgment in favor of Clonch with respect to its violation of a specific regulation.

B. Subjective Realization

In order to overcome summary judgment with regard to subsection (B) of W. Va.Code § 23 — 4—2(c)(2)(ii), Mr. Ryan was required to establish a question of fact as to whether Clonch “had a subjective realization and an appreciation 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 such specific unsafe working condition[.]” W. Va. Code § 23 — 4—2(c)(2)(ii)(B).

This Court has previously held that

Given the statutory framework of W. Va.Code §§ 23-4-2(c)’(2)(i) and (ii), (1983, 1991) which equates proof of the five requirements listed in W. Va.Code § 23-4-2(c)(2)(h) with deliberate intention, a plaintiff attempting to impose liability on the employer must present sufficient evidence, especially with regard to the requirement that the employer had a subjective realization and an appreciation of the existence of such specific unsafe working condition and the strong probability of serious injury or death presented by such specific unsafe working condition. This requirement is not satisfied merely by evidence that the employer reasonably should have known of the specific unsafe working condition and, of the strong probability of serious *673injury or death presented by that condition. Instead, it must be shown that the employer actually possessed such knowledge.

Syl. pt. 3, Blevins v. Beckley Magnetite, Inc., 185 W.Va. 633, 408 S.E.2d 385 (1991) (emphasis added). While the type of evidence presented to establish the requisite subjective knowledge on the part of the employer often has been presented as evidence of prior similar’ injuries or of prior complaints to the employer regarding the unsafe working condition, this Court has clarified that

To establish that an employer has acted with deliberate intention, no higher burden of proof exists beyond those five requirements set forth in W. Va.Code § 23-4-2(c)(2)(ii) [1994]. Under the statute, whether an employer has a “subjective realization and appreciation” of an unsafe working condition and its attendant risks, and whether the employer intentionally exposed an employee to the hazards created by the working condition, 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. Accordingly, ivhile a plaintiff may choose to introduce evidence of prior similar incidents or complaints to circumstantially establish that an employer has acted with deliberate intention, evidence of prior similar incidents or complaints is not mandated by W. Va.Code, 23-1-2(c)(2)(H) [1991].

Syl. pt. 2, Nutter v. Owens-Illinois, Inc., 209 W.Va. 608, 550 S.E.2d 398 (2001) (emphasis added). See also Sias v. W-P Coal Co., 185 W.Va. 569, 575, 408 S.E.2d 321, 327 (“Subjective realization, like any state of mind, must be shown usually by circumstantial evidence, from which, ordinarily, conflicting inferences reasonably can be drawn.”).

Mr. Ryan contends that all he was required to prove was that Clonch had a subjective realization of the fact that Mr. Ryan was using tin snips to cut metal banding without the use of protective eyewear. We disagree with this proposition as the relevant statute expressly requires Mr. Ryan to establish that Clonch also realized the “high degree of risk and the strong probability of serious injury or death presented by [the] specific unsafe working condition.” W. Va. Code § 23-4r-2(c)(2)(ii)(B). Clonch maintains that no evidence was presented to show that it had a subjective realization and appreciation of any specific unsafe working condition regarding the band cutting job or any high degree of risk and strong probability of injury presented thereby. Clonch concedes that there is no dispute that it did not require or instruct Mr. Ryan to wear safety glasses while cutting bands. However, Clonch argues that Mr. Ryan was able to produce no evidence that any Clonch supervisor believed that this was an unsafe working condition that posed a high degree of risk and a strong probability of serious injury.

While we agree with Clonch that Mr. Ryan’s evidence with respect to Clonch’s actual subjective knowledge of the existence of an unsafe working condition was lacking, we nevertheless find that Mr. Ryan’s evidence that Clonch violated its mandatory duty to perform a hazard evaluation pursuant to the OSHA regulation found at 29 C.F.R. § 1910.132(d)(1), along with Clonch’s admission of the same, requires greater scrutiny of this issue.

The aforementioned regulation, 29 C.F.R. § 1910.132(d)(1), directs, in relevant part, that

[t]he employer shall assess the workplace to determine if hazards are present, or ai'e likely to be px’esent, which necessitate the use of personal protective equipment (PPE). If such hazards are present, or likely to be present, the employer shall:

(i) Select, and have each affected employee use, the types of PPE that will protect the affected employee from the hazards identified in the hazard assessment. ...

(Emphasis added). By utilizing the term “shall,” this regulation signals that its terms are mandatory. “ ‘It is well established that the word “shall,” in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation.’ ” Syl. pt. 1, E.H. v. Matin, 201 W.Va. 463, 498 S.E.2d 35 (1997) (internal citation omitted).

*674Had Clonch complied with this mandatory statute, as it was required to do, it would either have had documented evidence to support its claim that the banding operation was not hazardous and required no personal protective equipment, or, in the alternative, it would have discovered any hazards associated with the process and would then have been under a duty to prescribe appropriate protective equipment. Instead, Clonch simply ignored this mandatory duty, and now seeks to avoid liability in a deliberate intent action by claiming a lack of subjective knowledge. We find such conduct unconscionable.

Our role when addressing statutory provisions is to give effect to the intent of the legislature. In this regard, we have often declared that “[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.” Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W.Va. 108, 219 S.E.2d 361 (1975). However, “[a] statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.” Syl. pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951). Unquestionably, the Legislature intended, by operation of W. Va.Code § 23 — 4—2(c)(2)(H), to pierce the immunity from tort liability granted to employers under our workers’ compensation system when all of the five elements enumerated therein have been established. Certainly, however, the Legislature did not intend for an employer to circumvent liability by purposefully avoiding the subjective knowledge element by violating a mandatory regulatory duty. Likewise, we simply cannot condone any employer’s attempt to avoid an otherwise viable deliberate intent action by conducting itself “like the proverbial ostrich who sticks his head in the sand to avoid seeing the obvious ....” State ex rel. League of Women Voters of West Virginia v. Tomblin, 209 W.Va. 565, 578, 550 S.E.2d 355, 368 (2001) (Davis, J., dissenting). Accordingly, we now hold that where an employee has instituted a deliberate intent action against an employer under W. Va.Code § 23-4-2(e)(2)(H) (1994) (Repl.Vol.1998), and where the defendant employer has failed to perform a reasonable evaluation to identify hazards in the workplace in violation of a statute, rule or regulation imposing a mandatory duty to perform the same, the performance of which may have readily identified certain workplace hazards, the defendant employer is prohibited from denying that it possessed “a subjective realization” of the hazard asserted in the deliberate intent action, and the employee, upon demonstrating such violation, is deemed to have satisfied his or her burden of proof with respect to showing “subjective realization” pursuant to W. Va.Code § 23-4-2(c) (2) (ii) (B).11

In the instant case, Clonch has admitted that it failed to comply with the mandatory duty to perform a hazard evaluation imposed upon it by OSHA. See 29 C.F.R. § 1910.132(d)(1). Indeed Clonch brazenly argues in its brief that “[personal protective equipment (PPE) ], including safety glasses, is required only if the employer determines, through a hazard assessment, that a hazai’d exists (or is likely to exist) which necessitates the use of PPE. [Clonch] did not identify a hazard requiring PPE regarding the band cutting job.” (Emphasis added). Clonch could not have identified such a hazard by virtue of a hazard evaluation because it violated its mandatory duty to perform such an evaluation. Accordingly, Mi1. Ryan is deemed to have met his burden of establishing Clonch’s subjective realization with respect to the hazards of the band cutting job and the need for protective glasses. The circuit court’s award of summary judgment on this issue was in error, and is hereby reversed.

IV.

CONCLUSION

For the reasons explained in the body of this opinion, the April 21, 2005, order of the Circuit Court of Nicholas County granting summary judgment to Clonch is reversed, and this ease is remanded for further proceedings consistent with this opinion.

Reversed and Remanded.