Sherman L. Handley and Linda L. Handley, His Wife, Appellants, v. Union Carbide Corporation, a New York Corporation, Appellee.sherman L. Handley and Linda L. Handley, His Wife, Appellees, v. Union Carbide Corporation, a New York Corporation, Appellant, 804 F.2d 265 (4th Cir. 1986)

Sherman L. Handley and his wife Linda appeal from the district court's grant of judgment notwithstanding the verdict to Union Carbide Corporation, the defendant in their diversity action to recover for injuries caused by workplace exposure to toxic chemicals. Handley was employed from April 20, 1981 to August 1, 1984 as a chemical operator at Carbide's plant in South Charleston, West Virginia. In March 1984, he was diagnosed as having schleroderma, a rare, progressive pulmonary disease that severely limits the amount of oxygen processed by the lungs. Handley brought this action against Carbide on July 9, 1984, alleging that his disability was a result of Carbide's deliberate actions in exposing him to dangerous chemicals under unsafe working conditions.¹  At trial, the district court reserved ruling on Carbide's motions for a directed verdict and submitted the case to the jury.²  After the jury returned a verdict for the plaintiffs, the district court granted Carbide's motion for judgment notwithstanding the verdict. We affirm.

The Handleys' cause of action is statutory. It arises in its entirety under the "deliberate intention" provisions of the West Virginia Workers' Compensation Act.³  Like other workers' compensation laws, the West Virginia statute grants covered employers a general immunity from common law tort actions brought by injured employees seeking damages for their workplace injuries. Since its inception, however, the West Virginia Act has reserved a right of action in favor of employees who are injured as a result of the employer's deliberate and intentional conduct in causing the injury. The principal question in this appeal is whether Handley has presented sufficient evidence upon which a jury could find that Carbide acted with the requisite "deliberate intention" in causing his injuries so as to lose the immunity that is normally available to it under the Workers' Compensation Act.⁴ 

Handley worked as a chemical operator in Carbide's Specialty Catalyst Unit (Building 156), which produced ethyl silicate and a catalyst known as A99 NYAX. His principal task was to transfer chemicals, either from tankers⁵  to storage tanks, or from storage tanks to reactors located inside Building 156.⁶  At trial, Handley attempted to prove that Carbide intentionally exposed him to various chemicals under unsafe working conditions. While there is no dispute that most, if not all, of the chemicals that Handley worked with are dangerous to human health, his evidence at trial and his claims on appeal focus on the handling of two specific chemicals--silicon tetrachloride and metaphenylenediamine (MPDA).

Silicon tetrachloride is a liquid chemical used in the production of ethyl silicate.⁷  As with all chemicals used by Carbide, the company's engineers accumulated data about the properties of silicon tetrachloride and detailed them in a "Standard Operating Procedure" manual that was then made available to chemical operators.⁸  Information relating to potential dangers associated with the chemical was derived from the manual, condensed, and printed on safety data sheets that were also distributed to the chemical operators. The narrative portion of the safety data sheet on silicon tetrachloride provides as follows:

Silicon tetrachloride causes eye and skin irritations and is harmful if inhaled. Avoid contact by use of proper protective equipment. In case of accidental contact, flush affected areas well with water and report to the Medical Department. In case of inhalation, administer oxygen if needed.

Silicon tetrachloride reacts violently with water, causing a rapid release of heat and HCl [hydrogen chloride] vapors.

One of Handley's duties at Carbide was to transfer silicon tetrachloride from tankers that delivered the chemical into storage tanks located outside of Building 156. To unload the chemical, Handley would connect a hose from a valve on the storage tank to a valve on the top of the tanker. After testing the hose and valves for leaks with pressurized nitrogen, the tanker itself would be pressurized, forcing the silicon tetrachloride through the hose into the storage tank. After the transfer was complete, the valves and hose were again purged with nitrogen and the hose would then be disconnected. Handley and several of his co-workers testified that despite the purging process small amounts of silicon tetrachloride nearly always spilled when the hose was disconnected.

When silicon tetrachloride is spilled it reacts with the moisture in the air, producing hydrochloric acid vapors in a visible cloud of white "smoke."⁹  According to Handley, Carbide instructed the chemical operators to "knock down" the hydrochloric acid vapors from small spills by spraying large quantities of water on the vapor, sending the acid into the industrial sewer. If the vapors could not be knocked down, the operators would run away from the cloud to avoid breathing its fumes. They would then return wearing an external air source before undertaking further steps to control the spill. The operators did not wear these external air sources as a routine precaution.¹⁰ 

Handley's work also brought him into close proximity with MPDA, a strong dying agent used by Carbide in the manufacture of a chemical catalyst known as A99 NYAX. At first, Carbide received fifty-pound drums of granular MPDA, which Handley and his co-workers emptied directly into the reactor that produced A99 NYAX. The original safety data sheet that Carbide distributed on MPDA contained the following pertinent information:

Use proper protective equipment to avoid contact. Thermal burns may result from contact with molten material. In case of accidental contact, wash affected areas well with water and contact the Medical Department. Use respiratory protection if necessary to avoid breathing dust.

If the material is exposed to fire or intense heat, toxic vapors may be evolved.

When the first MPDA shipment arrived the operators wore hard hats, goggles, and dust masks during the unloading process. Despite these precautions, several of the workers subsequently experienced discoloration of their skin, hair, and urine. Thereafter, the operators wore oxygen masks, vinyl coveralls, boots, and two pairs of gloves while emptying the drums.¹¹  After an incident in which some MPDA dust escaped from Carbide's property and damaged the paint on cars parked nearby, Carbide arranged with its supplier to receive MPDA in molten form. It later revised its safety data sheet to include information about the chemical's staining capacity and to address the properties of the chemical in liquid form.¹² 

Molten MPDA was unloaded in a process similar to that used for silicon tetrachloride, but the process was complicated by the fact that the chemical had to be maintained at a temperature above 140?F. Therefore, the transferring hoses and valves were heated externally with steam to keep the chemical in a liquid state. Nevertheless, the MPDA "froze" on several occasions. Normally, the application of additional external heat was sufficient to start the chemical flowing again.¹³  Handley testified that he applied steam to the frozen hose on four or five occasions, and that he was exposed to the chemical in molten form.¹⁴ 

Handley's respiratory problems began in January 1984.¹⁵  Carbide's company doctor initially treated him for pneumonia and, when Handley did not improve, referred him to Presbyterian University Hospital in Pittsburgh. At trial, Handley presented expert medical testimony that attributed his respiratory disease to the inhalation of silicon dioxide particulates and amine vapors¹⁶  at Carbide's South Charleston plant.

As noted earlier, the West Virginia Workers' Compensation Act contains an exception to the covered employer's immunity from suit for workplace injuries inflicted on employees with "deliberate intention."¹⁷  In 1978, the West Virginia Supreme Court of Appeals issued a far-reaching decision in Mandolidis v. Elkins Industries, 161 W.Va. 695, 246 S.E.2d 907 (1978). It ruled that deliberate intention "must be held to mean that an employer loses immunity from common law actions where such employer's conduct constitutes an intentional tort or willful, wanton, and reckless misconduct." Id. at 706, 246 S.E.2d at 914 (footnotes and citations omitted). This holding stimulated much public debate and, in 1983, the West Virginia Legislature amended the compensation statute with the express intent of modifying the standard adopted in Mandolidis. The statute now states that "in enacting the immunity provisions of this chapter, the legislature intended to create a legislative standard for loss of that immunity of more narrow application and containing more specific mandatory elements than the common law tort system concept and standard of willful, wanton and reckless misconduct."¹⁸  The parties agree that this action is governed by the amended statute.¹⁹ 

Under the new provisions, there are two alternative methods of proving deliberate intent. W.Va.Code Sec. 23-4-2(c) (2) (1985 Replacement Vol.). First, the statute provides that an employer may be held liable if it acts "with a consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to an employee."²⁰  There were no allegations or proof that Carbide violated this section so it is not relevant in this case. Instead, Handley alleged and attempted to prove that Carbide violated the other provision in the statute from which a jury could infer a deliberate intent to injure.²¹  This alternate section provides that an employer will be held to have acted with the requisite "deliberate intention" if the plaintiff/employee proves each of the following elements:

(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 Sec. 23-4-2(c) (2) (ii) (A)-(E) (1985 Replacement Vol.).

At trial, Handley introduced some evidence of a number of alleged unsafe working conditions and merely adverted to the existence of others.²²  The district court correctly decided that there was insufficient evidence to support a jury verdict as to most of them. The court then considered the procedures involved in the handling of silicon tetrachloride and MPDA. It examined and applied the five elements detailed in section 23-4-2(c) (2) (ii) (A)-(E) against each of the potentially unsafe working conditions that it identified in relation to these two chemicals.

The district court determined that the evidence of Handley's exposure to silicon tetrachloride supported a finding of only one specific unsafe working condition within the meaning of the amended statute. W.Va.Code Sec. 23-4-2(c) (2) (ii) (A) (1985 Replacement Vol.). It concluded that the procedure used at Carbide to unload and transfer silicon tetrachloride from tankers to storage tanks sufficiently met this initial statutory requirement. In reaching this conclusion, the court noted that a co-worker at Building 156 testified that he had inhaled silicon tetrachloride vapors on a number of occasions during the unloading process. The court did not find sufficient evidence, however, to support a second jury conclusion that spraying water on spilled silicon tetrachloride was itself a specific unsafe working condition. It noted that there was no testimony indicating that the operators ever inhaled the chemical's vapors while attempting to "knock it down" into the sewer.

Having found sufficient evidence to support a jury's verdict that the silicon tetrachloride unloading procedure constituted an unsafe working condition, the court went on to test the evidence relating to the remaining four statutory elements. As a whole, it found that Handley introduced sufficient evidence to prove the requirements of subsections (A), (B), (D), and (E)--that a specific unsafe working condition existed that presented a high degree of risk; that Carbide had a subjective realization and appreciation of the unsafe working condition and of the high degree of risk; that it intentionally exposed Handley to the unsafe working condition; and that Handley suffered serious injury as a direct and proximate result of the unsafe working condition.

The trial court, however, granted Carbide a judgment notwithstanding the verdict because Handley failed to present sufficient evidence from which a jury could find that the requirement of subsection (C) was established--i.e., that the unsafe working condition violated a commonly accepted and well-known safety standard that was specifically applicable to the working condition involved.

The court ruled that from the evidence introduced the jury properly could have found two specific unsafe working conditions relating to MPDA--(a) the unloading of the chemical in its granular form the first time it was delivered to Carbide's facility; and, (b) the general unloading of the chemical in its molten form. As to the unloading of granular MPDA, the court ruled that the Handleys had sustained their burden of establishing the requirements of subsections (A), (D) and (E). It concluded, however, that Handley produced insufficient evidence to show that Carbide had a subjective realization of the risks involved, or that it had violated an industry standard--as required by subsections (B) and (C), respectively.

As to the procedures involved in unloading MPDA in its molten form, the district court similarly found that there was insufficient evidence to establish the requirement of subsection (C)--violation of an industry standard.²³ IV.

The Handleys raise two principal contentions on appeal. First, they assert that the district court erred in finding two separate working conditions involved in the handling of silicon tetrachloride. They contend that all of the procedures related to this chemical comprised but a single unsafe working condition within the meaning of the statute. We think, however, that the district court correctly separated Handley's occupational duties into distinct components for which individualized safety standards and procedures could be devised. In this carefully phrased statute no wording is more deliberate than that which requires proof of a specific unsafe working condition. This phraseology is included in all of the subsections requiring proof of egregious employer misconduct. The evidence in each instance must relate to a specific condition in a particular workplace. Obviously, such a condition must be sufficiently identifiable and sufficiently subject to narrow categorization that "specific" government or industry safety rules can be formulated and applied to it. It is true that workplace circumstances vary infinitely, and the issue whether a particular occupational practice constitutes a "specific unsafe working condition" may often be resolved through evidence of particularized safety standards applicable to that practice. Although proof of such standards was not present here, we are not prepared to say that the trial court erred in its interpretation of the evidence as depicting two specific working conditions.

The Handleys' other principal contention is that the lower court erred in its general finding of insufficient evidence to support the jury's verdict that Carbide violated a commonly accepted and well-known industry or business safety standard with respect to any of the working conditions at issue.²⁴  Again, we disagree. Assuming arguendo that Carbide violated the procedures described in its internal safety data sheets, this standing alone was not enough to support a jury conclusion that a "commonly accepted" and "well-known safety standard" was violated.

The Handleys contend that the legislature's use of the disjunctive "or" in the phrase "a commonly accepted and well-known safety standard within the industry or business of such employer" indicates that subsection (C) can be satisfied by demonstrating a violation of a discrete safety rule promulgated by a single "business." The requirement, they urge, is that the safety rule be well-known and commonly accepted within that individual enterprise. This interpretation ignores the manifest legislative purpose underlying the "safety standards" provision, and in so doing fails to grasp the intended meaning of the words "well-known" and "commonly accepted."

The statute amending Chapter 23, Article 4, Section 2 is structured to restrict recovery for conduct that was previously actionable under the Mandolidis rationale. This new legislation specifically eliminates the most frequently relied upon bases for proving "deliberate intent" under Mandolidis, i.e., gross negligence or willful, wanton, and reckless employer misconduct. Now only specific intent will support such a case--unless there has been a serious safety violation as carefully described in subsection (C). The West Virginia Legislature has recognized in this subsection that the enforcement of crucial safety standards, which have evolved from widespread experience, is so vital to the work force that their violation under certain conditions should be equivalent to an intentional act and, if injury is caused thereby, should provide the basis for an action against the employer. The amended statute thus protects against flagrant violations of national and state safety statutes, rules, and regulations. This, we think, is an indication of the requisite breadth of the nongovernmental safety standards also sought to be protected by the lawmakers. The legislature apparently has recognized that many industries or businesses observe safety standards whether or not they are the subject of governmental regulation. Subsection (C) takes this into account and permits relief for the violations of such of these safety standards as are "commonly accepted" and "well-known."

It would be rare that a "commonly accepted and well-known" safety standard could be established by showing that it exists in only one facility. Occupational safety standards may vary across, or perhaps within, geographical regions of even the same industry. Before such a standard could be fairly characterized as "commonly accepted and well-known" there must be at least some evidence that an equal or similar standard was in place or recognized by a business or industrial entity conducting the same or similar activities as the defendant. Without such evidence, there seldom will be a jury question presented under subsection (C).

The plaintiffs contend that the word "industry" in subsection (C) should be read broadly, and the word "business" read narrowly. We think, however, that this interpretation might produce the undue, and unintended, result of excluding certain types of employees from the coverage and protection of the amended statute. It is inconceivable that the West Virginia Legislature intended to classify employees whereby industrial workers could bring an action, but employees of a non-industrial type business could not. Instead, we read the word "business" in subsection (C) as demonstrating legislative concern that the statute not be read restrictively as applying only to occupations traditionally referred to as "industrial." The phrase "within the industry or business of such employer" signals to us that the amended statute was meant to be comprehensive, encompassing the entire spectrum of employer-employee relationships that is reached by the Workers' Compensation Act generally.

The plaintiffs make the final argument that Carbide sets the safety standards for the chemical industry as a whole because of its position as industry leader. This argument is similar to one made before the trial court. We agree with the trial court that there was no evidence upon which the jury could find that the safety rules at issue here extended anywhere beyond Carbide's own facilities. Internal safety data of a single company might well be probative in establishing existing industry standards in some areas, but as the district court noted, the Handleys presented no evidence of Carbide's size in relation to the rest of the chemical industry. There was also no evidence of the effects Carbide's internal safety rules had on the rest of the industry, and the record is equally bare of evidence from which the jury could infer the weight Carbide's policies carried within the industry. The bald assertion that Carbide is one of the leaders in its field is not sufficient--particularly since it was not conveyed to the jury in the form of admissible evidence. Under these circumstances, we think that the introduction into evidence of Carbide's safety sheets alone was not enough to support a jury finding of an industry or business safety standard.

In view of the above, the opinion of the district court is affirmed.

AFFIRMED.