Michael McGovern v. PPG Industries, Inc., No. 14-2149 (4th Cir. 2015)
Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-2149 MICHAEL J. MCGOVERN, Plaintiff – Appellant, v. PPG INDUSTRIES, INC., Defendant - Appellee. Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Irene M. Keeley, District Judge. (5:14-cv-00069-IMK) Submitted: July 28, 2015 Decided: August 12, 2015 Before MOTZ, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Teresa C. Toriseva, Joshua D. Miller, TORISEVA LAW, Wheeling, West Virginia, for Appellant. William D. Wilmoth, STEPTOE & JOHNSON PLLC, Wheeling, West Virginia; Christopher A. Lauderman, STEPTOE & JOHNSON PLLC, Bridgeport, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael J. McGovern appeals the district court’s order dismissing his personal injury complaint against PPG Industries, Inc., for failure to state a claim. McGovern claims that he suffered injury while working for PPG due to an unsafe working condition. Finding no reversible error, we affirm. We review de novo a district court’s dismissal for failure to state a claim, accepting the complaint’s factual allegations as true and drawing all reasonable inferences in favor of the nonmoving party. Kensington Volunteer Fire Dep’t v. Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012); see Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, “[f]actual allegations [in the complaint] must be enough to raise a right to relief above the speculative level,” with “enough facts to state a claim to relief that is plausible on its face.” Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). Bell Under this standard, bare legal conclusions “are not entitled to the assumption of truth” and are insufficient to state a claim. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). McGovern seeks recovery pursuant to West Virginia’s deliberate-intent statute, W. Va. Code Ann. § 23-4-2 (LexisNexis 2 2010). * To plaintiff recover must from prove, an employer among other under this statute, requirements, that a “the specific unsafe working condition was a violation of a state or federal safety statute, commonly accepted industry or and business § 23-4-2(d)(2)(ii)(C). rule or regulation, well-known of the Such safety . . standard employer.” a . W. statute, of a within Va. rule, or the Code Ann. regulation or standard must be “specifically applicable to the particular work and working condition involved, as contrasted with a statute, rule, regulation or standard generally workplaces, equipment or working conditions.” requiring Id. safe The district court dismissed McGovern’s complaint, finding that he failed to allege any violation of a statute, rule, regulation, or standard pursuant to § 23-4-2(d)(2)(ii)(C). We agree with the district court that McGovern’s complaint does not satisfy statute. the requirements of the deliberate-intent McGovern alleged that PPG violated W. Va. Code Ann. §§ 21-3-1, 21-3A-5 (LexisNexis “generally requir[e] safe 2010), but workplaces, these two equipment statutes or working conditions” and lie outside the scope of § 23-4-2(d)(2)(ii)(C). Because McGovern’s complaint fails * to plausibly allege a The statute recently was amended. See 2015 W. Va. Legis. Serv. 243. We applied the prior version of the statute to the facts of this case. 3 violation of § 23-4-2(d)(2)(ii)(C), he cannot recover from PPG for his injuries. Accordingly, we affirm the judgment of the district court. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
