Kerns v. Slider Augering & Welding, et al.
Annotate this Case IN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA
September 1997 Term
___________
No. 24017
___________
THOMAS E. KERNS,
AN INDIVIDUAL,
Plaintiff Below, Appellant
v.
SLIDER AUGERING & WELDING, INC.,
A WEST VIRGINIA CORPORATION;
THE SALEM TOOL COMPANY, AN OHIO CORPORATION;
SALEM TOOL, INC., A KENTUCKY CORPORATION;
92 COAL CORP., A WEST VIRGINIA CORPORATION;
AND S & M GLASS, INC., A WEST VIRGINIA CORPORATION,
Defendants Below, Appellees
AND
SLIDER AUGERING & WELDING, INC.,
Third-Party Plaintiff Below, Appellee
v.
STEAR AUGER MINING, INC., A CORPORATION;
GENERAL ELECTRIC COMPANY, A CORPORATION;
AND BOYER EQUIPMENT CO., A CORPORATION,
Third-Party Defendants Below, Appellees
AND
S & M GLASS, INC.,
Third-Party Plaintiff Below, Appellee
v.
GENERAL ELECTRIC COMPANY,
A CORPORATION,
Third-Party Defendant Below, Appellee
___________________________________________________
Appeal from the Circuit Court of Marion County
Honorable Fred L. Fox, II, Judge
Civil Action No. 93-C-421
AFFIRMED
___________________________________________________
Submitted: October 14, 1997
Filed: December 16, 1997
E. William Harvit
Shinaberry & Meade
Charleston, West Virginia
Bradley Oldaker
Wilson & Bailey
Weston, West Virginia
Attorneys for the Appellant
James A Liotta
Tharp, Liotta, Janes & Yokum
Fairmont, West Virginia
Attorney for Appellee Slider Augering & Welding, Inc.
David K. Schwirian
Pauley, Curry, Sturgeon & Vanderford
Charleston, West Virginia
Attorney for Appellee 92 Coal Corp.
Harold K. Sklar
McNeer, Highland, McMunn & Varner
Clarksburg, West Virginia
Attorney for Appellee S & M Glass, Inc.
Carol Marunich
Furbee, Amos, Webb & Critchfield
Fairmont, West Virginia
Attorney for Appellee Stear Auger Mining, Inc.
Steven R. Hardman
Bowles Rice McDavid Graff & Love
Parkersburg, West Virginia
Attorney for Appellee General Electric Company
M. Claire Winterholler
Meyer, Darragh, Buckler, Bebenek & Eck
Charleston, West Virginia
Attorney for Appellee Boyer Equipment Co.
This Opinion was delivered PER CURIAM.
JUSTICE STARCHER dissents and would reverse the
trial judge's granting of summary judgment.
SYLLABUS BY THE COURT
1.
"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. Code, 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).
2. "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." Syl. pt. 3, Aetna Casualty & Surety Co. v.
Federal Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770
(1963).
3. "Summary
judgment is appropriate if, from the totality of the evidence
presented, the record 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." Syl. pt. 2,
Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329
(1995).
4. "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).
5. "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)(ii) 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 injury 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).
6. "The
owner or occupier of premises owes to an invitee such as a non-
employee workman or an independent contractor the duty of
providing him with a reasonably safe place in which to work and
has the further duty to exercise ordinary care for the safety of
such persons." Syl. pt. 2, Sanders v. Georgia-Pacific Corp.,
159 W. Va. 621, 225 S.E.2d 218 (1976).
7. "The goal
of W. Va. Code 21-3-1 [1937] et seq. is to assure workers a
reasonably safe workplace. The legislature placed such a
responsibility on the employer and the owner. The employer's duty
is directly related to the employment activity that is controlled
by the employer and the owner's duty is limited to providing a
reasonably safe workplace, unless the owner continues to exercise
control of the place of employment." Syl. pt. 2, Henderson
v. Meredith Lumber Co., 190 W. Va. 292, 438 S.E.2d 324 (1993).
8.
"When the owner of a place of employment provides a
reasonably safe workplace and exercises no control thereafter,
the owner has complied with the responsibilities imposed under W.
Va. Code 21-3-1 [1937]." Syl. pt. 3, Henderson v. Meredith
Lumber Co., 190 W. Va. 292, 438 S.E.2d 324 (1993).
9. "The
'reasonably safe place to work' theory may not be used against
the owner of a place of employment when the owner exercises no
control over the equipment provided by the contractor for use by
the contractor's employees." Syl. pt. 3, Taylor v. Sear,
Roebuck & Co., 190 W. Va. 160, 437 S.E.2d 733 (1993).
Per Curiam:See
footnote 1 1
This action is
before this Court upon an appeal of the final orders of the
Circuit Court of Marion County entered on July 9, 1996, and
November 12, 1996. The appellant, Thomas Kerns, an employee of
appellee, Slider Augering and Welding, Inc. (hereinafter
"Slider"), was injured in a mining accident while he
was performing auger mining operations for appellee, 92 Coal
Corporation (hereinafter "92 Coal"). Pursuant to the
final orders, the circuit court granted summary judgment in favor
of the appellees.
This Court has
before it the petition for appeal, the designated record, and the
briefs and argument of counsel. For the reasons stated below,
this Court is of the opinion that appellant has failed to make a
showing that factual evidence exists to support the requirements
of W. Va. Code, 23-4-2(c)(2)(ii)(B) and (D) [1991]. This Court is
also of the opinion that appellant has failed to making a showing
that factual evidence exists to prove the theories of failure to
provide a reasonably safe place to work, general negligence,
joint venture, and negligent hiring. Accordingly, we affirm the
decisions of the circuit court.
I
This case arises
out of an explosion that occurred on September 10, 1991, during
auger mining operations at the Coontz No. 1 Mine in Barbour
County. As a result of this explosion, the appellant was
seriously and permanently injured. The auger mining operations
were being performed by Slider as an independent contractor hired
by 92 Coal, the corporation which owned and operated the mine.
Slider was formed in 1988 by its sole shareholder, Thomas Slider,
for the purpose of conducting auger mining operations as a
contract miner. The appellant was hired by Mr. Slider as the
auger operator.See footnote
2 2
The September
incident was actually the second explosion to occur at the mine.See footnote 3 3 The
first explosion occurred on July 23, 1991, also during auger
mining operations. Both explosions were investigated by the
United States Department of Labor, Mine Safety and Health
Administration (hereinafter MSHA). After the first explosion,
MSHA issued a report which concluded that "the auger
operator and auger helper were burned because they were in direct
line with the flames and force which came out of the auger
hole." MSHA issued a citation to Slider stating it was in
violation of 30 C.F.R. 77.1504(c) by having workers in direct
line with the auger hole while coal was being cut.
In order to abate the citation, appellant, on
behalf of Slider, consulted with both MSHA and the State
Department of Labor to construct a guard/shield on the auger
machine to protect the operator in the event of future ignition.
Thereafter, auger mining operations resumed at the mine until the
second explosion.
The second
explosion happened in the Red Stone seam near where the first
explosion occurred. When Slider resumed operations after the
first explosion, it began augering in the Pittsburgh seam.
However, sometime prior to the second explosion, Slider began
augering again in the Red Stone seam. According to the MSHA
investigative report, on the morning of the second explosion, 92
Coal's mine foreman completed an examination of the auger site
around 6:30 a.m. and found no hazards. At 7:00 a.m., Slider began
its day shift, but a rainstorm postponed augering operations
until approximately 8:00 a.m. Operations then proceeded normally
until around 10:30 a.m., when 92 Coal's foreman returned to the
site to perform the on-shift examination of conditions. The
foreman left the area finding no percentage of methane and no
hazards. Operations resumed and continued until around 12:30
p.m., when the auger machine hit something hard and stalled.
Fire, smoke, and coal dust exploded immediately from the hole.
MSHA concluded
that the second explosion was caused in the same manner as the
previous explosion. Both explosions resulted from the ignition of
flammable methane and/or dust. However, no citations were issued
after the second explosion.
Appellant filed suit after the second explosion claiming that Slider acted with "deliberate intention" as set forth in the provisions of W. Va. Code, 23-4-2(c)(2)(ii). Appellant also alleged that 92 Coal was liable under theories of failure to provide a reasonably safe place to work, general negligence, joint venture, and negligent hiring of an incompetent contractor.See footnote 4 4 Both Slider and 92 Coal filed motions for summary judgment. The circuit court concluded that with respect to Slider, appellant was unable to make a showing that factual evidence existed to support all of the requirements to establish "deliberate intention" under W. Va. Code, 23-4-2(c)(2)(ii). Specifically, the court found that appellant was unable to show subjective realization on the part of Slider of the existence of an unsafe working condition and that Slider intentionally exposed appellant to an unsafe working condition. With regard to 92 Coal, the court concluded that
appellant was unable to show that factual
evidence existed to support the elements necessary to prove
failure to provide a reasonably safe place to work, general
negligence, joint venture, or negligent hiring of an incompetent
contractor. Therefore, 92 was also granted summary judgment as
reflected in the final orders.
II.
SLIDER AUGERING & WELDING, INC.
As previously
mentioned, appellant seeks to hold Slider liable for his injuries
on the basis of "deliberate intention" pursuant to W.
Va. Code, 23-4-2(c)(2)(ii). In syllabus point 2 of Mayles v.
Shoney's Inc., 185 W. Va. 88, 405 S.E.2d 15 (1990), this Court
observed 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. Code, 23-4-2(c)(2)(ii)
(1983)." See also syl. pt. 2, Sias v. W-P Coal Co., 185 W.
Va. 569, 408 S.E.2d 321 (1991); syl. pt. 2, Blevins v. Beckley
Magnetite, Inc., 185 W. Va. 633, 408 S.E.2d 385 (1991).
Specifically, the plaintiff must show:
(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(c)(2)(ii) [1991].See footnote 5 5
Following
extensive discovery in this case, Slider moved for summary
judgment contending that appellant had not presented sufficient
evidence to establish "deliberate intention" under the
five elements listed above. After conducting a hearing on the
motion, the circuit court concluded that appellant had failed to
make a showing that factual evidence exists to support the
elements of subjective realization and intentional exposure found
in subparagraphs (B) and (D), respectively, of W. Va. Code, 23-4-
2(c)(2)(ii). Accordingly, the circuit court
granted summary judgment in favor of Slider.See footnote 6 6 Pursuant
to Rule 56 of the West Virginia Rules of Civil Procedure, summary
judgment is required when the record shows that there is "no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." In syllabus
point 3 of Aetna Casualty & Surety Co. v. Federal Ins. Co. of
New York, 148 W. Va. 160, 133 S.E.2d 770 (1963), this Court held:
"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." See also syl. pt. 3, Evans v.
Mutual Mining, 199 W. Va. 526, 485 S.E.2d 695 (1997); syl. pt. 1,
McClung Investments, Inc. v. Green Valley Community Public
Service Dist., 199 W. Va. 490, 485 S.E.2d 434 (1997). More
recently, we have observed that:
Summary
judgment is appropriate if, from the totality of the evidence
presented, the record 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.
Syl. pt. 2, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995). See also syl. pt. 2, Cottrill v. Ranson, ___
W. Va. ___, 490 S.E.2d 778 (1997); syl. pt. 2, McGraw v. St.
Joseph's Hospital, 200 W. Va. 114, 488 S.E.2d 389 (1997). In
syllabus point 1 of Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994), this Court stated
that: "A circuit court's entry of summary
judgment is reviewed de novo." See also syl. pt. 4, Dieter
Engineering Services, Inc. v. Parkland Development, Inc., 199 W.
Va. 48, 483 S.E.2d 48 (1996); syl. pt.1, Smith v. Stacy, 198 W.
Va. 498, 482 S.E.2d 115 (1996).
Appellant asserts
that summary judgment was not appropriate because the evidence
shows that Slider had knowledge that both the location where the
mining was occurring and the equipment were unsafeSee footnote 7 7 thereby
satisfying the subjective realization requirement. Appellant
further asserts that the intentional exposure requirement has
been met because Mr. Slider harassed him to go back to work and
told him to make repairs to the auger machine as cheaply as
possible.
In syllabus point
3 of Blevins, we held:
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)(ii) 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 injury or death presented by that
condition. Instead, it must be shown that the employer actually
possessed such knowledge.
In this case, we
find that no genuine issue of material fact exists as to whether
Slider subjectively realized and appreciated the existence of an
unsafe working condition. As set forth above, the record shows
that Slider was only issued one citation following the first
explosion. Once appellant, on behalf of Slider, designed and
constructed a guard on the auger machine to protect the operator
in the event of a future explosion, MSHA permitted operations to
resume. Obviously, if MSHA and its experts had been aware of an
unsafe condition, Slider would not have been allowed to return to
work. The deposition testimony in the record indicates that
everyone involved including the investigators and the appellant
thought that the first explosion was a "freakish
accident." The record also reveals that Mr. Slider's mining
experience prior to the date of the first explosion was minimal.
Mr. Slider relied upon MSHA's experts as well as the appellant
regarding safety matters following the first explosion. In fact,
appellant was authorized to shut down the job if he deemed it
necessary for safety reasons. It is apparent that MSHA had no
subjective realization as evidenced by its actions.
Consequently, it would be virtually impossible
for appellant to prove subjective realization on the part of
Slider.
Appellant is also
unable to prove intentional exposure. According to appellant's
own deposition testimony, it was his choice to return to work and
resume augering operations in the Red Stone seam. Appellant
testified that Mr. Slider told him it was his decision as to
whether to return to the same job site or look for a new job
where Slider could auger coal. Appellant also testified that Mr.
Slider did not participate in the decision to return to the Red
Stone seam because he was out of the country at that time. Thus,
the evidence disproves intentional exposure as well as subjective
realization. Accordingly, the circuit court did not err in
granting summary judgment in favor of Slider. 92 COAL CORP.
As previously
noted, appellant also filed his cause of action against 92 Coal
alleging that it failed to provide a reasonably safe place for
appellant to work. This Court has recognized that: "The
owner or occupier of premises owes to an invitee such as a non-
employee workman or an independent contractor the duty of
providing him with a reasonably safe place in which to work and
has the further duty to exercise ordinary care for the safety of
such persons." Syl. pt. 2, Sanders v. Georgia-Pacific Corp.,
159 W. Va. 621, 225 S.E.2d 218 (1976). See also syl. pt. 2,
Taylor v. Sears, Roebuck & Co., 190 W. Va. 160, 437 S.E.2d 733 (1993); syl. pt. 6, Pasquale v. Ohio Power Co., 187 W. Va.
292, 418 S.E.2d 738 (1992). However, we have also generally
recognized that the owner
who provides a reasonably safe place to work
cannot be held liable unless the owner continues to exercise
control over the workplace. In syllabus point 2 of Henderson v.
Meredith Lumber Co., 190 W. Va. 292, 438 S.E.2d 324 (1993),
we explained:
The
goal of W. Va. Code 21-3-1 [1937] et seq. is to assure workers a
reasonably safe workplace. The legislature placed such a
responsibility on the employer and the owner. The employer's duty
is directly related to the employment activity that is controlled
by the employer and the owner's duty is limited to providing a
reasonably safe workplace, unless the owner continues to exercise
control of the place of employment.
In syllabus point 3 of Henderson, we further advised: "When the owner of a place of employment provides a reasonably safe workplace and exercises no control thereafter, the owner has complied with the responsibilities imposed under W. Va. Code, 21-3-1 [1937]."See footnote 8 8 In syllabus point 3 of Taylor we held that: "The 'reasonably safe place to work' theory may not be used against the owner of a place of employment when the owner
exercises no control over the equipment
provided by the contractor for use by the contractor's
employees."
92 Coal claims
that it exercised no control over any equipment used by Slider in
its auger operations. We agree. Slider purchased its auger mining
equipment before it began working at the Coontz mine. 92 Coal was
not involved in Slider's daily operations and it did not
participate in constructing the guard that was placed on the
auger machine following the first explosion.
The record shows
that the actions of 92 Coal were limited to merely indicating to
Slider where to auger the coal. Appellant contends that this is
evidence that 92 Coal exercised control over Slider's work. In
response, 92 Coal asserts that a natural part of hiring someone
to do a job is directing where it is to be performed. In Taylor,
the plaintiff, a carpenter employed by Mellon-Stuart Company, the
contractor constructing a Sears Automotive Center building, was
injured when he fell from scaffolding. Id. at 161, 437 S.E.2d at
734. Although the plaintiff argued that Sears maintained
sufficient supervision over the work to have prevented the
independent contractor from violating safety regulations, the
evidence indicated that Sears' control over the construction was
"negligible." Id. at 163, 437 S.E.2d at 736. In the
case before this Court, the trial judge found that the evidence
was not sufficient to show that 92 Coal failed to provide a
reasonably safe workplace. We conclude that the circuit court did
not err in granting
summary judgment in favor of 92 Coal as to the
issue of whether 92 Coal failed to provide a reasonably safe work
place.See footnote 9 9
Appellant next
contends that 92 Coal is liable because it was involved in a
joint venture with Slider to mine coal. In syllabus point 2 of
Price v. Halstead, 177 W. Va. 592, 355 S.E.2d 380 (1987),
this Court held:
A
joint venture or, as it is sometimes referred to, a joint
adventure, is an association of two or more persons to carry out
a single business enterprise for profit, for which purpose they
combine their property, money, effects, skill, and knowledge. It
arises out of a contractual relationship between the parties. The
contract may be oral or written, express or implied.
See also syl. pt. 2, Johnson v. State Farm Mut. Auto Ins. Co., 190 W. Va. 526, 438 S.E.2d 869 (1993). The record in this case indicates that the relationship between Slider and 92 Coal was that of an independent contractor. Although it is unclear whether a written contract existed, it appears that there was an agreement whereby 92 Coal agreed
to pay Slider $8.50 per ton of coal produced
plus fuel. There is no evidence that Slider and 92 Coal agreed to
share profits and losses. Furthermore, appellant's own liability
expert testified that in his opinion there was no joint
ventureship between Slider and 92 Coal. Accordingly, we find no
merit to this assignment of error.
Appellant also
contends that 92 Coal is liable because it hired a contractor
that was not qualified to perform the augering operations.
Appellant asserts that if 92 Coal had simply inquired, it would
have learned that Mr. Slider had no augering experience and that
appellant had little experience. The record shows that appellant
approached the president of 92 Coal and negotiated the contract
on behalf of Slider. After inducing 92 Coal to hire Slider,
appellant cannot now assert a negligent hiring claim against it.
Accordingly, we find no merit to this assignment of error.
Based upon all of
the above, this Court is of the opinion that the circuit court
committed no error in concluding that the appellant failed to
present sufficient evidence under requirement (B) concerning
subjective realization and requirement (D) concerning intentional
exposure of W. Va. Code, 23-4-2(c)(2)(ii). This Court is also of
the opinion that the circuit court committed no error in
concluding that appellant failed to show that evidence exists to
prove that 92 Coal exercised control over appellant's work at the
mine. Finally, this Court is of the opinion that the circuit
court correctly concluded that appellant cannot prove general
negligence, joint venture, or negligent hiring. Accordingly, the
orders of the Circuit Court of Marion County
entered on July 9, 1996, and November 12, 1996, are affirmed.
Affirmed.
Footnote: 1 1 We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W. Va. 197, 201 n. 4, 423 S.E.2d 600, 604 n. 4 (1992) ("Per curiam opinions . . . are used to decide only the specific case before the Court; everything in a per curiam opinion beyond the syllabus point is merely obiter dicta. . . . Other courts, such as many of the United States Circuit Courts of Appeals, have gone to non-published (not- to-be-cited) opinions to deal with similar cases. We do not have such a specific practice, but instead use published per curiam opinions. However, if rules of law or accepted ways of doing things are to be changed, then this Court will do so in a signed opinion, not a per curiam opinion.").
Footnote: 2 2 The record indicates that the appellant was also the job foreman. He negotiated the contract with 92 Coal to perform its augering operations and generally ran the day to day operations of Slider.
Footnote: 3 3 Appellant was also injured in the first explosion. He received burns to his stomach and arms.
Footnote: 4 4 Appellant also filed suit against Salem Tool Company, an Ohio corporation, Salem Tool, Inc., a Kentucky corporation, and S & M Glass, Inc., a West Virginia corporation. Stear Auger Mining, Inc., General Electric Company, and Boyer Equipment Company were later named as third party defendants. At the hearing on Slider and 92 Coal's motions for summary judgment, the Court also considered a motion for summary judgment filed by Boyer Equipment Company; a motion for partial summary judgment or a separate trial filed by Stear Auger Mining, Inc.; a motion for declaratory judgment filed by TIG Insurance Company; and a motion to dismiss claims for contribution to third party complaints filed by General Electric Company. Because Slider and 92 Coal's motions were granted, the court found that the motions filed by Boyer Equipment Company and Stear Auger Mining, Inc., were moot and the third-party claims against them were dismissed. The motion filed by TIG Insurance Company was denied. The Court concluded that General Electric's motion to dismiss claims for contribution was moot as to the third party complaint of Slider; however, the same motion with respect to the third party complaint of S & M Glass, Inc. was denied. In his petition for appeal, appellant does not assign as error the court's rulings with respect to these additional parties.
Footnote: 5 5 W. Va. Code, 23-4-2 was amended in 1994. However, those amendments are not relevant to this case. Moreover, the specific language of W. Va. Code, 23-4- 2(c)(2)(ii), as set forth above, has remained unchanged.
Footnote: 6 6 We note that the circuit court made no findings with respect to the requirements of subparagraphs (A), (C), and (E) of W. Va. Code, 23--2(c)(2)(ii). Accordingly, those issues are not before this Court.
Footnote: 7 7 We note that with regard to W. Va. Code, 23-4-2(c)(2)(ii)(A), appellant claims that two unsafe working conditions existed which presented a high degree of risk and strong probability of serious injury or death. First, he asserts that the location of the mining operation was unsafe as a result of the prior explosion. The record indicates that the second explosion occurred in close proximity to the first explosion. Secondly, appellant asserts that the equipment, i.e. the auger machine, created an unsafe working condition because he was still in direct line with the bore hole as he operated the machine even though a guard/shield had been installed. Appellant testified during his deposition that he thought the guard/shield was a "joke," and he never believed it would protect him in the event of another explosion.
Footnote:
8 8
W. Va. Code, 21-3-1 [1937] provides, in pertinent part:
Every
employer shall furnish employment which shall be reasonably safe
for the employees therein engaged and shall furnish and use
safety devices and safeguards, and shall adopt and use methods
and processes reasonably adequate to render employment and the
place of employment safe, and shall do every other thing
reasonably necessary to protect the life, health, safety, and
welfare of such employees[.]
Every
employer and every owner of a place of employment . . . shall so
construct, repair and maintain the same as to render it
reasonably safe.
Footnote: 9 9 It appears from the record that appellant asserted a general negligence claim incorporating all prior allegations in the complaint and alleging that the negligence of all of the defendants acting singularly, concurrently, and/or in combination caused or contributed to appellant's injury. In granting summary judgment to 92 Coal on this issue, the circuit court found that 92 Coal's "advice" as to where and how to conduct the augering operations could not constitute actionable negligence. It is difficult to determine from the record whether the trial judge treated appellant's negligence claim separately from his claim of failure to provide a reasonably safe place to work. In any event, both claims are based on appellant's allegation that 92 Coal advised Slider regarding its augering operations. Inasmuch as we affirm the circuit court's decision concerning failure to provide a reasonably safe place to work, it follows that we affirm the circuit court's decision regarding appellant's general negligence claim.
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