Harris v. Martinka Coal Co.
Annotate this Case IN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA
September 1997 Term
____________
No. 24127
____________
JERRY HARRIS and
NORA HARRIS,
Plaintiffs below,
Appellant and Cross-Appellee,
v.
MARTINKA COAL COMPANY,
Defendant below,
Appellee and Cross-Appellant.
______________________________________________________
Appeal from the Circuit Court of Marion County
Hon. Rodney B. Merrifield, Judge
Civil Action No. 94-C-203
REVERSED AND REMANDED
______________________________________________________
Submitted:
October 14, 1997
Filed: December 5, 1997
Allan N. Karlin,
Esq. Steven
P. McGowan, Esq.
Jack S. Kaplan,
Esq. Ancil
G. Ramey, Esq.
Morgantown, West
Virginia Steptoe
& Johnson
Attorneys for the
Appellants/Cross-Appellees Charleston,
West Virginia
Attorneys
for the Appellee/Cross-Appellant
Robert M. Bastress,
Esq. A.L.
Emch, Esq.
Emily A. Spieler,
Esq. Mychal
S. Schulz, Esq.
Morgantown, West
Virginia Jackson
& Kelly
Attorneys for Amici Curiae United
Charleston, West
Virginia
Mineworkers of America
International Attorneys
for Amicus Curiae West Virginia
Union; The West Virginia AFL-CIO;
and Business & Industry Council
The United Steelworkers of America,
AFL-CIO-CLC
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "In
determining whether the verdict of a jury is supported by the
evidence, every reasonable and legitimate inference, fairly
arising from the evidence in favor of the party for whom the
verdict was returned, must be considered, and those facts, which
the jury might properly find under the evidence, must be assumed
as true." Syllabus Point 3, Walker v. Monongahela Power
Company, 147 W.Va. 825, 131 S.E.2d 736 (1963).
2. "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)." Syllabus Point 2, Mayles
v. Shoney's, Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990).
3. "Courts
must not set aside jury verdicts as excessive unless they are
monstrous, enormous, at first blush beyond all measure,
unreasonable, outrageous, and manifestly show jury passion,
partiality, prejudice or corruption." Syllabus, Addair v.
Majestic Petroleum Co., Inc., 160 W.Va. 105, 232 S.E.2d 821
(1977).
Per Curiam:See footnote 1
1
This appeal from
the Circuit Court of Marion County arises from a deliberate
intention action filed against an employer pursuant to W.Va.
Code, 23-4-2 [1994]. A jury returned a verdict for the
plaintiffs, Jerry and Nora Harris, and awarded $1.729 million for
injuries Mr. Harris suffered in an underground mine accident
while working for his employer, defendant Martinka Coal Company
("Martinka"). After hearing post-trial motions, the
circuit court set the verdict aside as being "clearly
influenced by passion, partiality and prejudice" and granted
the defendant a new trial.
The plaintiffs
appeal arguing that the circuit court erred in setting aside the
jury's verdict. The defendant has cross-appealed, arguing that
the circuit court should have entered judgment notwithstanding
the verdict on the defendant's behalf. After carefully reviewing
the briefs of the parties and the detailed record, we reverse the
circuit court's order and remand the case for entry of judgment
on the jury's verdict.
I.
A. Defendant's Appeal
In
this case we are asked to determine whether the jury's verdict
was supported by the evidence. In doing so, we must review the
facts in a light favorable to the prevailing party, the
plaintiff. This Court has held:
In determining
whether the verdict of a jury is supported by the evidence, every
reasonable and legitimate inference, fairly arising from the
evidence in favor of the party for whom the verdict was returned,
must be considered, and those facts, which the jury might
properly find under the evidence, must be assumed as true.
Syllabus Point 3, Walker v. Monongahela
Power Company, 147 W.Va. 825, 131 S.E.2d 736 (1963). In
accord, Syllabus Point 4, Roberts v. Stevens Clinic Hosp.,
Inc., 176 W.Va. 492, 345 S.E.2d 791 (1986); Syllabus Point 2,
Cox v. Galigher Motor Sales Co., 158 W.Va. 685, 213 S.E.2d 475 (1975).
We address the
defendant's cross-appeal first. The defendant appeals the circuit
court's order granting a new trial, arguing that the circuit
court erred and should have entered judgment notwithstanding the
jury's verdict on the ground that the plaintiff failed to prove
he was injured with deliberate intent as required by W.Va.
Code, 23-4- 2(c)(2)(ii)[1994].
Plaintiff Jerry
Harris was employed by the defendant as an underground miner. On
November 12, 1992, the plaintiff was severely injured in a
collision when the personnel
carrier (called a "bus") in which he
was riding was struck hard from behind by a 20-ton locomotive
(called a "motor"). The bus was driven by Martinka
supervisor James Chiater.
Federal and state
laws required that before any vehicle can be moved in a mine, the
driver of the vehicle is required to coordinate that movement by
radio with the mine dispatcher; no vehicle can move without
authorization from the dispatcher. Furthermore, the law requires
the driver of any bus to ensure that the track is clear before
moving. See 30 C.F.R. § 76.1403-7(g), (j);See footnote 2 2 W.Va.
Code, 22A-2-37(t)(2) [1987].See footnote 3 3 These laws applied
to the facts in the instant case.
Evidence was
presented at trial showing that the mine dispatcher told Mr.
Chiater to keep his bus off the main line tracks because two
20-ton motors were already
using the line and were headed in Mr. Chiater's
direction. The evidence supports the conclusion that Mr. Chiater
ignored or did not hear the radio directions from the mine
dispatcher to keep his personnel carrier off of the main line.
Mr. Chiater pulled his bus, with the plaintiff on board, onto the
main line and proceeded to another area of the mine. An expert
witness testified at trial that Mr. Chiater's actions violated
both federal and state law, and created an extremely dangerous
working condition that presented a high degree of risk and a
strong probability of serious injury or death.
Before Mr.
Chiater reached his destination, the bus was struck hard from
behind by a 20-ton motor with a force sufficient to knock the bus
approximately 30 to 50 feet. The plaintiff was seriously injured
in this collision.
Evidence was
presented showing that the operation of the 20-ton motor was
being overseen by another of the defendant's supervisors, Jerry
McClure. Mr. McClure, the maintenance supervisor for Martinka,
testified that he intended to take the motor out of service at
the end of the shift because the primary braking system was
slipping, and the operators of the motor had been repeatedly
having problems stopping the vehicle.
Witness testimony
indicated that, in addition to the problems with the braking
system, Mr. McClure allowed the motor to be driven at an
excessive rate of speed. Witnesses gave the opinion that an
experienced supervisor would have recognized that traveling the
main line tracks at excessive speeds in a motor that had problems
stopping was
a violation of safety standards, and that this
conduct created a high degree of risk and strong probability of
serious injury or death.
As is required by
W.Va. Code, 23-4-2(c)(2)(ii) [1994], the jury was
presented with two separate sets of five interrogatories to
answer concerning whether supervisor Chiater "entered the
main line without proper clearance from the dispatcher," and
whether the motor occupied by supervisor McClure "was
traveling at excessive speed." The jury answered each of the
ten interrogatories "yes," determining (1) that each
supervisor's actions created a specific unsafe working condition
which presented a high degree of risk and a strong probability of
serious injury or death; (2) that a management employee of the
defendant had a subjective realization and appreciation of each
specific unsafe working condition and the risk it posed; (3) that
both specific unsafe working conditions were violations of a
statute, rule, or safety standard; (4) that, notwithstanding the
existence of facts set forth in (1) through (3), a management
employee of the defendant intentionally exposed the plaintiff to
each specific unsafe working condition; and (5) that the
plaintiff suffered his injury as a proximate result of being
exposed to the specific unsafe working conditions.
The defendant
argues that, under W.Va. Code, 23-4-2 [1994], liability
cannot be imposed on an employer solely because an employee is
injured as the result of the violation of a safety standard by
management personnel, particularly when there is no evidence such
a violation occurred in the past, no evidence that complaints
about past
violations were made to higher management, and
no evidence there was an opportunity for higher management to
prevent the violations.
W.Va. Code,
23-4-2(c)(2)(ii) [1994] sets forth one of the limited grounds for
removing an employer's workers' compensation immunity from suit
where there is evidence that the employer acted with
"deliberate intent,"See footnote 4 4 and thereby allows
employees to bring actions for injuries received in the course of
their employment. The statute states that an employer can be held
liable only if:
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 direct
and proximate result of such specific unsafe working condition.
We
reject the defendant's contention that a plaintiff is required to
introduce evidence of factors beyond those stated in W.Va.
Code, 23-4-2(c)(2)(ii) [1994]. As we stated in Syllabus Point
2 of Mayles v. Shoney's, Inc., 185 W.Va. 88, 405 S.E.2d 15
(1990):
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 Sec. 23-4-2(c)(2)(ii) (1983).
In accord, Syllabus Point 2, Blevins v. Beckley Magnetite, Inc., 185 W.Va. 633, 408 S.E.2d 385 (1991); Syllabus Point 2, Sias v. W-P Coal Co., 185 W.Va. 569, 408 S.E.2d 321 (1991). In Mayles we approved a jury instruction stating a plaintiff "need only prove" the five statutory elements of W.Va. Code, 23-4-2(c)(2)(ii) [1994], because such words "were used to explain that no higher burden [of proof] existed." 185 W.Va. at 97, 405 S.E.2d at 24. While a plaintiff may introduce evidence of prior similar violations or complaints to prove an employer had knowledge of the risks concerning a specific unsafe working condition, or
to show an employer intentionally exposed an
employee to a hazard, we do not see a requirement for this type
of evidence in W.Va. Code, 23-4-2(c)(2)(ii) [1994].
We have reviewed
the record in this case in light of the language of W.Va. Code,
23-4-2(c)(2)(ii) [1994], and conclude that evidence was presented
to the jury sufficient to support each of the five statutory
elements.
First, the
actions of supervisors Chiater and McClure constituted
"specific unsafe working condition[s] which presented a high
degree of risk and a strong probability of injury or death."
Second, because Chiater and McClure were management employees, it
is clear that the "employer" had a subjective
realization and appreciation of the unsafe condition. Next, the
evidence supports a finding that the operation of Chiater's bus
constituted "a violation of a state or federal safety
statute, rule or regulation," and that the operation of the
20-ton motor at an excessive speed violated a "commonly
accepted and well-known safety standard within the
industry."
Fourth, there is
evidence to support a finding that notwithstanding the existence
of the above facts, the "employer nevertheless thereafter
exposed an employee to such specific unsafe working condition
intentionally." We do not accept the defendant's argument
that, under W.Va. Code, 23-4-2(c)(2)(ii)(D), the term
"thereafter" requires an extended period of time to
lapse between the creation of the unsafe condition and the
worker's injury. Lastly, there is ample evidence to support the
conclusion that the plaintiff, upon being exposed to
the specific unsafe working conditions,
"suffered serious injury . . . as a direct and proximate
result of such specific unsafe working condition[s]."
Accordingly, we
conclude that the jury's verdict as to liability was supported by
the evidence, and the defendant was not entitled to judgment
notwithstanding that verdict.
B. Plaintiffs' Appeal
The plaintiffs
appeal the circuit court's order which set aside the jury's
verdict as excessive. The plaintiffs contend that the circuit
court failed to apply the correct legal standards and that the
circuit court improperly relied upon matters which were not a
part of the court record. We agree.
In the November
1992 collision between the 20-ton motor and the bus in which he
was riding, Mr. Harris suffered serious spinal injuries. Multiple
surgeries were required to repair the injuries requiring the
plaintiff to spend three months in a body cast. The surgeries
left the plaintiff with an incisional hernia, a pulmonary
embolism, and scarring, as well as leaving the plaintiff several
inches shorter due to a curvature of his spine. Mr. Harris
testified to having continuous pain and an inability to bend over
or lift anything. The evidence suggested that the injuries
impaired Mr. Harris' ability to maintain and make repairs around
his home, and altered his relationship with his wife. An economic
expert testified that Mr. Harris's economic losses were between
$336,638.00 and $436,915.00. The expert valued lost household
services at $143,934.00.
It
is important to note that the defendant offered no evidence or
cross- examination on the issue of damages, and did not argue
damages to the jury.
On April 4, 1996,
the jury returned a verdict for the plaintiffs. The jury awarded
Mr. Harris $386,000.00 for past and future wage losses,
$143,986.00 for lost past and future household services, and
$1,000,000.00 for pain and suffering. Additionally, the jury
awarded $200,000.00 to Mrs. Harris for her loss of consortium,
for a combined total verdict of $1,729,000.00. In response to
this verdict, the defendant filed a motion for a new trial
pursuant to W.Va.R.Civ.P. Rule 59 [1978] or for judgment
notwithstanding the verdict pursuant to W.Va.R.Civ.P. Rule
50(b) [1978].
By an order dated
January 17, 1997, the circuit court granted the defendant's
motion for a new trial. Without taking any evidence or referring
to any matters of record, the circuit court concluded that the
jury's verdict was "clearly influenced by passion,
partiality and prejudice" and that the "size of the
verdict in this case was, in part, a reaction to the negative
political campaign in this area that had an emphasis on the
employment actions of the defendant. . . ."
Our review of a
trial judge's decision to vacate a jury's verdict is governed by
an abuse of discretion standard. Syllabus Point 3, In re:
State Public Bldg. Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (W.Va. 1994). A trial judge may not set aside a jury's
verdict as excessive unless it is "monstrous, enormous, at
first blush beyond all measure, unreasonable, outrageous, and
manifestly show[s] jury passion, partiality, prejudice
or corruption." Syllabus, Addair v.
Majestic Petroleum Co., Inc., 160 W.Va. 105, 232 S.E.2d 821
(1977). In accord, Syllabus Point 5, Tanner v. Rite Aid
of West Virginia, Inc., 194 W.Va. 643, 461 S.E.2d 149 (1995);
Syllabus Point 2, Capper v. Gates, 193 W.Va. 9, 454 S.E.2d 54 (1994); Syllabus Point 3, Adkins v. Foster, 187 W.Va.
730, 421 S.E.2d 271 (1992); Syllabus Point 6, Torrence v.
Kusminsky, 185 W.Va. 734, 408 S.E.2d 684 (1991); Syllabus
Point 3, Reager v. Anderson, 179 W.Va. 691, 371 S.E.2d 619
(1988); Syllabus Point 5, Roberts v. Stevens Clinic Hospital,
Inc., 176 W.Va. 492, 345 S.E.2d 791 (1986); Syllabus Point
10, Ilosky v. Michelin Tire Corp., 172 W.Va. 435, 307 S.E.2d 603 (1983).
After reviewing
the evidence in this case, we conclude that the circuit court
abused its discretion in awarding a new trial. The plaintiffs'
evidence clearly showed that the plaintiffs' injuries were
permanent and excessive, and this evidence was not controverted
in any way by the defendant.
Furthermore, the
circuit court failed to conduct any evidentiary hearings on the
issue of jury "passion, partiality, prejudice, or
corruption." Aside from speculation about circumstances that
might have influenced the jury, there was no evidence that would
support the conclusion that the jury's verdict was the result of
anything other than a careful review of the evidence.
Accordingly, the
circuit court's order must be reversed, and the case remanded for
entry of judgment on the jury's verdict.
II.
For the foregoing
reasons, the circuit court's January 17, 1997 order granting a
new trial is reversed, and the case is remanded for entry of
judgment upon the jury's verdict.
Reversed and remanded.
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 terms "personnel carrier," "bus," and
"mantrip" are interchangeable. 30 C.F.R. §75.1403-7(g)
states:
All mantrips
should be under the direction of a supervisor and the operator of
each mantrip should be familiar with the haulage safety rules and
regulations.
30 C.F.R. §75.1403-7(j) states:
Mantrips should
not be permitted to proceed until the operator of the mantrip is
assured that he has a clear road.
Footnote:
3 3
W.Va. Code, 22A-2-37(t)(2)[1987] states:
In any coal mine
where more than three hundred fifty tons of coal are produced on
any shift in each twenty-four hour period, a dispatcher shall be
on duty when there are movements of track equipment underground,
including time when there is no production of coal. Such traffic
shall move only at the direction of the dispatcher.
W.Va. Code, 22A-2-37 was amended in 1997, but no
substantive changes affecting this appeal were made.
Footnote:
4 4
Another means for removing immunity is found in W.Va. Code,
23-4-2(c)(2)(i) [1994], which removes an employer's immunity if
"[i]t is proved that such employer . . . acted with a
consciously, subjectively and deliberately formed intention to
produce the specific result of injury or death to an
employee."
Certain employers may also be subjected
to liability for personal injuries to employees caused through
the employer's "wrongful act, neglect or default" if
the employer fails to subscribe to or pay premiums into the
workers' compensation fund. See W.Va. Code, 23-2-8 [1991].
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.