Arthur J. Bell, Pauline Bell, Plaintiffs-appellants, v. Volkswagen of America, Incorporated, a Corporation,defendant-appellee,clark Equipment Company, a Corporation, Defendant, 836 F.2d 545 (4th Cir. 1987)

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US Court of Appeals for the Fourth Circuit - 836 F.2d 545 (4th Cir. 1987) Submitted Nov. 4, 1987. Decided Dec. 28, 1987

W. E. Mohler for appellant.

Paul E. Frampton, Bowles, McDavid, Graff & Love for appellee.

Before SPROUSE and WILKINSON, Circuit Judges, and BOYLE, United States District Judge for the Eastern District of North Carolina, sitting by designation.


Arthur Bell appeals from the district court's grant of summary judgment to his former employer, Volkswagen of America, Inc., in his action to recover for a back injury he received while working on the job. The district court held that Bell failed to produce evidence that would allow him to maintain suit under West Virginia's statutory "deliberate intent" exception to the general immunity from common law tort actions that the West Virginia Workers' Compensation Act grants to covered employers. W.Va. Code Sec. 23-4-2. We affirm.

On March 21, 1984, Bell was employed as a tool and die maker at Volkswagen's Stamping Plant in South Charleston, West Virginia. He was injured when a forklift accidentally backed into a lunch table causing it to collide with another table, which rolled into his back. At the time, Bell was taking a break in a lunch area located adjacent to the production line where the forklift was operating.

Bell contends that Volkswagen subjectively realized that the location of the lunch area next to a work area constituted a dangerous condition that presented a high degree of risk and strong probability of serious injury. The district court, however, concluded that the discrete facts "do not reveal the type of working condition which presented a high degree of risk and strong probability of serious injury or death." W.Va. Code Sec. 23-4-2(c) (2) (ii) (A). We agree with the district court's conclusion, and accordingly affirm its grant of summary judgment.