Tudor et al v. Allied Waste Services of North America, LLC, No. 3:2015cv09014 - Document 66 (S.D.W. Va. 2016)
Court Description: MEMORANDUM OPINION AND ORDER granting Defendant's 57 MOTION for Summary Judgment; dismissing the complaint with prejudice and removing the case from the docket of the court. Signed by Magistrate Judge Cheryl A. Eifert on 12/9/2016. (cc: counsel of record) (mkw)
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Tudor et al v. Allied Waste Services of North America, LLC Doc. 66 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION LAW REN CE H . TU D OR an d BETTY TU D OR, h u s ban d an d w ife , Plain tiffs , v. Cas e N o .: 3 :15-cv-0 0 9 0 14 ALLIED W ASTE SERVICES OF N ORTH AMERICA, LLC., d / b/ a/ REPU BLIC SERVICES OF W EST VIRGIN IA, D e fe n d an t. MEMORAN D U M OPIN ION AN D ORD ER Pending is Defendant’s m otion for sum m ary judgm ent. (ECF No. 57). For the following reasons, Defendant’s m otion is GRAN TED . I. Backgro u n d This case arises from an injury suffered by Lawrence Tudor (“Tudor”) while working as a roll-off driver for the defendant, Allied Waste Services of North Am erica, LLC (“Allied”). On Decem ber 13, 20 13, Tudor was unloading a com m ercial trash com pactor at a local landfill when he was struck in the face and upper body by a m etal bar used to secure the door of the container. Tudor now asserts a deliberate intent claim against Allied under West Virginia law, and his wife alleges a loss of consortium claim . The following facts are undisputed. The injury-producing container was located at the West-End of the CSX train yard in Huntington, West Virginia. Tudor did not regularly service the CSX West-End container, but had been assigned to do so 1 Dockets.Justia.com approxim ately four tim es, including on Decem ber 13, 20 13. The CSX West-End container was a detachable com pactor-container with a door on one side through which the trash was dum ped. The door was secured by a m etal bar that was held in place by a pin, which was attached to a latch. To open the container’s door, the roll-off driver would m anually m ove the latch two to four inches to the right, in a clockwise direction. When the latch was m oved a sufficient am ount, the pin would detach, allowing the m etal bar to swing open and the door to release. Tudor knew that he was supposed to stand to the right of the latch when opening the door, because when the pin detached, the m etal bar swung out to the left with som e force and could seriously injure an individual standing in front of it. Approxim ately one or two years before Tudor’s injury, Mr. Philip Mills, the union steward and a roll-off driver who regularly serviced the CSX West-End container, fastened a nylon strap with a buckle to an eyelet at the top of the latch, secured the strap to the left side of the container, and tightened the strap. Mr. Mills applied the nylon strap to the container as an extra precaution to ensure that the latch rem ained secured in a locked position during transport of the container to the landfill. According to Mr. Mills, he was concerned that the jostling of transport m ight cause the latch to accidently m ove, allowing the pin to detach, the m etal bar to swing out, and the door to release, dum ping trash onto the highway. Once at the landfill, the strap was rem oved by pulling up on its buckle. Mr. Mills testified that he did not seek or have authorization from Allied to use the strap in that m anner, and he never reported any concerns to Allied related to the container’s latch, or the use of the strap. In fact, prior to Tudor’s accident, num erous em ployees had serviced the container with the nylon strap attached, and no other 2 em ployee was injured, or reported any safety concerns to Allied related to the strap. Mr. Mills testified that he was not aware that placing the strap on the container to secure the latch m ight create a safety hazard. No other em ployee servicing the CSX West-End container testified that the strap created a safety hazard. Likewise, no one ever com plained that by sim ply unbuckling the strap, the latch would m ove to the left to such a degree that the pin would detach, allowing the m etal bar to swing out. On the day of Tudor’s accident, he picked up the CSX West-End container and took it to the landfill. While the container was still on the truck, Tudor went about opening the container door. Tudor noticed that the nylon strap was in place; however, the last roll-off driver had put the strap on backwards. Instead of applying the strap so that the buckle was on the end closest to the latch, the driver had reversed the strap, placing the buckle at the left side of the container door. Consequently, to reach the buckle and undo the strap, Tudor stood on the left side of the latch. According to Tudor, as soon as he reached up and unbuckled the strap, the m etal bar cam e swinging out and struck him in the arm and face. Tudor was knocked to the ground and suffered injuries to his face, shoulders, neck, left arm , and legs. Tudor com plains that the nylon strap on the CSX West-End container created an unsafe working condition when the strap was placed in the reverse position. Tudor asserts that he was forced to stand to the left of the latch, in the path of the m etal bar, in order to rem ove the strap. He contends that a m etal chain and safety pin were m issing from the container, which would have m ade the strap unnecessary in the first place. Tudor further alleges that several em ployees had com plained about the unsafe condition of the container before his accident, including a com plaint that the m etal bar had swung out unexpectedly and struck an em ployee in the head. Nevertheless, Allied did nothing 3 to address the concerns. Finally, Tudor alleges that Allied violated standards im plem ented by the Am erican National Standards Institute (“ANSI”) pertinent to equipm ent and operations for wastes and recyclable m aterials, and had Allied abided by the standards, Tudor would not have been injured. In response, Allied points out that Mr. Mills was never given perm ission to apply the nylon strap to the CSX West-End container and no one m entioned the strap’s presence to Allied; therefore, Allied had no knowledge of the strap prior to Tudor’s accident. Allied adds that notwithstanding Mr. Mills’s lack of perm ission, his use of the strap did not violate any law or regulation applicable to the container. Allied notes that no other em ployee was injured as a result of the strap. In fact, even Tudor had serviced the container and rem oved the strap in the past without injury or com plaint. Allied contends that it trained its em ployees, including Tudor, on how to service com pactorcontainers, and the em ployees knew not stand in front of the m etal bar when opening the container’s door. According to Allied, the nylon strap did not create a work hazard; instead, the hazard was created in this case by Tudor standing in front of the m etal bar while opening the container, in direct contravention of his training. Finally, Allied argues that Tudor cannot establish that Allied deliberately exposed him to an unsafe work condition, as required to m aintain a deliberate intent case. II. Re le van t Law A. Su m m a r y Ju d g m e n t St a n d a r d Sum m ary judgm ent is proper under Fed. R. Civ. P. 56 when no genuine issue of m aterial fact is in dispute, and the m oving party is entitled to judgm ent as a m atter of law. Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 250 (1986). A fact is m aterial if it “m ight affect the outcom e of the suit under the governing law,” and a disputed issue of 4 m aterial fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonm oving party.” Anderson, 477 U.S. at 248. The party m oving for sum m ary judgm ent bears the burden of showing “an absence of evidence that dem onstrates the existence of a genuine issue of fact for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the m oving party carries this burden, then the nonm oving party m ust offer som e “concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson, 477 U.S. at 256. Concrete evidence includes “particular parts of m aterials in the record, including depositions, docum ents, electronically stored inform ation, affidavits or declarations, stipulations (including those m ade for purposes of the m otion only), adm issions, interrogatory answers, or other m aterials.” Fed. R. Civ. P. 56(c)(1)(A). The court m ust not resolve disputed facts nor weigh the evidence. Russell v. Micrody ne Corp., 65 F.3d 1229, 1239 (4th Cir. 1995). Instead, the court m ust accept as true the factual version of the nonm oving party and review the evidence “draw[ing] all justifiable inferences” in its favor. Masson v. N ew Yorker Magazine, Inc., 50 1 U.S. 496, 520 (1991). Nonetheless, the “m ere existence of a scintilla of evidence” favoring the nonm oving party will not prevent entry of sum m ary judgm ent. Anderson, 477 U.S. at 252. While any perm issible inferences to be drawn from the underlying facts “m ust be viewed in the light m ost favorable to the party opposing the m otion,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), “[i]f the evidence is m erely colorable, or is not significantly probative, sum m ary judgm ent m ay be granted.” Felty v. Graves-Hum phrey s Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (quoting Anderson, 477 U.S. at 249-50 ). 5 B. D e lib e r a t e In t e n t St a n d a r d Under the West Virginia Workers Com pensation Act, em ployers are generally im m une from lawsuits seeking com pensation for “injury or death to an em ployee.” W. Va. Code § 23-4-2(d)(1). This im m unity is lost, however, “if the em ployer or person against whom liability is asserted acted with ‘deliberate intention.’” W. Va. Code § 234-2(d)(2). The Act provides two ways in which an em ployee m ay establish an em ployer’s deliberate intent. In the instant action, Plaintiffs assert their claim s under subsection 23-4-2(d)(2)(ii).1 To dem onstrate deliberate intent under this subsection, Plaintiffs m ust prove each of the following five elem ents: (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 em ployer, prior to the injury, had actual knowledge of the existence of the specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by the specific unsafe working condition; (C) That the specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a com m only accepted and well-known safety standard within the industry or business of the em ployer, as dem onstrated by com petent evidence of written standards or guidelines which reflect a consensus safety standard in the industry or business, 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, equipm ent or working conditions; (D) That notwithstanding the existence of the facts set forth in subparagraphs (A) through (C), inclusive, of this paragraph, the em ployer nevertheless intentionally thereafter exposed an em ployee to the specific unsafe working condition; and (E) That the em ployee exposed suffered serious com pensable injury or com pensable death as defined in section one, article four, chapter twenty1 W. Va. Code § 23– 4– 2 was significantly modified in J une 20 15. However, the parties agree that the version of the statute in effect at the time of Tudor’s accident governs the analysis in this case. 6 three whether a claim for benefits under this chapter is filed or not as a direct and proxim ate result of the specific unsafe working condition. W. Va. Code. § 23– 4– 2(d)(2)(ii). If Plaintiffs are unable to m ake a prim a facie showing supporting all five elem ents, “the court shall dism iss the action on a m otion for sum m ary judgm ent.” W. Va. Code. § 23– 4– 2(d)(2)(ii)(B). “That the [plaintiffs] m ay have a fairly good case considering only the other four facts is of no m om ent. The statute leaves no room for flexibility; the Legislature intended all five facts to be proven.” Greene v. Carolina Freight Carriers, 663 F.Supp. 112, 115 (S.D. W. Va. 1987). III. An alys is Having considered the evidence and the five elem ents, the court concludes that Allied is entitled to judgm ent as a m atter of law. A. Ele m e n t 1—U n s afe W o rkin g Co n d itio n “To establish the first elem ent of their deliberate intent claim , plaintiffs m ust offer evidence identifying ‘a specific unsafe working condition’ that presented ‘a high degree of risk and a strong probability of serious injury or death’ as required by West Virginia Code § 23-4-2(d)(2)(ii)(A).” Baisden v. Alpha & Om ega Coal Com pany , LLC, Civil Action No. 2:11-0 79, 20 12 WL 259949, *5 (S.D. W. Va. J an. 27, 20 12). In other words, it is not enough for Plaintiffs to show “that an unsafe working condition could produce an injury.” Id. at *8. Instead, Plaintiffs “m ust establish that the unsafe working condition presents both a ‘high degree of risk’ and ‘a strong probability of serious injury or death.’” Coe v. Outback Steakhouse of Florida, LLC, Civil Action No. 1:11CV113, 20 13 WL 140 10 7, *3 (N.D. W. Va. J an. 10 , 20 13) (quoting W. Va. Code § 23-4-2(d)(2)(ii)(A); Marcus v. Holley , 618 S.E.2d 517, 528 (W. Va. 20 0 5)). Plaintiffs claim that the nylon strap—when applied to the container with the 7 buckle away from the latch—constituted an unsafe working condition, because it required the roll-off driver to stand in front of the m etal bar to release the strap, thus creating a high degree of risk and a strong probability of serious injury or death. To the contrary, Allied contends that even when placed with the buckle away from the latch, the nylon strap was not unsafe, because the roll-off driver could stand to the far left of the latch when rem oving the strap, outside the reach of the swinging m etal bar, or he could duck below the m etal bar. Moreover, Allied claim s that Tudor knew he should not stand in front of the m etal bar when opening the container’s door. Therefore, if the position of the buckle forced him to do so, he should have followed Allied’s protocol and contacted a dispatcher to report the issue, rather than place him self in jeopardy. Finally, Allied em phasizes that the record lacks any evidence to establish that the latch m oved to the release position when Tudor unbuckled the strap. Allied argues that the record is devoid of adm issible evidence showing that the nylon strap had any effect on the position of the latch, let alone evidence that the latch could m ove to the right sim ply by unbuckling the strap, a contention that Allied claim s is contrary to the law of physics. Plaintiffs offer evidence that, prior to Tudor’s accident, several other roll-off drivers reported the CSX West-End container as being unsafe. At least one worker com plained that the bar sprung out quickly and swung with the force of a baseball bat. (ECF No. 59 at 12-13). However, none of the com plaints concerned the presence or use of the strap on the container, and none of the witnesses testified that the act of unbuckling the strap caused an unexpected release of the m etal bar. Furtherm ore, none of the witnesses reported having to stand to the left of the latch, in front of the m etal bar, in order to unbuckle the strap. Even Tudor adm itted that he had never seen nor heard of the bar swinging free when the nylon strap was released or rem oved, and he did not 8 know what caused the bar to spring open on Decem ber 13, 20 13. (ECF No. 57-2 at 18, 32-33; ECF No. 57-3 at 23, 39). Philip Mills testified that he decided to apply the nylon strap, because he felt the strap would better secure the latch during transport. (ECF No. 57-4 at 14). Mr. Mills testified that he considered the strap to be an extra safety precaution, and he never thought the strap would create a hazard. Tudor testified that he had rem oved and replaced the nylon strap on the container after servicing it in the past, without incident, and he never reported the latch or strap as safety concerns. Furtherm ore, Tudor recalled approxim ately a half dozen other tim es that he placed sim ilar nylon straps on different containers for extra security of the latch position, again without incident. (ECF No. 573 at 41). Tudor confirm ed that he had never been injured as a result of a strap attached to the latch of a refuse container prior to Decem ber 13, 20 13. (Id.). Likewise, no witness testified that he ever saw the container’s latch m ove when the strap was unbuckled, or had the latch slide to the open position without m anually m oving the latch to the right. An inspection of the container after Tudor’s accident did not reveal any specific problem s with the latch or the m etal bar. The inspectors were unable to recreate the incident as described by Tudor. Philip Mills provided a possible explanation for Tudor’s experience, suggesting that pressure from the weight of the trash against the door of the container caused the latch to m ove to the right when the adverse pressure exerted by the strap was rem oved. However, Mr. Mills’s testim ony is pure speculation. Even if it were valid and adm issible evidence, testim ony that the strap could present an unsafe working condition under certain circum stances sim ply is not enough to m eet the requirements of the first elem ent. As the court pointed out in Baisden, “subsection (A) requires m ore than a showing that an unsafe working condition could 9 produce an injury. The unsafe working condition m ust present a high degree of risk and strong probability of serious injury or death.” Baisden, 20 12 WL 259949, at *8. Significantly, the unsafe working condition alleged by Plaintiffs is not the swinging of the m etal bar, or the force of the bar when released, as those were ordinary hazards associated with the proper functioning of the container. Moreover, Plaintiffs do not allege that the nylon strap was unsafe when placed with the buckle close to the latch, because that placem ent did not require the roll-off driver to stand in front of the m etal bar. Plaintiffs claim only that the strap constituted an unsafe working condition when applied with the buckle away from the latch. To begin, Tudor simply does not supply evidence that unbuckling or rem oving the strap has ever set into m otion the unlatching of the m etal bar. Moreover, he is unable to prove that placing the strap on the container in reverse position was any m ore likely to cause the m etal bar to prem aturely spring open. The precise cause of the bar’s release is, to date, unknown and m ay have resulted from a unique set of circum stances that only existed on Decem ber 13, 20 13. Thus, while Tudor, “by virtue of his own injuries,” has dem onstrated that standing in front of the m etal bar when unbuckling the strap can possibly result in injury, he has not m et his burden to show that the reverse placem ent of the strap presented a high degree of risk and a strong probability of serious injury. Coe, 20 13 WL 140 10 7, at *4. “Had the legislature required a deferential ‘possibility’ or even a ‘reasonable probably’ standard, the outcom e m ay be different. For if the lawm akers’ inclusion of the adjective ‘strong’ is to have any m eaning, it m ust require plaintiffs to present evidence indicating considerably m ore than a m ere ‘possibility’ or even a ‘reasonable probability’ of serious injury or death.” Baisden, 20 12 WL 259949, at *8. 10 In its response in opposition to the m otion for sum m ary judgm ent, Plaintiffs also claim that Allied’s failure to regularly inspect the container for safety hazards and its failure to properly repair structural defects in the container constituted an unsafe working condition. However, Plaintiffs produce no evidence to support those contentions. First, the evidence indicates that Allied required its em ployees to inspect their equipm ent and containers on a regular basis. A num ber of employees saw the strap on the CSX West-End container, but did not recognize it to be an unsafe working condition and did not report it as such. As far as the condition of the container, the record lacks evidence of specific structural or m echanical defects in the CSX West-End container. Sim ilarly, there is no evidence that Allied repaired or m odified the container in a way that m ade it hazardous. Testim ony that reports were m ade of the container being “unsafe” consisted of second-hand stories, rum ors, and vague statem ents, or the reports were unsubstantiated by the individuals who allegedly m ade them . Mr. Mills described being struck by the container’s m etal bar on one occasion, but did not attribute the accident to a defect in the container or to a hazard unrelated to the norm al operation of the container. Rather, Mr. Mills testified that while he did not know what caused the incident, he believed it m ay have been due to his own “carelessness” or because he “got in a hurry.” (ECF No. 59-2 at 5). In contrast, Allied presented unrefuted evidence that no other em ployee suffered a serious injury servicing the CSX West-End container. Allied also has produced evidence that its drivers were trained to inspect their containers on each route and were required to report safety hazards. (ECF No. 59-3 at 10 ). Yet, no em ployee ever reported the container’s latch or the nylon strap as safety concerns. The evidence establishes that the drivers knew to com m unicate their concerns on the route sheets they provided daily 11 to Allied’s dispatch office and knew the protocols to follow when containers needed to be repaired. (Id.). The evidence indicates that m ost of the em ployees followed these directives. Accordingly, Plaintiffs have failed to dem onstrate that the strap created an unsafe working condition with a high degree of risk and a strong probability of serious injury or death. B. Ele m e n t 2 —Actu al Kn o w le d ge o f th e U n s afe W o rkin g Co n d itio n an d H igh D e gre e o f Ris k an d Stro n g Pro bability o f Se rio u s In ju ry o r D e ath To establish the second elem ent of deliberate intent, an em ployee m ust show that the em ployer possessed actual knowledge of the unsafe working condition, as well as the strong probability that the working condition would cause serious injury or death. The actual knowledge elem ent “is not satisfied m erely by evidence that the em ployer reasonably should have known of the specific unsafe working condition and of the strong probability of serious injury or death presented by the condition. Instead, it m ust be shown that the em ployer actually possessed such knowledge. Blevins v. Beckley Magnetite, Inc., 40 8 S.E.2d 385, sly. pt. 3 (W. Va. 1991). This elem ent has “a high threshold that cannot be successfully m et by speculation or conjecture.” Mum aw v. U.S. Silica Co., 511 S.E.2d 117, 123 (W. Va. 1998). When assessing evidence of actual knowledge, courts m ay consider “(1) whether any prior injuries had occurred because of the condition; (2) whether the em ployer previously had been cited by governm ent officials for the violation; and (3) whether there had been any prior com plaints that would have put the em ployer on notice of the high degree of risk and strong probability of serious injury or death created by the condition.” Baisden, 20 12 WL 259949, at *9. However, this type of evidence is not 12 required, and an em ployee m ay establish the actual knowledge elem ent in cases “where … [an] em ployer fail[s] to perform a reasonable evaluation to identify hazards in the workplace in violation of a statute, rule or regulation im posing a m andatory duty to perform the sam e, the perform ance of which m ay have readily identified certain workplace hazards.” See Duncan v. ICG Beckley , LLC, Civil Action No. 5:12-cv-0 0 235, 20 13 WL 1331226, *4 (S.D. W. Va. Apr. 2, 20 13) (quoting Ry an v. Clonch Indus., 639 S.E.2d 756, 759 (W. Va. 20 0 6)). Allied points out, and Plaintiffs do not dispute, that there is no evidence of any prior injuries related to the use of the nylon strap on the container; no evidence that Allied was ever cited for allowing the strap to be applied to the container; and no evidence of com plaints indicating that the sim ple act of unbuckling the strap caused a sudden release of the m etal bar. Instead, Plaintiffs rely on the West Virginia Suprem e Court of Appeal’s (“WVSCA”) opinion in McCom as v. ACF Indus., LLC, 750 S.E.2d 235 (W.Va. 20 13) to support their contention that Allied’s violation of an industry standard requiring periodic inspections of the container constituted actual knowledge of the unsafe working condition created by the nylon strap and of the high risk and strong probability that the strap would lead to serious injury. In McCom as, a factory em ployee was severely burned in 20 0 4 when he flipped the side-handle of a 480 -volt switch box, causing an arc blast. The factory had installed the switch box in the late 1950 s or early 1960 s and had never had the box inspected despite a safety standard that required switch boxes, when energized, to be inspected for overheating every three to six m onths and, when not energized, to be cleaned, inspected, and subject to m aintenance every three to six years. An investigation after the accident confirm ed that the arc blast was caused by a failure of the switch box’s insulation, which 13 had disintegrated over tim e. In its defense against the subsequent deliberate intent case brought by the injured em ployee, the factory asserted that it lacked actual knowledge of the insulation’s decayed condition and, thus, did not know that the switch box presented an unsafe working condition with a strong probability of serious injury. Accordingly, the factory argued that the plaintiff could not establish all five elem ents required by the deliberate intent statute. The WVSCA rejected this defense, holding: [W]hen a safety statute, rule or regulation, or a com m only accepted and well-known safety standard within the industry or business, im poses a specifically identifiable duty to inspect upon the em ployer, and the inspection would have revealed the specific unsafe working condition, the em ployer m ay be found to have had actual knowledge of the specific unsafe working condition within the m eaning of this State's deliberate intent statute McCom as, 750 S.E.2d at 243. The court reasoned that the West Virginia Legislature “did not intend to allow em ployers to shirk responsibilities im posed by specific statutes, rules, regulations or standards by turning a blind eye to workplace hazards. Willful ignorance of a specific unsafe working condition is no defense under subparagraph (B) of the deliberate intent statute.” Id. Here, Plaintiffs contend that ANSI standard Z245.30 -20 0 8, section 6.1 (e) requires em ployers engaging in the business of refuse rem oval to establish and follow “a program of periodic containers inspections.” (ECF No. 57-9 at 5). Plaintiff argues that it has produced testim ony from several Allied em ployees that no “program ” of container inspection was ever established by Allied. Plaintiffs further assert that if Allied had conducted periodic inspections, as required, the im proper use of the strap would have been revealed. In support of this assertion, Plaintiffs point to the testim ony of two supervisors at Allied who indicated that if they had seen the strap on the container, they 14 would have had the container exam ined by m aintenance to insure that it was safe. Allied counters by contending that it followed a program of periodic containers inspections, noting the testim ony of its em ployees confirm ing that Allied trained them to inspect the refuse containers and required them to report any unsafe equipm ent. In addition, each em ployee was given a safety handbook, which reiterated the em ployee’s duty to inspect the containers and report concerns. Allied argues that no em ployee who serviced the CSX West-End container, including Tudor, ever advised m anagem ent of a specific unsafe working condition related to the container. Furtherm ore, Allied contends that there is no evidence in the record to establish that the nylon strap was placed in the reverse position at any tim e before Tudor’s accident, or that anyone suspected the strap as posing a high degree of risk resulting in the strong probability of serious injury. “[T]he West Virginia Legislature intended only egregious acts or om issions by the em ployer to be actionable. One m easure of the em ployer's culpability would be whether it ignored or circum vented a known legal duty—not the duty contem plated by principles of negligence law, but rather a duty which has been m ade express and specific by positive law or industry custom and practice.” Greene v. Carolina Freight Carriers, 663 F. Supp. 112, 115 (S.D.W. Va. 1987), aff'd, 840 F.2d 10 (4th Cir. 1988). In order to m eet the “actual knowledge” standard set forth in McCom as, Plaintiffs m ust show the existence of a “specifically identifiable duty to inspect” applicable to Allied. In addition, Plaintiffs m ust show that had Allied perform ed the required inspection, the specific unsafe working condition would have been revealed. Plaintiffs plainly have not m ade these showings. First, in regard to the duty to inspect, ANSI standard Z245.30 -20 0 8, section 6.1 (e) addresses the safety of waste containers and provides that a waste m anagem ent em ployer is responsible for “establishing and following a program of periodic containers 15 inspections.” (ECF No. 59-8 at 5). Assum ing that this standard places a specific, identifiable duty on Allied to carry out periodic inspections of its containers, the evidence indicates that Allied com plied with the standard. Allied offers the testim ony of its supervisor, J erem y Beaver. Mr. Beaver testified that every new em ployee starts off with training regarding the scope of their duties and their responsibilities. (ECF No. 576 at 24). They watch OSHA videos and are instructed that they have the duty to bring safety concerns to the attention of m anagem ent. They are also advised of the consequences associated with a failure to report safety hazards. (Id. at 25). Each em ployee is given a Safe Actions for Excellence (“SAFE”) handbook, which reiterates the em ployee’s duties and responsibilities. According to Mr. Beaver, roll-off drivers are trained to inspect their containers on a continuous basis. He stated that supervisors also perform container inspections, but only when the situation arises or during observations. (Id.). For instance, Mr. Beaver testified that a supervisor m ust observe a post-accident em ployee once per week for four weeks after the accident, and a new hire is observed once per week for eight weeks. The rem aining employees are observed approxim ately once each quarter. During the observations, the supervisor ensures that the driver is adhering to safety policies. Although the observations are not specifically conducted to inspect the containers, the supervisors naturally exam ine the containers as part of the observation process. Allied also produced a copy of its SAFE handbook. (ECF No. 60 -2). The SAFE handbook notifies em ployees that they are subject to discipline for failing to “properly check Com pany equipm ent according to prescribed standards” and for failing to “report defective equipm ent or unsafe conditions of any equipm ent or facility that m ay endanger an em ployee, custom er, or m em ber of the public.” (Id. at 8). The handbook also requires 16 em ployees to “inform your supervisor of any safety hazards you find on your route so that they can be checked.” (Id. at 12). Specifically, with respect to containers, drivers are instructed to “[i]nspect containers prior to service to ensure they are safe to dum p or transport” and to “[r]eport dam aged containers.” (Id.). Drivers are told to “[m ]ake sure that no one is in the swing radius of the tailgate before unlatching it for unloading” and to “[w]rite up broken hinges, doors, rails, etc. on container/ compactor repair request form s, which should be in the cab of each truck.” (Id. at 25). Plaintiffs do not dispute the existence of the SAFE standards, or the obligation placed by Allied on its drivers to regularly inspect the equipm ent, including the containers. Instead, Plaintiffs argue that the SAFE standards do not constitute a “program of periodic containers inspection” under the ANSI standard. Plaintiffs contend that the practice of requiring the drivers to inspect the containers is insufficient to com ply with the ANSI standard and suggest that a “program ” of inspection would require Allied’s superv isors to conduct the inspections. The undersigned finds Plaintiffs’ position unpersuasive because the ANSI standard relied upon by Plaintiffs provides no guidelines or requirem ents for how the em ployer m ust structure its program of periodic inspections. The ANSI standard does not define the term “program ” or the term “inspection,” nor does it state that the program of periodic inspections m ust be som ething separate and distinct from daily inspections perform ed by the drivers who service the containers. The standard does not m andate that inspections be com pleted by supervisors or other m anagem ent personnel, and does not provide a particular schedule for when the inspections should be perform ed. To the contrary, the standard only requires the em ployer to establish and follow a program of inspection, however the em ployer sees fit to do so. 17 Clearly, the case at bar is readily distinguishable from McCom as. In McCom as, the industry standard at issue was specific in outlining the duty owed by the em ployer, m andating that “fused, switch boxes, while energized, were to be inspected for overheating every three to six m onths and, when not energized, were subject to cleaning, inspection and m aintenance every three to six years” and further “provid[ing] that ‘[i]nsulation integrity shall be m aintained to support the voltage im pressed.’” See Long v. M & M Transp., LLC, 44 F. Supp. 3d 636, 643– 46 (N.D.W. Va. 20 14), aff'd, 60 3 F. App'x 238 (4th Cir. 20 15) (quoting McCom as, 750 S.E.2d at 238). The injured em ployee in McCom as could not have been expected to conduct the switch box inspection before pulling the handle, because he was a welder, not an electrician, and he had never been charged by his em ployer with conducting such inspections. Moreover, the em ployer in McCom as had never conducted any inspection of the switch box in the 45 years since its installation, let alone one every three to six years specifically to search for “insulation integrity.” The failures of the em ployer in McCom as were egregious. In contrast, the alleged inadequacy of Allied’s SAFE standards pertinent to container inspections is, at m ost, negligent. The difference in degree between the two is highlighted by the expert opinions in the cases. In McCom as, the em ployee’s expert opined that deterioration of the insulation caused the arc blast, and if the em ployer had conducted the required inspections and m aintenance of the box, the safety hazard would certainly have been identified. On the other hand, in this case, Plaintiffs’ expert opines only that Allied “possibly” violated the standard requiring periodic inspections and provides no opinion on whether the nylon strap would have been identified as a safety hazard. Second, Plaintiff has not produced evidence dem onstrating that an inspection of the CSX West-End container would have revealed the specific unsafe working condition. 18 Plaintiffs argue that two Allied supervisors would have sent the container to the container shop if they had seen the strap in use. It is evident from the testim ony that the supervisors would have had the container exam ined by the shop because they presum ed that the strap was being used to cure a defect in the container. However, there is no evidence that when the container was inspected after Tudor’s accident, a defect was uncovered. Moreover, Mr. Mills testified that he added the strap as an extra precaution, not because the latch was broken or the pin that held the m etal bar was failing. Likewise, there is nothing in the record to suggest that an inspection of the container would have revealed the danger associated with applying the strap in the reverse position, or that a visit to the shop would have stopped em ployees from using the strap on the container in the future. Plaintiffs ask the court to m ake a logical leap that sim ply is not supported by the available evidence. Therefore, the court finds that Plaintiffs have not m ade a prim a facie showing of the second elem ent required to sustain a deliberate intent case. C. Ele m e n t 3 —Th e Safe ty H azard Vio late s a Statu te , Re gu latio n , o r Stan d ard Although Plaintiffs argue, to a degree, that Allied’s failure to inspect, m aintain, and repair the container is an unsafe working condition, their original claim was that the nylon strap, when placed in the reverse position on the container, was unsafe because it required the roll-off driver to stand in front of the m etal bar when releasing the strap’s buckle. As Allied correctly em phasizes, Plaintiffs have offered no particular statute, regulation, or standard that prohibits the use of a strap as a precautionary m easure to secure the latch of a detachable com pactor container during transport. Plaintiffs contend that the presence of the nylon strap on the CSX West-End container violated ANSI Z245.30 § 6.1(d) and ANSI Z245.30 § 3.36. In addition, they 19 claim that Allied violated ANSI Z245.30 § 6.1(c) and (e) by failing to establish and follow a program of regular containers inspection and by failing to m onitor the em ployees’ use of the equipm ent. With respect to the first two standards, which require Allied to “provide properly m aintained containers that m eet all regulatory safety standards,” to repair, m odify, or reconstruct any structural or m echanical failures prior to placing a container in service, and to m ake any change, replacement, substitution, or overhaul of the equipm ent “in such a m anner that the equipm ent and functions of the repaired portions rem ained the sam e as designed by the original m anufacturer,” Plaintiffs have failed to produce evidence substantiating Allied’s alleged failures. First, no evidence was offered to establish that the latch on the pin holding the m etal bar in place had m alfunctioned at any tim e prior to Tudor’s accident. Plaintiffs argue that “the use of the nylon strap is proof that the em ployer was not providing a ‘properly m aintained container.”’ (ECF No. 59 at 10 ). The court disagrees. Mr. Mills explained that he applied the strap as an added precaution. He did not testify that the strap was applied to rem edy a broken or defective latch. Second, there is no evidence that Allied m ade any m odifications or substitutions to the container. Tudor testified that he believed a pin and chain to secure the latch were m issing from the CSX West-End container; however, that testim ony was never borne out by the evidence. Moreover, Allied was never told that any part of the container was broken, defective, or m issing. Therefore, it m ade no m odifications or repairs to the container. In regard to the duty to inspect and m onitor, Plaintiffs fail to offer evidence that Allied violated those standards. As previously stated, the evidence shows that the em ployees were trained and periodically m onitored. Furtherm ore, Allied’s em ployees were charged with m aking daily inspections of the containers they serviced. When the 20 container was ultim ately exam ined after Tudor’s accident, no malfunction or defects were uncovered. In addition, none of the em ployees who actually transported or dum ped the container, including Tudor, ever considered the strap to pose a hazard. To the contrary, Mr. Mills, the roll-off driver regularly assigned the CSX West-End container, considered the strap to be an added safety precaution, preventing any unintended m ovem ent of the latch during transport. Thus, no em ployee of Allied, including the supervisors, actually identified the nylon strap, itself, as a safety hazard, and no witness, including Plaintiffs’ expert witness, opined that placem ent of the strap created a high risk and a strong probability of serious injury. D . Ele m e n t 4 —Th e Em p lo ye r D e libe rate ly Exp o s e d th e Em p lo ye e to th e Ris k The fourth elem ent of the deliberate intent statute is linked to the actual knowledge elem ent and “is not satisfied if the exposure of the em ployee to the condition was inadvertent or m erely negligent.” Sias v. W -P Coal Co., 40 8 S.E.2d 321, 327 (W. Va. 1991). “At bottom , ‘[t] he ‘deliberate intention’ exception to the Workers’ Com pensation system is m eant to deter the m alicious em ployer, not to punish the stupid one.” Coe, 20 13 WL 140 10 7, at *10 (citations om itted). Plaintiffs argue that this elem ent of the deliberate intent statute is m et by evidence showing that Tudor’s job duties required him to service the defective container on December 13, 20 13, and that there were no regular inspections or m aintenance perform ed on the container. However, Plaintiffs offer no evidence that Tudor ‘“was ordered, directed, or even had it suggested to him ’ he was to engage in the unsafe conduct.” Id. (quoting Blevins, 40 8 S.E.2d at 389). The undisputed evidence shows that Allied was safety-conscious. The em ployees confirm ed that Allied put an em phasis on training and safety, and they were not 21 discouraged from reporting safety hazards. Indeed, the em ployees were charged with inspecting the equipm ent they used and the containers they serviced to identify unsafe working conditions. Plaintiffs have provided no evidence that the drivers were not com petent to conduct such inspections, or that Allied had no valid reason to rely on the eyes and ears of the m any drivers who serviced the CSX West-End container. Certainly, one can argue that the drivers who worked with the containers on a daily basis were the m ost qualified individuals to conduct safety inspections, identify unsafe conditions, and report those to Allied’s m anagem ent. After all, the drivers were the individuals m ost fam iliar with the proper operation of the containers. Therefore, Plaintiffs have not m ade a prim a facie showing that Allied deliberately exposed Tudor to a specific unsafe working condition despite the high risk and strong probability of serious injury. E. Ele m e n t 5—Th e U n s afe W o rkin g Co n d itio n Pro xim ate ly Cau s e d In ju ry The parties agree that Tudor suffered serious injuries as a result of the m etal bar striking him in the face. However, they do not agree that the injuries were caused by an unsafe working condition. Plaintiffs claim that the position of the nylon strap forced Tudor to stand in front of the bar. Defendant claim s that Tudor knew not to stand in front of the bar, and he could have ducked, m oved to the left of the bar, or called the dispatcher for assistance. Defendant also disputes that the unbuckling of the nylon strap caused the release of the m etal bar. In light of Plaintiffs’ failure to m ake a prim a facie showing on the other four elem ents of deliberate intent case, the court need not address this elem ent. IV. Co n clu s io n Wherefore, for the reasons set forth in this Mem orandum Opinion and Order, the 22 court finds that Plaintiffs have not m et their burden to resist Defendant’s Motion for Sum m ary J udgm ent. Accordingly, the Motion for Sum m ary J udgm ent, (ECF No. 57), is GRAN TED ; the com plaint is D ISMISSED , w ith p re ju d ice ; and the case shall be rem oved from the docket of the court. The Clerk is instructed to provide a copy of this Mem orandum Opinion and Order to counsel of record. EN TERED : Decem ber 9, 20 16 23
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