Opinion
No. 17-0067
03-29-2018
FIRSTENERGY GENERATION, LLC, Defendant Below, Petitioner, v. James J. MUTO and Carol Muto, Plaintiffs Below, Respondents.
Stephen M. LaCagnin, Esq., Seth P. Hayes, Esq., David R. Stone, Esq., Jackson Kelly PLLC, Morgantown, West Virginia, Attorneys for Petitioner Michael D. Crim, Esq., Jeffrey D. Van Volkenburg, Esq., Stanley A. Heflin III, Esq., McNeer, Highland, McMunn and Varner, L.C., Clarksburg, West Virginia, Attorneys for Respondents
Stephen M. LaCagnin, Esq., Seth P. Hayes, Esq., David R. Stone, Esq., Jackson Kelly PLLC, Morgantown, West Virginia, Attorneys for Petitioner
Michael D. Crim, Esq., Jeffrey D. Van Volkenburg, Esq., Stanley A. Heflin III, Esq., McNeer, Highland, McMunn and Varner, L.C., Clarksburg, West Virginia, Attorneys for Respondents
LOUGHRY, Justice: The petitioner and defendant below, FirstEnergy Generation, LLC, appeals the December 27, 2016, order of the Circuit Court of Harrison County denying its post-trial motions following an adverse jury verdict in this "deliberate intention" action filed pursuant to West Virginia Code § 23-4-2(d)(2)(ii) (2005) by the respondents and plaintiffs below, James and Carol Muto. In this appeal, FirstEnergy asserts multiple assignments of error. Having considered the parties' briefs and oral arguments, the submitted appendix record, and the applicable authorities, we find the evidence presented at trial was insufficient to establish two of the required elements of a "deliberate intention" claim. Accordingly, we reverse the circuit court's final order and remand this case for entry of an order granting FirstEnergy's post-trial motion for judgment as a matter of law.
The injury at issue occurred in 2013. Therefore, the 2005 version of West Virginia Code § 23-4-2 applies, and the relevant provisions are set forth herein. The statute was rewritten in 2015, but the amendments were made applicable to "all injuries occurring on or after July 1, 2015." W.Va. Code § 23-4-2(g) (2015).
I. Factual and Procedural Background
On January 22, 2013, James Muto suffered permanent injuries when he fell approximately fourteen feet and landed on a concrete floor while attempting to inspect a rotary flyash feeder in a flyash silo at FirstEnergy's Harrison Power Station. At the time of the accident, Mr. Muto had been an employee of FirstEnergy for twenty-three years. On January 26, 2014, he filed this action against FirstEnergy to recover damages for his injuries and, his wife, Carol Muto, asserted a claim for loss of consortium. The case was tried before a Harrison County jury in April 2016. The following is a brief summary of the evidence presented at trial. The evidence pertinent to the issues in this appeal will be addressed more fully in the discussion section.
The power plant uses coal to generate electricity. Flyash is a byproduct of the coal.
On the morning of January 22, 2013, a FirstEnergy maintenance crew under the direction of John Rapp, a maintenance supervisor, went into the flyash silo in the solid waste processing building of the Harrison Power Station to replace a piece of equipment known as a rotary feeder. The entrance to the flyash silo is located on the fifth floor of the six-story waste processing building. The rotary feeder is housed on the second level of an elevated platform constructed of metal grating inside the flyash silo. In order to replace the rotary feeder, the crew had to remove the old rotary feeder, attach it to a chain, and lower it to the concrete floor, which required them to open portions of the grating on both levels of the elevated platform. Upon arrival, the maintenance crew proceeded to remove the old rotary feeder from its housing. The crew then left the silo for a mid-morning break. When the crew returned, they put steel cable barricades and yellow caution tape, labeled "Caution Do Not Enter," across the access points to both the first and second levels of the elevated platform. The crew then opened a portion of the grating on both levels of the elevated platform in order to lower the old feeder to the floor below. The crew noticed that dust had become more prevalent inside the silo since removing the old feeder. Tom Hamilton, the maintenance crew member who was in charge, called the control room and requested that the flyash "train" be shutdown to decrease the dust.
The members the maintenance crew that entered the silo that morning were Tom Hamilton, John Burton, Bob Bartlett, and John Graziani. Mr. Graziani was only scheduled to work half a day and did not return to the silo after the crew took its mid-morning break.
The general consensus of the trial witnesses was that the removal of the old rotary feeder created an opening that allowed the flyash to come into the silo.
According to FirstEnergy, the control room is located three floors below the flyash silo in the waste processing building. The control room employees monitor and periodically check the building and yard equipment.
According to FirstEnergy, "train" is the term used for the series of equipment that transports flyash through the processing unit in the flyash silo.
The maintenance crew was informed that the "train" was not going to be shutdown and that alternative measures for reducing the dust were being taken. The crew proceeded to lower the old rotary feeder to the ground floor of the flyash silo. By that time, the dust had increased to the point of causing near zero visibility inside the silo. The maintenance crew decided to evacuate the silo and did so without closing the floor grating on either the first or second levels of the elevated platform; however, the barricades and yellow caution tape remained in place. The crew did not inform anyone that they were leaving the silo, that they had left the floor grating open, or that the amount of dust in the air had increased.
In the meantime, Mr. Muto, a control room employee, had been dispatched from the control room to the pug mill, which is located one floor below the flyash silo, to check the water levels in the pug mill dust collectors. Jim Harley, the control room supervisor, had decided to try to alleviate the dust problem by adjusting the water levels in the pug mill dust collectors rather than shutting down the "train." According to Mr. Muto, he did not know that the maintenance crew was replacing the rotary feeder; therefore, when he found nothing unusual on the pug mill floor, he proceeded to climb the steps to the flyash silo to find the source of the dust. Through a window in the door to the silo, Mr. Muto observed that the dust had caused near zero visibility conditions and the maintenance crew was no longer inside. Although he was carrying a radio that allowed him to communicate with the control room, Mr. Muto did not notify anyone of the conditions inside the silo. Instead, he opened the door, climbed the two flights of steps to the top of the elevated platform and ducked under the barricade and yellow caution tape, which he assumed were erected due to the dusty conditions. Mr. Muto was going to inspect the rotary feeder when he fell through the open grating, landing two levels below on the concrete floor. Mr. Muto acknowledged during his testimony at trial that he had not been asked to inspect the rotary feeder and that he made the decision to do so himself. Although he sustained a head injury, Mr. Muto was able to call for help, and he was subsequently transported to a hospital for treatment. Prior to trial, Mr. Muto was granted workers' compensation permanent partial disability benefits.
After a multi-day trial, the jury returned a verdict in favor of the Mutos, finding that FirstEnergy acted with "deliberate intent." The jury awarded Mr. Muto $350,000.00 for past pain and suffering; $150,000.00 for future pain and suffering; $275,000.00 in past lost wages; and $420,000.00 in future lost wages. The jury awarded Carol Muto $25,000.00 for loss of consortium. The total verdict amount was $1,220,000.00. Prior to trial, the parties agreed that FirstEnergy was entitled to an offset for medical payments and indemnity of lost wages paid through workers compensation in the respective amounts of $21,338.25 and $56,047.75. Accordingly, after the offsets were applied, the total verdict was $1,142,614.00, to which the trial court added pre-judgment interest in the amount of $49,497.90.
Upon entry of the verdict, FirstEnergy filed a renewed motion for judgment as a matter of law and, alternatively, filed a motion for a new trial and a motion to alter or amend the judgment. After a hearing, the trial court denied the motions, and this appeal followed.
During the trial, FirstEnergy moved for a directed verdict pursuant to Rule 50 of the West Virginia Rules of Civil Procedure after the Mutos presented their case and renewed the motion after all evidence was submitted.
II. Standard of Review
FirstEnergy contends the circuit court erred by denying its post-trial motions. Our standards of review with respect to such motions are well-established. "The appellate standard of review for an order granting or denying a renewed motion for a judgment as a matter of law after trial pursuant to Rule 50(b) of the West Virginia Rules of Civil Procedure [1998] is de novo ." Syl. Pt. 1, Fredeking v. Tyler , 224 W.Va. 1, 680 S.E.2d 16 (2009). We have explained that
[w]hen this Court reviews a trial court's order granting or denying a renewed motion for judgment as a matter of law after trial under Rule 50(b) of the West Virginia Rules of Civil Procedure [1998], it is not the task of this Court to review the facts to determine how it would have ruled on the evidence presented. Instead, its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, when considering a ruling on a renewed motion for judgment as a matter of law after trial, the evidence must be viewed in the light most favorable to the nonmoving party.
Fredeking , 224 W.Va. at 2, 680 S.E.2d at 17, syl. pt. 2.
Regarding a motion for a new trial, we have held that,
[a]lthough the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.
Syl. Pt. 4, Sanders v. Georgia-Pacific Corp. , 159 W.Va. 621, 225 S.E.2d 218 (1976). Therefore,
[t]his Court reviews the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
Syl. Pt. 1, Burke-Parsons-Bowlby Corp. v. Rice , 230 W.Va. 105, 736 S.E.2d 338 (2012). With these standards in mind, we consider the parties' arguments.
III. Discussion
As set forth above, the Mutos filed this "deliberate intention" action pursuant to West Virginia Code § 23-4-2(d)(2)(ii). "When ‘deliberate intention’ is proven, an employer loses his immunity from civil liability for work-related injuries to employees provided by the Workers' Compensation Act." Deskins v. S.W. Jack Drilling Co. , 215 W.Va. 525, 528, 600 S.E.2d 237, 240 (2004). " ‘To establish "deliberate intention" in an action under [ W.Va. Code § 23-4-2(d)(2)(ii) ], a plaintiff or cross-claimant must offer evidence to prove each of the five specific statutory requirements.’ Syllabus point 2, Helmick v. Potomac Edison Co. , 185 W.Va. 269, 406 S.E.2d 700 (1991)." Syl. Pt. 3, Mumaw v. U.S. Silica Co. , 204 W.Va. 6, 511 S.E.2d 117 (1998). Simply stated, "[e]ach of the five statutory [requirements] is an essential element of a ‘deliberate intention’ cause of action, which a plaintiff has the ultimate burden to prove." Smith v. Apex Pipeline Services, Inc., 230 W.Va. 620, 628, 741 S.E.2d 845, 853 (2013) (internal quotations and citation omitted).
See W.Va. Code § 23-2-6 (2003) (immunizing employers covered by Workers' Compensation Act from "damages at common law or by statute for the injury or death of any employee, however occurring").
The five requirements that must be established to prove that an employer acted with "deliberate intention" are set forth in West Virginia Code § 23-4-2(d)(2)(ii), as follows:
(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, 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 commonly accepted and well-known safety standard within the industry or business of the employer, as demonstrated by competent 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, equipment or working conditions;
(D) That notwithstanding the existence of the facts set forth in subparagraphs (A) through (C), inclusive, of this paragraph, the employer nevertheless intentionally thereafter exposed an employee to the specific unsafe working condition; and
(E) That the employee exposed suffered serious compensable injury or compensable death as defined in section one [§ 23-4-1], article four, chapter twenty-three whether a claim for benefits under this section is filed or not as a direct and proximate result of the specific unsafe working condition.
In this appeal, FirstEnergy argues that the Mutos failed to present sufficient evidence at trial to establish the requirements set forth in subsections (B) and (D) of West Virginia Code § 23-4-2(d)(2)(ii) and, therefore, it was entitled to judgment as a matter of law. We will consider the parties' arguments with respect to the evidence presented at trial on each of these requirements below.
A. Employer's Actual Knowledge of a Specific Unsafe Working Condition
In order to establish the second requirement of a "deliberate intention" claim, the employee has the burden of proving that the employer had actual knowledge of a specific unsafe working condition. W.Va. Code § 23-4-2(d)(2)(ii)(B). At trial, Mr. Muto asserted that two unsafe working conditions existed on January 22, 2013, which resulted in his injuries: (1) open floor grating in an elevated platform inside the flyash silo, which was improperly barricaded with yellow, instead of red, caution tape and (2) excessive dust inside the flyash silo causing near zero visibility. Therefore, in this instance, Mr. Muto had to present sufficient evidence to show that FirstEnergy, through his supervisor, Mr. Harley or another management employee, actually knew that the grating in the elevated platform had been left open without a proper barricade in place or that FirstEnergy actually knew that dust inside the silo had resulted in near zero visibility conditions.
The testimony at trial indicated that it was unnecessary for the maintenance crew to have put in place barricades with yellow caution tape when they opened the grating so long as a person was guarding the holes. However, once the crew decided to leave the silo without closing the grating, the failure to have barricades around the holes with red caution tape, which would have indicated a hazardous condition capable of causing serious injury or death, was a violation of OSHA regulations.
We have recognized that "a determination of whether an employer had actual knowledge ‘requires an interpretation of the employer's state of mind, and must ordinarily be shown by circumstantial evidence, from which conflicting inferences may often reasonably be drawn.’ " Smith , 230 W.Va. at 630, 741 S.E.2d at 855 (quoting Syl. Pt. 2, in part, Nutter v. Owens–Illinois, Inc. , 209 W.Va. 608, 609, 550 S.E.2d 398, 399 (2001) ). We have also made clear, however, that the actual knowledge requirement "is a high threshold that cannot be successfully met by speculation and conjecture." Id. (quoting Mumaw v. U.S. Silica Co. , 204 W.Va. 6, 12, 511 S.E.2d 117, 123 (1998) ); see also Coleman Estate ex rel. Coleman v. R. M. Logging, Inc. , 226 W.Va 199, 207, 700 S.E.2d 168, 176 (2010). In that regard, we have held that
the actual knowledge 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, in part, Blevins v. Beckley Magnetite, Inc ., 185 W.Va. 633, 634, 408 S.E.2d 385, 386 (1991).
Smith , 230 W.Va. at 630, 741 S.E.2d at 855.
With respect to the open floor grating, FirstEnergy asserts that there was no evidence presented at trial from which the jury could have reasonably concluded that FirstEnergy, through Mr. Harley or another management employee, knew that the grating had been left open and unattended without a proper barricade in place. Indeed, members of the maintenance crew testified at trial that they were told by their supervisor, Mr. Rapp, during the pre-job briefing that morning not to leave the floor grates open. Tom Hamilton, who was in charge of the crew inside the silo, testified that when discussing the job with Mr. Rapp, he was told "whenever we had the grating open, just to make sure that we had the barricades up, and they didn't want us to leave the area with the grating open."
Mr. Rapp testified that when he talked to the maintenance crew about replacing the rotary feeder:
I did also let them know that we needed to put the lifting beam up—beam up above the feeder, that would allow us to lower that rotor down through the grating.
I said, "Once you have the feeder out, I would like to have you guys lower the rotary assembly down through the grating.
Whoever is up at the chain fall, running the chain fall, when you remove the grating needs to have fall protection on to protect their [sic] self.
But once you lower that rotary feeder down through the opening, and it's safely to the ground, do not walk away from the grating. Put the grating right back into the hole."
Critically, Mr. Hamilton testified that when the crew made the decision to leave the silo without closing the grating, they did not inform the control room. He testified:
Q: And did anyone call the control room to say that you all were leaving the silo, and you were going to stay out until the dusting situation was resolved?
A: Not—not to my knowledge.
Q: You didn't?
A: No.
Q: No one, to your knowledge, from the crew did?
A: No.
Q: Okay. As I—tell the jury, when you and your crew left the silo, what—what was the status of the grates that had been opened up to lower the rotary feeder?
A: They were still open, in the open position.
Q: Okay. And why was that?
A: We didn't feel it was—as dusty as it was, we didn't feel safe closing them.
....
Q: What was your feeling about that when you left those grates up and left the silo? What were you thinking?
A: I mean, I felt safe with the barricades being in place.
The Mutos argue that because Mr. Harley knew portions of the grating had to be opened in order to replace the rotary feeder, he had actual knowledge of the unsafe working condition. However, as set forth above, the maintenance crew was instructed by their supervisor, Mr. Rapp, not to leave the grates open and unattended. The fact that Mr. Harley knew that opening the floor grating at some juncture was necessary to complete the job does not establish that he knew the grates had been left open and unattended at the time Mr. Muto left the control room. The undisputed fact was that the maintenance crew failed to inform anyone that they had left the silo without closing the floor grating, contrary to the instructions they had been given by Mr. Rapp and in violation of OSHA regulations. Consequently, there was no evidence from which a jury could have reasonably concluded that FirstEnergy had actual knowledge of the unsafe working condition created by the open floor grating on the elevated platform.
See supra note 9.
Regarding the dust inside the silo, FirstEnergy argues that there was no evidence from which the jury could have reasonably concluded that Mr. Harley had actual knowledge that the dust inside the silo had increased to the point of causing near zero visibility conditions. The evidence presented at trial indicated that the dust only created an unsafe working condition when it affected the workers' ability to see. As Mr. Muto's own expert witness, David J. Bizzak, testified, "When you have dust to the level of people saying you can't see your hand in front of your face, that creates a hazardous condition."
As one witness explained, "We work at a power station. Dust is part of our life."
It was undisputed that the maintenance crew called the control room and requested that the "train" be shutdown because of the dust inside the solo. The evidence showed that the call was made after the crew members returned from their mid-morning break and were preparing to lower the old rotary feeder to the floor of the silo. The call was received by Seth James, the control room operator, who conveyed the maintenance crew's request to Mr. Harley. Both Mr. James and Mr. Harley testified that they discussed whether adjusting the water levels in the pug mill dust collectors would alleviate the dust problem and Mr. Harley decided to make that adjustment first, instead of shutting down the "train." Mr. Harley further testified that he was never informed that the dust had caused near zero visibility conditions inside the silo. His testimony regarding his lack of knowledge was confirmed by members of the maintenance crew who testified that the dust did not escalate to the point of causing near zero visibility conditions until after they had made the call to request that the train be shutdown.
During his testimony, Mr. Hamilton explained the maintenance crew had two communications with the control room while inside the silo. After the initial call to the control room requesting that the train be shutdown, the crew began lowering the rotary feeder to the floor. While doing so, Mr. Hamilton heard the control room paging him. He testified:
A: It was during, while we were lowering it. I was lowering it through the mid-level, and I heard them [the control room] paging me on the page system.
Q: Okay.
A: And I sent—Bobby Bartlett was on the ground, so I sent him over to answer the phone.
Q: Okay. And were you able to hear the conversation he had with someone on the other end?
A: No. You can't hear that.
Q: Did he tell you who called?
A: He just said it was the control room.
....
A: He said that—lost my train of thought. He said they were going to try to adjust something on the pug mill floor.
Q: Okay. Anything else?
A: He also asked—wanted to know how long the [train] would be down, if we needed it.
Q: Okay.
A: Didn't have an answer for that.
Q: Okay. Anything else, just to be—
A: That's all I can recall.
Q: All right. Now, after Mr. Bartlett got off the phone, what took place next?
A: We got the rotary feeder on the ground. And, at that point, we were waiting to bring the new one up into the silo.
We had been waiting on a crane. And, at that point, the dust, it got pretty bad.
Q: Okay.
A: That's when we decided to step outside.
As previously discussed, the testimony established that the maintenance crew never communicated with anyone in the control room regarding their decision to leave the silo because the dust had increased. Consequently, there was no evidence that FirstEnergy had actual knowledge of the unsafe working condition that occurred when the dust escalated to the level that visibility inside the silo was near zero.
The Mutos argue that it was not the "extent" of the dust that created a specific unsafe working condition; rather, it was the dust that existed at the time the maintenance crew contacted the control room and requested the train be shutdown that constituted a hazard. Thus, the Mutos maintain that the "actual knowledge" requirement was satisfied. However, even if we assume that FirstEnergy had knowledge of this specific unsafe working condition, there was no evidence from which a jury could have reasonably concluded that Mr. Muto was intentionally exposed to the dust hazard.
B. Intentional Exposure to Unsafe Working Condition
As set forth above, the fourth element of a deliberate intention claim requires evidence from which the trier of fact could reasonably find that the employer intentionally exposed the employee to the specific unsafe working condition. W.Va. Code § 23-4-2(d)(2)(ii)(D). We have explained that
[i]n order to establish the existence of intentional exposure in a deliberate intention claim, there "must be some evidence that, with conscious awareness of the unsafe working condition ... an employee was directed to continue working in that same harmful environment." Ramey v. Contractor Enterprises, Inc. , 225 W.Va. 424, 431, 693 S.E.2d 789, 796 (2010) (quoting Tolley [v. ACF Industries, Inc. ], 212 W.Va. [548] at 558, 575 S.E.2d [158] at 168 [ (2002) ] ). "In other words, this element, which is linked particularly with the [actual knowledge] element, is not satisfied if the exposure of the employee to the condition was inadvertent or merely negligent." Sias [v. W-P Coal Co. ], 185 W.Va. [569] at 575, 408 S.E.2d [321] at 327[ (1991) ].
Smith, 230 W.Va. at 633, 741 S.E.2d at 858. Discussing the type of evidence necessary to establish intentional exposure in Tolley v. ACF Industries, Inc ., 212 W.Va. 548, 557-58, 575 S.E.2d 158, 167-68 (2002), we noted:
In Mayles [v. Shoney's, Inc. , 185 W.Va. 88, 405 S.E.2d 15 (1990) ], we found sufficient evidence was introduced where "management at the restaurant knew how the employees were disposing of the grease, knew that a previous employee had been injured by such practice, had received employee complaints about the practice, and still took no action to remedy the situation." 185 W.Va. at 96, 405 S.E.2d at 23. Similarly, in Sias [v. W–P Coal Co. , 185 W.Va. 569, 408 S.E.2d 321 (1991) ], we held that the requisite intentional exposure prong had been met where the plaintiff produced evidence that his coal employer directed him to work in an unsafe mining area despite having actual knowledge of the probability and risk of a coal outburst in that particular section of the mine. 185 W.Va. at 575, 408 S.E.2d at 327-28.
First Energy argues that even if Mr. Harley actually knew of the hazardous condition created by the dust inside the flyash silo, there was no evidence that Mr. Harley directed Mr. Muto to go to that location. Rather, the evidence at trial established that the only instruction Mr. Harley gave that morning was to adjust the water levels in the pug mill dust collectors. The pug mill is located one level below the flyash silo and is accessed separately and apart from the flyash silo. FirstEnergy points out that not only did Mr. Muto admit that he was not told to go to the flyash silo during his testimony, he acknowledged that he made that decision himself.
Mr. Muto testified that he went to the control room that morning to relieve Tim Eakle, who had to go to a meeting. According to Mr. Muto, Mr. Eakle's job that day was "equipment watch" and Mr. Eakle told him that "everthing was okay." Mr. Muto further testified that at some point, the control room operator, Mr. James, told him that "maintenance was complaining about a dusting problem where they were working, up in number one fly ash silo" and "they would like someone to go up there and take a look at it." Mr. Muto stated that he did not know the maintenance crew was actually replacing the rotary feeder and that he left the control room to go find the source of the dust. Mr. Muto recounted how he went to the pug mill floor first, and then proceeded to the flyash silo where he was injured.
On cross-examination, Mr. Muto acknowledged that he told Mr. James that "he would go up and take a look" and that he never spoke to their supervisor, Mr. Harley, before doing so. Similarly, Mr. James testified that he discussed adjusting the pug mill water level with Mr. Muto, who said he would "go check it out." Responding to defense counsel's questions, Mr. James testified:
Q: Okay. You do recall, you and Mr. Muto talking about the pug mill water level, and he didn't think adjusting the water level would work either, right?
A: Yes.
Q: All right [sic]. And he said, he would go check it out?
A: Yes.
Q: And you can't say, if Mr. Harley was still in the control room at that point, can you?
A: No.
Q: And you don't recall discussing anything else with Mr. Muto at that time, either?
A: No.
Q: Okay. Did you assume he was going to check the water levels in the pug mill?
A: I assumed he was going to that floor.
Mr. Muto also testified that he did not remember speaking to Mr. Harley that morning and, likewise, Mr. Harley did not recall having a conversation with Mr. Muto. In fact, whether Mr. Harley was present in the control room that morning was never actually established. However, whether or not Mr. Harley was in the control room, the critical fact is that there was no evidence Mr. Harley directed Mr. Muto to go to the flyash silo to inspect the rotary feeder. Testifying on cross-examination, Mr. Muto acknowledged that he was never told by anyone to go to the flyash silo.
At trial, Mr. Harley testified that he could not remember whether he actually went to the control room that morning. Mr. James testified that he called Mr. Harley at his office which is located in another building to relay the maintenance crew's request to shutdown the train and that a few minutes later, Mr. Harley came to the control room. Mr. Muto testified that Mr. Harley was not there. Finally, Mr. Eakle testified at trial that Mr. Harley was not in the control room but acknowledged that he gave a statement to the contrary shortly after the accident occurred.
Q: In fact, you don't recall anyone asking you to check the flyash rotary feeder, do you?
A: I don't recall, no.
Q: Now, you made the decision to go check the flyash rotary feeder, right?
A: I made the decision because I knew—somebody told 'em it was dusting, but I don't know who.
....
Q: Uh-huh. And you got on the elevator and you went to the fifth floor?
A: That's correct.
....
Q: Okay. And you got off the elevator and you didn't see anything unusual, right?
A: Correct.
Q: And you took the east stairwell down to the pug mill floor where we went yesterday?
A: Correct.
Q: Things looked normal there to you, right?
A: Yes.
Q: Then, you made the decision to go up the flight of stairs to the silo door, where the fly ash rotary feeder was, right?
A: Yes.
At the beginning to trial, there was a jury view of the facilities where Mr. Muto was injured.
(Footnote added).
Mr. Muto's expert, Mr. Bizzak, also testified that he was not aware of any evidence indicating that Mr. Muto was directed to go to the flyash silo. On cross-examination, Mr. Bizzak admitted there was no evidence that anyone knew Mr. Muto was going to enter the silo that morning. Mr. Bizzak also acknowledged that he had initially rendered his opinion that Mr. Muto had been intentionally exposed to an unsafe working condition based on his mistaken belief that in order to adjust the pug mill dust collectors, Mr. Muto had to cross over the catwalk in the silo where the grating had been opened. Mr. Bizzak testified that he did not realize until a few weeks before trial that the pug mill is located in a different area and on another floor of the building.
Even if Mr. Muto had been instructed to go to the silo, there was no evidence that he was directed to ignore the barricade and caution tape that had been put in place before the floor grating was opened. Notwithstanding the fact that OSHA regulations required the caution tape to be red under these circumstances, the testimony at trial indicated that FirstEnergy's safety procedures provided that yellow caution tape should not be crossed unless the hazard on the other side is known. Mr. Muto testified, however, that he ignored the barricade and caution tape on the second level of the platform, ducking underneath of it without making any effort to find why it was there. Specifically, he testified:
Q: And you ducked under that caution tape and the come-along, didn't you?
A: That's correct.
Q: Nobody asked you to do it, you did it on your own?
A: Yes, sir.
Q: Nobody in management knew you were going to do that, did they?
A: No sir.
Q: Okay. And, once again, before you made that decision and you actually went under this come-along with the yellow caution tape, you didn't get on your radio and say, "What's this caution tape here for? What's the come-along here for? What's the issue, besides this dusting?"
A: No sir. I just assumed it was the dust.
In sum, our review of the testimony presented at trial reveals no evidence from which the jury could have reasonably concluded that FirstEnergy intentionally exposed Mr. Muto to a specific unsafe working condition. At best, the evidence indicated that a coworker, Mr. James, told Mr. Muto that there was a dust problem and Mr. Muto left the control room to go find the source without knowledge that the maintenance crew was in the process of replacing the rotary feeder. Mr. Muto testified that had he been made aware of the nature of the maintenance crew's work, he would have immediately known the cause of the dust and would have never entered the silo. While the lack of communication or mis-communication that occurred in this case may constitute ordinary negligence, there is simply no evidence that FirstEnergy intentionally exposed Mr. Muto to an unsafe working condition. As this Court has noted, "[t]he ‘deliberate intention’ exception to the Workers' Compensation system is meant to deter the malicious employer, not to punish the stupid one." Helmick v. Potomac Edison Co. , 185 W.Va. 269, 274, 406 S.E.2d 700, 705 (1991).
IV. Conclusion
Having found that the evidence presented at trial was insufficient to satisfy all of the statutory requirements for a "deliberate intention" claim, the final order of the Circuit Court of Harrison County entered on December 27, 2016, is reversed, and this case is remanded for entry of an order granting judgment as a matter of law in favor of FirstEnergy.
FirstEnergy asserted additional assignments of error concerning specific jury instructions; the expert testimony relating to future lost earning capacity; and the court's refusal to reduce the jury award of damages to comport with the evidence presented at trial. In light of our decision that the evidence was insufficient to established the statutory predicate for a "deliberate intention" claim, we need not address these issues.
Reversed and remanded with directions.
JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.
Davis, Justice, dissenting:
(Filed March 29, 2018)
I respectfully dissent from the majority opinion which utterly undermines the jury system. The opinion glosses over the evidence of record and ignores conflicting testimony that is best assessed by the group of citizens who sat through some six days of trial and went to the FirstEnergy Harrison Power Station for a site view of the workplace location in issue. It is the function of the jury to weigh the evidence, determine credibility, and evaluate conflicts in testimony. When properly instructed on the law, the jury is the best evaluator of the evidence and for determining the existence of liability. An appellate court should not substitute its cold paper record view of the evidence for that of the jury. This Court must be reluctant and hesitant to overturn fairly tried jury verdicts. We have long held that "the verdict of the jury will not be set aside unless plainly contrary to the weight of the evidence or without sufficient evidence to support it." Syl. pt. 4, in part, Laslo v. Griffith , 143 W. Va. 469, 102 S.E.2d 894 (1958). Moreover, this Court has often observed that "[i]t is the peculiar and exclusive province of the jury to weigh the evidence and to resolve questions of fact when the testimony is conflicting." Syl. pt. 3, Long v. City of Weirton , 158 W. Va. 741, 214 S.E.2d 832 (1975). Despite these clear holdings, the majority opinion in the case sub judice improperly invades the province of the jury in a fairly tried and properly instructed setting.
To begin, the majority has chosen to disregard the trial court’s lengthy, well-reasoned Order Denying Defendant’s Renewed Motion For Judgment As A Matter Of Law; Motion For A New Trial And Motion To Alter Or Amend Judgment. In his Order, the trial judge, in great detail, outlined the testimony, the evidence, the conflicts, and the credibility issues with specific citation to the record. Like the jury, the trial judge was present and aided by the "living courtroom." Gasperini v. Center for Humanities, Inc. 518 U.S. 415, 438, 116 S. Ct. 2211, 2225, 135 L.Ed.2d 659, 680 (1996) (observing that the rulings of trial court judges are deserving of great respect as they consider the evidence in the setting of the "living courtroom"). Indeed, this Court has long held that:
[T]he ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, [and] the trial court’s ruling will be reversed on appeal [only] when it is clear that the trial court has acted under some misapprehension of the law or the evidence.
Syl. pt. 4, in part, Sanders v. Georgia-Pacific Corp. , 159 W. Va. 621, 225 S.E.2d 218 (1976). Here, the majority opinion afforded no respect and no deference to the trial judge whose considered order it simply ignored. My review of the some 2,000 page record compels me to conclude that the majority merely paid lip service to its cited syllabus point commanding,
[w]hen this Court reviews a trial court’s order granting or denying a renewed motion for judgment as a matter of law after trial under Rule 50(b) of the West Virginia Rules of Civil Procedure [1998], it is not the task of this Court to review the facts to determine how it would have ruled on the evidence presented. Instead, its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, when considering a ruling on a renewed motion for judgment as a matter of law after trial, the evidence must be viewed in the light most favorable to the nonmoving party.
Syl. pt. 2, Fredeking v. Tyler , 224 W. Va. 1, 680 S.E.2d 16 (2009). Instead of following the command of the law, the majority opinion reviewed the evidence in a light most favorable to the moving party. In so doing, it undermined the role and function of the jury and disregarded the trial court’s considered judgment.
Additionally, the majority opinion falls woefully short in its failure to consider and apply the standard of review for FirstEnergy’s motion for judgment as a matter of law after trial pursuant to Rule 50(b) of the West Virginia Rules of Civil Procedure :
In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party’s evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.
Syl. pt. 5, Orr v. Crowder , 173 W. Va. 335, 315 S.E.2d 593 (1983). Simply stated, the majority opinion gave all benefit to the non-prevailing party rather than to Mr. and Mrs. Muto where it properly belonged.
Mr. Muto suffered serious permanent injury, including a head injury, when he fell some fourteen feet through an unguarded opening in platform grating and landed two levels below on a concrete floor. The fall occurred when Mr. Muto was attempting to diagnose and resolve a hazardous flyash dusting problem in connection with a major equipment change-out involving a rotary flyash feeder in a flyash silo at FirstEnergy’s Harrison Power Station. The maintenance crew performing the equipment change-out had evacuated the silo due to the severity of the dust hazard. In evacuating the silo, the maintenance crew was unable to safely replace the grating thereby leaving an unguarded open hole hazard in violation of federal Occupational Safety and Health Administration (OSHA) regulations. Thus, the hazard of the dusting which resulted in near zero visibility was compounded by the emergent evacuation.
At the outset, as I consider whether the evidence was sufficient to support a jury verdict, I recognize that the situation encountered by Mr. Muto and the issue before the Court is not one of injury occurring during the course of employment. Rather, the question is one of statutory deliberate intention pursuant to which a plaintiff must prove each of five very specific statutory requirements in order to prevail. See Syl. pt. 2, Helmick v. Potomac Edison Co. , 185 W. Va. 269, 406 S.E.2d 700 (1991). Indeed, the Legislature mandated that our deliberate intention statutory scheme is intended to be of "narrow application and containing more specific mandatory elements than the common law tort system[.]" W. Va. Code § 23-4-2-(d)(1). I well-appreciate that principles of negligence do not apply to the statutory deliberate intention cause of action. Indeed, the threshold requirements that plaintiffs must meet in deliberate intention cases is high and onerous. It is not, however, insurmountable. The West Virginia Workers’ Compensation Act was designed to provide a system of compensation to injured employees while providing immunity to qualifying employers from employees’ common law tort actions. W. Va. Code § 23-2-6. Nevertheless, the Legislature carved out an exception to that immunity with the deliberate intention statute. W. Va. Code § § 23-4-2(d)(2)(ii)(A)-(E). That exception must mean something. I fear, though, that in elevating itself to the position of superjury in considering the evidence, the conflicts, and the inferences in a fashion favorable to the employer, the majority is moving toward a de facto evisceration of the statutory deliberate intention cause of action.
I turn first to the statutory element of "actual knowledge." Prior to the term "actual knowledge" being amended into the deliberate intention statute, this Court had required that a plaintiff in a deliberate intention case prove actual knowledge on the part of the employer. The previous version of the statute did not use the term "actual knowledge," but, instead, required proof that the employer had a subjective realization and appreciation of the hazard. Nevertheless, this Court held that the requirement of subjective realization "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, in part, Blevins v. Beckley Magnetite, Inc. , 185 W. Va. 633, 408 S.E.2d 385 (1991) (emphasis added). "The standard ... to satisfy [subjective realization] is ‘actual’ knowledge. This is a high threshold that cannot be successfully met by speculation or conjecture." Mumaw v. U.S. Silica Co. , 204 W. Va. 6, 12, 511 S.E.2d 117, 123 (1988) (per curiam).
It is noteworthy that the trial judge properly and thoroughly instructed the jury on the element of actual knowledge:
The Court instructs you, ladies and gentlemen, that the element of actual knowledge under the law is not satisfied merely by evidence that FirstEnergy should have known of the existence of the specific unsafe working condition, or that FirstEnergy should have known that the specific unsafe working condition presented a high degree of risk, and a strong probability of serious injury or death.
The element requires proof that FirstEnergy had actual knowledge of all three components. The burden of proof on this element cannot be met by speculation or conjecture.
The Court instructs you further that the Plaintiff must prove that management-level employees at FirstEnergy had actual knowledge of the alleged specific—the alleged unsafe condition.
Plaintiff’s burden is not met by proving that someone who is not a manager or a supervisor knew of the unsafe condition.
With respect to the element of "actual knowledge," the majority minimizes the extent of the dust problem during the change-out of the rotary feeder and concludes that the dust only created a hazardous working condition once it increased to the point of zero visibility in the silo. This approach ignores the relevant facts that it was well-acknowledged by management that the job of replacing the feeder would necessarily result in significant dust creation even to the extent of necessitating shutting down the trains.
The testimony of the maintenance crew employees was that the work area became filled with flyash and was rendered dustier and dustier during the course of performing the equipment change-out. The testimony further established that once the rotary feeder was pulled out of position, the flyash poured out of the chute to such an extent that the crew could not see through the fog cloud of dust which was so thick witnesses likened it to being in the dark. The maintenance crew members testified that respirators became clogged so heavily that they could barely breathe. According to the testimony, the dusting occurred because once the rotary feeder or "guts" were removed, the seal was broken and the trains and screw conveyor acted like a dust conduit sending flyash dust up and out into the work area. The system was such that there was nowhere else for the flyash dust to go so long as the train and screw conveyor were operating.
To a person, whether managerial or hourly employee, the testimony was that if the train had been shut down, as requested, the flyash dust problem would have been alleviated as no flyash would have been carried through the feeders. Moreover, prior to undertaking the major job of replacing the rotary feeder, management explicitly recognized the potential of creating a hazardous work condition. In a planning meeting prior to directing that the job commence, management stated that if the work area got dusty, the trains would be shut down! Indeed, even a cold record review conveys the sense that the testimony was so overwhelming regarding the nature of the work and the flyash problem that the great looming question at trial, repeatedly raised, but never answered, was why this major equipment change-out, posing significant dust hazards, was not performed on a Friday, Saturday, or Sunday when the trains are shut down so that no flyash would be moving through the system. The second overarching and unanswered question was why was the train not shut down upon the request of the crew.
Unlike the jury and the trial judge, who heard all the witness testimony and could make assessments regarding credibility and conflicting evidence, as well as having the benefit of a work site visit, the majority credited the testimony of the supervisor, Mr. Harley, who chose not to respond to the request to eliminate the dangerous dust hazard by shutting down the train and insisted he did not have "actual knowledge" that the dusting got as bad as it did. A brief outline of the testimony is necessary to demonstrate the fallacy of the majority opinion.
Mr. James was the control room operator who received the call from the maintenance crew requesting that the trains be shut down due to dust. Mr. James testified that he called Mr. Harley to inform him of the request. He also told Mr. Harley he was concerned that, as the control room operator who should know the nature of work being conducted, he had not been informed of the major task taking place. Mr. James indicated his belief that there were safety issues involved in the equipment change-out while the trains and screw conveyors were operating other than the dust hazard. These safety issues included working around open grating and hazards from dropping tools down into moving equipment. Instead of stopping the trains, Mr. Harley responded that he wanted to make an attempt at adjusting the dust collector in the pug mill so as to create more suction in an effort to pull dust from the silo.
According to the testimony of Mr. James, within ten minutes of their phone call, Mr. Harley came to the control room. Mr. James testified that, prior to the arrival of Mr. Harley, he discussed the alternative approach with Mr. Eakle, an operator. The two agreed that adjusting the dust collector would not work against the dust in the silo. Mr. James testified that he and Mr. Eakle explained to Mr. Harley that the alternative approach would not alleviate the dust because the dust collector fans were "lucky to pull the dust off the pug mill, which they’re designed to do, let alone the three previous screws leading to that pug mill." Nevertheless, Mr. Harley did not shut down the train.
In his testimony, Mr. Harley placed the blame for the decision to check the dust collector in the pug mill rather than shutting down the train on Mr. James. Specifically, Mr. Harley testified that when Mr. James told him "just hang tight. He said [Mr. Muto] will be getting back with us in a few minutes. I decided—I decided to take a minute or two, or whatever it was going to be, and wait and see what Mr. Muto found." In the face of contradictory testimony from the witnesses, Mr. Harley also sought to shift blame for the failure to shut down the train to the employees when he testified that "I okayed to shut the train down. Anytime they were ready, shut her down." Yet, Mr. Harley also testified that he was waiting on somebody to tell him it was time to shut the train down. Significantly, the overwhelming testimony heard by the jury was that the maintenance crew workers at the site of the hazardous dusting already told Mr. Harley it was time when they made their request to shut down the train. The train was not shut down. Instead, the maintenance crew got a call asking how long the train would need to be shut down and informing them that an adjustment at the pug mill floor was going to be tried. The flyash dusting became so severe that the maintenance crew had to evacuate the hazardous work environment due to safety concerns. Indeed, the testimony was that the dust was so bad and the visibility so poor they needed to hurry out and that it was unsafe to attempt to replace the platform grating before the evacuation. The testimony was uncontroverted that shutting down the train would have stopped the hazardous dusting.
I would be remiss if I did not briefly address the issue of the open and unguarded platform grating. Mr. Muto’s expert, David J. Bizzak, PhD, testified regarding the OSHA standards for elevated work surfaces where there is to be an opening. His testimony in this regard was unrebutted, and even supported by FirstEnergy management witnesses. The testimony was that an individual must attend such an opening at all times. The requirement is that barricades must be erected around such openings. The barricades must have top and mid rails erected so as to prevent entry and to be stable. Additionally, there must be red danger tape placed around the barricade and a placard that describes the danger. None of those requirements were met in connection with the openings in the platform grating that Mr. Muto fell through after the maintenance crew fled the area because they could not see and could barely breathe due to the volume of the flyash dust. Unguarded, cable come-alongs, with no railings and yellow caution tape with no informational placard, violated both OSHA regulations and FirstEnergy’s own rules. Cables with caution tape do not constitute a robust barrier. In fact, cables simply do not constitute a barricade. Moreover, the rules at FirstEnergy were that yellow tape signaled "caution" and employees were permitted to proceed beyond yellow caution tape. Logically believing that the caution was about the dust he was to investigate and stop, Mr. Muto crossed the yellow tape and dropped through the opening. Mr. Muto, a twenty-three year employee with safety awards, unequivocally testified that he would never have crossed a red danger tape. The majority opinion is tone deaf in its suggestion that Mr. Muto, who was performing his assigned job duties, was responsible for his own serious injury.
--------
Given these, and other relevant facts ignored by the majority opinion, and properly considering the evidence in the light most favorable to Mr. and Mrs. Muto, it is clear that any properly instructed, reasonable jury readily could conclude that Mr. Harley had actual knowledge of the hazardous condition of the dusting and of the request to alleviate the hazardous condition by stopping the train. Nevertheless, Mr. Harley failed to shut down the trains even in the face of managerial recognition in the planning meeting that the trains may need to be stopped due to the flyash dust hazard. The majority opinion is just plain wrong when it focuses on the evacuation as the point in time at which the situation became hazardous.
Turning to the issue of "intentional exposure" to the hazardous work conditions, the majority opinion places undue significance on testimony that no management employee specifically instructed Mr. Muto to go to the silo where the feeder was being replaced and where the dusting was resulting in a hazardous working environment. At the same time, the majority ignores the evidence of what was required of Mr. Muto in investigating the dust and dismisses conflicting testimony regarding Mr. Harley’s interactions with Mr. Muto. As I noted, Mr. Harley testified that he was waiting to see what Mr. Muto found.
Closely connected to the requirement of actual knowledge is the statutory element that the employer intentionally exposed the employee to the specific unsafe working condition. W. Va. Code § 23-4-2(d)(2)(D). The intentional exposure element is not met by a showing of inadvertence or negligence. Accord Sias v. W-P Coal Co. , 185 W. Va. 569, 575, 408 S.E.2d 321, 327 (1991). Here again, the trial court thoroughly instructed the jury on the law:
The Court instructs you that the element of intentionally exposing an employee to the specific unsafe working condition is linked particularly with the actual knowledge requirement.
That is, an employer cannot intentionally expose an employee to a specific unsafe working condition that presented a high degree of risk and a strong probability of serious injury or death, if the employer did not have actual knowledge of the existence of the specific unsafe working condition, and that the unsafe working condition presented a high degree of risk and a strong probability of serious injury or death.
This element is not satisfied, if the exposure to the alleged specific unsafe working condition was inadvertent, the result of negligence, gross negligence, or even willful, wanton, or reckless misconduct by the employer.
Rather, the Plaintiff must prove that management or supervisors at FirstEnergy intentionally exposed the Plaintiff to the specific unsafe working condition alleged, even though FirstEnergy had actual knowledge of the existence of the specific unsafe working condition, and had actual knowledge that the specific unsafe working condition presented a high degree of risk and a strong probability of serious injury or death.
Thereafter, the trial court gave lengthy instructions explicitly distinguishing deliberate intention from negligence.
My review of the evidence submitted at trial supports the conclusion that the jury reasonably could weigh the evidence and resolve questions and conflicts on the issue of intentional exposure in favor of Mr. and Mrs. Muto. Mr. Harley testified that he was never in the control room and did not see, speak to, interact with, or instruct Mr. Muto to do anything. According to Mr. Harley, he did not speak to Mr. Muto until after he saw him laying on the floor in the silo. Thus, the contention was that Mr. Harley did not instruct Mr. Muto and could not intentionally expose him to the hazardous conditions in the silo. But, Mr. James testified that Mr. Harley was in the control room when Mr. Muto was in the control room. Mr. James acknowledged that shortly after the injury to Mr. Muto, he gave a statement specifically providing that Mr. Muto left the control room to go to the flyash silo to assess the dusting problem. Mr. James explicitly testified that if an employee is to troubleshoot a problem, the employee must go to the source of the problem. In short order, to investigate and correct the dust hazard in the silo, an employee would need to go to the silo.
Mr. Eakle, now a managerial employee rather than an hourly employee, initially testified that Mr. Harley was not in the control room. When confronted with his statement given shortly after the injury, Mr. Eakle agreed that his memory would have been better at that time when he reported that there were conversations between Mr. Muto and Mr. Harley in the control room regarding correcting the dust problem in the silo. Further, Mr. Eakle testified that he and Mr. Muto left the control room together, and he assumed that Mr. Muto was "headed up there to check out what the maintenance men—the fly ash, what they called down, they needed somebody to check on. I just assumed that was where he was headed." Mr. Eakle also confirmed that in order to diagnose the problem, troubleshooting by the employee would be necessary.
Notably, Mr. Harley’s testimony as to even being in the control room was contradictory. He first testified that he never went to the control room. He then testified that he "could have been" in the control room with Mr. Muto. Further, Mr. Harley’s testimony was evasive regarding knowledge of the whereabouts of Mr. Muto. He denied knowing that Mr. Muto was in the silo investigating the dust hazard. Yet, in the next breath, Mr. Harley stated that he did not know Mr. Muto was "in the silo for sure." Rather, Mr. Harley testified that "I knew he could be there." A reasonable jury could conclude that the only reason Mr. Harley knew that Mr. Muto "could be" in the silo is that he knew Mr. Muto was doing the job he was tasked with in terms of investigating the dust hazard against a backdrop of that hazard existing in the silo. Specifically, Mr. Harley testified that he knew Mr. Muto went to see what was going on and would be getting back to them. Mr. Harley affirmed in his testimony that the first step would be to check to make sure the drain was not plugged or the water level too high with the dust collector. If that was satisfactory, the next place for Mr. Muto to go would be the flyash silo where the dust hazard existed.
Regrettably, Mr. Muto could not recall any discussions with Mr. Harley. He testified that he went to the flyash silo because his job task was to "get the dust down, stop the dust problem that the maintenance were complaining about." He knew the maintenance crew requested that the train be shut down and that was not done. Thus, he was "to check to see the problem, and see if I could solve it. That’s the job—that I do." Like Mr. James, he also testified that the dust in the silo could not be reduced by making adjustments to the pug mill dust collector which reduces in the pug mill, but is incapable of drawing dust from the silo area. Mr. Muto further testified that he was never informed, and did not know, that the maintenance crew was in the silo for the purpose of removing the rotary feeder. Significantly, Mr. Muto would have had no need to go to the silo to investigate the source of the hazardous dust levels if he had been informed of the rotary feeder replacement. On cross-examination, Mr. Muto testified:
Q. You knew—when you were going into that silo, that the maintenance crew had been up there trying to remove the rotary feeder, right?
A. No.
Q. Oh, you didn’t know that?
A. If I’d have known that, I wouldn’t have gone up there, because I would immediately have know the problem—
Q. Okay. So—
A. —with that big hole open.
Q. I’m sorry. I didn’t mean to cut you off. Go ahead. Say that again.
A. I said, if I’d have known they were removing that feeder, I wouldn’t even bothered going up there, because I would have known why the dusting was occurring.
Given such testimony, the jury and the trial court could reasonably conclude that Mr. Muto’s job of finding and stopping the dusting hazard constituted an intentional exposure to the known hazards of the flyash dusting in the silo. The jury readily could conclude that Mr. Harley approved the investigation of the problem and was waiting on Mr. Muto to report his findings. The jury could reasonably find intentional exposure in concluding that Mr. Harley chose the option of investigating the dust to try other measures of dust reduction rather than stopping the trains and, hence, the dust. See Sias v. W-P Coal Co. , 185 W. Va. 569, 408 S.E.2d 321 (1991) (observing that a reasonable jury could find intentional exposure when the employer had three options and chose the one that exposed the employee). The approach of the majority strains the deliberate intention cause of action. The approach improperly would require that, in the face of actual knowledge of a specific unsafe working condition, a plaintiff would have to prove specific and discrete supervisory instruction task-by-task and step-by-step in order to prove the intentional exposure element. That is simply not the law and not the reality of industrial workplace environments. I have previously written that "we simply cannot condone any employer’s attempt to avoid an otherwise viable deliberate intent action by conducting itself ‘like the proverbial ostrich who sticks his head in the sand to avoid seeing the obvious[.]’ " Ryan v. Clonch Indus., Inc . 219 W. Va. 664, 674, 639 S.E.2d 756, 766 (2006) (citation omitted). The source of the problem was known to management and identified at the planning stage, and, as had been anticipated, the request to shut down the trains due to the hazard was made. Indeed, the jury reasonably could have interpreted the testimony of Mr. Rapp, the supervisor of the maintenance crew, as supporting a finding of intentional exposure to the flyash dusting hazard. Mr. Rapp testified that "[i]t would have been easier to shut it down from the control room than to send somebody into a hazardous environment." A trier of fact reasonably could conclude that not only was it easier to shut the trains down from the control room, but that it was decidedly safer than intentionally exposing Mr. Muto to a workplace hazard—a specific unsafe working condition.
In conclusion, my considered review of the record reveals no error or irregularities suggesting that the verdict of the jury should be invalidated. This case was fully, vigorously, and fairly tried by the parties. The instructions fairly reflected the elements of the deliberate intention claim. A special verdict form with separate interrogatories tracking the five elements of the claim properly was provided to the jury. There is nothing remotely suggesting that the trial judge, in reviewing the propriety of the verdict, acted under any misapprehension of the law or the evidence presented. The evidence and witness testimony on significant issues fundamentally differed. Some testimony was contradictory. Some witnesses contradicted themselves. Some witnesses had their recollections refreshed with statements given shortly after the incident and did not disavow the earlier statements. A site review of the workplace including the flyash silo, the trains, the screw conveyors, the control room, and the pug mill provided the jury a working picture of the facility that added context to the testimony. It is the role of the jury to evaluate and sort out conflicts in the factual development, assess credibility, and resolve conflicts. My review instructs that the jury properly performed their role and duty. In this case, with a highly result-oriented opinion, the Court blatantly stripped the jury of its proper function in our system of justice. Because this approach is blatantly wrong and contrary to the established precedent of this Court, I dissent.