                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-1058



CLARENCE W. HESSON,

                                               Plaintiff - Appellant,

           versus


MORRISON-KNUDSEN COMPANY, INCORPORATED, a
Delaware corporation; E.I. DUPONT DE NEMOURS
& COMPANY, a Delaware corporation,

                                              Defendants - Appellees.


Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (CA-01-619-2)


Argued:   October 28, 2004                 Decided:   December 3, 2004


Before WILKINS, Chief Judge, and MICHAEL and TRAXLER, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Harry Gustavus Shaffer, III, SHAFFER & SHAFFER, P.L.L.C.,
Madison, West Virginia, for Appellant.     Raymond Michael Ripple,
E.I. DUPONT DE NEMOURS & COMPANY, Wilmington, Delaware; Eric E.
Kinder, SPILMAN, THOMAS & BATTLE, P.L.L.C., Charleston, West
Virginia, for Appellees. ON BRIEF: H. Jerome Sparks, SHAFFER &
SHAFFER, P.L.L.C., Madison, West Virginia, for Appellant. Edward
W. Rugeley, III, Niall A. Paul, SPILMAN, THOMAS & BATTLE, P.L.L.C.,
Charleston, West Virginia, for Appellee Morrison-Knudsen; Donna L.
Goodman, E.I. DUPONT DE NEMOURS & COMPANY, Wilmington, Delaware,
for Appellee DuPont.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

            Clarence   Hesson      sued      his   former    employer,    Morrison-

Knudsen Company, Inc. (MK), and E.I. Dupont De Nemours and Company

(Dupont) for injuries he sustained while cleaning a bag house at

Dupont’s Washington Works facility near Parkersburg, West Virginia.

(A   bag   house   sits     atop   a    boiler     and    functions      to    prevent

particulate matter generated by the boiler from escaping into the

outside air.) Hesson seriously injured his leg when he slipped and

fell into a temporary recess in the bag house floor while removing

empty filter-bag cages.        At the time of Hesson’s injuries, MK was

Dupont’s    in-house   contractor         responsible       for   maintaining     and

cleaning the facility’s bag houses.                Hesson alleges, pursuant to

section 23-4-2(d)(2) of the West Virginia Code, that MK is not

immune from suit under the State’s workers’ compensation scheme

because MK acted with deliberate intention in exposing him to an

unsafe working condition.          Hesson also alleges that Dupont, as the

owner of the facility, violated West Virginia statutory and common

law by maintaining unsafe premises.

            The district court awarded summary judgment to both MK

and Dupont.     As to MK, the court concluded that Hesson could not

establish three of the five requirements of a deliberate intention

claim under section 23-4-2(c)(2) of the West Virginia Code.                      More

specifically,      Hesson   could      not    establish     (1)   that    MK    had   a

subjective realization and appreciation of the existence of a


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specific unsafe working condition, (2) that the specific unsafe

working condition constituted a violation of state or federal law,

or (3) that MK had exposed Hesson to a specific unsafe working

condition. See Hesson v. Morrison-Knudsen Co., Inc., No. 2:01-0619

(S.D.W.Va. Dec. 12, 2003) (mem. order granting summary judgment to

MK).   The district court concluded that Dupont is not liable under

West Virginia statutory or common law because Hesson could not

establish that the bag house was unsafe or that Dupont exercised

sufficient control over MK to permit MK’s employment practices to

be attributed to Dupont. See Hesson v. Morrison-Knudsen Co., Inc.,

No. 2:01-0619 (S.D.W.Va. Dec. 12, 2003) (mem. order granting

summary judgment to DuPont).

            We affirm the orders awarding summary judgment to both MK

and Dupont, and we do so on the reasoning of the district court

with one exception.    As to the deliberate intention claim against

MK, we decline to conclude that Hesson could not establish that the

specific unsafe working condition constituted a violation of OSHA

regulations, 29 C.F.R. § 1910.23(a)(5) and (a)(7), which set safety

standards for pits, trap door floor openings, and temporary floor

openings.    These regulations require either railings around an

opening or the assignment of an employee to attend the opening.

The district court concluded, and Hesson’s expert witness agreed,

that railings around the temporary openings or recesses in the bag

house floor were not feasible. According to the district court, no


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violation of these regulations occurred when Hesson entered the bag

house by himself and began removing cages because he was attending

the temporary openings or recesses in the bag house floor at the

same time he was removing the cages.    We disagree with the court’s

conclusion, on summary judgment, that Hesson could simultaneously

attend the openings and work around them.      Nevertheless, Hesson’s

deliberate intention claim against MK still fails because, as the

district court determined, he cannot establish the two other

requirements   of   section   23-4-2(c)(2)   noted   in   the   preceding

paragraph.

          The orders of the district court are therefore affirmed.

                                                                 AFFIRMED




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