                                                  Filed:   May 20, 1998


                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT



                             No. 97-1202
                            (CA-94-875-5)



Roger Brown,

                                               Plaintiff - Appellant,

           versus

Appalachian Mining, Inc.,

                                                 Defendant - Appellee.




                              O R D E R


           The Court amends its opinion filed April 27, 1998, as

follows:
           On the cover sheet, section 3, line 3 -- the spelling of

Judge Hallanan's name is corrected.

                                       For the Court - By Direction



                                            /s/ Patricia S. Connor

                                                      Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROGER BROWN,
Plaintiff-Appellant,

v.                                                             No. 97-1202

APPALACHIAN MINING, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Elizabeth V. Hallanan, Senior District Judge.
(CA-94-875-5)

Submitted: January 28, 1998

Decided: April 27, 1998

Before WILLIAMS, Circuit Judge, PHILLIPS, Senior Circuit
Judge, and FOX, United States District Judge for the Eastern
District of North Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

J. Thomas Hardin, HARDIN LAW OFFICE, P.S.C., Inez, Kentucky,
for Appellant. Scott W. Andrews, OFFUTT, EIFERT, FISHER &
NORD, Huntington, West Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Roger Brown appeals the district court's entry of summary judg-
ment in favor of the defendant-appellee, Appalachian Mining, Inc.
We review the district court's decision to grant summary judgment de
novo. See Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). We
affirm.

I.

The plaintiff-appellant, Roger Brown, was employed by the
defendant-appellee, Appalachian Mining, Inc., on October 9, 1992,
when he was injured in a mining accident. At the time of the accident,
Brown was the operator of a remote, automated underground Joy
Miner which he operated from a booth located on a launch pad out-
side of the mine. Mining cars were hooked onto the miner on the
launch pad. On October 9, 1992, at approximately 10:00 a.m., Brown
stopped the miner because a large rock had fallen from the roof of the
mine onto a part of the miner. Because the rock could not be moved
manually, Brown and other workers decided to use a Caterpillar 988B
endloader to move the rock. The endloader had been modified by
replacing the bucket or scoop on the front of the endloader with a
large, flat piece of metal (referred to as a "pizza pan"). In order to
facilitate the use of the endloader to remove the rock from the miner,
Brown left the operator's compartment on the launch pad so that he
could hold back a set of electrical cables and water lines away from
the endloader. At the time of the accident, Brown was standing with
his left foot on the miner, and his right foot on one of the mining cars.
Another employee of Appalachian Mining, Joe Wyatt, operated the
endloader. As the endloader came towards the miner to remove the
rock, Brown's lower right leg and foot were pinned between the pizza
pan and the mining car, causing him severe injuries.

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Based on the diversity of citizenship of the parties, Brown filed suit
in federal district court claiming that his employer had "deliberately
inten[ded]" to harm him. Appalachian Mining moved for summary
judgment. After allowing time for discovery, the district court entered
summary judgment for Appalachian Mining on the grounds that
Brown had failed to provide competent evidence that his employer
deliberately intended to harm him. This appeal followed.

II.

Generally, employers in West Virginia who subscribe and pay into
the Workers' Compensation Fund cannot "be liable to respond in
damages at common law or by statute for the injury or death of any
employee, however occurring." W.VA. CODE § 23-2-6 (1997). How-
ever, WEST VIRGINIA CODE § 23-4-2 provides an exception to the blan-
ket of immunity for employers from common-law suit when the
employee's injury is the result of the employer's"deliberate inten-
tion" to cause injury. See W.VA. CODE § 23-4-2(b).1 The statute sets
forth two methods of proving deliberate intent. See W.VA. CODE § 23-
4-2(c)(2). The first method is not relevant to this case. The second
method requires the injured employee to prove five elements which
if established will preserve his common-law cause of action against
his employer. The statute provides:

       (c)(2) The immunity from suit provided under this section
       . . . may be lost only if the employer or person against whom
       liability is asserted acted with "deliberate intention." This
       requirement may be satisfied only if: . . .
_________________________________________________________________

1 The statute provides in relevant part:

        (b) If injury or death result [sic] to any employee from the delib-
        erate intention of his or her employer to produce such injury or
        death, the employee, the widow, widower, child or dependent of
        the employee has the privilege to take under this chapter, and has
        a cause of action against the employer, as if this chapter had not
        been enacted, for any excess of damages over the amount
        received or receivable under this chapter.

W.VA. CODE § 23-4-2.

                    3
        (ii) The trier of fact determines . . .

         (A) That a specific unsafe working condition
        existed in the workplace which presented a high
        degree of risk and a strong probability of serious
        injury or death;

         (B) That the employer had a subjective real-
        ization and an appreciation of the existence of
        such specific unsafe working condition and of
        the high degree of risk and the strong probabil-
        ity of serious injury or death presented by such
        specific unsafe working condition;

         (C) That such specific unsafe working condi-
        tion was a violation of a state or federal safety
        statute, rule or regulation, whether cited or not,
        or of a commonly accepted and well-known
        safety standard within the industry or business
        of such employer, which statute, rule, regulation
        or standard was specifically applicable to the
        particular work and working condition involved,
        as contrasted with a statute, rule, regulation or
        standard generally requiring safe workplaces,
        equipment, or working conditions;

         (D) That notwithstanding the existence of the
        facts set forth in subparagraphs (A) through (C)
        hereof, such employer nevertheless thereafter
        exposed an employee to such specific unsafe
        working condition intentionally; and

         (E) That such employee so exposed suffered
        serious injury or death as a direct and proximate
        result of such specific unsafe working condition.

W.VA. CODE § 23-4-2(c)(2)(ii). The statute further directs a court to
dismiss a "deliberate intention" action upon motion for summary
judgment if the court finds "that one or more of the facts required to

                    4
be proved by the provisions of the subparagraphs (A) through (E) . . .
do not exist." § 23-4-2(c)(2)(iii)(B); see also Handley v. Union Car-
bide Corp., 620 F. Supp. 428, 430-32 (S.D.W.Va. 1985), aff'd, 804
F.2d 265 (4th Cir. 1986) (noting the legislative preference for sum-
mary judgments and directed verdicts in "deliberate intention"
claims).

III.

Brown asserts that he can provide competent evidence of all five
elements of a "deliberate intention" claim under W.VA. CODE § 23-4-
2. However, in entering summary judgment for Appalachian Mining,
the district court held that "it would be unlikely, if not impossible, for
a jury to find that Plaintiff had met any one of the five elements." J.A.
at 562 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986)). Because a failure to provide competent evidence of any one
of the five elements is fatal to a deliberate intention claim, and
because the district court found an absence of competent evidence to
prove any of the five elements, the district court held that summary
judgment in favor of Appalachian Mining was appropriate. See id. at
567-68.

We agree with the trial court that Brown failed to provide compe-
tent evidence of any one of the five elements. The first element of a
"deliberate intention" claim requires proof of the existence of a spe-
cific unsafe working condition that presented a high degree of risk
and a strong probability of serious injury or death to an employee.
Brown argued that an alleged faulty hydraulic system in the endloader
which caused the pizza pan to drop and injure his foot and the use of
the endloader for the purpose of removing rocks both were specific
unsafe working conditions presenting a high degree of risk and strong
probability of serious injury or death. The district court held that nei-
ther condition was a specific unsafe working condition and that nei-
ther condition presented a high degree of risk and strong probability
of serious injury or death.

Brown complains that in so holding the district court engaged in
impermissible fact-finding when it declared that a defective hydraulic
system was not the cause of his injury. He asserts that his testimony,
along with the testimony of co-workers Joe Wyatt and David McKen-

                    5
zie, established a factual dispute as to the defectiveness of the
endloader's hydraulic system and the cause of the accident.

Brown's arguments do not have merit. In reaching its conclusion,
the district determined that Brown had failed to demonstrate with
competent evidence a genuine issue of material fact from which a rea-
sonable jury could find that the hydraulic system was defective. See
J.A. at 562-65; see also Ross v. Communications Satellite Corp., 759
F.2d 355, 364 (4th Cir. 1985) ("Genuineness means that the evidence
must create fair doubt; wholly speculative assertions will not suf-
fice."). For example, Brown offered no expert testimony that the
endloader's hydraulic system was defective. J.A. at 505-06. In fact,
Brown's only proffer of evidence on the issue was his own deposition
testimony, the testimony of Joe Wyatt (that actually contradicted
Brown's allegations), and the testimony of an Appalachian Mining
employee who did not witness the accident. See J.A. at 505, 513-14.
The district court stated that "Plaintiff cannot create a genuine issue
of fact merely by asserting, without any supporting evidence, a differ-
ent theory of causation from that of Defendant." See J.A. at 556. A
district court is permitted to enter summary judgment on an issue
when a "fair-minded jury could [not] return a verdict for the [nonmo-
vant] on the evidence presented." Anderson, 477 U.S. at 252. In this
case, we cannot disagree with the trial court that a reasonable jury
could not have returned a verdict for the plaintiff on the unsafe work-
ing condition element of his "deliberate intent" claim.

Brown also asserts that he presented competent evidence of the
second element of a "deliberate intent" claim. We agree with the trial
court that Brown's evidence was insufficient to avoid summary judg-
ment. As the West Virginia Supreme Court has explained, the "`delib-
erate intention'" exception to the Worker's Compensation system is
meant to deter the malicious employer, not to punish the stupid one."
Helmick v. Potomac Edison Co., 406 S.E.2d 700, 705 (W.Va. 1991).
Thus, in proving the second element of a deliberate intention claim,
an employee must show that an employer had a "subjective realiza-
tion" of a defective condition with a high degree of risk and strong
probability of serious injury or risk. In other words, the employer
must have known of the danger to the employee. See W.VA. CODE
§ 23-4-2(c)(2)(ii)(B).

                    6
The West Virginia Supreme Court also has explained that the sub-
jective realization requirement "is not satisfied merely by evidence
that the employer reasonably should have known of the specific
unsafe working condition and of the strong possibility of serious
injury or death presented by that condition. Instead, it must be shown
that the employer actually possessed such knowledge." Blevins v.
Beckley Magnetite, Inc., 408 S.E.2d 385, 393 (W.Va. 1991) (empha-
sis added). Cases that have addressed "subjective realization" of
unsafe working conditions have focused on factors such as: (i)
whether any prior injuries had occurred because of the condition; (ii)
whether the employer previously had been cited by government offi-
cials for the violation; and (iii) whether there had been any prior com-
plaints that would have put the employer on notice of the high degree
of risk and strong probability of serious injury or death created by the
condition. See, e.g., Blevins, 408 S.E.2d at 391-93. Plaintiff presented
no evidence of any prior injuries caused by the endloader, or of any
citations for violation of any safety regulations. Plaintiff's only evi-
dence on the issue of subjective realization consisted of testimony
from Joe Wyatt that he had informed the employer of the endloader's
defective hydraulic system. We agree with the trial court's conclusion
that "[e]ven given that Defendant may have had knowledge the
endloader was not working properly, there is no indication that
Defendant had any subjective knowledge that the endloader's condi-
tion presented a risk of serious injury or death to its employees." J.A.
at 566. Thus, summary judgment in favor of the defendant on this
issue was appropriate.

The third element of a "deliberate intent" claim requires a showing
that the employer violated a specific state or federal safety regulation
or industry custom in subjecting an employee to a known defective
condition. See W.VA. CODE § 23-4-2(c)(2)(ii)(C). The "deliberate
intent" statute is explicit that a "regulation. . . generally requiring safe
. . . equipment" is insufficient to satisfy the third element. Greene v.
Carolina Freight Carriers, 663 F. Supp. 112, 115 (S.D.W.Va. 1987).
As one court has explained, "[t]o put the employer on notice, and to
evidence its egregious conduct, the statute or standard must specifi-
cally address the unsafe working condition in question. It is not
enough to prove that a part on a piece of machinery was defective and
that a statute or regulation required all parts to be in good working
order." Id. Brown presented no competent evidence that the endloader

                     7
violated any specific state, federal or industry safety regulation. The
only evidence Brown offered as to the third element was his own tes-
timony, and that of Joe Wyatt, that use of a pizza pan instead of the
endloader's bucket is not a generally accepted industry practice. We
agree with the district court's conclusion that this evidence was not
competent to meet the high degree of specificity required by the stat-
ute. On appeal, Brown now cites 30 C.F.R. § 77.404(a) as having
been violated.2 But this regulation is exactly the kind of general safety
provision that the statute itself declares insufficient. Thus, Brown has
failed to provide competent evidence of the violation of any specific
safety regulation or standard by Appalachian Mining, and thus fails
to demonstrate his employer's "deliberate intent" under the statute.

Similarly, we agree with the trial court that Brown failed to provide
competent evidence of the existence of the fourth and fifth elements
of a "deliberate intent" claim. The fourth element requires that, not-
withstanding the presence of elements one, two and three, the
employer intentionally exposed its employee to a known unsafe work-
ing condition. See W.VA. CODE § 23-4-2(c)(2)(ii)(D). The fifth ele-
ment requires that exposure to the known unsafe working condition
was the proximate cause of the serious injury of death. See § 23-4-
2(c)(2)(ii)(E). Both the fourth and fifth elements require proof of the
first three elements. As Brown failed to provide competent evidence
of the first three elements of a "deliberate intent" claim, he cannot
provide evidence of the existence of the fourth and fifth elements.

IV.

In sum, because Brown failed to make a showing sufficient to
establish the existence of any of the five elements essential to his
deliberate intention claim under West Virginia law, summary judg-
ment in favor of Appalachian Mining was appropriate. See Anderson,
_________________________________________________________________

2 Section 77.404(a) of Chapter 30 of the Code of Federal Regulations
on machinery and equipment in mining operations states: "(a) Mobile
and stationary machinery and equipment shall be maintained in safe
operating condition and machinery or equipment in unsafe condition
shall be removed from service immediately." 30 C.F.R. § 77.404(a).

                    8
477 U.S. at 252. Accordingly, the judgment of the district court is

AFFIRMED.

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