                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Richard DeBias and Renee DeBias, individually and                                   FILED
as mother and next friend of Dominick DeBias,                                   June 13, 2014
Plaintiffs Below, Petitioners                                                 RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA
vs) No. 13-0929 (Randolph County 10-C-172)

Coastal Lumber Company,
Defendant Below, Respondent


                                 MEMORANDUM DECISION

       Petitioners Richard DeBias and Renee DeBias, individually and as mother and next
friend of Dominick DeBias, by counsel Wray V. Voegelin and Patrick S. Cassidy, appeal the
July 30, 2013, order of the Circuit Court of Randolph County granting summary judgment in
favor of respondent. Coastal Lumber Company, by counsel Denise D. Pentino and William E.
Robinson, filed a response. Petitioners filed a reply.

        This Court has considered the parties= briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        Petitioner Richard DeBias (“Mr. DeBias”) obtained an Associate’s Degree in Forestry in
1993 and began work for Coastal Lumber Company (“Coastal”) in 1994. In 2007, he began
working as a truck driver for Coastal. His responsibilities as a truck driver included driving a
flatbed trailer to Coastal’s Dailey Saw Mill to pick up green lumber and transport it to the nearby
Dailey Yard.

        On February 11, 2010, Mr. DeBias was instructed to pick up a load of green lumber and
take it to the Dailey Yard. His load consisted of three stacks of lumber. After leaving the saw
mill, a partial pack of lumber on the rear stack shifted approximately eighteen inches, but Mr.
DeBias proceeded to the Dailey Yard without stopping to adjust the load. After arriving at the
yard, Brian Fuston, a forklift operator, pushed the shifted stack back into place, and he and
another forklift operator, Chris Scott, began off-loading the stacks of lumber in the front and
middle of the trailer. As the forklift operators were unloading the stacks, Mr. DeBias was rolling
up the load stabilizing straps used to hold the lumber on the trailer. He testified later that he was
sure that he was rolling up the straps between the rear dual wheels. As Scott removed the middle


                                                 1

stack of lumber, the rear stack shifted and fell on Mr. DeBias. Prior to this accident, neither
Fuston nor Scott had been cited or reprimanded for any unsafe acts relating to their employment.

       Mr. DeBias suffered several injuries as a result of the falling lumber. These include an
open pelvis fracture, a ruptured bladder, multiple rib fractures on both sides, and a T12-L1
vertebral fracture resulting in paraplegia. After lengthy hospital and rehabilitation admissions,
Mr. DeBias returned home, but remains confined to a wheelchair and suffers from neurogenic
bowel and bladder.

        On October 1, 2010, petitioners filed the instant action, alleging violation of West
Virginia Code § 23-4-2(d)(2)(ii)(A)-(E), and loss of consortium on behalf of Mrs. DeBias and
Dominick DeBias, Petitioner Richard DeBias’s son. At issue were the training procedures of
Coastal regarding forklift operation for off-loading lumber from tractor trailers. Coastal contends
that it trained its employees through written and visual materials presented in a classroom
setting, including the 29 C.F.R. §1910.178 Powered Industrial Truck Training Manual published
by Safety Training and Consulting, Inc. Coastal also utilized videos in its training, including one
entitled “Taylor Machine Works Safety Check Video,” which was shot primarily in a lumber
yard and depicts a wide variety of related yard activities and functions. One module of the video
is devoted entirely to pedestrian related issues, including not operating the machinery when
bystanders are present. Further, Coastal conducted weekly safety meetings with forklift
operators, used operator’s manuals in training, and used other written training materials as well
as practical hands-on training.

         After discovery, which included the depositions of many of Coastal’s employees and
experts from both sides, Coastal filed a motion for summary judgment, which petitioners
opposed. Coastal argued that there was no genuine issue of material fact regarding the statutory
requirements for deliberate intent, and argued specifically that petitioners could not prove the
requisite elements set forth in West Virginia Code § 23-4-2(d)(2)(ii)(A) through (D). Petitioners
argued that there was a genuine issue of material fact regarding how employees were trained in
off-loading procedures. On March 11, 2013, the circuit court held oral arguments on the motion.
On July 30, 2013, the circuit court entered an order granting summary judgment in favor of
Coastal. The circuit court found that petitioners failed to show that Coastal had actual knowledge
that the forklift operators were not properly trained; that there was no evidence of any improper
forklift training which created a high degree of risk and the strong probability of serious injury or
death presented by the specific unsafe working condition; and, that Petitioner DeBias was
intentionally exposed to the specific unsafe working condition.

        Petitioners appeal the grant of Coastal’s motion for summary judgment. Pursuant to Rule
56(c) of the West Virginia Rules of Civil Procedure, summary judgment should be awarded “if
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Thus, “[a] motion for summary judgment
should be granted only when it is clear that there is no genuine issue of fact to be tried and
inquiry concerning the facts is not desirable to clarify the application of the law.” Syl. Pt. 3,
Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). We

                                                 2

accord a plenary review to the circuit court’s order granting summary judgment: “[a] circuit
court's entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W.Va.
189, 451 S.E.2d 755 (1994). We note, as well, that “the party opposing summary judgment must
satisfy the burden of proof by offering more than a mere ‘scintilla of evidence’ and must produce
evidence sufficient for a reasonable jury to find in a nonmoving party's favor. Anderson [v.
Liberty Lobby, Inc.], 477 U.S. [242] at 252, 106 S.Ct. [2505] at 2512, 91 L.E.2d [202] at 214
[1986].” Williams v. Precision Coil, Inc., 194 W.Va. 52, 60, 459 S.E.2d 329, 337 (1995).

        Petitioners first argue that the circuit court erred in finding that there was no genuine
issue of material fact on the question of whether Coastal, prior to Mr. DeBias’ injury, had actual
knowledge of the specific unsafe working condition at issue in this case; and of the high degree
of risk and strong probability of serious injury or death presented by the unsafe working
condition such as to meet Part B of the five-part statutory test provided for at West Virginia
Code § 23-4-2(d)(2)(ii)(B).1 Petitioners argue that they presented evidence that Coastal, prior to
Petitioner DeBias’ injury, had actual knowledge of an unsafe working condition in that it knew
that forklift operators had not been trained about an off-loading procedure requiring the forklift
operators to wait until a truck driver had completed his work along the side of the trailer and
moved to a safe place away from the trailer before the forklift operators were permitted to begin
off-loading lumber from the trailer. Petitioners argue that this unsafe working condition and the
lack of proper training presented a high degree of risk and the strong probability of serious injury
or death.

        West Virginia Code § 23-4-2(c) allows an injured worker to pursue a civil action for
damages in excess of his Workers’ Compensation benefits if the employer acted with “deliberate
intention.” Each of the elements set forth in West Virginia Code § 23-4-2(d)(2)(ii)(A)-(E) must
be proven. The relevant provisions read as follows:

                (ii) The trier of fact determines, either through specific findings of fact
        made by the court in a trial without a jury, or through special interrogatories to the
        jury in a jury trial, that all of the following facts are proven:

               (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;


        1
          Petitioners argue in their petition that they met each of the five parts of the statutory test
found in West Virginia Code § 23-4-2(d)(2)(ii)(A)-(E). However, they only specifically assign
error to the circuit court’s findings that they failed to meet parts (B) and (D); thus, this Court will
only address parts (B) and (D).

                                                   3

               (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 chapter is filed or not as a
       direct and proximate result of the specific unsafe working condition.

Petitioners allege that the unsafe working condition was Coastal’s purported failure to properly
train its forklift operators at the Dailey yard. In Arnazzi v. Quad/Graphics, Inc., 218 W.Va. 36,
621 S.E.2d 705 (2005), this Court recognized that an employer’s failure to provide mandatory
forklift safety training can constitute a specific unsafe working condition within the meaning of
the deliberate intent statute. However, in Arnazzi, the injured plaintiff was allowed to begin
working without any forklift safety training whatsoever. Id. at 38, 621 S.E.2d at 707. This Court
has found that

               Given the statutory framework of W.Va. Code §§ 23-4-2(c)(2)(i) and (ii),
       (1983, 1991) which equates proof of the five requirements listed in W.Va. Code §
       23-4-2(c)(2)(ii) with deliberate intention, a plaintiff attempting to impose liability
       on the employer must present sufficient evidence, especially with regard to the
       requirement that the employer had a subjective realization and an appreciation of
       the existence of such specific unsafe working condition and the strong probability
       of serious injury or death presented by such specific unsafe working condition.
       This 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, Blevins v. Beckley Magnetite, Inc., 185 W.Va. 633, 408 S.E.2d 385 (1991). The
“actual knowledge” requirement is recognized as “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 (1998). Whether an employer has actual knowledge “requires an interpretation of the
employer’s state of mind, and must ordinarily be shown by circumstantial evidence, from which

                                                 4

conflicting inferences may often reasonably be drawn.” Syl. Pt. 2, in part, Nutter v.
Owens-Illinois, Inc., 209 W.Va. 608, 550 S.E.2d 398 (2001). This Court has observed:

       The plaintiffs in this action have alleged that the unsafe working conditions to
       which Mr. Coleman was intentionally exposed were a lack of training and
       supervision. Thus, to overcome summary judgment, the Plaintiffs were required
       to establish the existence of a material question of fact with regard to whether
       R.M. Logging had a subjective realization of the fact that Mr. Coleman was not
       properly trained and whether, knowing of his lack of training, R.M. Logging
       intentionally sent him out to cut trees.

Coleman Estate ex rel. Coleman v. R.M. Logging, Inc., 226 W.Va. 199, 207, 700 S.E.2d 168, 176
(2010).

        Petitioners cannot pass this high evidentiary threshold. The circuit court correctly
concluded that they “cannot prove the existence of [a] genuine issue of material fact with regard
to whether, prior to this injury, the Defendant, Coastal Lumber Company, had actual knowledge
that the forklift operators were not properly trained.” Moreover, the circuit court determined that
it “cannot find any evidence proffered by either side through memoranda, oral argument,
deposition testimony, or other evidence, even suggesting that the Defendant, Coastal Lumber
Company, had actual knowledge of any improper training of forklift operators, that of which
created a high degree of risk and the strong probability of serious injury or death presented by
the specific unsafe working condition.” Additionally, the circuit court found that respondent had
“provided all forklift operators at the Dailey Yard with formal, practical and observational
forklift safety training as required by [OSHA],” which “included training in the particular
content area of pedestrian safety.” Respondent used a combination of written training materials,
lectures, videos, manufacturer-published operator manuals, hands-on training, observational
evaluations, weekly safety meetings, daily huddle sessions, and years of incident-free practical
experience to train its forklift operators. Therefore, this Court finds no error in the circuit court’s
finding that petitioners did not meet their burden under West Virginia Code § 23-4-2(d)(2)(ii)(B)
and thus summary judgment was proper.

        Petitioners’ second assignment of error is that the circuit court erroneously ruled that
there does not exist a genuine issue of material fact on the question of whether Coastal exposed
Mr. DeBias to the specific unsafe working condition at issue in this case intentionally such as to
meet Part D of the five-part statutory test provided for at West Virginia Code §
23-4-2(d)(2)(ii)(D). Petitioners argue that prior to this injury, the supervisory staff was aware of
the procedures used by forklift operators in off-loading lumber and aware of the training received
by the operators. Petitioners further argue that Coastal created the training program for its forklift
operators, which petitioners contend is evidence of Coastal’s intentional exposure to an unsafe
working condition.

       To satisfy the “intentional exposure” requirement, 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.” Tolley v. ACF Industries, Inc., 212 W.Va.

                                                  5

548, 558, 575 S.E.2d 158, 168 (2002). Like actual knowledge, deliberate intent “requires an
interpretation of the employer’s state of mind.” Syl. Pt. 2, in part, Nutter, 209 W.Va. 608, 550
S.E.2d 398 The circuit court correctly concluded that it “cannot find that the Plaintiff can
demonstrate that there is a genuine issue of material fact that the Defendant . . . intentionally
exposed the Plaintiff to the specific unsafe working condition.”

         In this case, petitioners must establish both that Coastal had actual knowledge that its
forklift operators at the Dailey Yard were not properly trained and that, knowing of their lack of
training, it intentionally sent the operators out to perform their duties. The evidence shows that
the forklift operators were properly trained in compliance with Occupational Safety and Health
Administration requirements and that the training was utilized in practice. There was no evidence
of prior injury due to the lumber off-loading practices or that there were complaints without
Coastal taking action on the same. Moreover, Coastal did not direct Mr. DeBias to work in that
area with actual knowledge of the probability lumber would fall on him. The circuit court
properly found that there was no evidence that Coastal had actual knowledge that its forklift
operators were not properly trained and, knowing of their lack of training, intentionally exposed
petitioner to an unsafe working condition. We find no error in the circuit court’s findings and the
grant of summary judgment in favor of Coastal.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED:     June 13, 2014

CONCURRED IN BY:

Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Chief Justice Robin Jean Davis




                                                6

