                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Paula L. Cunningham,                                                               FILED
Plaintiff Below, Petitioner                                                   October 17, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 13-1276 (Mason County 11-C-146)                                        OF WEST VIRGINIA


Felman Production, LLC,
Defendant Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Paula L. Cunningham, by counsel Edwin H. Pancake, appeals the order of the
Circuit Court of Mason County granting Respondent Felman Production, LLC’s motion for
summary judgment. Respondent, by counsel Ronda L. Harvey, filed a response. Petitioner filed a
reply. Petitioner challenges the circuit court’s dismissal of her deliberate intent suit based upon
its conclusions that she failed to establish (1) that respondent had actual knowledge of the unsafe
working condition, and (2) that respondent intentionally exposed her to the unsafe working
condition.

        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.

                                               Facts

        Petitioner’s civil action stems from events that occurred at a plant operated by
Respondent Felman Production, LLC, located in Letart, West Virginia. The plant produces alloy
metal products and was purchased by respondent in 2005. At the time of the events relevant to
this case, petitioner was employed by respondent as an Occupational Safety and Health
Specialist. Petitioner’s job duties included performing regular inspections around the plant and
assisting her immediate supervisor, Paul Pigott, with his duties as Plant Safety and Health
Supervisor.

        The facts are undisputed. On May 12, 2010, petitioner was working in her office when
she received a call around noon alerting her to a fire in an industrial dumpster located in the yard
area of the plant. Petitioner left her office, located a fire extinguisher, and proceeded on foot to
the dumpster. Three or four other employees had arrived at the dumpster around the same time as
petitioner and were attempting to extinguish the fire. One of the employees, Mark Gilkey, an
end-loader operator at the plant, approached the group with his end-loader and dumped water

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from the bucket onto the fire. An explosion followed. As a result of the explosion, petitioner
suffered burns and a strain to her back. Petitioner was hospitalized overnight and returned to
work soon thereafter. On December 16, 2011, petitioner filed suit against respondent alleging a
violation of the deliberate intent statute, West Virginia Code § 23-4-2(d)(2)(ii).1

        As part of the investigation into the incident, it was discovered that there were traces of
strontium2 and other flammable substances in the dumpster that caused an explosion when
contacted by water. According to petitioner, the West Virginia Department of Environmental
Protection cited respondent for its actions and inactions related to the explosion.




       1
        Under the deliberate intent statute, in order for an employer to lose its workers’
compensation immunity, the employee must prove the following five elements:

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

W.Va. Code § 23-4-2(d)(2)(ii).
       2
         According to petitioner’s brief, “[s]trontium is a known volatile and reactive substance
which had been previously used at the plant, but had not been used in the manufacturing
processes for many years prior to [respondent’s] acquisition of the plant.”
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        None of the employees who responded to the dumpster fire were supervisors. Petitioner
did not speak to any supervisors before she secured a fire extinguisher and went to the dumpster,
and she was not instructed by any supervisor to attempt to extinguish the fire.3 In addition, no
supervisor directed Mr. Gilkey to use the end-loader bucket to douse the fire with water.
Importantly, there was no evidence that respondent knew that strontium was in the dumpster.4

        Following discovery, respondent moved for summary judgment. Petitioner responded to
respondent’s motion, relying in large part on the doctrine of res ipsa loquitor. Following a
hearing on respondent’s motion, the court entered an order on October 31, 2013, granting
summary judgment to respondent. The circuit court rejected petitioner’s res ipsa loquitor
argument as such is a theory of negligence inapplicable to a statutory deliberate intent suit. With
respect to the presence of strontium at the plant, the circuit court found that respondent

       controlled the storage of Strontium and that it maintained the Strontium in a
       locked warehouse, with limited access, prior to the Strontium being placed in the
       dumpster which ultimately exploded. The Court further finds that [respondent]
       was aware of the potential hazards of Strontium coming into contact with water,
       and of the danger to person and property if the Strontium was not properly
       handled or stored.

       However, the circuit court went on to conclude that petitioner, as a matter of law, could
not establish (1) that respondent had actual knowledge of the existence of the specific unsafe
working condition (strontium in the dumpster) and of the high degree of risk and the strong
probability of serious injury or death presented by the specific unsafe working condition, as
required by West Virginia Code § 23-4-2(d)(2)(ii)(B), or (2) that respondent intentionally
exposed petitioner to the specific unsafe working condition, as required by West Virginia Code §
23-4-2(d)(2)(ii)(D). Petitioner now appeals to this Court.

                                            Discussion

        Pursuant to Rule 56 of the West Virginia Rules of Civil Procedure, summary judgment is
proper when there are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. See Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329
(1995); See also Syl. Pt. 4, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 161 (1994) (“Summary
judgment is appropriate where the record taken as a whole could not lead a rational trier of fact
to find for the nonmoving party, such as where the nonmoving party has failed to make a
sufficient showing on an essential element of the case that it has the burden to prove.”) When an
employee alleges deliberate intent under West Virginia Code § 23-4-2(d)(2)(ii), summary



       3
          The cause of the fire is not apparent from the record, but it is generally undisputed that
it was raining on the day of the incident.
       4
          According to petitioner, respondent was aware that strontium was stored in three barrels
on its property. Apparently, one of the barrels ended up in the dumpster, but petitioner could not
establish how that happened or who was responsible.
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judgment is mandated if the employee is unable to prove one of the five statutory requirements.
See W.Va. Code § 23-4-2(d)(2)(iii)(B). “A circuit court's entry of summary judgment is
reviewed de novo.” Syl. Pt. 1, Painter.

        On appeal, petitioner raises three assignments of error. First, she argues that the circuit
court erred in concluding that she could not meet the “actual knowledge” requirement in West
Virginia Code § 23-4-2(d)(2)(ii)(B). She argues that respondent’s corporate representative
admitted that it had complete control over the storage of strontium at the plant, and that there
needed to be limited access to the material because of its hazardous nature. She adds that because
strontium was stored in barrels that were too heavy to move without a forklift, it is highly
unlikely that barrels would have been moved from the locked warehouse to the dumpster without
supervisory involvement.

        Actual knowledge “is a high threshold that cannot be successfully met by speculation or
conjecture.” Smith v. Apex Pipeline Services, Inc., 230 W.Va. 620, 630, 741 S.E.2d 845, 855
(2013). Moreover, 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.” Id. Instead, petitioner must
establish that respondent “actually possessed such knowledge.” Id. Petitioner failed to prove that
any supervisor knew (1) that strontium was in the dumpster, (2) that petitioner was working in
the area of the dumpster, or (3) that an explosion would occur while she was in that area.
Therefore, we find no error in the circuit court’s conclusion that petitioner failed to establish
“actual knowledge” on the part of respondent.5

       5
          We note that petitioner also argues for the first time on appeal to this Court that she
established “actual knowledge” by virtue of our holding in Ryan v. Clonch, 219 W.Va. 664, 639
S.E.2d 756 (2006). In Ryan, we held that an employer has knowledge of an unsafe working
condition when it fails to perform a required hazard assessment that would have disclosed the
resulting hazard. At no point in her pleadings before the circuit court did petitioner reference
Ryan in her argument that respondent had actual knowledge of the strontium in the dumpster;
therefore, respondent argues that the argument is waived.

       To preserve an issue for appellate review, a party must articulate it with such
       sufficient distinctiveness to alert a circuit court to the nature of the claimed defect.
       The rule in West Virginia is that parties must speak clearly in the circuit court[,]
       on pain that, if they forget their lines, they will likely be bound forever to hold
       their peace . . . [sic] It must be emphasized that the contours for appeal are shaped
       at the circuit court level by setting forth with particularity and at the appropriate
       time the legal ground upon which the parties intend to rely.

State v. Browning, 199 W.Va. 417, 425, 485 S.E.2d 1, 9 (1997) (quoting State ex rel. Cooper v.
Caperton, 196 W.Va. 208, 216, 470 S.E.2d 162, 170 (1996)) (citations omitted).

        Nevertheless, even if we examine petitioner’s argument in this regard, Ryan is
distinguishable. That case involved an employee who was required to work without protective
equipment in violation of federal regulation. Clonch, the employer, never performed the required
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        Second, petitioner argues that the circuit court erred in finding that she was unable to
satisfy the “intentional exposure” requirement of West Virginia Code § 23-4-2(d)(2)(ii)(D). She
contends that she was doing her job when she went to the dumpster with the fire extinguisher and
that respondent was aware of the presence of strontium at the plant; therefore, respondent
intentionally exposed her to the unsafe working condition that caused her injury. We disagree.
Merely directing an employee to work in the area where an unsafe condition exists is not enough;
the employer must direct the employee to work in the area of the unsafe condition “with
conscious awareness of the unsafe working condition.” Smith, 230 W.Va. at 858, 741 S.E.2d at
633 (quoting Ramey v. Contractor Enterprises, Inc., 225 W.Va. 424, 431, 693 S.E.2d 789, 796
(2010)). No such evidence exists in this case. Therefore, the circuit court correctly found a lack
of “intentional exposure” as required by the deliberate intent statute.

        Finally, petitioner argues that summary judgment was improper in light of the fact that
circumstantial evidence could lead a reasonable trier of fact to conclude that respondent had
actual knowledge and intentionally exposed its employees to hazards which resulted in
petitioner’s injuries. Stated another way, petitioner argues for the application of the doctrine of
res ipsa loquitor to this statutory deliberate intent case. In Syllabus Point 4 of Foster v. City of
Keyser, 202 W.Va.1, 501 S.E.2d 165 (1997), we held as follows:

              Pursuant to the evidentiary rule of res ipsa loquitur, it may be inferred that
       harm suffered by the plaintiff is caused by negligence of the defendant when (a)
       the event is of a kind which ordinarily does not occur in the absence of
       negligence; (b) other responsible causes, including the conduct of the plaintiff and
       third persons, are sufficiently eliminated by the evidence; and (c) the indicated
       negligence is within the scope of the defendant's duty to the plaintiff.

Without question, the doctrine of res ipsa loquitor is a negligence theory. However, petitioner
has pointed to no legal authority in this state applying such a theory in the context of statutory
deliberate intent. As such, we decline to do so under the facts and circumstances presented in this
case.

       For the foregoing reasons, we affirm.


                                                                                         Affirmed.



hazard assessment to determine if protective equipment was required. Conversely, in the present
case, no supervisor instructed petitioner to report to the dumpster with a fire extinguisher. Also,
contrary to petitioner’s argument, the Department of Environmental Protection did not direct
respondent to “inspect, classify and dispose of” the strontium; rather, it ordered respondent to
determine if the product was viable and, if it was not viable, to dispose of it properly.
Respondent determined it was viable, and therefore stored it in a locked warehouse. Petitioner
entered no evidence that respondent failed to perform a required inspection that would have
disclosed the alleged unsafe working condition.


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ISSUED: October 17, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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