UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LUCY BENNETT; RONALD BENNETT,
Plaintiffs-Appellants,

v.

THE KROGER COMPANY, a foreign
corporation,                                                        No. 97-1938
Defendant-Appellee,

and

MARK JONES,
Defendant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
David A. Faber, District Judge.
(CA-96-96-5)

Submitted: April 21, 1998

Decided: June 15, 1998

Before WIDENER and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Harold F. Salsbery, Madonna C. Estep, SALSBERY & DRUCK-
MAN, Charleston, West Virginia, for Appellants. Joseph M. Price,
Michael A. Kawash, ROBINSON & MCELWEE, L.L.P., Charleston,
West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Lucy and Ronald Bennett appeal the district court's grant of sum-
mary judgment for The Kroger Company (Kroger) in this diversity
action, 28 U.S.C. § 1332 (1994). The Bennetts filed suit against
Kroger, alleging that Kroger was liable under W. Va. Code § 23-4-
2(c)(2) (1994), for injuries Lucy Bennett suffered in a fall while was
working in the deli section at the Kroger store in Beaver, West Vir-
ginia. The district court granted summary judgment to Kroger, and we
affirm.

The injury in question took place in 1994, when Lucy Bennett
slipped on a wet part of the floor and broke her hip. She required a
total hip replacement and incurred $40,000 in medical expenses. Ben-
nett was unable to work for nearly twenty-six months; one leg is now
one-half inch shorter than the other, necessitating that she wear a spe-
cial shoe.

According to Bennett's deposition, the water on the floor came
from a machine called the bread proofer in the deli. She had noticed
that water built up on the floor at that spot for as long as she had
worked at the deli, which was most of her fifteen years employment.
She also stated that other employees had fallen in the area. Bennett
admitted that she was aware of the Kroger store safety rules requiring
that any liquids on the floor be cleaned up immediately, and had
signed an acknowledgment to that effect. Bennett received worker's
compensation for her injury.

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Under West Virginia law, employers are generally immune from
liability in actions under common law or statute for employee injuries
covered by the state worker's compensation act. W. Va. Code § 23-2-
6 (Supp. 1997). In Mandolidis v. Elkins Indus., Inc., 246 S.E.2d 907
(W. Va. 1978), the state high court held that the general immunity
from damage suits arising from work-related injuries is abrogated if
the employer has acted with deliberate intention to injure an
employee. Such a proceeding is now known as a Mandolidis action,
and the court's holding has been codified in W. Va. Code § 23-4-
2(c)(2). See Arthur v. E.I. DuPont de Nemours & Co., 58 F.3d 121,
123 (4th Cir. 1995).

The statute provides two distinct methods of establishing the
employer's deliberate intention. Under § 23-4-2(c)(2)(i), the
employee must prove that the employer acted with a conscious inten-
tion to produce specific injury to the employer. Under § 23-4-
2(c)(2)(ii), a plaintiff must prove five elements: (A) a specific unsafe
working condition existed in the workplace, creating a high degree of
risk and strong probability of serious injury; (B) the employer realized
and understood the existence of the unsafe condition as well as the
high risk of injury; (C) the unsafe working condition was a violation
of a state or federal safety statute, rule or regulation or a commonly
accepted and well-known safety standard within the business, which
was specifically applicable to the particular work and working condi-
tion involved, "as contrasted with a statute, rule, regulation or stan-
dard generally requiring safe workplaces, equipment or working
conditions"; (D) the employer intentionally exposed the employee to
the unsafe condition; and (E) the employee suffered serious injury or
death as a result.

In this case, the Bennetts conceded below that they could not sup-
port their claim under § 23-4-2(c)(2)(i). In granting summary judg-
ment as to § 23-4-2(c)(2)(ii), the district court concluded that the
Bennetts could not establish subsection (C) of the claim. The only
issue before us on appeal is whether summary judgment on this
ground was appropriate.

We review a grant of summary judgment de novo. United States
v. Kanasco, Ltd., 123 F.3d 209, 210 (4th Cir. 1997). The moving
party must demonstrate that there exists no genuine issue of material

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fact for trial. See Celotex v. Catrett, 477 U.S. 317, 322-23 (1986). We
consider the facts in the light most favorable to the non-movant. See
Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).

The Bennetts's expert, Harold Parker, cited two federal regulations
to support his contention that the water on the floor of the Kroger deli
was a violation of a specific federal or state safety provision. In addi-
tion, the Bennetts assert that Parker's affidavit and deposition create
an issue of fact as to whether the water on the floor violated a well-
known, commonly accepted safety practice within the grocery busi-
ness.

The regulations cited by Parker are just the sort of general provi-
sions that are specifically excluded from subsection (C). Section
1910.22, 29 C.F.R. (1997), provides general requirements for
walking-working surfaces, and applies to all permanent places of
employment. It provides in pertinent part, "[t]he floor of every work-
room shall be maintained in a clean and, so far as possible, a dry con-
dition. Where wet processes are used, drainage shall be maintained,
and false floors, platforms, mats or other dry standing places should
be provided where practicable." Section 1910.141(a)(3)(ii), 29 C.F.R.
(1997), dealing with sanitation, is another general provision for all
permanent places of employment. "The floor of every workroom shall
be maintained, so far as practicable, in a dry condition. Where wet
processes are used, drainage shall be maintained and false floors, plat-
forms, mats, or other dry standing places shall be provided, where
practicable, or appropriate waterproof footgear shall be provided."
The Bennetts argue that slip and fall hazards occur in every industry,
and it would be impracticable to detail specifically each industry or
business in the Code of Federal Regulations. But the West Virginia
statute specifically provides that a general safety provision is insuffi-
cient to satisfy subsection (C). See Greene v. Carolina Freight
Carriers, 663 F. Supp. 112, 115 (S.D.W. Va. 1987) (holding that a
general regulation requiring safe equipment is not specific enough
under subsection (C)).

The Bennetts also suggests that the affidavit and deposition of their
expert, Parker, provide evidence that wet spots on the floor violate a
commonly accepted safety standard within the grocery business.
Under Mayles v. Shoney's, Inc., 405 S.E.2d 15 (W. Va. 1990), testi-

                     4
mony by an expert as to what violates the industry standard can sat-
isfy subsection (C). In Mayles, a restaurant worker was burned with
hot grease he was attempting to carry in an open container down a
slippery, grassy slope to the disposal bins. The relevant safety regula-
tions were general and did not pertain specifically to the restaurant
business. But the court held that the testimony of an expert in the res-
taurant business as to the commonly accepted, well-known safety
standard within the business for disposing of hot grease was adequate
to satisfy subsection (C). Id. at 22.

As the district court held below, however, the Bennetts's expert did
not set forth specific, well-known standards within the grocery busi-
ness or personal experiences from the business as to how the problem
of water on the floor is handled, as did the expert in Mayles in relation
to grease disposal. Parker's testimony dealt with wet floors as a gen-
eral problem in business and industry.

The statute in question expressly requires that the unsafe working
condition in question violate a "safety statute, rule, or regulation, . . .
or . . . a commonly accepted and well-known safety standard within
the . . . business . . . specifically applicable to the particular work and
working condition involved, as contrasted with [one] generally requir-
ing safe workplaces, equipment, or working conditions. . . ." W. Va.
Code § 23-4-2(c)(2)(ii)(C) (emphasis added). As the district court
held, a specific safety provision or standard is not present in this case.
Section 23-4-2(c)(2) is not intended to give every injured employee
a remedy; the worker's compensation system satisfies that purpose.
Rather, the statute works to deny immunity to employers whose con-
duct is so outrageous that it falls outside the accepted standards of
conduct, imposed either externally or from within the business.
Greene, 663 F. Supp. at 115. The statute allows no flexibility. Id. The
facts in this case do not come within this strict standard. Therefore,
the Bennetts have no proof to establish subsection (C), and summary
judgment was appropriate.

We affirm the judgment below. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED

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