Member Article

The Supreme Court of Appeals' recent decision in McComas v. ACF Indus., Inc. could have significant implications for employer liability under West Virginia's deliberate intention statute. In McComas, the plaintiff was a welder who was injured by an arc blast emanating from an electrical box. Apparently, the electrical box had not been inspected since its installation in the 1950s or 1960s and the electrical insulation had deteriorated over the years, which caused the arc blast when the plaintiff attempted to switch it to the "On" position. During discovery, the plaintiff developed evidence that American National Standards Institute / National Fire Protection Association ("ANSI/NFPA") standards provided for maintenance and periodic inspection of electrical equipment. The plaintiff further developed evidence that periodic inspection of electrical equipment, like the electrical box that caused his injury, likely would have revealed the faulty insulation. Nevertheless, the trial court dismissed the plaintiff's deliberate intention action on the basis that he had not identified a safety statute, regulation, rule, or standard that was specifically applicable to the work or working condition at issue and, further, that he had not proved that he was intentionally exposed to the specific unsafe working condition by his employer. The plaintiff appealed. 

Readers might recall that one of the five elements of a deliberate intention action is evidence that the unsafe working condition violated a safety statute, regulation, rule, or standard that is specifically applicable to the work or working condition at issue. Although the statute's plain language suggests that the statute, regulation, rule, or standard must specifically apply to the work or working condition, the Supreme Court of Appeals held in 2006 that the statute, regulation, rule, or standard must only be capable of specific application. Ryan v. Clonch, 219 W.Va. 665, 639 S.E.2d 756 (2006). For instance, in Clonch, the Supreme Court of Appeals held that an OSHA regulation requiring employers to assess the need in the workplace for personal protective equipment was capable of specific application to the lumbering business. Central to the Supreme Court of Appeals' reasoning in Clonch was the fact that the OSHA regulation imposed a mandatory duty on the employer. 

Relying on Clonch, the Supreme Court of Appeals held in McComas that the trial court had erred in its finding regarding the ANSI/NFPA standard introduced by the plaintiff. Because the trial court had found that the ANSI/NFPA standard imposed a specific identifiable duty on the employer to inspect its electrical equipment, the Supreme Court of Appeals held that the standard met the "specifically-applicable" element of the deliberate intention statute. 

After finding that the ANSI/NFPA standard imposed a specifically-applicable, mandatory duty on the employer, the Supreme Court of Appeals next turned to the deliberate intention statute's "actual knowledge" requirement. Under the deliberate intention statute, the employee must prove that the employer had actual knowledge of the specific unsafe working condition and the high degree of risk and strong probability of serious injury or death which it presented. In Clonch, the Supreme Court of Appeals had held that an employer was precluded from denying awareness of the specific unsafe working condition where it had failed to comply with a mandatory duty to perform a hazard evaluation. Relying on Clonch, the Supreme Court of Appeals accordingly held inMcComas that an employer's failure to comply with a mandatory duty to inspect - where inspection would have revealed the specific unsafe working condition - will meet the "actual knowledge" requirement under the deliberate intention statute. This leads to a perverse holding where an employer is deemed to have actual knowledge of something which it is fully unaware.

McComas's holdings have significant implications for employers. Under the Supreme Court of Appeals' gloss, an employee can satisfy the "specifically applicable" element by introducing evidence of any mandatory inspection requirement, so long as it might have revealed the specific unsafe working condition. Following McComas, it is not even necessary that the requirement be legally binding upon the employer; a commonly accepted and well-known safety standard is acceptable. Moreover,McComas only requires that the employer have "some awareness" of those standards. And, if an employee can introduce a mandatory inspection requirement, then he almost certainly will be able to satisfy the statute's "actual knowledge" requirement, as well.

Following McComas, then, an employer will need to be aware of any safety statute, regulation, rule, or standard that could impose a mandatory inspection requirement capable of application to its business. Moreover, an employer should conscientiously perform any required inspections or else risk a court imputing actual knowledge of a hazard which an inspection might have disclosed. Future deliberate intention actions undoubtedly will attempt to stretch the holding in McComas to apply any mandatory inspection requirement and require perfect compliance. Accordingly, employers are cautioned to review their hazard inspection programs following McComas to forestall future deliberate intention actions.