Publication Date: 8/15/2008
Author: Kelly Little Guice
Contact: james.mulhall@steptoe-johnson.com
West Virginia recognizes a cause of action by employees against their employer, above and beyond workers' compensation benefits they are entitled to receive. This cause of action was formerly known as the "Mandolidis" claim named after Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978). In the early 1980's the West Virginia Legislature codified the cause of action at West Virginia Code §23-4-2(c) and it is now known as the "Deliberate Intent" cause of action.
There are two types of deliberate intent. The first is that an employer or person against whom liability is asserted acted with a consciously, subjectively, and deliberately formed intention to produce the specific result of injury or death to an employee. This standard requires a showing of actual, specific intent and may not be satisfied by allegations of conduct which constitutes negligence no matter how gross, aggravated, willful, wanton, or reckless. An example is an employer striking or shooting the employee at work.
The second standard requires the trier of fact to determine 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 elements be 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 of death; b) that the employer had a subjective realization and an appreciation of the existence of such specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by such specific unsafe working condition; c) that such specific unsafe working condition was a violation of a state or federal safety statute, rule, or regulation, whether cited or not, or of 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 work places, equipment, or working conditions; d) that notwithstanding the existence of the facts set forth in a through c, 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. Recently, a new case from the Southern District of West Virginia decided to limit the use of an OSHA regulation to support a deliberate intent element. The Court reasoned that the fact that the lower Court had taken judicial notice that the defendant was a covered employer and was subject to an OSHA regulation was insufficient to establish element (c) of the second standard noted above, and that this element must be proven by other means. Courtney v BFS Retail and Commercial Operations, 2008 WL 2787718 (SDWV).
The standard of proof for the first type of deliberate intent is much harder to satisfy and it is the codification of the Mandolidis decision. Plaintiffs are entitled to punitive damages if they meet the first standard. The second standard is used in 99% of the current West Virginia cases; however, no punitive damages are allowed under that theory. Employers first started to be sued under the deliberate intent standard for asbestos injuries in the early 1990s.
Kelly Little Guice
Chase Tower - Sixth Floor
229 W. Main St.
Clarksburg, WV 26302
(304) 624-8147
(304) 624-8183 Fax
kelly.littleguice@steptoe-johnson.com
This alert is a periodic publication of Steptoe & Johnson PLLC and should not be construed or relied upon as legal advice or legal opinion on any matter. The content is intended for general information purposes only. You should consult with your own lawyer for legal advice or a legal opinion on the specific facts and circumstances of your own situation. For further information about this alert, please contact Steptoe & Johnson PLLC.
Additional information about the Steptoe & Johnson Toxic Torts Team can be found on the Steptoe & Johnson website at http://www.steptoe-johnson.com/practices/practicegroup/Toxic-Torts,60.aspx, or contact the Toxic Tort Team leader, James J.A. Mulhall at james.mulhall@steptoe-johnson.comjames.mulhall@steptoe-johnson.com, or by phone at 304.624.8164.
There are two types of deliberate intent. The first is that an employer or person against whom liability is asserted acted with a consciously, subjectively, and deliberately formed intention to produce the specific result of injury or death to an employee. This standard requires a showing of actual, specific intent and may not be satisfied by allegations of conduct which constitutes negligence no matter how gross, aggravated, willful, wanton, or reckless. An example is an employer striking or shooting the employee at work.
The second standard requires the trier of fact to determine 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 elements be 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 of death; b) that the employer had a subjective realization and an appreciation of the existence of such specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by such specific unsafe working condition; c) that such specific unsafe working condition was a violation of a state or federal safety statute, rule, or regulation, whether cited or not, or of 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 work places, equipment, or working conditions; d) that notwithstanding the existence of the facts set forth in a through c, 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. Recently, a new case from the Southern District of West Virginia decided to limit the use of an OSHA regulation to support a deliberate intent element. The Court reasoned that the fact that the lower Court had taken judicial notice that the defendant was a covered employer and was subject to an OSHA regulation was insufficient to establish element (c) of the second standard noted above, and that this element must be proven by other means. Courtney v BFS Retail and Commercial Operations, 2008 WL 2787718 (SDWV).
The standard of proof for the first type of deliberate intent is much harder to satisfy and it is the codification of the Mandolidis decision. Plaintiffs are entitled to punitive damages if they meet the first standard. The second standard is used in 99% of the current West Virginia cases; however, no punitive damages are allowed under that theory. Employers first started to be sued under the deliberate intent standard for asbestos injuries in the early 1990s.
Kelly Little Guice
Chase Tower - Sixth Floor
229 W. Main St.
Clarksburg, WV 26302
(304) 624-8147
(304) 624-8183 Fax
kelly.littleguice@steptoe-johnson.com
This alert is a periodic publication of Steptoe & Johnson PLLC and should not be construed or relied upon as legal advice or legal opinion on any matter. The content is intended for general information purposes only. You should consult with your own lawyer for legal advice or a legal opinion on the specific facts and circumstances of your own situation. For further information about this alert, please contact Steptoe & Johnson PLLC.
Additional information about the Steptoe & Johnson Toxic Torts Team can be found on the Steptoe & Johnson website at http://www.steptoe-johnson.com/practices/practicegroup/Toxic-Torts,60.aspx, or contact the Toxic Tort Team leader, James J.A. Mulhall at james.mulhall@steptoe-johnson.comjames.mulhall@steptoe-johnson.com, or by phone at 304.624.8164.