West Virginia: Worker Loses His “Deliberate Intention” Action Against Employer

The Supreme Court of Appeals reversed a trial court’s denial of post-trial motions following an adverse jury verdict in a “deliberate intention” action filed pursuant to W. Va. Code § 23-4-2(d)(2)(ii) (2005). The plaintiff, who suffered permanent injuries after he fell through a grating that had been left open by a maintenance crew in a power plant’s flyash silo and landed on a concrete floor. The maintenance workers had left the grate open because dust conditions inside the silo had reduced visibility inside the silo to near zero. The Court held there was no evidence that the employer had actual knowledge of the unsafe working condition, as the maintenance crew had not communicated the grate’s status to anyone. Nor was there evidence that the employer intentionally exposed the employee to the specific unsafe working condition.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Firstenergy Generation, LLC v. Muto, 2018 W. Va. LEXIS 185 (Mar. 12, 2018)

See generally Larson’s Workers’ Compensation Law, § 103.04.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law