For purposes of decision, the Court has consolidated three cases here on writs of
Each action arises from injuries or deaths suffered by employees during the course of and as a result of their employment. Notwithstanding the immunity from common law suit granted to employers by W.Va. Code § 23-2-6,
The validity vel non of the trial courts' judgments, in the cases at bar, can only be ascertained by an examination and analysis of the substantive law as set forth in W.Va. Code § 23-4-2. That provision by its express language preserves for employees a common law action against employers "as if this chapter had not been enacted" "if injury or death result to any employee from the deliberate intention of the employer to produce such injury or death." In these appeals, this Court is asked to delineate the extent to which this statutory provision provides immunity to employers subject to the Act. The individual parties to these actions, as well as various employer and labor organizations filing amicus curiae briefs, urge us to employ familiar and competing rules of statutory construction to ascertain the intent of the Legislature in enacting this provision in 1913. What must be remembered is that canons of construction are but aids devised by courts to ascertain the true meaning, purpose and intent of the Legislature. What was the intention of the original section? The answer to this specific question can best be answered by recalling the purpose for the enactment of workmen's compensation legislation in the first instance.
The paramount reason for such legislation was, of course, that under the common law tort system workers injured in industrial accidents recovered compensatory damages in a rather small percentage of cases.
The common law tort system with its defenses of contributory negligence, assumption
The Workmen's Compensation Act was designed to remove negligently caused industrial accidents from the common law tort system.
We now turn to an analysis of our case law construing this statute. In Collins v. Dravo Contracting Co., 114 W.Va. 229, 171 S.E. 757 (1933), the Court rejected the proposition that an employer could never "deliberately intend" to cause an injury or death by an act of omission,
Less than a year later this Court was asked again to rule on the legal sufficiency of a declaration in Maynard v. Island Creek Coal Co., 115 W.Va. 249, 175 S.E. 70 (1934), and in syllabus point 1 thereof it was held:
In addition, the Court stated that "[a] subscribing employer who has ... complied with the statute is absolutely exempted from liability to employees for injuries received by them in the course of and resulting employment, except, if such injuries be willfully inflicted by the employer ..." Id. at 252, 175 S.E. at 71. (emphasis supplied) And, more than that, the Court said "that the carelessness, indifference, and negligence of an employer may be so wanton as to warrant a judicial determination that his ulterior intent was to inflict injury." Id. at 253, 175 S.E. at 72.
It is clear from this language that the Maynard court did not, in construing the statute, conclude that a showing of specific intent to injure or kill was required to avoid the workmen's compensation immunity bar. The Court correctly rejected the idea that gross negligence was equivalent to "deliberate intent," and it is apparent that the Court did not believe the Legislature intended to shield an employer from common law liability where such employer knowingly and wantonly placed an employee in such a condition of peril that serious injury or death would in all probability occur to such employee. It is irrefutable that the Collins and Maynard courts construed the statute so as to allow a jury to consider the culpability of an employer's conduct where such employer subjected an employee to working conditions in which the natural and probable consequences to be anticipated would be death or serious injury. As Justice Wilson observed in his concurring opinion in Eisnaugle v. Booth, W.Va., 226 S.E.2d 259 (1976):
Yet, just two years after Maynard, in Allen v. Raleigh-Wyoming Mining Co., 117 W.Va. 631; 186 S.E. 612 (1936), the Court read the same statutory provision so as to preclude any recovery by an employee under such provision unless there was a showing of "[a] specific deliberate intent on the part of the latter to produce the injury..." Sec also, Brewer v. Appalachian Constructors, Inc., 135 W.Va. 739, 65 S.E.2d 87 (1951).
That opinion, however, is totally devoid of discussion concerning the legislative purposes underlying workmen's compensation legislation. The Court simply relied on judicial
In Collins the Court was urged by the employer
In light of the conditions giving rise to the passage of the Act, and in light of the purposes of the Act, we believe the Collins and Maynard courts correctly interpreted the statute, and the Allen court's interpretation was erroneous and cannot continue to represent the law in this state.
The workmen's compensation system completely supplanted the common law tort system only with respect to negligently caused industrial accidents, and employers and employees gained certain advantages and lost certain rights they had heretofore enjoyed. Entrepeneurs were not given the right to carry on their enterprises without any regard to the life and limb of the participants in the endeavor and free from all common law liability.
The law of this jurisdiction recognizes a distinction between negligence, including gross negligence, and wilful, wanton, and reckless misconduct. The latter type of conduct requires a subjective realization of the risk of bodily injury created by the activity and as such does not constitute any form of negligence. As this Court said in Stone v. Rudolph, 127 W.Va. 335, 346, 32 S.E.2d 742, 748 (1944), citing 38 Am.Jur. 692:
In our view when death or injury results from wilful, wanton or reckless misconduct such death or injury is no longer accidental in any meaningful sense of the word, and must be taken as having been inflicted with deliberate intention for the purposes of the workmen's compensation act.
In light of the foregoing discussion, the phrase "deliberate intent to produce such injury or death" must be held to mean that an employer loses immunity from common law actions where such employer's conduct constitutes an intentional tort
Although liability is not simply a function of the degree of the risk created by the conduct without regard to the social utility of such conduct, the degree of the risk of physical harm necessary for a finding of reckless misconduct is greater then that which is necessary to make the conduct negligent. Liability will require "a strong probability that harm may result." Restatement (Second) of Torts § 500, Comment f. at 590 (1965).
Having defined "deliberate intention" within the meaning of the Workmen's Compensation Act, we now consider the instant cases against that substantive law background. In Mandolidis and Snodgrass the plaintiffs' appeal from trial court orders granting summary judgments for the respective defendants. The single issue for decision in both cases is, of course, whether the trial courts were correct in granting the summary judgments. These cases will be discussed first.
On April 5, 1974, plaintiff Mandolidis was employed as a machine operator in the furniture manufacturing business of Elkins Industries, Inc. While operating a 10-inch table saw not equipped with a safety guard, his right hand came in contact with the saw blade resulting in the loss of two fingers and part of the hand itself.
On April 1, 1976, Mandolidis filed a complaint against Elkins Industries, Inc., in the Circuit Court of Randolph County, alleging
The defendant filed a motion to dismiss under R.C.P. 12(b) accompanied by affidavits denying any deliberate intent to injure the plaintiff, and contending that a subscriber to the Workmen's Compensation Fund it was immune from a common law damage action. An affidavit by the President and General Manager of the defendant corporation stated that defendant was a subscriber to the Workmen's Compensation Fund, and denied both the allegation that the defendant deliberately intended to injure the plaintiff and the allegation that he, or anyone at his direction or in his presence, ever threatened or intimidated the plaintiff concerning the operation of his machine. In a second affidavit, defendant's foreman admitted there was no safety guard on the table saw at the time of plaintiff's injury but expressly denied that he or anyone in his presence had ever ordered the plaintiff to remove the safety guard, or to operate the saw without a safety guard. Similarly, he denied knowledge of the plaintiff being threatened with the loss of his job unless he operated the unguarded saw. The foreman's affidavit also asserted that just prior to the occurrence in question he had been assisting the plaintiff by acting as an "off bearer"; that he had to leave for a few minutes so he expressly instructed the plaintiff not to continue to operate the saw alone; and that plaintiff did operate the saw alone resulting in the injury complained of to his hand.
Plaintiff deposed seven former employees of Elkins Industries. Five of these employees, including the President and the steward of a union which once represented employees of Elkins Industries, Inc., indicated that they had complained on numerous occasions
Four of the former employees, including the plaintiff, indicated that the foreman's instructions via the plant manager were that anyone refusing to run a saw without a guard would be "sent home" or fired. One former employee indicated that he had been fired for refusing to run a saw without a guard. These assertions expressly contradicted the affidavits of the foreman and plant manager. Plaintiff's deposition expressly contradicted the assertion contained in the plant manager's affidavit that the allegation of deliberate intent in the plaintiff's complaint was made only to circumvent the immunity bar. The former union president indicated that she informed the plant manager that the plaintiff had been injured on a guardless saw and his reply was, "So what?" "He's getting compensation."
On August 17, 1976, the trial court, upon consideration of all matters presented to it, determined that "a deliberate intent to injure plaintiff was lacking," sustained the defendant's motion to dismiss, and dismissed the action with prejudice.
The Snodgrass case arises as a result of events that occurred on May 17, 1974. At that time one of the defendants, United States Steel Corporation, was engaged in the construction of a bridge across the New River Gorge in Fayette County, and the plaintiffs, Carl Ray Snodgrass, James H. Taylor, Owen Facemire, Jr. and Gerald L. King, and the plaintiff Joanne Snodgrass' decedent Daniel C. Snodgrass, were employees of the defendant, United States Steel Corporation and were engaged in work in connection with the aforementioned bridge construction. The allegations of plaintiffs' complaint filed in the Circuit Court of Fayette County describe the events of that day in the following manner: The plaintiffs and plaintiff's decedent were working on a platform located adjacent to the construction at the northern bridge abutment. The platform was made of rough lumber and was approximately 6 feet wide, 30 feet long and 14 inches thick. One end of the platform rested on the northern rim of the gorge near the abutment, while the southern end rested on steel reinforcing rods extending from a concrete bridge pier. The platform spanned an excavation, of a depth of approximately 25 feet. The platform became dislodged when a large wire cable was dragged across it and the platform and the men working on it fell into the excavation, causing serious and permanent injury to some of the plaintiffs and death to one of the plaintiff's decedent. Plaintiffs allege that the injuries and death were proximately caused by the negligent and wilful acts of the defendant, more particularly, the failure to provide a safe place to work, the failure to advise or warn the plaintiffs of the impending danger, the failure to equip the plaintiffs with proper tools and equipment, the failure to adopt reasonable safety standards, the failure to provide adequate safety precautions, the failure to follow reasonable safety standards, the violation of the employees collective bargaining agreement
The defendant filed a motion to dismiss asserting, inter alia, the immunity from common law damage actions provided by the workmen's compensation statute. The motion was accompanied by two affidavits. The first affidavit by the Workmen's Compensation Commissioner indicated that defendant was a self-insurer within the meaning of the workmen's compensation statutes; that defendant had provided its own system of compensation and was not in default under the law; and that plaintiffs had accepted benefits under the Act for the injuries that occurred on May 17, 1974. The second affidavit by the defendant's project superintendent merely stated the conclusion that the injuries and death complained of were the result of an unforeseen accident and did not result from the deliberate intention of the defendant. The affidavit contains no facts regarding the conditions existing at the time of the incident, nor does it contain facts regarding the occurrence.
Plaintiffs filed an affidavit by plaintiff Owen Facemire which, among other things, asserted that the defendant's actions in violating statutes, rules, regulations, and contractual provisions were deliberate and intentional. The affidavit also described the construction of the work platform and claimed that the use thereof was a deliberate violation of occupational safety and health standards, the construction, safety and health regulations of the Department of Labor, and the West Virginia Safety Code for building construction of the West Virginia Department of Labor. Additionally, the affidavit described in detail the manner in which the event occurred.
On March 21, 1977, the trial court granted United States Steel's motion to dismiss upon consideration of all the matters presented by the parties, and dismissed plaintiffs' action with prejudice.
Notwithstanding the style of defendant's motions to dismiss and the wording of the dismissal orders in Mandolidis and Snodgrass, the trial courts' consideration of affidavits and depositions converted the motions to dismiss to motions for summary judgment under Rule 56. Wilfong v. Wilfong, 156 W.Va. 754, 197 S.E.2d 96 (1973). Accordingly, the sole issue in both cases is whether the trial courts erred in concluding there was no genuine issue of material fact and the defendants were entitled to judgment as a matter of law.
Rule 56(c) provides the standard for determining whether a summary judgment in a given situation should be granted. It states in relevant part that "the judgment shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
In making the determination of whether a motion for summary judgment was properly granted, it is essential that each case be considered on its own peculiar facts and circumstances. Howard's Mobile Homes, Inc. v. Patton, 156 W.Va. 543, 195 S.E.2d 156 (1973).
It is basic summary judgment law that "`a party who moves for summary judgment has the burden of showing that there is no genuine issue of fact and any doubt as to the existence of such issue is resolved against the movant for such judgment." Johnson v. Junior Pocahontas Coal Co., W.Va., 234 S.E.2d 309, 315 (1977), quoting, syllabus point 6 of Aetna Casualty & Surety Company v. Federal Insurance Co., 148 W.Va. 160, 133 S.E.2d 770 (1963). And this Court held in Oakes v. Monongahela Power Co., W.Va., 207 S.E.2d 191, 194 (1974) that "although summary judgment ... is
The record in Mandolidis discloses that there were material facts in issue. Was the plaintiff told by a company agent that he would be discharged if he refused to run an unguarded saw? Did the foreman tell the plaintiff to wait until his return before continuing to run the saw? The circuit court's order unfortunately does not contain findings of fact or conclusions of law, but it is clear from the record that there were facts in issue. Accordingly, implicit in the court's ruling is the judgment that there were no material facts in issue. This Court cannot agree. The plaintiff is entitled to prove these facts in support of his case, because these facts render the desired inference, when taken together with other facts the plaintiff clearly intends to prove, i. e., that the defendant acted with deliberate intent, more probable than it would be without those facts.
We are of the view that complicated industrial "accidents," wherein the state of mind of company representatives is critical, seldom lend themselves to disposition by summary judgment, and where there is any doubt such a motion should be refused. Conclusory affidavits simply denying the existence of the requisite intent, obviously make no contribution to the factual development of the litigated event and, therefore, provide no assistance to the trial court in determining whether a genuine issue of material fact exists. It is for this reason that Rule 56(e) provides that affidavits "shall set forth such facts as would be admissible in evidence."
The trial court in Mandolidis "determine[d] that the deliberate intent to injure... is lacking." The Court thus found that even if all plaintiff's facts were taken as true plaintiff could not as a matter of law meet the evidentiary burden of proof with regard to a necessary element of his cause of action. The court determined that even if all of plaintiff's facts were taken as true, they would not support an inference that the defendant employer acted with "deliberate intent." In other words, reasonable men could not infer from all those facts the necessary intent. We do not believe that reasonable men could not infer the necessary intent from the facts in Mandolidis. Accordingly, the court's determination of this issue was erroneous. For these reasons the court's final order in Mandolidis was in error.
Applying the law to the record in Snodgrass leads to the ineluctable conclusion that the court acted improperly in granting the defendant's motion for summary judgment. Based upon our view of the record, we draw the following conclusions with regard to the existence of an issue as to a material fact. The plaintiff's complaint alleges the violation of numerous safety laws, rules, and regulations. The complaint contains factual allegations regarding the improper construction of the platform and describes the circumstances surrounding the actual fall of the platform. Plaintiff's affidavit contains details as to the violation by the defendant of numerous laws, rules and regulations. The affidavit contains facts concerning the construction of the platform and describes the fall of the platform. The defendant chose not to file an answer relying upon a motion to dismiss, thus the allegations of the plaintiff's complaint remained undenied.
Save this one conclusion as to the ultimate fact, the record contains no facts supporting defendant's motion. This record leads to the conclusion that the principles set forth in this opinion were not followed by the trial court in sustaining the defendant's motion. The facts alleged in plaintiff's complaint and the facts set forth in plaintiff's affidavit were material since their existence or nonexistence might affect the result of the action.
The trial court's memorandum letter of March 4, 1971, indicates that it found that even if all the plaintiff's facts were regarded as true, reasonable men could not infer therefrom the necessary intent. In pertinent part it reads:
The affidavit of Mr. Facemire asserts that the scaffold on which they were working was not properly constructed and may not have had sufficient safety features to begin with, but he states that the scaffold was caused to fall by a crane operator dragging a 45 ton wire cable across the end of it without the knowledge that the plaintiffs were on or near the scaffold. Certainly this does not establish intentional injury. (emphasis supplied)
On this record we cannot conclude that reasonable men could not draw varying inferences from the facts of record and that reasonable men could not infer that the injuries and death complained of resulted from a deliberate intent to produce such an injury or death within the contemplation of the workmen's compensation statute. For the above-stated reasons, we conclude from an examination of the entire record, the proof presented a genuine issue as to whether the plaintiff was injured as a result of a deliberate intent and that the trial court's ruling sustaining the defendant's motion for summary judgment was in error.
In Dishmon, the final case, the Circuit Court of Boone County, by order entered September 27, 1976, sustained a motion to dismiss on behalf of the defendant, Eastern Associated Coal Company.
The record reveals that on June 5, 1975, at about 10:30 P.M., Lloyd E. Dishmon reported for work at the Eastern Associated Coal Company, Harris No. 2 Mine, at Bald Knob in Boone County. Shortly thereafter, a large quantity of slate fell from the roof of his work area crushing him to death. On June 15, 1976, plaintiff Mary Kay Dishmon, Administratrix of the Estate of Lloyd E. Dishmon, filed a complaint against decedent's employer, Eastern Associated Coal Corporation alleging, among other things, that at all relevant times the defendant was subject to the provisions of 30 U.S.C. § 862
Plaintiff further alleges that the defendant deliberately, intentionally, wilfully and wantonly allowed employees, including plaintiff's decedent, to work in conditions which were in violation of the aforementioned laws, rules and regulations, and that the proximate result of such deliberate, intentional wilful and wanton misconduct was the death of plaintiff's decedent.
The defendant employer did not answer but filed a motion to dismiss asserting that the complaint should be dismissed on the basis of the employer's immunity secured by W.Va. Code § 23-2-6, and further that the complaint failed to allege that the defendant deliberately and intentionally killed plaintiff's decedent as required by W.Va. Code § 23-4-1. The court sustained the defendant's motion to dismiss.
The purpose of a motion under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure is to test the formal sufficiency of the complaint. For purposes of the motion to dismiss, the complaint is construed in the light most favorable to plaintiff, and its allegations are to be taken as true. Since common law demurrers have been abolished, pleadings are now liberally construed so as to do substantial justice. W.Va. R.C.P. 8(f). The policy of the rule is thus to decide cases upon their merits, and if the complaint states a claim upon which relief can be granted under any legal theory, a motion under Rule 12(b)(6) must be denied. United States Fidelity & Guaranty Co. v. Eades, 150 W.Va. 238, 144 S.E.2d 703 (1965). "The trial court's inquiry [is] directed to whether the allegations constitute a statement of a claim under Rule 8(a)." Chapman v. Kane Transfer Co., W.Va., 236 S.E.2d 207, 212 (1977). W.Va. R.C.P. 8(a) reads as follows:
(a) A pleading which sets forth a claim for relief . shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief ....
In a recent case we tried to assist the lower courts in ruling on 12(b)(6) motions by adopting the standard promulgated by the United States Supreme Court for the identical Federal Rule 12(b)(6). The third syllabus point of Chapman v. Kane Transfer Co., supra at 208 sets out the standard:
All that the pleader is required to do is to set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that these elements exist. The trial court should not dismiss a complaint merely because it doubts that the plaintiff will prevail in the action, and whether the plaintiff can prevail is a matter properly determined on the basis of proof and not merely on the pleadings. Wright & Miller, Federal Practice and Procedure : Civil § 1216 (1969).
In view of the liberal policy of the rules of pleading with regard to the construction of plaintiff's complaint, and in view of the policy of the rules favoring the determination of actions on the merits, the motion to dismiss for failure to state a claim should be viewed with disfavor and rarely granted. The standard which plaintiff must meet to overcome a Rule 12(b)(6) motion is a liberal standard, and few complaints fail to meet it. The plaintiff's burden in resisting a motion to dismiss is a relatively light one. Williams v. Wheeling Steel Corp., 266 F.Supp. 651 (N.D.W.Va. 1967).
Accordingly, we hereby reverse and remand all three cases to the respective circuit courts for further proceedings consistent with this opinion.
Reversed and remanded.
NEELY, Justice, dissenting:
This dissent may be unique in the annals of dissenting opinions in this State in that I dissent to the tone of the majority opinion rather than to its holding. A fair reading of the majority opinion implies to me that this Court has been waiting many years to remove the yoke of oppression from the workers of this State by providing a vehicle for recovery of common law jury awards for negligently inflicted, work-related injuries in addition to the admittedly parsimonious awards of Workmen's Compensation. Furthermore, the majority opinion fairly implies that we are awaiting an opportunity to create a new legal fiction worthy of the common law fine and recovery of the ancient Britons
Our law has long recognized that injuries arising from the deliberate intention of the employer to injure are outside the immunity provision of the workmen's compensation law. W.Va.Code, 23-4-2 . Brewer v. Appalachian Constructors, Inc., 135 W.Va. 739, 65 S.E.2d 87 (1951); Allen v. Raleigh-Wyoming Mining Co., 117 W.Va. 631, 186 S.E. 612 (1936). See also, Eisnaugle v. Booth, W.Va., 226 S.E.2d 259 (1976). It appears to me that where my more moderate views are impaled in these consolidated cases is pure procedure, i. e., in the interrelationship between the practice of notice
I cannot cavil with the majority's reversal based on procedure. Notice pleading, pursuant to W.Va.R.C.P. 8(a), and summary judgment practice, pursuant to R.C.P. 56(c) prevent a judge from "sniffing out" a totally meritless case and summarily dismissing it. I cannot disagree with the majority opinion that in all three cases the petitioners Alleged sufficient matter to be allowed an opportunity to develop facts.
Nonetheless, I have some educated feelings for the facts in each of these three cases and it appears to me that only in the Mandolidis case has the plaintiff any legitimate grounds for recovery. In that case not only was a safety statute violated, but, in addition, the particular safety hazard at issue, a dangerous saw, was brought to the attention of the management by a safety inspector who closed down operation of the saw; management disregarded the safety shut down; and, management ordered the injured workman to operate the dangerous saw implying by past actions that to do otherwise would cost him his job. These facts, if proven, demonstrate more than even gross negligence; they demonstrate a willful, wanton, and reckless disregard for human safety.
I doubt that the plaintiffs in Snodgrass or Dishmon can develop anything other than gross negligence, and I would hasten to point out that gross negligence is not the same thing as either intent to injure or willful, wanton, and reckless disregard for human safety. In order for a workman to recover under the intentional injury exception to workmen's compensation immunity, W.Va.Code, 23-4-2 , the standard of proof should be at least as high as that required to prove malice in a murder case. If an act involves such a wanton and willful disregard of an unreasonable human risk as to constitute malice then no actual intent to kill or injure is necessary.
This is not the same standard used for criminal negligence. A motorist might pass another car or speed in a manner which, if he causes the death of another, would make him guilty of manslaughter. Another man, without any specific intent to kill anyone, might walk onto his porch and open fire with a machine gun which, if he causes the death of another, would make him guilty of murder. What makes the motorist guilty of manslaughter and the shooter guilty of murder is the shooter's cruel and wicked indifference to human life. The key is that the act of the shooter shows a viciousness not found in the motorist.
Accordingly, what concerns me in the tone of the majority opinion is its inspiration to the bar to do a substantial disservice to the economy of this State by instituting frivolous suits every time a workman is injured by anything other than his own negligence. Violation of a safety statute alone does not constitute intentional injury, Evans v. Allentown Portland Cement Co., 433 Pa. 595, 252 A.2d 646 (1969); unsafe working conditions do not constitute intentional injury. Southern Wire & Iron Co. v.
Often it is procedure itself which distorts the entire process; the tone of the majority opinion invites nuisance law suits, a high percentage of which will be settled (particularly by small employers) in preference to sustaining the costs of litigation. The risk, not necessarily the eventuality, of an enormous common law jury award in the event of a capricious judicial process (i. e., an unusually plaintiff oriented trial judge combined with faulty appellate review) are such that some settlements not contemplated by the statutory scheme will inevitably be forthcoming. Settlements are based on the if's, maybe's and might's of the judicial process, and not upon the inevitability of a result in consonance with the ideal administration of the law. The settlements I hypothesize combined over the course of a year, plus the attendant costs of defending frivolous law suits, are the type of expenses which not only divert needed resources from the fund available for wages, plant modernization, and stockholders' dividends, but contribute to inflation by increasing costs and prices in the oligopolistic sector of the economy, and reducing production in the market sector of the economy where companies unable to pass along these costs collapse.
Obviously, I am not alleging that by being reactionary about the administration of our workmen's compensation laws we can cure the economic ills of mankind everywhere; I am merely pointing out that numerous untoward consequences can arise from lack of attention to the distortive effects of the legal process itself, and thus tone in judicial opinions becomes important.
Without amending the Rules of Civil Procedure or completely reversing this Court's direction on the law of summary judgment, it would be difficult to encourage trial judges to dismiss frivolous law suits on the bare pleadings without an opportunity to develop the facts. Nonetheless, the law appears clear that the trial courts would be remiss in their duty if they permitted more than one case alleging intentional injury in a hundred to go to the jury. With regard to cases involving nothing but gross negligence on the part of the employer, the plaintiff should be given an opportunity to develop his case on depositions, and then the trial court should grant summary judgment. If neither plaintiff nor defendant wishes to engage in extensive pre-trial discovery, then at the trial stage, notwithstanding the impaneling of a jury, the trial judge should dismiss the plaintiff's case at the close of plaintiff's evidence without the least hesitation unless facts have been clearly proven demonstrating deliberate intention to injure or kill or a reckless, wanton, and willful disregard of human life. This is one area of the law in which the threshold issue concerning statutory immunity is in no regard a "jury question." Minute supervision by the trial judge is mandated in all cases because the exception to the blanket workmen's compensation immunity
I recognize that the tone of the majority opinion faithfully represents the judicial philosophy of the majority writer, but it implies an attitude on the part of this Court which is contrary to both the legislative intent and this Court's faithful interpretation of that intent over the years. The tone is wrong for what it implies; the holding is entirely correct with regard to Mandolidis, but correct only in the most narrow procedural way with regard to Snodgrass and Dishmon.
MILLER, Justice, concurring:
I concur in the majority opinion as I do not believe it represents a departure from this Court's construction of the deliberate intent exception
The differences between our first case, Collins v. Dravo Contracting Co., 114 W.Va. 229, 171 S.E. 757 (1933), and the last, Eisnaugle v. Booth, W.Va., 226 S.E.2d 259 (1976), are at best semantical. Both Allen v. Raleigh-Wyoming Mining Co., 117 W.Va. 631, 186 S.E. 612 (1936), and Brewer v. Appalachian Constructors, Inc., 135 W.Va. 739, 65 S.E.2d 87 (1951), share a common bond with Maynard v. Island Creek Coal Co., 115 W.Va. 249, 175 S.E. 70 (1934), in that they utilize this key passage from Maynard:
Maynard also spoke of the exemption from liability to employees for injuries received resulting from their employment, "except, if such injuries be willfully inflicted by the employer." [115 W.Va. at 252, 175 S.E. at 71] [emphasis added]
The divergent language in our cases arises from the struggle to place the term "deliberate intention" into an existing legal compartment. Judge Kenna identified this problem in Collins, stating:
Generally, the law recognizes that intention
The more usual situation is where intention must be inferred from a person's conduct.
The link between the conduct and the resulting harm is not only a causative inquiry, but includes another factor by which the conduct is judged—the degree of seriousness of harm. Conduct which carries a high probability that serious harm will result is high on the scale of intentional conduct. Finally, the standard by which the conduct and its resulting harm is judged to determine its "intentional" characteristics is not only the subjective knowledge of the individual, but what would be known by a reasonable person.
It is apparent that because intent is measured by the degree of harm occasioned by given conduct, the law labels both the conduct and the intent. Thus we speak of negligent conduct, meaning it is at the bottom of the intent scale, which is to say conduct that is not intentional. At the far end of the scale is the type of intent necessary for first degree murder, which is beyond the concept of malice and involves deliberation and premeditation—the specific intent to kill. State v. Starkey, W.Va., 244 S.E.2d 219 (1978); State v. Stevenson, 147 W.Va. 211, 127 S.E.2d 638 (1962).
It seems to me that a fair reading of our prior cases in this area demonstrates that it was never contemplated that the term "deliberate intention" referred only to the type of intent necessary to support a charge of first or second degree murder. If such were the case, there would have been no justification in Allen and Brewer, which were the first cases to use the term "specific intent," to quote the Maynard statement of a wanton injury. Moreover, Maynard's use of the term "willfully inflicted" as being sufficient to hold the employer liable for an injury has never been criticized.
Certainly all of our cases in this field have held that gross negligence is not equivalent with deliberate intent. To my mind the key language in the majority opinion is:
I believe this rule is perfectly consistent with our former cases and, if applied, would not have changed the result in any of them. This rule, as I understand it, builds on the standard for wilfulness or wantonness in Stone v. Rudolph, 127 W.Va. 335, 32 S.E.2d 742 (1944), which "... imports premeditation or knowledge and consciousness that injury is likely to result ..." [127 W.Va. at 346, 32 S.E.2d at 748] by adding the concept that there is knowledge the conduct carries a "high degree of risk of physical harm." This is no insubstantial hurdle of proof.
In view of the tone of the dissent,
No capable trial lawyer can survive by filing nuisance suits, as the contingent fee contract rewards only those who can persevere to a decent monetary recovery. The type of case here involved is complex and depends not on a mere showing that certain safety regulations have been violated, but proof that the employer consciously sanctioned repetitive violations, knowing he had thereby exposed his employee to a high risk of physical harm, which risk did in fact cause the injury.
Because this type of case is often complex and since it requires proof of intent, from a procedural standpoint early disposition by a motion to dismiss or motion for summary judgment based on conclusionary affidavits is not warranted. The rule is stated in 10 Wright & Miller, Federal Practice and Procedure: Civil § 2730 (1973):
In my view the discovery developed in Mandolidis displayed sufficient facts, as outlined in the majority opinion, to preclude the granting of a summary judgment against the plaintiff on the issue of deliberate intention. If the plaintiff can sustain the same level of proof at trial, the question of deliberate intention would be for the jury.
Both Snodgrass and Dishmon were prematurely terminated. In the former by conclusionary affidavits, and the latter based solely on the claimed inadequacy of the complaint. All we have held is that these two cases are entitled to further development through discovery before the issue of deliberate intention can be determined under the guidelines of our opinion.
W.Va.Code § 23-2-6a states:
W.Va.Code, 23-4-2, reads in material part:
"Intention signifies a course of action that one proposes to follow. Intent, often a legal term, more strongly implies a fixed course pursued deliberately, ..."