Employers in West Virginia enjoy statutory immunity from common law civil actions for workplace injuries. Notwithstanding the protection offer by the workers’ compensation statute in West Virginia, the legislature has created a cause of action that allows for the imposition of additional civil remedies under the “deliberate intent” statute. Defense of deliberate intent actions starts well before the employer is served with a lawsuit. The employer must begin periodic review and constant enforcement of safety and regulations standards before any worker takes to the jobsite.
Deliberate Intent Law
In West Virginia, the deliberate intent law may be found at W. Va. Code §23-4-2. A plaintiff who sues an employer for injuries pursuant to the deliberate intent law may pursue, depending on the facts of the given case, either of two claims. The plaintiff must prove that the employer consciously, deliberately, and subjectively intended to produce the specific result to injure or cause death to the employee. That statute clearly states that proof of this claim involves more than recklessness or negligence.
Failing to prove the first alternative, the plaintiff must prove five elements to successfully sue for deliberate intent. Those are:
A specific unsafe workplace condition that presents both a high degree of risk and a strong probability of serious injury or death;
Prior to the injury, 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;
That the specific unsafe working condition was a violation of a state or federal rule or regulation or a commonly accepted and well-known industry safety standard within the business;
That the employer intentionally exposed an employee to the unsafe working condition; and
That the employee suffered serious injuries or death as a direct and proximate result of the specific workplace condition.
A defendant employer is entitled to a dismissal of the lawsuit if the plaintiff cannot prove any of the elements of the claim.
Follow industry safety standards to strengthen prospects for dismissal
An employer must strictly adhere to safety industry statutes and regulations relating to workplace safety. The safety standard at issue must be specific to the work or the working condition. Statutes or regulations that obligate employers to maintain a safe workplace generally are insufficient standards. However, where a statute, regulation, or rule imposes an affirmative duty on an employer to maintain certain safety standards, and the employer fails to maintain those standards, the employer may be found liable under the deliberate intent statute. Thus, regulations such as those promulgated by OSHA, when creating an affirmative duty upon the employer to act, must be followed by the employer to ensure employee safety. Additionally, the conscientious employer must have written policies and procedures in place, coupled with employee training, to ensure compliance with the specific safety standards. Moreover, periodic and systematic maintenance and inspection of the workplace and relevant equipment must be made and documented by the employer. Strict adherence to well documented internal procedures will deprive the plaintiff of evidence tending to prove an element of the deliberate intent claim.
For additional information
Consultation with attorneys who are well versed and experienced in the deliberate intent defense can help create policies and procedures for an employer to help eliminate workplace dangers. If you are facing a deliberate intent claim, call the attorneys at Hendrickson & Long, PLLC for immediate assistance.