STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS
 

Christopher W. Runyan, 

Plaintiff Below, Petitioner FILED 

May 14, 2018 

vs.) No. 17-0886 (Kanawha County 16-C-730) EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA Lowe’s Home Centers, LLC, 

Defendant Below, Respondent 

MEMORANDUM DECISION 

Petitioner Christopher W. Runyan, by counsel Timothy J. Lafon and Keisha D. May, 

appeals the Circuit Court of Kanawha County’s August 24, 2017, order granting respondent’s 

motion for summary judgment. Respondent Lowe’s Home Centers, LLC, by counsel Andrew B. 

Cooke and Jason A. Proctor, filed a response. On appeal, petitioner argues that the circuit court 

erred in finding that he failed to prove the factors required to show deliberate intention pursuant 

to West Virginia Code § 23-4-2 and in denying his motion for a continuance. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, this Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

In February of 2016, petitioner sustained a work-related injury when he pushed a rolling 

ladder into a clearance bar suspended in front of an exterior door. The clearance bar was a plastic 

pipe suspended as a clearance warning for drivers attempting to enter or exit the door and was 

connected to the ceiling via chains and S-hooks. Upon colliding with the clearance bar, it fell and 

struck petitioner on the head, causing injuries. Petitioner received medical treatment through 

respondent’s workers’ compensation program and remained off work for several months. 

Petitioner filed an initial and amended complaint against respondent in May of 2016, 

generally alleging negligence. Respondent moved to dismiss the petition, arguing that it was 

immune from claims for work-related injuries caused by negligence and that petitioner failed to 

state a claim under the deliberate intention exception.1

 The circuit court permitted petitioner to 

1

See W.Va. Code § 23-2-6 (2003) (immunizing employers covered by Workers’ 

Compensation Act from “damages at common law or by statute for the injury or death of any 

employee, however occurring”). However, when an employee can prove deliberate intention, “an 

 (continued . . .) 

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file a second amended petition, which he did in September of 2016. Petitioner’s second amended 

petition alleged that respondent had knowledge that the clearance bar was a safety hazard which 

it failed to correct. It incorporated a letter from Winn Forensics, which cited regulations from the 

Occupational Safety and Health Administration and the American National Standards Institute 

allegedly violated by respondent.2 

Over the course of several months, petitioner underwent three independent medical 

evaluations to determine his whole person impairment resulting from the work-related incident. 

employer loses his immunity from civil liability for work-related injuries to employees provided 

by the Workers’ Compensation Act.” Deskins v. S.W. Jack Drilling Co., 215 W.Va. 525, 528, 

600 S.E.2d 237, 240 (2004). To prevail in a deliberate intent action, a plaintiff employee must 

establish all of the following elements: 

(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 or death; 

(B) That the employer, prior to the injury, had actual knowledge of the existence 

of the specific unsafe working condition and of the high degree of risk and the 

strong probability of serious injury or death presented by the specific unsafe 

working condition; 

(C) That the specific unsafe working condition was a violation of a state or federal 

safety statute, rule or regulation, whether cited or not, or of a commonly accepted 

and well-known safety standard within the industry or business of the employer, 

as demonstrated by competent evidence of written standards or guidelines which 

reflect a consensus safety standard in the industry or business, 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 workplaces, equipment or working conditions; 

(D) That notwithstanding the existence of the facts set forth in subparagraphs (A) 

through (C), inclusive, of this paragraph, the employer nevertheless intentionally 

thereafter exposed an employee to the specific unsafe working condition; and 

(E) That the employee exposed suffered serious compensable injury or 

compensable death as defined in section one, article four, chapter twenty-three [§ 

23-4-1] whether a claim for benefits under this chapter is filed or not as a direct 

and proximate result of the specific unsafe working condition. 

W.Va. Code § 23-4-2(d)(2)(ii)(A) through (E). 

2

In its order granting summary judgment, the circuit court found that these regulations 

related to safety signs generally and made no reference to clearance height indicators of any 

kind. 

2 
 

All of the evaluators opined that petitioner incurred zero percent whole person impairment. In 

July of 2017, respondent moved the circuit court to dismiss the case or, in the alternative, grant it 

summary judgment. Respondent argued that petitioner failed to satisfy the elements required to 

prove deliberate intention. A hearing on the matter was set for July 19, 2017. One day prior to 

the hearing, petitioner filed a response to respondent’s motion, arguing that he had demonstrated 

the required elements for deliberate intention and, in support of his argument, attached two 

affidavits from former employees of respondent. A third affidavit authored by another former 

employee was submitted to the circuit court on the day of the hearing. The former employees 

stated that they, along with assistant managers, had previously observed the clearance bar in its 

detached state. During the hearing, petitioner moved the circuit court to grant a continuance for 

further discovery. However, the circuit court denied petitioner’s motion and later entered an 

order granting respondent’s motion for summary judgment, finding that petitioner failed to prove 

the requisite elements for deliberate intention under West Virginia Code § 23-4-2. It is from the 

August 24, 2017, order that petitioner appeals. 

Our standards of review for cases concerning summary judgment are well settled. “A 

circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 

W.Va. 189, 451 S.E.2d 755 (1994). In conducting our de novo review, we apply the same 

standard for granting summary judgment that is applied by the circuit court. Under that standard, 

“‘[a] motion for summary judgment should be granted only when it is 

clear that there is no genuine issue of fact to be tried and inquiry concerning the 

facts is not desirable to clarify the application of the law.’ Syllabus Point 3, Aetna 

Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 

133 S.E.2d 770 (1963).” Syllabus Point 1, Andrick v. Town of Buckhannon, 187 

W.Va. 706, 421 S.E.2d 247 (1992). 

Painter, 192 W.Va. at 190, 451 S.E.2d at 756, Syl. Pt. 2. In other words, 

[s]ummary judgment is appropriate where the record taken as a whole 

could not lead a rational trier of fact to find for the nonmoving party, such as 

where the nonmoving party has failed to make a sufficient showing on an 

essential element of the case that it has the burden to prove. 

Id. at 190, 451 S.E.2d at 756, Syl. Pt. 4. We note that “[t]he circuit court’s function at the 

summary judgment stage is not to weigh the evidence and determine the truth of the matter, but 

is to determine whether there is a genuine issue for trial.” Id. at 190, 451 S.E.2d at 756, Syl. Pt. 

3. With respect to deliberate intention claims specifically, this Court has held that 

a court shall dismiss a deliberate intention action “upon motion for summary 

judgment if it finds . . . that one or more of the facts required to be proved by the 

provisions of subparagraphs (A) through (E), inclusive, paragraph (ii) of this 

subdivision do not exist.” W.Va. Code § 23-4-2(d)(iii)(B). Each of the five 

statutory factors “is an essential element of a ‘deliberate intention’ cause of 

action, which a plaintiff has the ultimate burden to prove. Therefore, at the 

summary judgment stage, if a defendant should establish that no material issue of 

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fact is in dispute on any one of the factors, and such a finding is in favor of the 

defendant, summary judgment must be granted to the defendant.” Mumaw v. U.S. 

Silica Co., 204 W.Va. 6, 11, 511 S.E.2d 117, 122 (1998). Finally, “‘in order to 

withstand a motion for summary judgment, a plaintiff must make a prima facie 

showing of dispute on each of the five factors.’” Marcus v. Holley, 217 W.Va. 

508, 520, 618 S.E.2d 517, 529 (2005) (citation omitted) (footnote omitted). 

Smith v. Apex Pipeline Services, Inc., 230 W.Va. 620, 628, 741 S.E.2d 845, 853 (2013). 

On appeal, petitioner first argues that the circuit court erred in finding that he failed to 

satisfy the five elements of deliberate intention, and thus in granting respondent summary 

judgment. Petitioner specifically argues that he submitted sufficient evidence to prove that a state 

or federal safety statute, rule, or regulation was violated; that respondent had actual knowledge 

of a specific unsafe working condition and intentionally exposed petitioner to the same; and that 

petitioner experienced a serious compensable injury. We find petitioner’s arguments to be 

meritless. 

The record demonstrates that petitioner did not experience a serious compensable injury. 

West Virginia Code § 23-4-2(d)(2)(B)(v) sets forth that a serious compensable injury may be 

established by one of four ways, only one of which is relevant to the case at hand.3

 The serious 

compensable injury may be established if 

(I) [i]t is shown that the injury, independent of any preexisting impairment: 

(a) Results in a permanent physical or combination of physical and 

psychological injury rated at a total whole person impairment level of 

at least thirteen percent (13%) as a final award in the employee’s 

workers’ compensation claim; and 

(b) Is a personal injury which causes permanent serious disfigurement, 

causes permanent loss or significant impairment of function of any 

bodily organ or system, or results in objectively verifiable bilateral or 

multi-level dermatomal radiculopathy; and is not a physical injury that 

has no objective medical evidence to support a diagnosis[.] 

W.Va. Code § 23-4-2(d)(2)(B)(v)(I)(a)-(b). Here, petitioner underwent several independent 

medical evaluations throughout the underlying proceedings. Three evaluations were performed 

prior to the July of 2017 hearing and all three evaluators opined that petitioner suffered zero 

percent whole person impairment as a result of his work-related injury. While petitioner argues 

that he needed more time to gather medical evidence to support this element, none of the medical 

3

The other methods set forth in this code section apply to (1) claims where a licensed 

physician concluded that the likely result of the injury will be death within eighteen months or 

less, (2) pneumoconiosis claims, and (3) claims of injuries which are unable to be rated pursuant 

to a rule or regulation. See West Virginia Code § 23-4-2(d)(2)(B)(v). 

4 
reports have established that petitioner suffered an injury to such a degree as to be compensable 

under the statute. Further, the fourth independent medical evaluation petitioner referenced in his 

motion to continue was eventually supplied to the circuit court prior to the entry of the order 

granting summary judgment and did not largely contradict the prior independent medical 

evaluation reports. The circuit court considered this report, noted that the evaluator opined that 

petitioner suffered five percent whole person impairment due to the work-related injury, and 

found that this report still did not satisfy the serious compensable injury element. Moreover, 

petitioner submitted doctors’ records from his treating physician and another evaluator consulted 

after the July of 2017 hearing, and these records also do not show a serious compensable injury 

as neither physician provided a whole person impairment rating. As such, petitioner’s claims that 

additional evidence was “at his fingertips” are unpersuasive in light of the extensive evidence 

that petitioner did not receive a thirteen percent whole person impairment rating from any 

physician during the proceedings below. Therefore, we find that petitioner failed to satisfy this 

element. 

As previously mentioned, to establish deliberate intention “‘a plaintiff . . . must offer 

evidence to prove each of the five specific statutory requirements.’ Syllabus point 2, Helmick v. 

Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991).” Mumaw, 204 W.Va. at 7, 511 

S.E.2d at 118, Syl. Pt. 3, in part. As such, “[e]ach of the five statutory [requirements] is an 

essential element of a ‘deliberate intention’ cause of action, which a plaintiff has the ultimate 

burden to prove.” Smith, 230 W.Va. at 628, 741 S.E.2d at 853 (internal citations omitted). 

Because petitioner failed to establish that he suffered a serious compensable injury, he has not 

satisfied one of the statutory elements, and therefore, his entire claim fails. Accordingly, 

addressing the remaining elements is unnecessary and we decline to do so. 

Petitioner also assigns as error the circuit court’s failure to grant his motion to continue 

the July 2017 hearing. Petitioner argues that discovery was still pending as various doctors had 

completed medical examinations but had not completed the reports at the time of the hearing. 

Petitioner asserts that these reports would have shown the requisite whole person impairment 

rating and created the existence of a genuine issue of material fact. We disagree. We have 

previously held that 

[i]f the moving party makes a properly supported motion for summary judgment 

and can show by affirmative evidence that there is no genuine issue of material 

fact, the burden of production shifts to the nonmoving party who must either (1) 

rehabilitate the evidence attacked by the moving party, (2) produce additional 

evidence showing the existence of a genuine issue for trial, or (3) submit an 

affidavit explaining why further discovery is necessary as provided in Rule 56(f) 

of the West Virginia Rules of Civil Procedure. 

Crum v. Equity Inns, Inc., 224 W.Va. 246, 254, 685 S.E.2d 219, 227 (2006)(citing Stonewall 

Jackson Memorial Hosp. Co. v. American United Life Ins. Co., 206 W.Va. 458, 466, 525 S.E.2d 

649, 657 (1999)). “An opponent of a summary judgment motion requesting a continuance for 

further discovery need not follow the exact letter of Rule 56(f) of the West Virginia Rules of 

Civil Procedure in order to obtain it.” Crum, 224 W.Va. at 254, 685 S.E.2d at 227 (citing Elliott 

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v. Schoolcraft, 213 W.Va. 69, 73, 576 S.E.2d 796, 800 (2002). However, at a minimum, the party 

making an informal Rule 56(f) motion must satisfy four requirements: 

(1) articulate some plausible basis for the party’s belief that specified 

“discoverable” material facts likely exist which have not yet become accessible to 

the party; (2) demonstrate some realistic prospect that the material facts can be 

obtained within a reasonable additional time period; (3) demonstrate that the 

material facts will, if obtained, suffice to engender an issue both genuine and 

material; and (4) demonstrate good cause for failure to have conducted the 

discovery earlier. 

Id. 

Petitioner failed to show that he was entitled to a continuance in this matter. At the time 

of the hearing, the proceedings had been ongoing for over one year. The record reveals that just 

before the July of 2017 hearing, petitioner underwent a fourth independent medical evaluation 

and had not yet received the report. Petitioner’s written motion referenced this evaluation as part 

of the basis for requesting the continuance.4

 However, this report was provided to the circuit 

court shortly after the hearing and the evaluator opined a five-percent whole person impairment 

rating, well below the thirteen percent required by West Virginia Code § 23-4-

2(d)(2)(B)(v)(I)(a). In fact, of the four independent medical evaluations petitioner underwent, he 

received three zero-percent whole person impairment ratings and one five-percent whole person 

impairment rating, all of which are well below the required threshold. Petitioner also argues that 

he submitted another report in August of 2017, after the entry of the order, in which the 

physician opined that petitioner’s injuries were permanent and stemmed from the work-related 

incident. However, petitioner’s argument that the circuit court erred in denying his motion to 

continue the hearing when this outstanding discovery existed is without merit as petitioner failed 

to reference this report in his motion. Moreover, the record indicates that this physician failed to 

provide an impairment rating as required by the statute. Petitioner also failed to demonstrate 

good cause for why this discovery was not conducted in the year prior to the July of 2017 

hearing, providing no explanation as to the delay. As such, petitioner has not demonstrated that a 

continuance in this matter was warranted and, therefore, we find no error in the circuit court’s 

decision to deny the same. 

For the foregoing reasons, we find no error in the decision of the circuit court, and its 

August 24, 2017, order is hereby affirmed. 

Affirmed. 

ISSUED: May 14, 2018 

4

Although petitioner referenced other reasons as the basis for his motion to continue, he 

does not reference these reasons on appeal and only argues that the circuit court erred in denying 

his motion based upon additional pending medical discovery. 

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CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

Justice Elizabeth D. Walker 

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