Filed: May 20, 1998

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 97-1202

(CA-94-875-5)

Roger Brown,

Plaintiff - Appellant,

versus

Appalachian Mining, Inc.,

Defendant - Appellee.

ORDER

The Court amends its opinion filed April 27, 1998, as

follows:

On the cover sheet, section 3, line 3 -- the spelling of

Judge Hallanan's name is corrected.

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROGER BROWN,

Plaintiff-Appellant,

v. No. 97-1202

APPALACHIAN MINING, INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of West Virginia, at Beckley.

Elizabeth V. Hallanan, Senior District Judge.

(CA-94-875-5)

Submitted: January 28, 1998

Decided: April 27, 1998

Before WILLIAMS, Circuit Judge, PHILLIPS, Senior Circuit

Judge, and FOX, United States District Judge for the Eastern

District of North Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

J. Thomas Hardin, HARDIN LAW OFFICE, P.S.C., Inez, Kentucky,

for Appellant. Scott W. Andrews, OFFUTT, EIFERT, FISHER &

NORD, Huntington, West Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Roger Brown appeals the district court's entry of summary judgment in favor of the defendant-appellee, Appalachian Mining, Inc.

We review the district court's decision to grant summary judgment de

novo. See Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). We

affirm.

I.

The plaintiff-appellant, Roger Brown, was employed by the

defendant-appellee, Appalachian Mining, Inc., on October 9, 1992,

when he was injured in a mining accident. At the time of the accident,

Brown was the operator of a remote, automated underground Joy

Miner which he operated from a booth located on a launch pad outside of the mine. Mining cars were hooked onto the miner on the

launch pad. On October 9, 1992, at approximately 10:00 a.m., Brown

stopped the miner because a large rock had fallen from the roof of the

mine onto a part of the miner. Because the rock could not be moved

manually, Brown and other workers decided to use a Caterpillar 988B

endloader to move the rock. The endloader had been modified by

replacing the bucket or scoop on the front of the endloader with a

large, flat piece of metal (referred to as a "pizza pan"). In order to

facilitate the use of the endloader to remove the rock from the miner,

Brown left the operator's compartment on the launch pad so that he

could hold back a set of electrical cables and water lines away from

the endloader. At the time of the accident, Brown was standing with

his left foot on the miner, and his right foot on one of the mining cars.

Another employee of Appalachian Mining, Joe Wyatt, operated the

endloader. As the endloader came towards the miner to remove the

rock, Brown's lower right leg and foot were pinned between the pizza

pan and the mining car, causing him severe injuries.

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Based on the diversity of citizenship of the parties, Brown filed suit

in federal district court claiming that his employer had "deliberately

inten[ded]" to harm him. Appalachian Mining moved for summary

judgment. After allowing time for discovery, the district court entered

summary judgment for Appalachian Mining on the grounds that

Brown had failed to provide competent evidence that his employer

deliberately intended to harm him. This appeal followed.

II.

Generally, employers in West Virginia who subscribe and pay into

the Workers' Compensation Fund cannot "be liable to respond in

damages at common law or by statute for the injury or death of any

employee, however occurring." W.VA. CODE § 23-2-6 (1997). However, WEST VIRGINIA CODE § 23-4-2 provides an exception to the blanket of immunity for employers from common-law suit when the

employee's injury is the result of the employer's"deliberate intention" to cause injury. See W.VA. CODE § 23-4-2(b).1 The statute sets

forth two methods of proving deliberate intent. See W.VA. CODE § 23-

4-2(c)(2). The first method is not relevant to this case. The second

method requires the injured employee to prove five elements which

if established will preserve his common-law cause of action against

his employer. The statute provides:

(c)(2) The immunity from suit provided under this section

. . . may be lost only if the employer or person against whom

liability is asserted acted with "deliberate intention." This

requirement may be satisfied only if: . . .

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1 The statute provides in relevant part:

(b) If injury or death result [sic] to any employee from the deliberate intention of his or her employer to produce such injury or

death, the employee, the widow, widower, child or dependent of

the employee has the privilege to take under this chapter, and has

a cause of action against the employer, as if this chapter had not

been enacted, for any excess of damages over the amount

received or receivable under this chapter.

W.VA. CODE § 23-4-2.

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 (ii) The trier of fact determines . . .

 (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 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 a 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 workplaces,

equipment, or working conditions;

 (D) That notwithstanding the existence of the

facts set forth in subparagraphs (A) through (C)

hereof, 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.

W.VA. CODE § 23-4-2(c)(2)(ii). The statute further directs a court to

dismiss a "deliberate intention" action upon motion for summary

judgment if the court finds "that one or more of the facts required to

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be proved by the provisions of the subparagraphs (A) through (E) . . .

do not exist." § 23-4-2(c)(2)(iii)(B); see also Handley v. Union Carbide Corp., 620 F. Supp. 428, 430-32 (S.D.W.Va. 1985), aff'd, 804

F.2d 265 (4th Cir. 1986) (noting the legislative preference for summary judgments and directed verdicts in "deliberate intention"

claims).

III.

Brown asserts that he can provide competent evidence of all five

elements of a "deliberate intention" claim under W.VA. CODE § 23-4-

2. However, in entering summary judgment for Appalachian Mining,

the district court held that "it would be unlikely, if not impossible, for

a jury to find that Plaintiff had met any one of the five elements." J.A.

at 562 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986)). Because a failure to provide competent evidence of any one

of the five elements is fatal to a deliberate intention claim, and

because the district court found an absence of competent evidence to

prove any of the five elements, the district court held that summary

judgment in favor of Appalachian Mining was appropriate. See id. at

567-68.

We agree with the trial court that Brown failed to provide competent evidence of any one of the five elements. The first element of a

"deliberate intention" claim requires proof of the existence of a specific unsafe working condition that presented a high degree of risk

and a strong probability of serious injury or death to an employee.

Brown argued that an alleged faulty hydraulic system in the endloader

which caused the pizza pan to drop and injure his foot and the use of

the endloader for the purpose of removing rocks both were specific

unsafe working conditions presenting a high degree of risk and strong

probability of serious injury or death. The district court held that neither condition was a specific unsafe working condition and that neither condition presented a high degree of risk and strong probability

of serious injury or death.

Brown complains that in so holding the district court engaged in

impermissible fact-finding when it declared that a defective hydraulic

system was not the cause of his injury. He asserts that his testimony,

along with the testimony of co-workers Joe Wyatt and David McKen-

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zie, established a factual dispute as to the defectiveness of the

endloader's hydraulic system and the cause of the accident.

Brown's arguments do not have merit. In reaching its conclusion,

the district determined that Brown had failed to demonstrate with

competent evidence a genuine issue of material fact from which a reasonable jury could find that the hydraulic system was defective. See

J.A. at 562-65; see also Ross v. Communications Satellite Corp., 759

F.2d 355, 364 (4th Cir. 1985) ("Genuineness means that the evidence

must create fair doubt; wholly speculative assertions will not suffice."). For example, Brown offered no expert testimony that the

endloader's hydraulic system was defective. J.A. at 505-06. In fact,

Brown's only proffer of evidence on the issue was his own deposition

testimony, the testimony of Joe Wyatt (that actually contradicted

Brown's allegations), and the testimony of an Appalachian Mining

employee who did not witness the accident. See J.A. at 505, 513-14.

The district court stated that "Plaintiff cannot create a genuine issue

of fact merely by asserting, without any supporting evidence, a different theory of causation from that of Defendant." See J.A. at 556. A

district court is permitted to enter summary judgment on an issue

when a "fair-minded jury could [not] return a verdict for the [nonmovant] on the evidence presented." Anderson, 477 U.S. at 252. In this

case, we cannot disagree with the trial court that a reasonable jury

could not have returned a verdict for the plaintiff on the unsafe working condition element of his "deliberate intent" claim.

Brown also asserts that he presented competent evidence of the

second element of a "deliberate intent" claim. We agree with the trial

court that Brown's evidence was insufficient to avoid summary judgment. As the West Virginia Supreme Court has explained, the "`deliberate intention'" exception to the Worker's Compensation system is

meant to deter the malicious employer, not to punish the stupid one."

Helmick v. Potomac Edison Co., 406 S.E.2d 700, 705 (W.Va. 1991).

Thus, in proving the second element of a deliberate intention claim,

an employee must show that an employer had a "subjective realization" of a defective condition with a high degree of risk and strong

probability of serious injury or risk. In other words, the employer

must have known of the danger to the employee. See W.VA. CODE

§ 23-4-2(c)(2)(ii)(B).

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The West Virginia Supreme Court also has explained that the subjective realization requirement "is not satisfied merely by evidence

that the employer reasonably should have known of the specific

unsafe working condition and of the strong possibility of serious

injury or death presented by that condition. Instead, it must be shown

that the employer actually possessed such knowledge." Blevins v.

Beckley Magnetite, Inc., 408 S.E.2d 385, 393 (W.Va. 1991) (emphasis added). Cases that have addressed "subjective realization" of

unsafe working conditions have focused on factors such as: (i)

whether any prior injuries had occurred because of the condition; (ii)

whether the employer previously had been cited by government officials for the violation; and (iii) whether there had been any prior complaints that would have put the employer on notice of the high degree

of risk and strong probability of serious injury or death created by the

condition. See, e.g., Blevins, 408 S.E.2d at 391-93. Plaintiff presented

no evidence of any prior injuries caused by the endloader, or of any

citations for violation of any safety regulations. Plaintiff's only evidence on the issue of subjective realization consisted of testimony

from Joe Wyatt that he had informed the employer of the endloader's

defective hydraulic system. We agree with the trial court's conclusion

that "[e]ven given that Defendant may have had knowledge the

endloader was not working properly, there is no indication that

Defendant had any subjective knowledge that the endloader's condition presented a risk of serious injury or death to its employees." J.A.

at 566. Thus, summary judgment in favor of the defendant on this

issue was appropriate.

The third element of a "deliberate intent" claim requires a showing

that the employer violated a specific state or federal safety regulation

or industry custom in subjecting an employee to a known defective

condition. See W.VA. CODE § 23-4-2(c)(2)(ii)(C). The "deliberate

intent" statute is explicit that a "regulation. . . generally requiring safe

. . . equipment" is insufficient to satisfy the third element. Greene v.

Carolina Freight Carriers, 663 F. Supp. 112, 115 (S.D.W.Va. 1987).

As one court has explained, "[t]o put the employer on notice, and to

evidence its egregious conduct, the statute or standard must specifically address the unsafe working condition in question. It is not

enough to prove that a part on a piece of machinery was defective and

that a statute or regulation required all parts to be in good working

order." Id. Brown presented no competent evidence that the endloader

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violated any specific state, federal or industry safety regulation. The

only evidence Brown offered as to the third element was his own testimony, and that of Joe Wyatt, that use of a pizza pan instead of the

endloader's bucket is not a generally accepted industry practice. We

agree with the district court's conclusion that this evidence was not

competent to meet the high degree of specificity required by the statute. On appeal, Brown now cites 30 C.F.R. § 77.404(a) as having

been violated.2 But this regulation is exactly the kind of general safety

provision that the statute itself declares insufficient. Thus, Brown has

failed to provide competent evidence of the violation of any specific

safety regulation or standard by Appalachian Mining, and thus fails

to demonstrate his employer's "deliberate intent" under the statute.

Similarly, we agree with the trial court that Brown failed to provide

competent evidence of the existence of the fourth and fifth elements

of a "deliberate intent" claim. The fourth element requires that, notwithstanding the presence of elements one, two and three, the

employer intentionally exposed its employee to a known unsafe working condition. See W.VA. CODE § 23-4-2(c)(2)(ii)(D). The fifth element requires that exposure to the known unsafe working condition

was the proximate cause of the serious injury of death. See § 23-4-

2(c)(2)(ii)(E). Both the fourth and fifth elements require proof of the

first three elements. As Brown failed to provide competent evidence

of the first three elements of a "deliberate intent" claim, he cannot

provide evidence of the existence of the fourth and fifth elements.

IV.

In sum, because Brown failed to make a showing sufficient to

establish the existence of any of the five elements essential to his

deliberate intention claim under West Virginia law, summary judgment in favor of Appalachian Mining was appropriate. See Anderson,

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2 Section 77.404(a) of Chapter 30 of the Code of Federal Regulations

on machinery and equipment in mining operations states: "(a) Mobile

and stationary machinery and equipment shall be maintained in safe

operating condition and machinery or equipment in unsafe condition

shall be removed from service immediately." 30 C.F.R. § 77.404(a).

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477 U.S. at 252. Accordingly, the judgment of the district court is

AFFIRMED.

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