West Virginia Court Says Coal-Fired Plant Owner Not Liable for Worker’s Respiratory Disease – Hoschar v. Appalachian Power Co.

Premises liability is a legal theory under which a person who suffers an injury or illness as a result of unsafe conditions on another’s property can sue the property owner for negligence. In order to hold the owner liable, however, the person suing has to show that the owner knew or should have known about the hazard. West Virginia’s Fourth Circuit Court of Appeals recently explained this requirement in Hoschar v. Appalachian Power Co.

dove-1425852-m.jpgMr. Hoschar and his wife sued APCO for negligence, alleging that he contracted an infectious lung disease called histoplasmosis while working as a boilermaker at an APCO coal-fired plant in New Haven. Hoschar was employed by a company called Industrial Contractors, Inc. at the time to perform general maintenance and welding work at the plant. He was tasked with removing debris like pigeon and other bird manure from steel channels and welding steel patches, work that he performed while wearing a respirator. In 2009, two years after his employment with ICI ended, Hoschar was diagnosed with histoplasmosis.

The infectious disease is caused by inhaling the spores of a naturally occurring soil-based fungus called histoplasma capsulatum, according to the court. The fungus can be found throughout the region in which the plant is located and often grows in soils that are high in nitrogen. “[T]he vast majority of people infected by histoplasmosis do not experience any symptoms of infection or suffer any ill effects,” the court explained. It further noted that the Occupational Safety and Health Administration maintained a website at the time of Hoschar’s employment with ICI detailing the need for employers to recognize potential respiratory hazards on the job. Among other information, OSHA stated on the site that histoplasmosis tends to grow best in nitrogen-rich substances, such as bird manure.

Hoschar and his wife claimed that he contracted the disease on the job by regularly inhaling a mix of debris that included a heavy amount of bird droppings. They further claimed that APCO didn’t warn workers about the large concentration of bird manure on site or the health risks associated with it. A trial court granted summary judgment for the company, however, finding that the hazards posed by the bird manure weren’t reasonably foreseeable to APCO.

Affirming the decision on appeal, the Fourth Circuit agreed that the company couldn’t be held responsible on a premises liability theory because it had no reason to be aware of the threat posed by the bird droppings. “Under West Virginia law, the question of whether a duty is owed turns on the foreseeability of harm,” the court explained. First, the court said, there was no evidence that APCO actually knew about the safety risk. That is, there was no reason to believe that anyone at the company was aware of the link between bird manure and histoplasmosis. Additionally, the court said there was no basis for finding that the company should have been aware of the risk. Although OSHA had warned about the safety hazards of bird manure on its website, the court found no evidence that APCO had read the warning or even knew that it existed. Nor was there any reason that the company should have known that the warning existed, according to the court.

Despite this ruling, workers injured on the job have a wide array of legal tools available to them. The Wolfe Law Firm has been serving clients throughout the state in a broad range premises liability cases for more than 25 years. Located in Elkins, West Virginia, the firm represents clients in injury, criminal defense, and bankruptcy matters. Call us at 1-877-637-5756 or contact us online for a free consultation.

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