Our state and local governments provide many valuable services to West Virginia citizens. Sometimes in the provision of those services, errors and accidents occur. While West Virginia laws may allow government departments and government officials to be sued in particularly egregious circumstances, they must also balance the ability of citizens to sue against the practicalities of providing affordable services to all. If every citizen could sue the government for millions of dollars any time an accident occurred, a local government might quickly find itself bankrupt and unable to provide any services to the community. In order to protect against this, West Virginia’s laws provide governments with governmental immunity in certain circumstances. A recent case before the Supreme Court of Appeals of West Virginia looks at whether a West Virginia resident has a right to sue a fire department for errors in attempting to put out a fire at her house.
If you have recently been injured due to an accident or a mistake resulting from a business relationship or agreement, you may have claims under both your personal business contract and West Virginia negligence laws. For instance, perhaps your business partner incorrectly loaded goods onto a truck, and when you unloaded them, they fell and caused an injury. Does your claim for damages to cover your medical bills arise under the contract that required the goods to be correctly loaded? Or does it arise under a negligence theory because your business partner was negligent in his loading practices? A recent decision by the Fourth Circuit Court of Appeals suggests that when a claim is not viable under an existing contract, a plaintiff cannot seek to “cloak” the claim as a personal injury claim in order to get around contract issues.
In West Virginia, an employer typically can’t be sued for injuries sustained by workers on the job if those injuries are otherwise covered by the employer’s workers’ compensation insurance plan. State law makes an exception to this rule, however, in cases where the employer is found to have deliberately exposed a worker to the hazard that caused the injury. As the state Supreme Court recently explained, a worker seeking to apply the “deliberate intent” exception has to show that the employer actually knew of the specific danger and nevertheless exposed the worker to it.
Ms. Cunningham was injured in an accident on the job while working for Felman as occupational safety and health specialist at the company’s Letart plant. She was working in her office when she received a call alerting her about a fire in an industrial-sized dumpster. After grabbing a fire extinguisher, Cunningham proceeded to the dumpster. She and three or four other plant employees were trying to put the fire out when another worker approached with an end loader, which he used to dump a bucket of water on the dumpster. This caused an explosion, during which Cunningham suffered burns and a back strain that landed her in the hospital overnight. It was later determined that the dumpster had traces of flammable substances in it that caused the explosion when they contacted the water.
Cunningham sued Felman for the injuries, arguing that the company should be held responsible under the “deliberate intent” exemption. A trial court granted summary judgment to Felman, however.
A person who is injured in an accident or other incident in West Virginia has a legal right to seek damages and other remedies from those responsible for the injuries. That includes money for doctor’s bills and other medical costs. But what if the injured person doesn’t actually have to pay for the medical services that he or she receives? A federal district court in the state recently took on that question.
A.N. was a minor when he suffered severe burns in an accident that the court didn’t describe. His parents later sued fire log company Hearthmark LLC for the injuries, claiming that the company had caused the accident to happen and was therefore liable. During the litigation that followed, the company sought to introduce evidence showing that the treatment A.N. received for his injuries at Shriners Hospital for Children in Cincinnati was provided free of charge. The Hospital generally provides services at no cost to patients, regardless of a patient’s ability to pay, the Court explained. It had recently begun accepting some insurance payments from patients who were covered by a health insurance plan.
A.N.’s parents countered with a motion in limine, asking the Court to block Hearthmark from admitting the evidence. They argued that the amount that they paid for A.N.’s current and future medical treatment wasn’t relevant to the case and was likely to cause A.N. undue prejudice as the litigation proceeded.
Two men were injured recently by explosions at the Airgas Mid America plant in Putnam County, West Virginia. The source of the explosion may have been 50 cylinders of acetylene, a gas used for welding and torch-cutting metal. Five employees were working in the plant at the time, though it is not clear whether the two injured were among them. The two men were taken to the local hospital with first and second degree burns.
The explosion occurred on Monday afternoon. Witnesses claim that they saw flames shooting out of the plant, and then the sound of the explosions could be heard half a mile away. One local businessman said that he saw “a huge cloud of black smoke and flames” before firemen got the fire under control.
The Airgas Mid America plant housed 100 cylinders of acetylene in all, as well as 76,000 pounds of propylene and roughly 10,000 pounds of propane (both considered to be highly flammable gasses). Companies that produce and store specific quantities of dangerous chemicals must file disclosures about them with the Environmental Protection Agency (EPA), as well as with local emergency officials. The EPA has no record of the amount of acetylene the Airgas plant had stored.
The official cause of the explosions has yet to be discovered, but it is known that the propylene is stored in four small interconnected bulk tanks. The Airgas company claims that the explosions occurred in a concrete cylinder storage area as opposed to the main plant, but that the main plant was evacuated as a precaution.
In such a situation, it hardly needs to be said that those who produce and maintain dangerous, volatile chemicals have the strictest duty not only to the employees working around the chemicals, but also to anyone in the surrounding community. If you are injured by debris or fire from a nearby explosion or other workplace accident, you may have the option of hiring a West Virginia personal injury attorney and filing a lawsuit.
Recently, the West Virginia Supreme Court ruled that a construction company was not liable for a fire in a hotel started by an employee who was off duty. The incident occurred back in November 2010, when Robert Harris, a Powell Construction Company employee, dropped his cigarette in his room at Aracoma Hotel and started a fire. Because Harris was from out of state, he needed to stay in the hotel overnight in order to work on a company project in West Virginia.
Evanston Insurance Company, the Aracoma Hotel’s insurance carrier, was forced to pay over one million dollars for the damage caused. This led Evanston to file claims against Powell Construction Company in Logan County Circuit Court, charging it with “respondeat superior” — that is, vicarious liability — and negligent hiring. Evanston argued that Powell Construction Company should have seen that Harris had “certain propensities,” such as a criminal record and a history as a recovering addict, that made it foreseeable he could cause damage.
The Logan County Circuit Court granted Powell Construction’s motion to dismiss, stating that in order for the company to be liable, Harris would have to actually hold himself out as an agent of Powell Construction and to have caused the fire as part of his job duties, within the scope of his employment. Just being at the hotel while an employee of Powell Construction was not enough. Likewise, the circuit court found that Harris’s history with drugs and alcohol were not the cause of his dropped cigarette and thus the accident was not foreseeable when Powell Construction hired him.
Evanston petitioned the Supreme Court, arguing that the circuit court committed several errors in reaching its decision, including (1) granting the motion to dismiss when the claims were sufficient to withstand one, (2) finding that Evanston failed to state sufficient facts to support its claim of respondeat superior, and (3) finding that Evanston failed to state a claim of negligent hiring. Evanston argued that its claims were sufficiently stated because West Virginia is a notice pleading state, which means the threshold for stating a plausible claim is fairly low. Notice pleading merely requires “a short and plain statement of the claim showing that the pleader is entitled to relief,” as opposed to a higher threshold articulated by the United States Supreme Court in Bell Atlantic Corp. v. Twombly, which required that a claim meet a “plausibility” standard. Under the “plausibility” standard, the complaint must provide “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.” Though some states have adopted the Twombly standard, West Virginia is not among them.
The West Virginia Supreme Court reviewed the Logan County Circuit Court’s decision and, finding it to be well reasoned, affirmed it.
A few months ago, this blog discussed a ruling by the federal Fourth Circuit Court of Appeals, which allowed two widows to move forward with a lawsuit against federal Mine Safety and Health Administration (MSHA) inspectors over the deaths of their husbands in the Aracoma Alma 1 mine in 2006. Delorice Bragg and Freda Hatfield claimed that because the federal inspectors never acted to prevent safety abuses, their husbands were killed in a mine fire. They appealed to the Fourth Circuit to consider whether a West Virginia liability law could be applied to federal MSHA officials. The Fourth Circuit ruled that the question should be answered by the West Virginia Supreme Court.
Thus, it is now up to the West Virginia Supreme Court to settle the issue. The case is now underway, with the widows’ attorney arguing that federal inspectors shared the blame for the husbands’ deaths and should therefore share the liability. A U.S. Attorney for the Department of Justice, meanwhile, argues that although the MSHA inspectors did not perform as well as they should, the negligence of the mine owner — Massey Energy Company, the company that also owned the Upper Big Branch mine — should not be ignored. Massey Energy had pled guilty to criminal negligence and agreed to pay $4.2 million in criminal fines and civil penalties.
The task before the West Virginia Supreme Court is to determine whether the state’s liability law would apply to a private inspector under the same circumstances. If so, under federal law, the two widows would be able to pursue an appeal of their lawsuit against MSHA officials. While the widows’ attorney tried to tie the MSHA inspectors’ actions to those of private inspectors under very like circumstances, the Department of Justice cited evidence of cases in other states where the MSHA has been shielded from state law. The Department of Justice warned that if the widows could sue federal inspectors, so could the community of Aracoma, where the mine is located.
Recently in neighboring Ohio, there was a massive freight train derailment in Columbus due to an explosion. The three affected cars contained 30,000 gallons of ethanol. No one on the train was injured, but the explosions and derailment forced officials to evacuate about 100 residents living within one mile of the train tracks. The National Transportation Safety Board has sent 12 investigators to determine what caused the explosion and derailment, and anticipates that it could take a year before a report is available.
The accident took place around two o’clock in the morning. Residents described the explosion as an “atomic bomb” that forced 16 of the 98 freight train cars to derail. There were reports of flames shooting high in the air, and a second explosion following the first one, which injured two people walking on the railroad tracks to investigate. A Red Cross center was set up for evacuees who took ill, with Columbus’s mayor commenting that the accident could have been far worse if it had taken place in a more heavily populated area. As it was, firefighters permitted the freight cars to keep burning until the fire was mostly subdued, and then use a chemical foam to put out the rest. Firefighting officials stated that the ethanol, an alcohol commonly used in fuel, posed no environmental threat to the surrounding community.
A spokesman for the American Association of Railroads describes the accident as “unusual.” She noted that each year, an estimated 29.4 million carloads of freight travel across more than 140,000 miles of rail in the United States, with 1.8 million categorized as hazardous material. In 2011, 325,000 carloads of ethanol were hauled across the country. The spokesman claimed that last year was one of the safest ever for anything involving railroads.
We at the Wolfe Law Firm wish Columbus residents the best, and are grateful that a similar accident has not happened in West Virginia. When an accident on this scale happens, the party responsible is expected to provide reparations to those who were harmed. That means providing monetary relief to those who were injured and face medical bills, as well as for any property damage incurred. While the party responsible might, in good faith, conduct a thorough examination and pay a fair sum to everyone wronged, too often, the party responsible will try to deny liability out of fear of having to pay a large monetary amount. It is often up to the injured parties to hold the other party accountable and get what they deserve, which means hiring a West Virginia personal injury attorney.
In order to get proper compensation, first you need to know what exactly happened. That means investigating the scene as soon as possible and locating potential witnesses. If the accident requires a more mass-scale investigation that is out of your hands, you might try to get statements from the investigators and well as any released report findings. From there, you would argue that the party responsible had not acted with due care and was guilty of negligence. The other party might try to claim that there were extenuating circumstances, such as a collision that could not be avoided, regardless of the care taken. The other party might also try to claim that the party affected bears some responsibility. In West Virginia, if you are 50% at fault for an accident, you are not allowed to collect money damages.
The Associated Press reports that a steam valve failed at the ArcelorMittal tin mill in Weirton, West Virginia on Friday. After the malfunction, four workers were injured in the ensuing discharge, and one worker was injured seriously enough to be taken to a hospital in Pittsburgh over thirty miles away. One victim was taken to a local hospital, then released, and the remaining two were treated on site at the mill. The cause of the accident is still unknown, but is being investigated both by ArcelorMittal and United Steelworkers Local 2911 union.
West Virginians are some of the hardest working people in our great nation, and our citizens have long been accustomed to the dangers posed by working in tin mills. The tin industry has served as crucial element of our nations growth, and its importance to both the United States and West Virginian economies remains to this day. Accidents like the one that occurred in Weirton are an unfortunate byproduct of the monetary benefits brought by the presence of metal foundaries in our great state. When such accidents occur, the victims may have workers compensation, personal injury, or wrongful death claims. Consulting with a West Virginia personal injury attorney in the wake of such incidents gives you the ability to sift through the circumstances of the accident and discover the best course of action to ensure that your rights are protected.
The State Journal reports that a flash fire ignited several natural gas wells and liquid natural gas tanks and at Chesapeake Energy’s Joseph Powers Pad that is only a few miles from the West Virginia border earlier this week. Flames eventually spread to a frac pond site, and over twenty fire crews from Pennsylvania and West Virginia responded to the accident to put out the blaze. The blast wave was felt by residents in the nearby town of Avella, and the cause of the explosion is still unknown and is currently under investigation by authorities. Three employees were injured in the fires and two sustained injuries serious enough to require being airlifted to a hospital in Pittsburgh for treatment. All of the wells at the facility have been shut down and authorities now have the situation under control.
The dangers of fossil fuel production are well-known by the residents of West Virginia, and this latest explosion at a natural gas production facility is an unfortunate reminder of that fact. Despite the fact that workers in heavy industry know the risks of their profession, the companies and regulatory agencies have a responsibility to make the facilities as safe as possible. When explosions and accidents occur, many times malfunctioning equipment or inadequate safety measures are the cause. If you or someone you know was injured in such an accident, you should contact a West Virginia industrial accident attorney to get educated about your rights in the aftermath of such incidents Not every case is legally actionable, but speaking with an attorney is the only way to find out if you are entitled to compensation for your injuries.