CHARLESTON, W.Va. (Legal Newsline) - Former driller Kyle Ramey can't blame his employer for an 80-foot fall at a Logan County coal mine, the West Virginia Supreme Court of Appeals ruled on April 15.
Ramey claimed Contractor Enterprises created a hazard, but Chief Justice Robin Davis and three other justices thought Ramey created his own hazard.
Davis and justices Brent Benjamin, Thomas McHugh and Menis Ketchum found he deviated from a ground control plan when he drilled 23 inches from a highwall.
They affirmed Circuit Judge Roger Perry, who found no facts showing Contractor Enterprises knew of an unsafe condition or intentionally exposed Ramey to it.
"Even if there was sufficient evidence of actual knowledge in this case, we find no evidence that Contractor Enterprises instructed, ordered or directed Mr. Ramey to operate his drill any closer to the edge of the highwall than the acceptable four foot distance specified in the operational ground control plan," they wrote.
They denied him an exception to workers compensation law, which generally prevents employees from suing employers over accidents.
Dissenting Justice Margaret Workman conceded that the ground control plan weighed in the employer's favor, but wrote that Ramey raised issues for a jury to decide.
Ramey worked four years with a drill, half the time at coal mines.
Drilling at Snap Creek No. 1 Mine in 2005, with four inches of snow on the ground and more coming down, he slipped and tumbled over the highwall.
He suffered head trauma, disfigured his face, lost an eye and broke a leg.
Inspectors from the Mine Safety and Health Administration reported that he didn't follow procedures.
"If the drill had been positioned as the ground control plan stated, the drill would have been at least six feet from the highwall," they wrote.
Ramey sued Contractor Enterprises in 2007, seeking an exception the Court allows from workers compensation in cases of "deliberate intent."
To qualify for an exception, a worker must prove the existence of an unsafe condition in violation of law or industry standards.
A worker must then prove the employer knew of the condition but intentionally exposed the worker to it.
Ramey pinned his case on affidavit from former employee Mark Kennedy, who swore he witnessed drilling machines so close to the edge he could see them from below.
He swore that on his last day, he told a supervisor someone would get hurt or killed.
The Justices found it noteworthy that Kennedy struck from the affidavit an assertion that he operated a drill and complained about working at the edge.
Contractor Enterprises moved for summary judgment, arguing Ramey didn't qualify for an exception.
Perry granted summary judgment, and the Justices backed him up.
They wrote that examination of the record discounted the proposition that Ramey was untrained and unaware.
"During his deposition, Mr. Ramey said that he had been trained by Contractor Enterprises for at least three hours on the actual operation of the drill," they wrote.
They wrote that he couldn't remember what a ground control plan was, adding that "not knowing and not remembering are two very different things -- especially considering the extensive memory loss Mr. Ramey admittedly sustained."
Kennedy's affidavit failed to impress them, for he didn't tell anyone he could see machines from below and didn't name the supervisor he warned on his last day.
It impressed Workman, who wrote that the majority should have drawn every inference in Ramey's favor.
"A permissible inference that could be drawn from this statement, however, is that Mr. Kennedy specifically informed a company supervisor that equipment was being operated dangerously close to the edge of the highwall, thus indicating that the defendant had actual knowledge of the unsafe working condition," Workman wrote.
She wrote that if workers routinely placed machines too close to the edge as Kennedy stated, supervisors would have witnessed it, putting them on notice of the hazard.
Shawn Gillespie, Christopher Brumley, and Erie Silkwood, all of Flaherty, Sensabaugh and Bonasso in Charleston, represented Contractor Enterprises.
Thomas Plymale, of Plymale and Plymale in Huntington, represented Ramey.