Suing a mine operator for serious on-the-job injuries
June 7, 2016
On a Sunday, a Petroleum fueler/truck driver working at Elk Run’s Black Castle surface mine was operating the only available fuel truck down a steep haul road when the transmission kicked out of gear. He had a co-worker riding with him. The truck descended the steep haul road at a high rate of speed and overturned on a curve at the base of the grade. The braking capacity of the truck was grossly inadequate. It continued at a considerable speed, struck two large boulders, crossed the sediment control sump, impacted a high safety berm and was launched over the berm coming to rest on its left side in the creek bed about twenty feet below the roadway. The workers were trapped in the truck in below freezing temperatures. They were ultimately extracted more than fourteen hours later by the local fire department. Both workers filed suit against Petroleum and Elk Run as a result of suffering serious, permanent and disabling injuries. (Ballard v. Elk Run Coal Company, et al.).
Workers’ compensation and when it does not bar a suit against the employer
When a worker is injured on the job, compensation for those injuries is provided by the West Virginia Workers’ Compensation Act. In enacting that system, the legislature intended to remove from the tort law system all disputes between or among employers and employees regarding compensation for injury. The employer is generally immune by that law from lawsuits outside the workers’ compensation system for injuries or death resulting from on the job accidents.The immunity from suit, however, may be lost if it can be established that the employer acted with “deliberate intention.” The law sets out specific provisions as to how the “deliberate intention” requirement must be satisfied.The first way is to prove that the employer acted with a conscious and deliberate intention to produce the specific result of injury or death to the employee. This standard means more than just negligence, however gross or aggravated, or reckless misconduct.The second way to establish deliberate intention is to prove each of the following facts:
- A particular unsafe working condition was present in the workplace which presented a high degree of risk and a strong probability of serious injury or death.
- The employer, prior to the injury, actually knew of the unsafe condition and the involved risk.
- The unsafe condition was a violation of state or federal law or of a commonly accepted and well-established industry standard.
- The employer, after knowing the condition and the risks, intentionally exposed the employee.
- The employee suffered a serious injury, or death, directly resulting from the unsafe working condition.
Meeting either of these standards requires a fact-intensive inquiry, therefore anyone who has suffered injury related to working for a mine should contact a West Virginia attorney experienced in the law of personal injury, especially coal mining accidents, to protect the right to recovery.
