# Washington v. Ox Paperboard, LLC

> District Court, N.D. West Virginia · August 31, 2017

URL: https://www.frixlaw.com/law-library/cases/10724783

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** August 31, 2017
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

MELVIN WASHINGTON and
DEBORAH JEAN BRODE, his wife,

Plaintiffs,

v. CIVIL ACTION NO.: 3:17-CV-49
(GROH)

OX PAPERBOARD, LLC, a
West Virginia limited liability
Company and
JOHN DOES 1 through 10,

Defendants.

MEMORANDUM OPINION AND ORDER GRANTING THE DEFENDANT’S
MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT

Currently before the Court is Defendant Ox Paperboard, LLC’s Motion to
Dismiss Amended Complaint, filed on June 6, 2017. ECF No. 7. On June 18,
2017, Plaintiffs Melvin Washington and Deborah Jean Brode filed a Response in
Opposition to the Defendant’s Motion. ECF No. 8. The Defendant filed a Reply
on June 20, 2017. ECF No. 9. Accordingly, this issue is now ripe for the Court’s
consideration, and for the following reasons, The Defendant’s motion shall be
GRANTED.
I. INTRODUCTION
Ox Paperboard, LLC (“Defendant”) removed this matter from the Circuit
Court of Jefferson County, West Virginia, on April 28, 2017. ECF No. 1. On May
3, 2017, the Defendant filed a motion to dismiss [ECF No. 3]; however, Melvin
Washington and Deborah Jean Brode (“Plaintiffs”) filed an amended complaint on
May 23, 2017. ECF No. 5. Thereafter, the Defendant filed the instant motion to
dismiss Plaintiffs’ amended complaint.
II. BACKGROUND
Plaintiffs’ complaint contains two counts, alleging “deliberate exposure” by

the Defendant and negligence by John Does one through ten. Both counts arise
out of the same set of facts. Plaintiff Washington, during the course of his
employment at the Defendant’s Halltown, West Virginia, facility, was transporting
large rolls of paper measuring seventy inches tall by five inches wide and weighing
over three hundred pounds. He sustained serious injuries while transporting these
rolls when several of them fell off the “skateboard” he was using to transport them.
Plaintiffs aver that the Defendant deliberately exposed Mr. Washington to
an unsafe working condition, which presented a high degree of risk and a strong
probability of serious injury or death pursuant to West Virginia Code § 23-4-
2(d)(2)(ii). Further, Plaintiffs argue that John Does one through ten are unknown

parties who may also be liable for their injuries. Specifically, John Does one
through ten are any parties who provided services to the Defendant, including
consulting, training, maintaining or supervising the procedures and processes
regarding the transportation of large rolls of paper within the Defendant’s facility.
The Defendant contends that it is not liable under West Virginia Code § 23-
4-2(d)(2)(ii) because Plaintiffs have failed to adequately plead the requisite
elements. The Defendant argues that because Plaintiffs have failed to establish
the five elements required by the statute, West Virginia’s workers’ compensation
scheme imposes a legal bar to Plaintiffs’ claim. Moreover, the Defendant argues
that Plaintiffs’ claims against John Does one through ten must also fail as a matter
of law.
III. STANDARD OF REVIEW
“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;

importantly, it does not resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses.” Republican Party of N.C. v. Martin, 980
F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1356 (1990)). When reviewing a motion to
dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the
Court must assume all of the allegations to be true, must resolve all doubts and
inferences in favor of the plaintiff and must view the allegations in a light most
favorable to the plaintiff. See Edwards v. City of Goldsboro, 178 F.3d 231, 243-44
(4th Cir. 1999). But a complaint must be dismissed if it does not allege “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). To that end, Federal Rule of Civil Procedure
8 articulates a pleading standard which “does not require detailed factual
allegations, but . . . demands more than an unadorned, the-defendant-unlawfully-
harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and
internal quotation marks omitted).
A complaint that offers “labels and conclusions or a formulaic recitation of
the elements of a cause of action will not do.” Id. (citation and internal quotation
marks omitted). Likewise, a complaint that tenders only “naked assertion[s] devoid
of further factual enhancement” does not suffice. Id. (alteration in original) (citation
and internal quotation marks omitted). A party is required to articulate facts that,
when accepted as true, “show” he is plausibly entitled to relief. Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citing Iqbal, 556 U.S. at 678;
Twombly, 550 U.S. at 557). “[W]here the well-pleaded facts do not permit the court

to infer more than the mere possibility of misconduct, the complaint has alleged—
but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at
679 (second alteration in original) (quoting Fed. R. Civ. P. 8(a)(2)). When
reviewing a complaint’s sufficiency under Rule 12(b)(6), a court may consider
“documents incorporated into the complaint by reference, and matters of which a
court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322 (2007).
IV. WEST VIRGINIA’S DELIBERATE INTENTION STATUTE
West Virginia Code § 23-2-6 of the West Virginia Workers’ Compensation
Act is “the exclusive remedy as against an employer for workplace injuries or death

and provides general immunity from suit for such injuries or death to qualifying
employers.” Young v. Apogee Coal Company, 753 S.E.2d 52, 55 (W. Va. 2013).
There is no immunity under the Act, however, “if the employer or person against
whom liability is asserted acted with ‘deliberate intention.’” W. Va. Code § 23-4-
2(d)(2).1 The Act “is intended to remove from the common law tort system all
disputes between or among employers and employees regarding the
compensation to be received for injury or death to an employee.” W. Va. Code §

1 W. Va. Code § 23-4-2 was amended in 2015; however, the amendments do not apply to injuries
t h a t o c c u r r e d p r i o r t o J u l y 1 , 2 0 1 5. Because the injury in question occurred on January 30, 2015,
the Court refers to the statute as it was written and amended in 2014 throughout this Order.
23-4-2(d)(1). An employer’s immunity from tort liability “may be lost only if the
employer or person against whom liability is asserted acted with ‘deliberate
intention.’” W. Va.Code § 23-4-2(d)(2). Under the exception, an employee may
recover damages in excess of those received under the workers’ compensation

scheme. Mayles v. Shoney’s, Inc., 405 S.E.2d 15, 18 (W. Va. 1990).
Section 23-4-2(d)(2)(ii) sets forth one method for proving deliberate intent.
Syl. Pt. 3, Young, 753 S.E.2d at 54. To succeed on a claim under subsection (ii),
a plaintiff must establish five elements:
(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, prior to the injury, had actual knowledge of
the existence of the specific unsafe working condition and of the high
degree of risk and the strong probability of serious injury or death
presented by the specific unsafe working condition;

(C) That the 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 the employer, as demonstrated by
competent evidence of written standards or guidelines which reflect
a consensus safety standard in the industry or business, 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), inclusive, of this paragraph, the
employer nevertheless intentionally thereafter exposed an employee
to the specific unsafe working condition; and

(E) That the employee exposed suffered serious compensable injury
or compensable death as defined in section one, article four, chapter
twenty-three whether a claim for benefits under this chapter is filed
or not as a direct and proximate result of the specific unsafe working
condition.
W. Va. Code § 23-4-2(d)(2)(ii). A court, however, must dismiss a subpart (ii) action
“upon motion for summary judgment if it finds . . . that one or more of the facts
required to be proved by the provisions of subparagraphs (A) through (E) . . . do
not exist.” Id. § 23-4-2(d)(2)(iii)(B). In this case, the parties dispute only whether
Plaintiffs can establish the requisite facts to satisfy subparagraph (C).
Subparagraph (C) requires that the specific unsafe working condition must
have violated “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 the employer.” W. Va. Code. § 23-4-2(d)(2)(ii)(C) (2014).
“The requirement of subsection (C) may be met by alleging and proving
that the employer violated a federal or state safety law or regulation or,
alternatively, that it violated an industry or business safety standard.” Handley v.
Union Carbide Corp., 804 F.2d 265, 272 n.24 (4th Cir. 1986). Under the Act,
plaintiffs are precluded from simply relying on a statute, rule, regulation or standard
that generally requires safe workplaces, equipment or working conditions to
adequately meet the burden proscribed by the West Virginia legislature. To the
contrary, a plaintiff must demonstrate that the specific unsafe working condition
violated a “statute, rule, regulation or standard . . . specifically applicable to the

particular work and working condition involved.” Id. (emphasis added). “In other
words, the standard asserted by the employee must ‘impose[ ] a specifically
identifiable duty upon an employer, as opposed to merely expressing a generalized
goal,’ and be ‘capable of application to the specific type of work at issue.’” Coe v.
Outback Steakhouse of Florida, LLC, Civil Action No. 1:11CV113, 2013 WL
140107, at *7 (N.D. W. Va. Jan. 10, 2013) (quoting Ryan v. Clonch Indus., 639
S.E.2d 756, 764 (W. Va. 2006); see also Hunt v. Brooks Run Mining Co., LLC, 51
F. Supp. 3d 627 (S.D. W. Va. 2014) (dismissing deliberate intent action where
federal mine safety regulation allegedly violated was not sufficiently specific to

adequately support plaintiff’s claim); Greene v. Carolina Freight Carriers, 663 F.
Supp. 112 (rejecting plaintiff’s deliberate intent claim where the cited regulation
was general in nature, merely requiring safe equipment); Bowden v. Frito-Lay, Inc.,
Civil Action No. 5:09-cv-00914, 2010 WL 3835222, (S.D. W. Va. Sept. 28, 2010)
(finding regulation that imposed a general safety requirement on employers,
without any specific requirements or duties, failed to adequately establish the
subsection (C) requirement); Brown v. Appalachian Mining, Inc., 141 F.3d 1157,
1998 WL 200317, at *4 (4th Cir. Apr. 27, 1998) (unpublished table decision)
(upholding district court’s dismissal of deliberate intent claim where plaintiff cited
regulation requiring machinery and equipment be maintained in safe operating

condition because it was “exactly the kind of general safety provision that the
statute itself declares insufficient”); and McGovern v. PPG Industries, Inc., Civil
Action No. 5:14CV69, at *4 (N.D. W. Va. Sept. 30, 2014) (granting defendant’s
motion to dismiss plaintiff’s deliberate intent claim because the cited statute was
“a general safety requirement insufficient to state a claim under subparagraph (C)
of the West Virginia deliberate intention statute”).
V. DISCUSSION
Count one of Plaintiffs’ amended complaint lists seven standards that the
Defendant allegedly violated. Specifically, Plaintiffs cite various ANSI, ASME, BS
EN and EN standards in support of their deliberate intention claim. BS EN and EN
standards are European standards provided by the European Committee for
Standardization. Ox Paperboard is located in the United States of America, which
is not a member of the European Committee for Standardization.

Regardless, the various standards Plaintiffs have cited fail to satisfy the
statutory requirements for adequately pleading a deliberate intention claim in West
Virginia. All of the standards Plaintiffs incorporated herein to their amended
complaint are precisely the sort of general, unspecific standards explicitly
disallowed by the deliberate intention statute. On their faces, these standards
express generalized goals of safety and cleanliness rather than imposing any
“specifically identifiable duty upon an employer” to take some predetermined
action. Ryan, 639 S.E.2d at 764. Thus, the general standards cited by Plaintiffs
are not rules or regulations “specifically applicable to the particular work and
working condition involved.” W. Va. Code § 23-4-2(d)(2)(ii)(C).

In response to the Defendant’s motion to dismiss, Plaintiffs’ terse rebuttal
rests heavily on the Federal Rules’ 12(b)(6) standard, which generally favors
plaintiffs. Indeed, Plaintiffs aver that “Discovery in this matter will further crystalize
Plaintiffs’ position.” ECF No. 8 at 6. However, Plaintiffs’ must first satisfy the
pleading requirements and avoid dismissal at the motion to dismiss stage to enjoy
continued discovery in this matter. Contrary to Plaintiffs’ assertions, “the factual
content and allegations set forth in the complaint” do not “certainly allow this Court
to ‘draw a reasonable inference that the Defendant is liable for the alleged
misconduct.’” Id. at 6-7 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Plaintiffs aver that future experts may testify that the standards cited in their
amended complaint were applicable to the industry and nature of work being
performed at Ox when Plaintiff Washington was injured. However, each standard
is clear on its face, and when compared with cases from the Supreme Court of

West Virginia, this District, its sister District and the Fourth Circuit, the Court is left
without any reservations that these are precisely the sort of standards explicitly
contemplated by the West Virginia legislature when it established the State’s
workers’ compensation scheme. See supra Section IV.
It is of no moment that Plaintiffs might produce experts who would testify
that the cited standards are commonly accepted throughout the industry because
the standards themselves are fatally flawed, as explained above. See Hunt, 51 F.
Supp 3d at 633-34 (finding expert testimony alone regarding employer’s alleged
violation of a commonly accepted and well known safety standard within that
industry insufficient because “that testimony must be supplemented by ‘competent

evidence of written standards or guidelines which reflect a consensus safety
standard in the industry or business.’ W. Va. Code § 23-4-2(d)(2)(ii)(C)”); Bennett
v. The Kroger Co., 155 F.3d 557, 1998 WL 398823, *3 (4th Cir. 1998) (unpublished
table decision) (affirming district court finding that expert testimony was insufficient
to establish third prong of deliberate intent claim where “expert did not set forth
specific, well-known standards”); see also Hoschar v. Appalachian Power Co., Civil
Action No. 3:11–00152, 2012 WL 6004151, at *9 (S.D. W. Va. Nov. 30, 2012)
(“Without evidence of common acceptance, the Court concludes that Plaintiff
cannot make out a prima facie claim under the deliberate intention statute.”); but
cf. Smith v. Metso Paper USA, Inc., Civil Action No. 1:13CV266, 2014 WL
1404727, at *4 (N.D. W. Va. Apr. 10, 2014) (finding federal regulation providing
that material stored in tiers shall be stored in a particular manner was sufficiently
specific to satisfy the third prong because the injury in that case resulted from

material stacked in tiers and the word “shall” imposed an affirmative duty upon the
employer).
Finally, Plaintiffs noted that the Occupational Safety and Health
Administration (“OSHA”) cited “the Defendant and found that the work conditions
were known and were capable of producing serious injury or death.” ECF No. 8 at
5. Although the cited OSHA citation demonstrates an administrative finding that
the conditions could’ve resulted in serious injury or death—another factor under
the deliberate intent statute—it does nothing to buttress the third factor, which is
the only one currently at issue. Indeed, as the Defendant pointed out in its reply,
the code section OSHA cited the Defendant for violating is a general requirement

to maintain a safe place of employment. ECF No. 9 at 2; see ECF No. 9-1.
Provisions requiring workplaces to be kept safe, clean and orderly are precisely
the sort of regulations upon which deliberate intent claims may not be based.
Accordingly, OSHA’s citation is inconsequential to the Court’s inquiry.
Therefore, the Court finds that the standards cited by Plaintiffs in their
amended complaint fail to meet the statutory burden proscribed by the West
Virginia legislature in W. Va. Code § 23-4-2 because they are too general and
neither applicable to the Defendant’s industry nor the actual, specific work Plaintiff
Washington was performing at the time he was injured. Accordingly, Count one of
Plaintiffs’ amended complaint must be dismissed.
VII. NEGLIGENCE CLAIMS AGAINST JOHN DOES ONE THROUGH TEN
The remaining count of Plaintiffs’ amended complaint alleges negligence

against ten unknown defendants, labeled John Does one through ten. Specifically,
Plaintiffs allege that these individuals or entities did not employ Plaintiff
Washington but provided services to the Defendant, including consulting, training
and/or supervising the process and procedures regarding the transporting of large
rolls of paper at the Defendant’s facility. Therefrom, Plaintiffs aver that the alleged
negligence occurred, which ultimately led to Plaintiff Washington’s injuries.
First, the Court notes that the underlying complaint filed in the Circuit Court
of Jefferson County was filed on January 27, 2017—seven months ago. In seven
months Plaintiffs have yet to unearth and name any John Does. Regardless,
assuming arguendo that John Doe is out there somewhere, Plaintiffs’ negligence

claim must fail as a matter of law.
In its motion to dismiss, the Defendant aptly pointed to the Workers’
Compensation Act’s provision extending immunity to “every officer, manager,
agent, representative or employee of such employer when he is acting in
furtherance of the employer’s business and does not inflict an injury with deliberate
intention.” W. Va. Code § 23-2-6a. Even construing Plaintiffs’ amended complaint
in a light most favorable to their cause, the Court simply cannot find that any action,
as alleged, against John Does one through ten could possibly survive absent a
showing of deliberate intent. Moreover, the Court has exhaustively explained
supra why Plaintiffs amended complaint fails to adequately plead a deliberate
intent action under West Virginia law. Thus, the second, and only remaining, claim
in Plaintiffs’ amended complaint must be dismissed.
VIII. CONCLUSION
Based upon the foregoing, the Court finds that Plaintiffs’ amended
complaint must be dismissed for failure to state a claim upon which relief can be
granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). The Defendant's
Motion to Dismiss Amended Complaint [ECF No. 7] is GRANTED, and
accordingly, this Civil Action is hereby DISMISSED WITH PREJUDICE. This case
is hereby ORDERED STRICKEN from the Court’s active docket.
The Defendant’s Motion to Dismiss [ECF No. 3] is DENIED AS MOOT.
The Clerk of Court is DIRECTED to enter a separate Judgment in favor of
the Defendant in accordance with Rule 58 of the Federal Rules of Civil Procedure.
The Clerk of Court is further DIRECTED to transmit copies of this Order to all
counsel of record herein.

DATED: August 31, 2017 / A)? gf
GINA S
CHIEF UNITED STATES DISTRICT JUDGE

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10724783. Public record. Not legal advice.