Linda Staten, J.C. Staten v. Old Ben Coal Company, a Corporation

846 F.2d 74, 1988 U.S. App. LEXIS 4631, 1988 WL 33775

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 13, 1988
• Docket: 87-3737
• Status: Unpublished

Opinion

846 F.2d 74
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Linda STATEN, J.C. Staten, Plaintiffs-Appellants,
v.
OLD BEN COAL COMPANY, a corporation, Defendant-Appellee.

No. 87-3737.

United States Court of Appeals, Fourth Circuit.

Argued March 7, 1988.
Decided April 13, 1988.

Paul S. Perfater (Meyer & Perfater on brief) for appellants.

David B. Thomas (Spillman, Thomas, Battle & Klostermeyer on brief) for appellee.

Before K.K. HALL and ERVIN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:

Linda Staten and her husband, J.C. Staten, were employed by Old Ben Coal Company. Mrs. Staten, a roof bolter, was seriously injured while working in one of Old Ben's mines after a large section of the mine roof fell upon her and knocked her to the ground.

The Statens filed a "Mandolidis" suit against Old Ben under W.Va. Code Sec. 23-4-2, claiming that the company was liable to them for damages in excess of those provided by the West Virginia Workers' Compensation Fund. See Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978). The Statens alleged that Old Ben was liable because it failed to provide the roof bolting machine with a canopy and failed to comply with the proper procedures for roof bolting.

The district court properly entered summary judgment for Old Ben. Section 23-4-2(c)(2)(ii) of the West Virginia Code requires the Statens to prove each of five elements, including both that Old Ben had a "subjective realization and an appreciation" that it was exposing Mrs. Staten to an unsafe working condition and that it violated a state or federal safety regulation, in order to recover damages in excess of workers' compensation. Handley v. Union Carbide Corp., 620 F.Supp. 428, 436 (D.C.W.Va.1985). We agree with the district court that the evidence proffered by Mr. and Mrs. Staten was insufficient to sustain an action under W.Va. Code Sec. 23-4-2. Accordingly we affirm for reasons adequately stated in the district court's opinion. See Staten v. Old Ben Coal Co., Civ. Action No. 3:86-0368 (S.D.W.Va. July 24, 1987).

AFFIRMED.