Allan A. Masinter, Attorney at Law, for claimant.
Robert D. Pollitt and John Polak, Assistant Attorneys General, for


This claim was filed by Stephen Gregg and Emma Gregg, who were husband
and wife on
September 27, 1977, when Stephen Gregg was injured and rendered
paraplegic. His claim is
for damages incident to his injuries. Her claim is for loss of

Respondent had entered into a contract with Restoration of Missouri,
Inc. for certain
renovation work on the state capitol building. The work involved
sandblasting, cleaning,
caulking, etc. The skilled labor, bricklayers, were hired through a
bricklayers' union, Local No.
9. The unskilled labor, laborers, were hired through a laborers' union,
Local No. 1353. Both
unions had a foreman and steward on the job. Stephen Gregg had been
assigned to the job by
the laborers' union and served as a bricklayers' tender. As such, his
work involved cleaning up
after sandblasting, filling sand pots, helping with installation of
scaffolding from the ground and
helping with the horizontal relocation of suspended scaffolding. He had
never had any previous
occasion to be on a suspended scaffold, and had had no instruction
concerning them or the use
of the motors at each end, the safety belts, etc.

As the result of rain on that morning, it had been decided to shut the
job down at mid-day.
This would include securing the suspended scaffolds well above ground
level to avoid
unauthorized use and vandalism. Gregg testified that he was told by one
of his superiors to go
around to the area where he was working that day and do whatever he
could to help shut the
job down for the day. His recollection was that a Gary Holley, a
bricklayer, had asked him to
help Mike Crislip, an apprentice bricklayer, raise the suspended
scaffold, from which he fell, to
a second floor window level. Mike Crislip had been left, by his fellow
bricklayers, to raise the
scaffold by himself. He testified that he had raised its right end a few
feet, and was about to
move to its other end to raise that end, when Jerry Holley, a
bricklayer, had told Gregg, "Help
him do that" and Gregg had jumped up on the scaffold. Gregg may have put
on a safety belt, but
the evidence was not clear as to whether he had put it on properly, had
properly connected it or
whether he would have been saved from hitting the ground, when he fell,
if the belt was properly
worn and connected.

As the scaffold was being raised, some part of it caught at the top of
the first window. Crislip
told Gregg to "Kick out", and the scaffold started up again. Apparently,
it got caught again on a
belt course, a cornice type protrusion. Crislip testified that he heard
the engine grinding and said
to Gregg, "Let go of the engine"; that when he looked back again, Gregg
had fallen. Gregg's
account of the occurrence is:

"Well, I got on the scaffold and I can't remember if I put a safety
belt on or not. If I did, it
wasn't tied on, I didn't know how, but I just didn't see no harm in it.
He said just push in on the
button when I push in 'til we get to the second floor, so we were
pushing simultaneously the
buttons and was going up and the next thing I remember, my side was hung
up under a ledge or
something of the wall and I still had my hand on the motor. He had his
hand on his motor and the
next thing I knew he said to kick out from the wall a little bit and at
that time the scaffold
bumped out I'd say five to eight feet, enough for me to tumble and do a
somersault off the

Claimants contend that the respondent had failed in a duty to provide a
safe work place, citing
regulations under the Occupational Safety and Health Act (OSHA). These
regulations require,
on the open sides of such a scaffold, under certain conditions, a top
guard rail, a mid rail, and a
toe board. None were in place on the building side of the suspended
scaffolds used on this job.
Apparently, no complaint was ever made about this by the bricklayers who
worked on the
scaffolds, by the union foremen or stewards or by Appalachian Engineers,
Inc., a company
which had been employed by respondent to oversee the work but excluded
from safety
responsibilities in its contract.

This Court views this claim as one which can be presented only to the
Compensation Fund (W.Va. Code, Chapter 23). (See also W.Va. Code 14-2-14
Assuming a contractor's employees to be employees of the owner, the
State in this instance, an
employee would have a case of action against the owner only if the
injury resulted from the
deliberate intention of the employer to produce such injury (See W.Va.
Code 23-4-2 as
adopted by the 1969 Legislature, Chapter 152). This Court finds no such
deliberate intention in
the evidence presented.

Claim disallowed.

Judge Hanlon did not participate in the hearing or decision of this