UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2149
MICHAEL J. MCGOVERN,
Plaintiff – Appellant,
v.
PPG INDUSTRIES, INC.,
Defendant - Appellee.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Irene M. Keeley,
District Judge. (5:14-cv-00069-IMK)
Submitted: July 28, 2015 Decided: August 12, 2015
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Teresa C. Toriseva, Joshua D. Miller, TORISEVA LAW, Wheeling,
West Virginia, for Appellant. William D. Wilmoth, STEPTOE &
JOHNSON PLLC, Wheeling, West Virginia; Christopher A. Lauderman,
STEPTOE & JOHNSON PLLC, Bridgeport, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael J. McGovern appeals the district court’s order
dismissing his personal injury complaint against PPG Industries,
Inc., for failure to state a claim. McGovern claims that he
suffered injury while working for PPG due to an unsafe working
condition. Finding no reversible error, we affirm.
We review de novo a district court’s dismissal for failure
to state a claim, accepting the complaint’s factual allegations
as true and drawing all reasonable inferences in favor of the
nonmoving party. Kensington Volunteer Fire Dep’t v. Montgomery
Cty., 684 F.3d 462, 467 (4th Cir. 2012); see Fed. R. Civ. P.
12(b)(6). To survive a motion to dismiss, “[f]actual
allegations [in the complaint] must be enough to raise a right
to relief above the speculative level,” with “enough facts to
state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). Under
this standard, bare legal conclusions “are not entitled to the
assumption of truth” and are insufficient to state a claim.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
McGovern seeks recovery pursuant to West Virginia’s
deliberate-intent statute, W. Va. Code Ann. § 23-4-2 (LexisNexis
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2010). * To recover from an employer under this statute, a
plaintiff must prove, among other requirements, that “the
specific unsafe working condition was a violation of a state or
federal safety statute, rule or regulation, . . . or of a
commonly accepted and well-known safety standard within the
industry or business of the employer.” W. Va. Code Ann.
§ 23-4-2(d)(2)(ii)(C). Such a statute, rule, regulation or
standard must be “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.” Id. The district
court dismissed McGovern’s complaint, finding that he failed to
allege any violation of a statute, rule, regulation, or standard
pursuant to § 23-4-2(d)(2)(ii)(C).
We agree with the district court that McGovern’s complaint
does not satisfy the requirements of the deliberate-intent
statute. McGovern alleged that PPG violated W. Va. Code Ann.
§§ 21-3-1, 21-3A-5 (LexisNexis 2010), but these two statutes
“generally requir[e] safe workplaces, equipment or working
conditions” and lie outside the scope of § 23-4-2(d)(2)(ii)(C).
Because McGovern’s complaint fails to plausibly allege a
*
The statute recently was amended. See 2015 W. Va. Legis.
Serv. 243. We applied the prior version of the statute to the
facts of this case.
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violation of § 23-4-2(d)(2)(ii)(C), he cannot recover from PPG
for his injuries.
Accordingly, we affirm the judgment of the district court.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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