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    Bernard Dilly and Eleanor P. Dilly v. S. S. Kresge, A Corporation, 606 F.2d 62, 4th Cir. (1979)

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    This document summarizes a court case in which Eleanor Dilly sued her employer Kresge for injuries sustained when an assistant manager grabbed and shook her. The district court granted summary judgment for Dilly, finding Kresge liable, but had not yet determined damages. Kresge appealed but the appeals court found it did not have jurisdiction as damages had not been set, making it a non-final order. The appeals court dismissed the case and noted that West Virginia law exempts employers from liability for work injuries paid through workers compensation, unless the injury was deliberately intended by the employer. Given conflicting testimony on whether the assistant manager's actions were joking or serious, the appeals court instructed the district court to reconsider its summary judgment ruling.

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    Bernard Dilly and Eleanor P. Dilly v. S. S. Kresge, A Corporation, 606 F.2d 62, 4th Cir. (1979)

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    This document summarizes a court case in which Eleanor Dilly sued her employer Kresge for injuries sustained when an assistant manager grabbed and shook her. The district court granted summary judgment for Dilly, finding Kresge liable, but had not yet determined damages. Kresge appealed but the appeals court found it did not have jurisdiction as damages had not been set, making it a non-final order. The appeals court dismissed the case and noted that West Virginia law exempts employers from liability for work injuries paid through workers compensation, unless the injury was deliberately intended by the employer. Given conflicting testimony on whether the assistant manager's actions were joking or serious, the appeals court instructed the district court to reconsider its summary judgment ruling.

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    Filed: 1979-09-26 Precedential Status: Precedential Citations: 606 F.2d 62 Docket: 78-1106

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    Bernard Dilly and Eleanor P. Dilly v. S. S. Kresge, a Corporation, 606 F.2d 62, 4th Cir. (1979)

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    This document summarizes a court case in which Eleanor Dilly sued her employer Kresge for injuries sustained when an assistant manager grabbed and shook her. The district court granted summary judgment for Dilly, finding Kresge liable, but had not yet determined damages. Kresge appealed but the appeals court found it did not have jurisdiction as damages had not been set, making it a non-final order. The appeals court dismissed the case and noted that West Virginia law exempts employers from liability for work injuries paid through workers compensation, unless the injury was deliberately intended by the employer. Given conflicting testimony on whether the assistant manager's actions were joking or serious, the appeals court instructed the district court to reconsider its summary judgment ruling.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
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    27 views3 pages

    Bernard Dilly and Eleanor P. Dilly v. S. S. Kresge, A Corporation, 606 F.2d 62, 4th Cir. (1979)

    Uploaded by

    Scribd Government Docs
    This document summarizes a court case in which Eleanor Dilly sued her employer Kresge for injuries sustained when an assistant manager grabbed and shook her. The district court granted summary judgment for Dilly, finding Kresge liable, but had not yet determined damages. Kresge appealed but the appeals court found it did not have jurisdiction as damages had not been set, making it a non-final order. The appeals court dismissed the case and noted that West Virginia law exempts employers from liability for work injuries paid through workers compensation, unless the injury was deliberately intended by the employer. Given conflicting testimony on whether the assistant manager's actions were joking or serious, the appeals court instructed the district court to reconsider its summary judgment ruling.

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    of 3

    606 F.

    2d 62

    Bernard DILLY and Eleanor P. Dilly, Appellees,


    v.
    S. S. KRESGE, a corporation, Appellant.
    No. 78-1106.

    United States Court of Appeals,


    Fourth Circuit.
    Argued Feb. 9, 1979.
    Decided Sept. 26, 1979.

    John S. Bailey, Jr., Parkersburg, W. Va. (Earley, Bailey & Pfalzgraf,


    Parkersburg, W. Va., on brief), for appellant.
    Louie S. Davitian, Parkersburg, W. Va. (William L. Jacobs, Parkersburg,
    W. Va., on brief), for appellees.
    Before RUSSELL and WIDENER, Circuit Judges, and HOFFMAN,
    District Judge* .
    WIDENER, Circuit Judge:

    The plaintiffs, Bernard and Eleanor Dilly, brought this action against her
    employer, S. S. Kresge Co., for injuries she received during the course of
    employment. The uncontested facts are that an assistant manager of Kresge
    came to the soda fountain area of the store, where Eleanor Dilly worked, and
    ordered a cup of hot chocolate. After he was told that they had no hot chocolate,
    the assistant manager grabbed Mrs. Dilly, shook her and said "What the hell do
    you mean running out of hot chocolate?" Eleanor Dilly stated in her deposition
    that she thought the assistant manager was serious and angry. The assistant
    manager contends that he was joking. As a result of the assistant manager's
    action, Mrs. Dilly claims her neck was injured.

    The parties filed cross-motions for summary judgment. The district court
    granted summary judgment for the plaintiffs on the issue of liability and set a
    hearing to ascertain the amount of damages, if any, due the plaintiffs. Kresge
    filed a motion to set aside the district court's order pursuant to FRCP 59. This

    motion was denied. A notice of appeal was then filed and an appeal was taken
    to the order granting summary judgment in favor of the plaintiffs.
    3

    The defendant takes the position that the appeal from the grant of summary
    judgment for the plaintiffs and the denial of its Rule 59 motion is an appeal
    from a final order. We do not agree. The notice of appeal was filed and the
    appeal was taken prior to the ascertainment of damages; therefore, it was not a
    final order within the meaning of 28 U.S.C. 1291. Neither has an
    interlocutory appeal been perfected as provided for in 1292(b). Thus, we are
    without jurisdiction to hear this appeal. "A 'final decision' generally is one
    which ends the litigation on the merits and leaves nothing for the court to do
    but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct.
    631, 633, 89 L.Ed. 911 (1945). In the case at bar, the district court found the
    defendant liable but delayed awarding damages until a hearing was held to
    determine their existence and amount. There is obviously something else for
    the district court to do but execute the judgment. We approve what Judge
    Friendly has said on the question at hand:

    "The court had not finally determined the respective rights and liabilities of (the
    parties) since it had not fixed the damages. . . . If history, precedent or principle
    left any ground to doubt that a judgment determining liability but not fixing
    damages is not final under 28 U.S.C. 1291, this would be removed by the
    provisions of 28 U.S.C. 1292(a)(3) and (4) authorizing appeals from
    'interlocutory decrees . . . determining the rights and liabilities of the parties to
    admiralty cases in which appeals from final decrees are allowed,' and
    'judgments in civil actions for patent infringement which are final except for
    accounting.' "

    Western Geophysical Co. v. Bolt Associates, Inc., 463 F.2d 101, 102 (2d Cir.
    1972). Accord, 15 Wright & Miller, Federal Practice and Procedure, Civil
    3915.
    Accordingly, the appeal is
    DISMISSED.1

    U. S. District Court for the Eastern District of Virginia, sitting by designation

    The question concerning the dismissal of the appeal and the jurisdiction of the
    court was initiated by the court at oral argument. The briefs did not address that

    subject. The subject briefed, however, and also argued was the question of
    whether or not summary judgment for the plaintiffs was appropriate
    While what follows is dicta, the case must be reconsidered by the district court,
    so what we say may not be too far a departure from appropriate judicial
    restraint. Perhaps another appeal on the same record can be avoided.
    West Virginia law exempts employers, who pay into the workmen's
    compensation fund, from liability for injuries to employees which occur in the
    course of their employment unless the injury results "from the deliberate
    intention of (the) employer to produce such injury." West Virginia Code 232-6, 23-4-2.
    The West Virginia court recently held that these provisions meant that "an
    employer loses immunity from common law actions where such employer's
    conduct constitutes an intentional tort or willful, wanton, or reckless
    misconduct." Mandolidis v. Elkins Industries, Inc., 246 S.E.2d 907, 914
    (W.Va.1978).
    In view of the fact that the testimony of the assistant manager was that his
    touching of the plaintiff, Eleanor Dilly, was in a joking manner, and the
    testimony of her that his touching of her was not in a joking manner, rather
    serious or angry, we think the district court should carefully reconsider its grant
    of summary judgment. It recognized this very conflict in its opinion. The key
    and essential evidence in the case appears to be in direct conflict, and if that be
    true, as the record before us now indicates, the entry of summary judgment is
    open to serious question.

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