Nutter v. Owens-Illinois, Inc.

Decision Date28 June 2001
Docket NumberNo. 28243.,28243.
Citation209 W.Va. 608,550 S.E.2d 398
CourtWest Virginia Supreme Court
PartiesChester NUTTER and Alma Nutter, his wife, Plaintiffs below, Appellants, v. OWENS-ILLINOIS, INC., Defendant below, Appellee.

Kenneth P. Hicks, Esq., Huntington, West Virginia, Donald R. Capper, Esq., Proctorville, OH, Attorneys for Appellants.

David K. Hendrickson, Esq., Robert A. Flaugher, Esq., Barbara A. Allen, Esq., Hendrickson & Long, P.L.L.C., Charleston, West Virginia, Attorneys for Appellee.

STARCHER, Justice:

In this appeal from the Circuit Court of Cabell County, we are asked to consider whether the circuit court erred in granting summary judgment to an employer in a "deliberate intention" action brought pursuant to W.Va.Code, 23-4-2(c)(2)(ii) [1991]1. After careful examination of the record, the briefs of the parties, and all other matters of record, we find that genuine questions of material fact exist regarding whether the plaintiff-employee's damages are a result of the defendant-employer's violation of the aforementioned statute. As set forth below, we reverse the circuit court's summary judgment order and remand the case for further proceedings.

I. Facts & Background

Owens-Illinois, Inc., the defendant below and appellee, operated a glass-making plant in Huntington, West Virginia. Owens-Illinois would often perform safety inspections of its plant. Some of these inspections would include testing for levels of carbon monoxide around equipment with combustion engines, such as forklifts operating on the loading docks.

The plaintiff asserts that regulations imposed by the U.S. Occupational Safety and Health Administration establish a maximum safe limit of 35 parts per million ("ppm") of carbon monoxide. In April 1992, a safety inspection of the Owens-Illinois plant by an outside inspector found that carbon monoxide levels were reaching 17 to 19 parts per million in a conference room that was adjacent to a loading dock. The safety inspector wrote a report indicating that the "source of the carbon monoxide is the tractors and lifts" used on the nearby loading dock, and that the carbon monoxide was being drawn into the room through a fresh air duct on the dock.

To correct the carbon monoxide problem, the safety inspector recommended that the plant "conduct exhaust gas tests on the forklifts and tractors to insure that minimum carbon monoxide levels are produced." The safety inspector further recommended that an analyzer be purchased so that the plant could conduct routine checks of levels of carbon monoxide, and ensure that its equipment was calibrated to produce a minimum level of carbon monoxide.

Another safety inspection was performed 3 months later in July 1992. The safety inspector again found high levels of carbon monoxide in offices and a conference room— levels "much higher than normal for these areas." The inspector further found that the "levels would elevate very quickly when forklifts were in the area, exceeding the 35 ppm allowable limit." Test results attached to the safety inspection report indicate carbon monoxide levels ranging from 12 parts per million in office spaces with the air conditioning turned off, to 71 parts per million in loading areas when "Forklift # 53 went by."

For a second time, the safety inspector recommended that the plant "acquire a carbon monoxide analyzer for proper adjusting of the powered equipment." The record indicates that Owens-Illinois never purchased the carbon monoxide analyzer, and never adjusted the equipment to reduce carbon monoxide output.

The plaintiff below and appellee, Chester Nutter, was employed by Owens-Illinois as a maintenance carpenter. On April 27, 1993, the plaintiff, along with several other Owens-Illinois employees, was performing renovations to an interior area of the plant known as the "old cafeteria." Doors to the area were removed, and in their place plastic sheets were hung from the ceiling to seal off the area and prevent dust from entering other areas of the plant. To perform work, three machines with combustion engines were used in the renovations. A forklift was used to assist with knocking down walls; a "bobcat" was used to pick up and move bricks and debris; and a tractor with a cullet wagon was used to haul debris to another location.

During the morning of April 27, the plaintiff was removing the suspended ceiling of the old cafeteria. A basket was secured to the forklift, and the plaintiff was lifted in the basket to a height where he could remove an area of ceiling tile. The forklift would then be driven to different areas in the room to remove other areas of ceiling tile. Throughout the morning, the engine of the forklift was turned on and off intermittently. Other employees used the basket affixed to the forklift to remove duct work from the ceiling. It appears that the engines of the bobcat and tractor were also turned on and off throughout the morning as they were used in the old cafeteria.

During his lunch break on April 27, the plaintiff became ill, complaining of a severe headache and nausea. The plaintiff was taken to a local hospital where a blood test revealed he had been exposed to high levels of carbon monoxide. While a "normal" carboxyhemoglobin test will show levels near zero, a test of the plaintiff's blood showed a carboxyhemoglobin level of 21%. The plaintiff now contends that as a result of his exposure to carbon monoxide, he has permanent injuries including continuous and uncontrollable shaking.

At approximately the same time that the plaintiff was becoming ill, a supervisor went to the old cafeteria to inspect the progress of some electrical work. The supervisor recalls having a headache, and leaving the area to check on other work. The supervisor later concluded that his headache was caused by carbon monoxide, and he immediately returned to the old cafeteria. The room was evacuated, and no other work was performed in the old cafeteria that day.2

The plaintiff, along with his wife Alma Nutter, filed the instant action in the Circuit Court of Cabell County against Owens-Illinois. The plaintiff alleged that his injuries resulted from Owens-Illinois' violation of the "deliberate intention" provisions of our workers' compensation law, W.Va.Code, 23-4-2(c) [1991].3

Owens-Illinois later filed a motion for summary judgment, contending that it was entitled to judgment as a matter of law because the plaintiff could not prove all of the elements necessary to recover under the deliberate intention statute. Owens-Illinois apparently conceded below that a specific unsafe working condition existed in the workplace—namely, gas powered equipment producing high levels of carbon monoxide in an enclosed area—and that this condition presented a high degree of risk and a strong probability of serious injury or death. See W.Va.Code, 23-4-2(c)(ii)(A). However, the defendant argued that the plaintiff could not prove that Owens-Illinois had a subjective realization and appreciation of the existence of the unsafe working condition (W.Va.Code, 23-4-2(c)(ii)(B)); and could not prove that Owens-Illinois intentionally exposed the plaintiff to the specific unsafe working condition (W.Va.Code, 23-4-2(c)(ii)(D)).4 In an order dated November 22, 1999, the circuit court granted summary judgment to Owens-Illinois and dismissed the plaintiff's claims. The circuit court found that the "plaintiff was the only employee who reported feeling ill on the day of the accident," and that no other employees working in the old cafeteria had complained about carbon monoxide or other fumes to Owens-Illinois. The circuit court also found no other employees of Owens-Illinois had ever reported suffering illness after being exposed to carbon monoxide.5 The circuit court therefore ruled that Owens-Illinois did not realize or appreciate the existence of dangerous levels of carbon monoxide in the "old cafeteria," as required by W.Va.Code, 23-4-2(c)(2)(ii)(B), and further could not have intentionally and knowingly exposed the plaintiff to the carbon monoxide, as required by W.Va.Code, 23-4-2(c)(2)(ii)(D).

The plaintiff now appeals the circuit court's summary judgment order.

II. Standard of Review

We review the circuit court's summary judgment order de novo. We have often stated that we review de novo a circuit court's entry of summary judgment under Rule 56 of the West Virginia Rules of Civil Procedure, and apply the same standard that the circuit courts employ in examining summary judgment motions. Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). We established the traditional standard for granting summary judgment in Syllabus Point 3 of Aetna Casualty & Surety Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963) where we held:

A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.
III. Discussion

In the instant case, the parties appear to agree that genuine issues of fact exist concerning whether a "specific unsafe working condition" existed at the Owens-Illinois plant when the plaintiff was allegedly injured. See W.Va.Code, 23-4-2(c)(2)(ii)(A). The working condition at issue is whether the engines of the powered equipment used by Owens-Illinois—such as the forklifts—were improperly adjusted and produced excessive levels of carbon monoxide, particularly when used in an enclosed area. The existence of a specific unsafe working condition alone, however, is insufficient to support a deliberate intention cause of action.

To be held liable under the deliberate intention statute, W.Va.Code, 23-4-2(c)(2)(ii)(B) requires that an employer have both "a subjective realization and an appreciation of the existence of such specific unsafe working condition and of the high degree of risk and the strong possibility...

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