Nutter v. Owens-Illinois, Inc., No. 28243.

CourtSupreme Court of West Virginia
Writing for the CourtSTARCHER, Justice
Citation209 W.Va. 608,550 S.E.2d 398
PartiesChester NUTTER and Alma Nutter, his wife, Plaintiffs below, Appellants, v. OWENS-ILLINOIS, INC., Defendant below, Appellee.
Docket NumberNo. 28243.
Decision Date28 June 2001

550 S.E.2d 398
209 W.Va.
608

Chester NUTTER and Alma Nutter, his wife, Plaintiffs below, Appellants,
v.
OWENS-ILLINOIS, INC., Defendant below, Appellee

No. 28243.

Supreme Court of Appeals of West Virginia.

Submitted January 10, 2001.

Decided June 28, 2001.


550 S.E.2d 399
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

550 S.E.2d 400
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

550 S.E.2d 401
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

550 S.E.2d 402
In an order dated November 22, 1999, the circuit court granted summary judgment to Owens-Illinois and dismissed the plaintiff's...

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33 practice notes
  • Savilla v. Speedway Superamerica, LLC, No. 33053.
    • United States
    • Supreme Court of West Virginia
    • 16 Noviembre 2006
    ...575 S.E.2d 158 (2003) (nonfatal deliberate intent cause of action where spouse brought separate claim); Nutter v. Owens-Illinois, Inc., 209 W.Va. 608, 550 S.E.2d 398 (2001) (same); McBee v. U.S. Silica Co., 205 W.Va. 211, 517 S.E.2d 308 (1999)(same); Jones v. Patterson Contracting, Inc., 20......
  • Ryan v. Clonch Industries, Inc., No. 33001.
    • United States
    • Supreme Court of West Virginia
    • 27 Octubre 2006
    ...incidents or complaints is not mandated by W. Va. Code, 23-4-2(c)(2)(ii) [1994]." Syllabus point 2, Nutter v. Owens-Illinois, Inc., 209 W.Va. 608, 550 S.E.2d 398 6. Where an employee has instituted a deliberate intent action against an employer under W. Va.Code § 23-4-2(c)(2)(ii) (1994......
  • Clarence T. Coleman Estate By Co-adm'rs v. R.M. Logging Inc., No. 35139.
    • United States
    • Supreme Court of West Virginia
    • 2 Junio 2010
    ...is not mandated by [W. Va.Code § 23-4-2(d)(2)(ii) (2003) (Spec.Supp. Aug. 2003)].” Syllabus point 2, Nutter v. Owens-Illinois, Inc., 209 W.Va. 608, 550 S.E.2d 398 (2001). John R. Mitchell, John R. Mitchell, L.C., Charleston, WV, Joshua I. Barrett, Lonnie C. Simmons, Heather M. Langeland, Di......
  • McInarnay v. Hall, No. 17-0086
    • United States
    • Supreme Court of West Virginia
    • 12 Junio 2018
    ...Id. , 41 F.3d at 187 (quoting Coughlin v. Capitol Cement Co. , 571 F.2d at 297 ).41 Syllabus Point 2, Nutter v. Owens–Illinois, Inc. , 209 W.Va. 608, 550 S.E.2d 398 (2001).42 Mace v. Ford Motor Co. , 221 W.Va. 198, 204, 653 S.E.2d 660, 666 (2007). See also Hinerman v. Daily Gazette Co., Inc......
  • Request a trial to view additional results
33 cases
  • Savilla v. Speedway Superamerica, LLC, No. 33053.
    • United States
    • Supreme Court of West Virginia
    • 16 Noviembre 2006
    ...575 S.E.2d 158 (2003) (nonfatal deliberate intent cause of action where spouse brought separate claim); Nutter v. Owens-Illinois, Inc., 209 W.Va. 608, 550 S.E.2d 398 (2001) (same); McBee v. U.S. Silica Co., 205 W.Va. 211, 517 S.E.2d 308 (1999)(same); Jones v. Patterson Contracting, Inc., 20......
  • Ryan v. Clonch Industries, Inc., No. 33001.
    • United States
    • Supreme Court of West Virginia
    • 27 Octubre 2006
    ...incidents or complaints is not mandated by W. Va. Code, 23-4-2(c)(2)(ii) [1994]." Syllabus point 2, Nutter v. Owens-Illinois, Inc., 209 W.Va. 608, 550 S.E.2d 398 6. Where an employee has instituted a deliberate intent action against an employer under W. Va.Code § 23-4-2(c)(2)(ii) (1994......
  • Clarence T. Coleman Estate By Co-adm'rs v. R.M. Logging Inc., No. 35139.
    • United States
    • Supreme Court of West Virginia
    • 2 Junio 2010
    ...is not mandated by [W. Va.Code § 23-4-2(d)(2)(ii) (2003) (Spec.Supp. Aug. 2003)].” Syllabus point 2, Nutter v. Owens-Illinois, Inc., 209 W.Va. 608, 550 S.E.2d 398 (2001). John R. Mitchell, John R. Mitchell, L.C., Charleston, WV, Joshua I. Barrett, Lonnie C. Simmons, Heather M. Langeland, Di......
  • McInarnay v. Hall, No. 17-0086
    • United States
    • Supreme Court of West Virginia
    • 12 Junio 2018
    ...Id. , 41 F.3d at 187 (quoting Coughlin v. Capitol Cement Co. , 571 F.2d at 297 ).41 Syllabus Point 2, Nutter v. Owens–Illinois, Inc. , 209 W.Va. 608, 550 S.E.2d 398 (2001).42 Mace v. Ford Motor Co. , 221 W.Va. 198, 204, 653 S.E.2d 660, 666 (2007). See also Hinerman v. Daily Gazette Co., Inc......
  • Request a trial to view additional results

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