Mayles v. Shoney's Inc
In Mayles v. Shoney's Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990), a restaurant employee sought to recover damages for personal injuries he received while carrying a large container of hot grease down a grassy slope outside of the restaurant to a disposal unit.
The Court determined that the subjective realization requirement was proven by evidence showing that the restaurant had a "do everything right now policy"; that management knew that hot grease was being disposed of before it cooled; that other employees had told management that the way the grease was being disposed of was unsafe; and that another employee had previously been injured in a similar manner. 185 W.Va. at 94-95, 405 S.E.2d at 21-22. The Court found sufficient evidence was introduced where "management at the restaurant knew how the employees were disposing of the grease, knew that a previous employee had been injured by such practice, had received employee complaints about the practice, and still took no action to remedy the situation." 185 W.Va. at 96, 405 S.E.2d at 23. The Court recognized that the Legislature amended the deliberate intention statute, W.Va. Code 23-4-2, in an attempt to "make it more difficult for an employer to lose the immunity provided to him by the Workers' Compensation Act."
However, beginning with Mayles, the Court has ignored the Legislature's intent by consistently weakening the five-part test of W.Va. Code 23-4-2(d)(2)(ii) and making it easier for creative plaintiffs to defeat the immunity the Legislature intended to afford employers who participate in the Workers' Compensation system.