Nutter v. Owens-Illinois, Inc
In Nutter v. Owens-Illinois, Inc., 209 W.Va. 608, 550 S.E.2d 398 (2001), the Court further discussed the type of evidence necessary to establish that an employer had a subjective realization and appreciation of the existence of the specific unsafe working condition.
Nutter involved an employee at a glass-making plant who suffered permanent injuries as a result of carbon monoxide exposure during a renovation of a portion of the plant.
The Court found that evidence that the employer knew through inspections that its equipment was producing high levels of carbon monoxide raised a question of fact with regard to subjective realization sufficient to defeat a motion for summary judgment.
In so finding, the Court explained that "while a plaintiff may choose to introduce evidence of prior similar incidents or complaints to circumstantially establish that an employer has acted with deliberate intention, evidence of prior similar incidents or complaints is not mandated by W.Va.Code, 23-4-2(c)(2)(ii) 1994." Syllabus Point 2, in part, Nutter.