410 S.E.2d 701 (W.Va. 1991), 19996, Gable v. Kroger Co.

Docket Nº19996.
Citation410 S.E.2d 701, 186 W.Va. 62
Opinion JudgeNEELY, Justice:
Party NameRonald A. GABLE, Administrator of the Estate of Carol A. Gable, and Ronald A. Gable, Individually, Appellant, Plaintiff Below, v. The KROGER COMPANY, a corporation, Appellee, Defendant Below.
AttorneyDonald J. Tennant, Jr., Wheeling, for appellant. Scott S. Blass, Bachmann, Hess, Bachmann & Garden, Wheeling, for appellee.
Case DateOctober 16, 1991
CourtSupreme Court of Appeals of West Virginia

Page 701

410 S.E.2d 701 (W.Va. 1991)

186 W.Va. 62

Ronald A. GABLE, Administrator of the Estate of Carol A.

Gable, and Ronald A. Gable, Individually,

Appellant, Plaintiff Below,

v.

The KROGER COMPANY, a corporation, Appellee, Defendant Below.

No. 19996.

Supreme Court of Appeals of West Virginia.

October 16, 1991

Submitted Sept. 11, 1991.

Page 702

[186 W.Va. 63] Syllabus by the Court

1. Under Rule 611 of the West Virginia Rules of Evidence [1985], a party is entitled to call an adverse party and interrogate that party by leading questions.

2. Under Rule 611(a) of the West Virginia Rules of Evidence [1985], the trial judge clearly has discretion to "exercise reasonable control over the mode and order of interrogating witnesses in presenting evidence...."; and in doing so, he must balance the fairness to both parties.

3. To be admissible at all, similar occurrence evidence must relate to accidents or injuries or defects existing at substantially the same place and under substantially the same conditions. Evidence of injuries occurring under different circumstances or conditions is not admissible.

4. Rules 402 and 403 of the West Virginia Rules of Evidence [1985] direct the trial judge to admit relevant evidence, but to exclude evidence whose probative value is substantially outweighed by the danger of unfair prejudice to the defendant.

5. "Ordinarily, a juror's claim that he was confused over the law or evidence and therefore participated in the verdict on an incorrect premise is a matter that inheres in or is intrinsic to the deliberative process and cannot be used to impeach the verdict." Syllabus Point 3, State v. Scotchel, 168 W.Va. 545, 285 S.E.2d 384 (1981).

Donald J. Tennant, Jr., Wheeling, for appellant.

Scott S. Blass, Bachmann, Hess, Bachmann & Garden, Wheeling, for appellee.

NEELY, Justice:

Ronald G. Gable, as administrator of his late wife's estate and in his individual capacity, appeals from several trial court rulings in a slip and fall case. On 19 September 1987, Carol Gable slipped and fell while shopping at a Kroger store in Benwood, West Virginia, causing her to suffer a herniated disc. Mrs. Gable sued Kroger for its alleged negligence in the accident. The jury found Mrs. Gable 65% negligent and the trial judge, therefore, entered judgment in favor of Kroger. Mr. Gable, as his wife's successor, now appeals. We affirm.

I.

Mr. Gable planned to call four Kroger employees as adverse witnesses during his case-in-chief. The trial judge, however, granted a motion in limine by Kroger that prevented Mr. Gable from doing so, but the judge required Kroger to stipulate that it would call the employees in question during its case-in-reply.

The controlling issue involves the interplay among the various rules that have governed trial procedure for calling adverse witnesses. Both the West Virginia Rules of Civil Procedure and the West Virginia Rules of Evidence are modeled after their federal counterparts; therefore, the history of the federal rules provides guidance in interpreting our rules. Rule 43, Fed.R.Civ.Pro. was adopted as a provisional evidentiary framework in 1937 supplanting the previous common law system. 5 J. Moore, J. Lucas, & J. Wicker, Moore's Federal...

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34 practice notes
  • 572 S.E.2d 881 (W.Va. 2002), 30441, Rohrbaugh v. Wal-Mart Stores, Inc.
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • October 11, 2002
    ...the issue of Mr. Rohrbaugh's lack of a driver's license was relevant. This Court observed in Syllabus point 4 of Gable v. The Kroger Co., 186 W.Va. 62, 410 S.E.2d 701 (1991), that "Rules 402 and 403 of the West Virginia Rules of Evidence direct the trial judge to admit relevant evidenc......
  • 575 S.E.2d 419 (W.Va. 2002), 30623, Smith v. First Community Bancshares, Inc.
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • December 9, 2002
    ...value is substantially outweighed by the danger of unfair prejudice to the defendant." Syllabus Point 4, Gable v. Kroger Co., 186 W.Va. 62, 410 S.E.2d 701 (1991). 9. "The West Virginia Rules of Evidence ... allocate significant discretion to the trial court in making evidentiary .......
  • 648 S.E.2d 48 (W.Va. 2007), 33215, Kominar v. Health Management Associates of West Virginia, Inc.
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • June 7, 2007
    ...decisions regarding the presentation and introduction of evidence.15 As we explained in syllabus point two of Gable v. Kroger Company, 186 W.Va. 62, 410 S.E.2d 701 (1991), “[u]nder Rule 611(a) of the West Virginia Rules of Evidence [1985], the trial judge clearly has discretion to ‘exercise......
  • 415 S.E.2d 145 (W.Va. 1991), 20118, Huffman v. Appalachian Power Co.
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • December 19, 1991
    ...335. This standard is more restrictive than the rule in ordinary negligence cases set out in Syllabus Point 3 of Gable v. Kroger Co., 186 W.Va. 62, 410 S.E.2d 701 (1991): "To be admissible at all, similar occurrence evidence must relate to accidents or injuries or defects existing at s......
  • Request a trial to view additional results
34 cases
  • 572 S.E.2d 881 (W.Va. 2002), 30441, Rohrbaugh v. Wal-Mart Stores, Inc.
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • October 11, 2002
    ...the issue of Mr. Rohrbaugh's lack of a driver's license was relevant. This Court observed in Syllabus point 4 of Gable v. The Kroger Co., 186 W.Va. 62, 410 S.E.2d 701 (1991), that "Rules 402 and 403 of the West Virginia Rules of Evidence direct the trial judge to admit relevant evidenc......
  • 575 S.E.2d 419 (W.Va. 2002), 30623, Smith v. First Community Bancshares, Inc.
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • December 9, 2002
    ...value is substantially outweighed by the danger of unfair prejudice to the defendant." Syllabus Point 4, Gable v. Kroger Co., 186 W.Va. 62, 410 S.E.2d 701 (1991). 9. "The West Virginia Rules of Evidence ... allocate significant discretion to the trial court in making evidentiary .......
  • 648 S.E.2d 48 (W.Va. 2007), 33215, Kominar v. Health Management Associates of West Virginia, Inc.
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • June 7, 2007
    ...decisions regarding the presentation and introduction of evidence.15 As we explained in syllabus point two of Gable v. Kroger Company, 186 W.Va. 62, 410 S.E.2d 701 (1991), “[u]nder Rule 611(a) of the West Virginia Rules of Evidence [1985], the trial judge clearly has discretion to ‘exercise......
  • 415 S.E.2d 145 (W.Va. 1991), 20118, Huffman v. Appalachian Power Co.
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • December 19, 1991
    ...335. This standard is more restrictive than the rule in ordinary negligence cases set out in Syllabus Point 3 of Gable v. Kroger Co., 186 W.Va. 62, 410 S.E.2d 701 (1991): "To be admissible at all, similar occurrence evidence must relate to accidents or injuries or defects existing at s......
  • Request a trial to view additional results