Ragonese v. Racing Corp. of W. Va.
| Decision Date | 12 February 2015 |
| Docket Number | No. 14–0258.,14–0258. |
| Citation | 769 S.E.2d 495,234 W.Va. 706 |
| Parties | David RAGONESE, Plaintiff Below, Petitioner v. RACING CORPORATION OF WEST VIRGINIA, d/b/a Mardi Gras Casino and Resort, a West Virginia Corporation, Defendant Below, Respondent. |
| Court | West Virginia Supreme Court |
Connor D. Robertson, Esq., Richard W. Weston, Esq., Weston Law Office, Huntington, WV, for Petitioner.
William J. Cooper, Esq., Megan Fulcher Bosak, Esq., Kiersan Smith Lockard, Esq., Flaherty Sensabaugh Bonasso PLLC, Charleston, WV, for Respondent.
The petitioner, David Ragonese, appeals from the February 7, 2014, order of the Circuit Court of Kanawha County denying his motion to alter or amend the trial court's grant of summary judgment to the respondent, Racing Corporation of West Virginia, d/b/a/ Mardi Gras Casino and Resort (hereinafter the “Casino”).1 As grounds for a reversal, the petitioner argues that the trial court erred in classifying him as a trespasser under the facts of this case and submits that there are genuine issues of material fact to be decided by a jury. Upon our careful review of the record submitted in this case, we agree and, accordingly, reverse.
On July 6, 2011, the petitioner and his wife checked into the Casino's hotel at 3:51 p.m.2 After spending an hour in their hotel room, they walked across the skyway bridge3 that connects the hotel to the Casino to gamble. Mr. Ragonese and his wife gambled over the next several hours, taking intermittent smoking breaks and a dinner break. Two of these smoking breaks took place at the “side” or “bus stop entrance” to the Casino—a location directly facing a six-foot high retaining wall that extends along the roadside perimeter of the property on which the hotel is situated.
Around 9:30 p.m., Mr. Ragonese exited the Casino through the side entrance. He crossed the street near the base of the retaining wall, turned left and continued walking approximately 125 feet with the retaining wall parallel to his right shoulder as he proceeded up the inclined roadway. Upon reaching the hotel's driveway, Mr. Ragonese took a shortcut up a grassy slope to the main entrance. He entered the hotel and spoke briefly with a desk clerk about whether he could get a discount on his room rate or have the room on a complimentary basis.
At 9:34 p.m., Mr. Ragonese walked out the front door of the hotel. After glancing to his left and noticing his wife standing outside the side entrance of the Casino, he decided to take a shortcut to the Casino. Rather than utilizing the skyway bridge or the roadway that he had just perambulated, Mr. Ragonese stepped through a line of shrubbery and then proceeded down a steep, grassy hillside. According to his deposition testimony, the petitioner was fully aware of the retaining wall just five minutes earlier when he was traipsing up the roadway towards the hotel. In confirmation of this awareness, he testified that you “[c]an't miss it.” Mr. Ragonese submits that he simply forgot about the wall's existence when, just minutes later, he began his descent down the sharply sloped hillside. Due to his fall onto the roadway from that retaining wall, Mr. Ragonese sustained a spiral fracture
of his left leg.4
On June 6, 2013, Mr. Ragonese filed a complaint against the Casino, alleging negligence for its failure to protect him, a guest of the Casino, from the dangerousness of the retaining wall. This case proceeded to discovery5 and the Casino subsequently moved for summary judgment.6 In support of its motion, the Casino asserted that Mr. Ragonese was barred from recovery as he was no longer a business invitee, but a trespasser, at the time of his injury. Because the Casino did not breach the duty it owed to Mr. Ragonese as a trespasser—to refrain from engaging in willful or wanton behavior—the Casino argued it was entitled to judgment as a matter of law. In response, Mr. Ragonese insisted that he remained a business invitee at the time of the injury and that genuine issues of material fact were required to be submitted to and resolved by a jury.
In ruling upon the Casino's motion for summary judgment,7 the trial court began its brief analysis by recognizing that Mr. Ragonese had actual knowledge of both the retaining wall and the hillside. Addressing Mr. Ragonese's status, the trial court opined: “At the point Plaintiff walked past the bushes and shrubbery and proceeded down the hillside, he exceeded the scope of his invitation as an invitee and became a trespasser.” Applying the standard of care that governs trespass, the court concluded that the Casino “did not breach the duty of care owed to Plaintiff, as Defendant did not willfully or wantonly injure Mr. Ragonese; and Defendant did not act with premeditation, knowledge, or consciousness that Plaintiff would injure himself by trespassing and falling off the retaining wall.” By order entered on December 16, 2013, the trial court granted summary judgment to the Casino after finding no genuine issues of material fact regarding the circumstances surrounding Mr. Ragonese's fall or the Casino's compliance with the duty of care it owed to him as a trespasser.
On December 27, 2013, Mr. Ragonese filed a motion to alter or amend the summary judgment ruling. See W.Va. R. Civ. P. 59(e). In support of his request for relief, the petitioner argued that the circuit court improperly relied on its judgment regarding the status of Mr. Ragonese at the time of his injury despite the existence of genuine issues of fact concerning that determination as well as the issue of whether the Casino acted wilfully and wantonly towards him. Additional grounds asserted by the petitioner include the trial court's failure to address his alternative argument of being a technical trespasser8 and to acknowledge his request for a continuance to allow for the completion of additional discovery.
After reviewing the Casino's response to the motion to alter or amend and hearing arguments of counsel on these issues, the trial court found that the requirements for relief under Rule 59(e) had not been met. Id. Specifically, the trial court determined that there had not been an intervening change in controlling law; no new evidence had come to light that was not previously available to the court; and there was no need to remedy a clear error of law or to prevent an obvious injustice. Consequently, the trial court ruled that Mr. Ragonese had failed to provide evidence sufficient to warrant an alteration of its grant of summary judgment. It is from this ruling that the petitioner seeks relief.
As we recognized in syllabus point one of Wickland v. American Travellers Life Insurance Co., 204 W.Va. 430, 513 S.E.2d 657 (1998), “[t]he standard of review applicable to an appeal from a motion to alter or amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that would apply to the underlying judgment upon which the motion is based and from which the appeal to this Court is filed.” Because the underlying ruling challenged by the petitioner pursuant to Rule 59(e) was a grant of summary judgment, our review is plenary. See Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). In conducting our de novo review, we consider that “[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.” Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Fed. Ins. Co., 148 W.Va. 160, 133 S.E.2d 770 (1963). It is axiomatic that “any doubt as to the existence of such issue is resolved against the movant for such judgment.” Id. at 161, 133 S.E.2d at 772, syl. pt. 6, in part. Guided by these precepts, we proceed to consider whether there are issues of fact that preclude summary judgment in this matter.
In deciding that the petitioner was a trespasser at the time of his injury, Mr. Ragonese maintains that the trial court reached a conclusion regarding his legal status that is contrary to both the facts of this case and the law. The petitioner insists that his status as a business invitee was not transformed to that of a trespasser with his decision to step off the sidewalk and onto the grounds of the hotel property. In contrast to the prototypical trespass scenario where “no trespass” signs have been posted and ignored, Mr. Ragonese observes that in this case there were no warning signs or directives from hotel employees to keep off the lawn and hillside area. Additionally, he cites to the fact that he did not jump a fence or furtively sneak into a private area of the Casino premises. Mr. Ragonese further submits that the shrubbery through which he easily passed to gain access to the lawn was not intended to serve as a barrier. He maintains that no one invited to a recreational business premise such as the Casino would believe they were trespassing on the property by the mere act of walking onto the lawn.9
To determine whether the trial court wrongly classified Mr. Ragonese as a trespasser, we first consider the parameters of that status. In syllabus point one of Huffman v. Appalachian Power Co., 187 W.Va. 1, 415 S.E.2d 145 (1992), we held that “[a] trespasser is one who goes upon the property or premises of another without invitation, express or implied, and does so out of curiosity, or for his own purpose or convenience, and not in the performance of any duty to the owner.” Applying this definition to the specifics of his situation, the petitioner argues that he cannot qualify as a trespasser because he was an invited guest in a publicly accessible area of the Casino premises which was not demarcated in any fashion as being off limits to guests.
As support for its position that Mr. Ragonese was a trespasser, the Casino relies on the definitional clause in Huffman referencing the uninvited use of property ...
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