Andrick v. Town of Buckhannon, 20450

Citation187 W.Va. 706,421 S.E.2d 247
Decision Date20 July 1992
Docket NumberNo. 20450,20450
CourtSupreme Court of West Virginia
PartiesMarthella ANDRICK and Joseph R. Andrick, Plaintiffs Below, Appellants, v. The TOWN OF BUCKHANNON, a West Virginia Statutory Municipal Corporation; Sam Baxa, dba Baxa Motel, Betty Phillips, dba the Cornerstone Restaurant; and Linda Lemasters, dba the Cornerstone Restaurant, Defendants Below, Betty Phillips, dba the Cornerstone Restaurant; and Linda Lemasters, dba the Cornerstone Restaurant, Appellees.

Syllabus by the Court

1. "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." Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

2. " 'The owner or the occupant of premises owes to an invited person the duty to exercise ordinary care to keep and maintain the premises in a reasonably safe condition.' Point 2 Syllabus, Burdette v. Burdette, 147 W.Va. 313 [127 S.E.2d 249 (1962) ]." Syllabus Point 2, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966).

3. Where the operator of a business obtains the right for its customers to park in an adjoining lot owned by another and invites them to do so, the operator has a duty of reasonable care to protect its invitees from defective or dangerous conditions existing in the parking area which the operator knows or reasonably should know exist.

James T. Kratovil, Kratovil & Kratovil, Weston, for appellants.

Boyd L. Warner, Waters, Warner & Harris, Clarksburg, for appellees.

MILLER, Justice:

This is an appeal by the plaintiffs below, Marthella Andrick and Joseph R. Andrick, from an order of the Circuit Court of Upshur County dated February 21, 1991, which granted summary judgment in favor of two of the defendants below, Betty Phillips and Linda Lemasters, in a civil action for personal injury and loss of services. The circuit court ruled that the appellees owed the plaintiffs no duty of care as a matter of law. We disagree, and we reverse the judgment of the circuit court.

The facts appearing from the depositions and the affidavits of the parties are essentially undisputed. The appellees were the owners and operators of a restaurant business located on the west side of North Kanawha Street in the City of Buckhannon. The appellees leased the premises from Sam Baxa, who also owned a motel located across North Kanawha Street. The appellees' lease expressly provided that restaurant customers would be allowed to park in the motel parking lot free of charge. 1 A sign on the door of the restaurant advised customers that parking was available across the street at the motel. A similar sign was posted at the motel. Mr. Baxa acknowledges that he had the responsibility of maintaining and repairing the parking lot.

On March 11, 1988, the plaintiffs and their daughter decided to dine at the appellees' restaurant. The plaintiffs parked their vehicle on the motel parking lot and were walking towards the restaurant. At the point where the parking lot meets the sidewalk, Mrs. Andrick fell and was injured, allegedly because the pavement was uneven.

The plaintiffs subsequently brought suit in the Circuit Court of Upshur County against the appellees, the City, and Mr. Baxa. The complaint alleged that each of the defendants negligently failed to repair and/or maintain the sidewalk, thus, proximately causing Mrs. Andrick's injury and Mr. Andrick's loss of his wife's services.

Prior to trial, the appellees filed a motion for summary judgment, alleging that they had no duty to maintain the sidewalk and/or the motel parking lot. The circuit court concluded that because the appellees exercised no control over and had no responsibility to maintain the parking lot, they could not, as a matter of law, be held liable for the plaintiffs' injuries. By order dated February 21, 1991, the court granted the appellees' motion for summary judgment. 2

The only issue in this appeal is whether summary judgment was appropriate because the appellees owed the plaintiffs no duty of care with regard to the condition of the motel parking lot.

The standard by which we judge the propriety of summary judgment was stated in Syllabus Point 3 of Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963):

"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."

In the text of the opinion, we expounded upon the rule as follows: "A party is not entitled to summary judgment unless the facts established show a right to judgment with such clarity as to leave no room for controversy and show affirmatively that the adverse party can not prevail under any circumstances." 148 W.Va. at 171, 133 S.E.2d at 777. The burden is on the moving party, as we stated in Syllabus Point 6 of Aetna:

"A party who moves for summary judgment has the burden of showing that there is no genuine issue of fact and any doubt as to the existence of such issue is resolved against the movant for such judgment."

Summary judgment is not favored, and on appeal from an order granting summary judgment, the facts will be viewed in the light most favorable to the losing party. Masinter v. WEBCO Co., 164 W.Va. 241, 262 S.E.2d 433 (1980).

The plaintiffs rely on the general principle that once a property is leased, the tenant is liable for injuries to third persons which are caused by the condition of the demised premises. See Cowan v. One Hour Valet, Inc., 151 W.Va. 941, 157 S.E.2d 843 (1967). See generally 49 Am.Jur.2d Landlord and Tenant § 981 (1970 & Supp.1992). The plaintiffs assert that their relationship to the appellees was that of business invitees and that the appellees' obligation was that set out in Syllabus Point 2 of Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966):

" 'The owner or the occupant of premises owes to an invited person the duty to exercise ordinary care to keep and maintain the premises in a reasonably safe condition.' Point 2 Syllabus, Burdette v. Burdette, 147 W.Va. 313 [127 S.E.2d 249 (1962) ]."

Accord Haddox v. Suburban Lanes, Inc., 176 W.Va. 744, 349 S.E.2d 910 (1986); Hovermale v. Berkeley Springs Moose Lodge No. 1483, 165 W.Va. 689, 271 S.E.2d 335 (1980); Roach v. McCrory Corp., 158 W.Va. 282, 210 S.E.2d 312 (1974); Puffer v. Hub Cigar Store, Inc., 140 W.Va. 327, 84 S.E.2d 145 (1954).

The circuit court, on the other hand, apparently relied on the "common use" doctrine, which we stated in Syllabus Point 6 of Cowan v. One Hour Valet, Inc., supra:

"There are exceptions to the general rule that a landlord or lessor is not liable to the lessee or his invitees for injuries received on leased premises, one of which is the 'common use' situation where the tenants or invitees of tenants are injured on part of the premises which can be used in common by tenants or by the public, and where the landlord retains control of certain places or things in connection with the leased premises."

See Lowe v. Community Inv. Co., 119 W.Va. 663, 196 S.E. 490 (1938); Marsh v. Riley, 118 W.Va. 52, 188 S.E. 748 (1936).

We applied this principle in Durm v. Heck's, Inc., 184 W.Va. 562, 401 S.E.2d 908 (1991), to a case in which the plaintiff was injured when she fell on an uneven sidewalk adjacent to a supermarket located in a multi-store shopping center. The terms of the supermarket's lease of the premises designated the sidewalk as a "common area" which the shopping center owner was required to maintain. We adopted the majority rule that the supermarket could not be held liable, stating in Syllabus Point 1:

"Where a lease agreement clearly sets forth that the lessor has the duty to maintain the non-leased common areas, thereby retaining the lessor's control over such areas, the lessee of a store located in a shopping center is not liable when a patron sustains injuries as a result of an accident which occurs on the non-leased common area."

The appellees argue that these principles are applicable in this case, principally because Mr. Baxa acknowledged that he retained the responsibility to repair and maintain the motel parking lot. The appellees assert that as a result, they had no control over the parking lot and could not, under any circumstances, be held liable for injuries occasioned by a defect therein or on the sidewalk. We disagree.

First of all, we note that the lease between the appellees and Mr. Baxa did not expressly designate the motel parking lot as a "common area" or clearly establish that Mr. Baxa had the duty to maintain it, as did the lease in Durm. We further note that all of the common use cases cited above involved situations in which an area of the demised premises which was not included in the tenant's leasehold was used by multiple tenants and/or the public in general. The evidence presented to this Court shows that the customers of the appellees were permitted to use the motel parking lot pursuant to the express grant of such right in the lease and that the only other persons permitted to park there were Mr. Baxa's customers and employees.

More importantly, we believe a more flexible concept of "control" may be warranted in this case. In Southland Corp. v. Superior Court, 203 Cal.App.3d 656, 250 Cal.Rptr. 57 (1988), the lease of the premises on which the defendants' convenience store was located gave the defendants the right to use the adjacent vacant lot for the ingress and egress of their customers and employees and for additional customer parking. Because of limited parking on the store premises, customers frequently parked in the adjoining lot, and the defendants erected no barriers or signs to discourage the practice. The evidence also showed...

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