Blake v. John Skidmore Truck Stop, Inc.

• Decision Date: 17 July 1997
• Docket Number: No. 23400,23400
• Citation: 493 S.E.2d 887,201 W.Va. 126
• Court: West Virginia Supreme Court
• Parties: Thelma Lea BLAKE and Jerry Lane Blake, Her Husband, Appellants, v. JOHN SKIDMORE TRUCK STOP, INC., A West Virginia Corporation, Appellee.

Page 887

493 S.E.2d 887

201 W.Va. 126

Thelma Lea BLAKE and Jerry Lane Blake, Her Husband, Appellants, v. JOHN SKIDMORE TRUCK STOP, INC., A West Virginia Corporation, Appellee.

No. 23400.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 29, 1997.

Decided July 17, 1997.

[201 W.Va. 127] Syllabus by the Court

1. " ' "Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence." Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85[, 163 S.E. 767 (1932) ].' Point 1, Syllabus, Jenkins v. Chatterton, 143 W.Va. 250[, 100 S.E.2d 808] (1957)." Syl. Pt. 2, Jividen v. Legg, 161 W.Va. 769, 245 S.E.2d 835 (1978).

2. "The appellate standard of review for the granting of a motion for a directed verdict pursuant to Rules Civ.Proc., Rule 50 is de novo. On appeal, this court, after considering the evidence in the light most favorable to the nonmovant party, will sustain the granting of a directed verdict when only one reasonable conclusion as to the verdict can be reached. But if reasonable minds could differ as to the importance and sufficiency of the evidence, a circuit court's ruling granting a directed verdict will be reversed." Syl. Pt. 3, Brannon v. Riffle, 197 W.Va. 97, 475 S.E.2d 97 (1996).

3. The fact that an employee suffers injuries as the result of the criminal act of a third party does not itself preclude the assertion of a deliberate intention cause of action against an employer. In order to prevail, however, such employee must meet the five-part test set forth in Code, 23-4-2(c)(2)(ii).

4. "To establish 'deliberate intention' in an action under Code, 23-4-2(c)(2)(ii), a plaintiff or cross-claimant must offer evidence to prove each of the five specific statutory requirements." Syl. Pt. 2, Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991).

R. Edison Hill, Philip Strauss, Hill, Peterson, Carper, Bee & Deitzler, and Thomas G. Wilson, Charleston, for Appellants.

Mary H. Sangers, James C. Stebbins, Huddleston, Bolen, Beatty, Porter & Copen, Charleston, for Appellee.

WORKMAN, Chief Justice:

Thelma L. Blake and her husband, Jerry L. Blake, the plaintiffs below and Appellants herein (hereinafter Appellants), appeal the September 18, 1995, order of the Circuit Court of Braxton County, directing a verdict in favor of John Skidmore Truck Stop, Inc., a West Virginia Corporation, the defendant below and Appellee herein (hereinafter Appellee). On appeal, Appellants argue the trial court erred by ruling that (1) injuries resulting from third party criminal acts, as a matter of law, cannot give rise to a claim under the "deliberate intention" exception contained within West Virginia Code § 23-4-2 (1985) ¹ of our Workers' Compensation Act ²; and (2) Appellants failed in their case-in-chief to produce sufficient evidence to establish a prima facie right to recovery, preventing entry of a directed verdict against them. Upon

[201 W.Va. 128] review, we reverse the final order of the trial court and remand this case for further proceedings consistent with this opinion.

I. FACTS

In April 1989, Mrs. Blake began working as a cashier at the Party and Beverage Store (hereinafter the "Store"), which primarily sold beer, soft drinks, and snack foods to its customers. ³ The Store was owned and operated by Appellee and was located near an interchange off Interstate 79 in Flatwoods, West Virginia. For the convenience of its customers, the Store was equipped with garage doors at the front and back of the building, permitting drive-through purchases to be made. According to John Skidmore, the president and majority shareholder of Appellee, drive-through business accounted for approximately sixty to seventy percent of the Store's sales.

Appellee also owned a laundromat adjacent to the Store. Although Mrs. Blake worked at the Store by herself, she also was responsible for keeping the laundromat clean during her shift. Mrs. Blake testified that she would spend approximately five to fifteen minutes, every thirty minutes to an hour, doing her chores in the laundromat. ⁴ While she was in the laundromat, the Store was left open and unattended. Mrs. Blake testified that she was instructed to always keep the Store's garage doors open during business hours, but that she should keep the Store's cash register locked whenever she was away from it.

Near the end of the business day on March 4, 1990, ⁵ Mrs. Blake was returning from cleaning the laundromat and noticed a man she had never seen before in the Store. According to Mrs. Blake, the man purchased a soft drink and stood directly behind her when she used the cash register. Mrs. Blake testified that, because of the location of the cash register, there was nothing to prevent the man from seeing the day's receipts, approximately $230, when she opened the cash register drawer. After purchasing the soft drink, the man left the store, and Mrs. Blake locked the register, took the key, and returned to the laundromat.

Moments later, the same man re-entered the Store and called for Mrs. Blake's attention. After Mrs. Blake came back into the Store, the man handed her a one dollar bill to purchase a package of crackers. Once again, the man stood directly behind her as she opened the cash register drawer to get him his change. This time, however, as she opened the drawer, the man began brutally stabbing her with a knife. After stabbing her eight times, the knife broke so the man began beating her head against a wall. Mrs. Blake testified that she screamed and struggled to get away, but she ended up on the floor and decided to pretend she was dead.

After the man left, Mrs. Blake got up and staggered to a Pennzoil station to get help. John Conley, an employee at the Pennzoil station, drove Mrs. Blake to the Braxton Memorial Hospital. ⁶ From there, she was taken by helicopter to Charleston Area Medical Center, where she remained for eight days. In addition to her physical injuries and scarring, Mrs. Blake asserts she now suffers from post-traumatic stress syndrome. ⁷ Her assailant has never been arrested.

Appellants filed suit against Appellee, generally alleging that Appellee intentionally and wilfully failed to provide any security in the Store and, as a direct and proximate cause of such lack of security, Mrs. Blake suffered substantial injuries. Both at the

[201 W.Va. 129] trial court level and on appeal, Appellants argue that their claim for damages is not barred by the immunity from suit protection afforded employers under the Workers' Compensation Act because Appellee acted with deliberate intention as defined by West Virginia Code § 23-4-2, for which an employer loses its immunity from suit protection. In addition, Appellants maintain they presented sufficient evidence at trial to prove Appellee acted with such deliberate intention and, therefore, the trial court erred when it directed a verdict against them at the close of their case-in-chief.

II. DISCUSSION

This case presents two issues. The first issue is whether injuries resulting from the criminal acts of a third party can ever give rise to a claim under the deliberate intention exception of West Virginia Code § 23-4-2. If such a claim can be made, the second issue to be resolved is whether Appellants produced sufficient evidence in the present case to establish that Appellee acted with deliberate intention to defeat Appellee's motion for a directed verdict. After careful review of West Virginia Code § 23-4-2, we find an employee can state a deliberate intention cause of action when injured by the criminal acts of a third party so long as the employee can meet the requirements of the "deliberate intention" exception as set forth in the statute. In addition, upon review of the facts, we find Appellants produced sufficient evidence in their case-in-chief to prevent a directed verdict from being entered against them.

A. Standard of Review

To the extent the issues in this case present purely a question of law, i.e., a statutory analysis, our review is de novo and plenary. State v. Smith, 198 W.Va. 702, 707, 482 S.E.2d 687, 692 (1996); Farley v. Sartin, 195 W.Va. 671, 673, 466 S.E.2d 522, 524 (1995). As to the directed verdict, however, West Virginia Code § 23-4-2(c)(2)(iii)(B) specifically provides that a court shall dismiss an action when, "after considering all the evidence and every inference legitimately and reasonably raised thereby most favorably to the plaintiff, the court shall determine that there is not sufficient evidence to find each and every one of the facts required to be proven" in West Virginia Code § 23-4-2(c)(2)(ii)(A)-(E). W.Va.Code § 23-4-2(c)(2)(iii)(B) ⁸; accord Syl. Pt. 3, Roberts v. Gale, 149 W.Va. 166, 139 S.E.2d 272 (1964) (holding "[w]hen the plaintiff's evidence, considered in the light most favorable to him, fails to establish a prima facie right of recovery, the trial court should direct a verdict in favor of the defendant"). Similarly, this Court repeatedly has said:

" ' "Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence." Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85[, 163 S.E. 767 (1932) ].' Point 1, Syllabus, Jenkins v. Chatterton, 143 W.Va. 250 (1957)."

Syl.Pt. 2, Jividen v. Legg, 161 W.Va. 769, 245 S.E.2d 835 (1978). Moreover, as to the standard The appellate standard of review for the granting of a motion for a directed verdict pursuant to Rule 50 of the West Virginia Rules of Civil Procedure is de novo. On appeal, this court, after considering the evidence in...