Blake v. Wendy's Intern., Inc.

• Decision Date: 19 December 1991
• Docket Number: No. 20067,20067
• Citation: 186 W.Va. 593,413 S.E.2d 414
• Court: West Virginia Supreme Court
• Parties: Lee D. BLAKE and Stacey Blake, Plaintiffs Below, Appellants, v. WENDY'S INTERNATIONAL, INC., Defendant Below, Appellee.

Page 414

413 S.E.2d 414

186 W.Va. 593

Lee D. BLAKE and Stacey Blake, Plaintiffs Below, Appellants, v. WENDY'S INTERNATIONAL, INC., Defendant Below, Appellee.

No. 20067.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 17, 1991.

Decided Dec. 19, 1991.

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." Syl. pt. 3, Aetna Casualty & Surety Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963).

2. "The owner or occupier of premises owes to an invitee such as a non-employee workman or an independent contractor the duty of providing him with a reasonably safe place in which to work and has the further duty to exercise ordinary care for the safety of such persons." Syl. pt. 2, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).

3. "Questions of negligence, due care, proximate cause and concurrent negligence present issues of fact for jury determination when the evidence pertaining to such issues is conflicting or where the facts, even though undisputed, are such that reasonable men may draw different conclusions from them." Syl. pt. 5, Hatten v. Mason Realty Co., 148 W.Va. 380, 135 S.E.2d 236 (1964).

Stephen P. Gast, Greiser, Schafer, Blumenstiel & Slane, Columbus, Ohio, Thomas M. Plymale, Garren, Plymale, Lycan & Pratt, Huntington, for appellants.

Gail Lea, Jackson & Kelly, Charleston, for appellee.

PER CURIAM.

The appellants, Lee D. Blake and Stacey Blake, appeal from an order of the Circuit Court of Cabell County granting summary judgment in favor of the appellee, Wendy's International, Inc. (hereinafter "Wendy's"). Mr. and Mrs. Blake contend that the circuit court erred in granting summary judgment on the grounds that sufficient evidence was presented to raise an issue for the jury that Wendy's had: (1) breached its duty to provide a reasonably safe place for Mr. Blake to work; (2) breached its duty to exercise ordinary care for the safety of Mr. Blake; (3) negligently interfered with the performance of Mr. Blake's work; and (4) failed to warn Mr. Blake of hidden dangers. We agree that summary judgment was improperly granted and we reverse the decision of the circuit court.

I

Mr. Blake was employed as a licensed electrician by the T & L Sign Company. When Mr. Blake arrived at work on the morning of January 16, 1987, he was instructed by his employer to go to the Wendy's restaurant at Fifth Avenue and Twenty-Second Street in Huntington, West Virginia, to repair the lighting of a sign. This restaurant is owned and operated by Wendy's.

When Mr. Blake arrived at the restaurant, he reported to the manager inside the restaurant and was told that the sign on the roof on the front of the building was not working properly. Mr. Blake asked the manager to show him the location of the circuit breaker box and to identify which breaker controlled the sign. Mr. Blake then went outside and moved his bucket truck to the west side of the restaurant to repair the sign. The district manager of Wendy's came out of the restaurant and informed Mr. Blake that he could not park his truck there because it was blocking the exit driveway. Mr. Blake then moved his truck to another location and repaired the sign.

After completing his repair work on the sign, he went inside the restaurant to have the store manager sign his work order. The store manager then asked Mr. Blake to check the fascia lighting around the building because those lights were not working properly. Mr. Blake agreed to repair those lights too. Mr. Blake used an aluminum extension ladder to reach the fascia lighting. ¹

When Mr. Blake climbed the ladder to the roof, he noticed a burn mark in the galvanized metal raceway, which indicated that there was a bad ballast. Mr. Blake removed the metal cover from the raceway, disconnected the bad ballast and replaced it. After replacing the ballast, however, only half of the fascia lighting on the building was working. Mr. Blake then began moving his ladder around the building, taking off the raceways to locate the problem. After Mr. Blake worked on the fascia lighting for a while, all of the lights came on except one located on the east side of the building. So Mr. Blake moved his ladder to the east side of the building, climbed up and checked the light bulb to determine whether it needed to be replaced. Although he replaced the light bulb with a new one, the light still did not work. When Mr. Blake began to open that section of the raceway to determine why the light wasn't working, the wires which had been crammed into the raceway sprang out and hit his chest, causing him to fall from the ladder. Mr. Blake sustained serious injuries from the fall.

On June 1, 1988, Mr. and Mrs. Blake instituted a civil action against Wendy's seeking to recover damages for the injuries Mr. Blake sustained when he fell from the ladder at Wendy's. Mrs. Blake sued for loss of consortium. In its answer to the complaint, Wendy's denied liability and asserted that Mr. Blake had assumed the risks incident to the happening of the accident and that Mr. and Mrs. Blake were barred from recovering under the doctrine of assumption of risks. Depositions were taken and interrogatories were filed and answered during the discovery period.

Wendy's subsequently moved for summary judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure. The circuit court granted Wendy's motion for summary judgment by order entered on July 17, 1990, on the grounds that there was no genuine issue as to any material fact and that Wendy's was entitled to judgment as a matter of law. It is from that order that Mr. and Mrs. Blake now appeal.

II

The dispositive issue in this case is whether the circuit court erred in granting summary judgment in favor of Wendy's. Summary judgment should not be granted when there is a genuine issue of material fact as we pointed out in syllabus point 3 of Aetna Casualty & Surety Co. v. Federal Ins. Co. of N.Y., 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."

We recently identified two distinct components of the parties' respective burdens of proof under Rule 56 of the West Virginia Rules of Civil Procedure in Smith v. Buege, 184 W.Va. 204, 209, 387 S.E.2d 109, 114 (1989) and Crain v. Lightner, 178 W.Va. 765, 769 n. 2, 364 S.E.2d 778, 782 n. 2 (1987): "an initial burden of production, which may shift to the nonmovant, and an ultimate burden of persuasion as to the nonexistence of a 'genuine issue,' which burden always remains on the movant."

It is clear from the record before us that Wendy's did not satisfy its ultimate burden of persuasion as to the nonexistence of a 'genuine issue.' As one of their theories for recovery in this case, the appellants have asserted that Wendy's breached its duty to provide a reasonably safe place for Mr. Blake to work and to exercise ordinary care for his safety. We recognized such a duty in syllabus point 2 of Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976): "The owner or occupier of premises owes to an invitee such as a non-employee workman or an independent contractor the duty of providing him with a reasonably safe place in which to work and has the further duty to exercise ordinary care for the safety of such persons."

Moreover, we recognized in syllabus point 5 of Hatten v. Mason Realty Co., 148 W.Va....