Bowers v. Wurzburg
| Decision Date | 16 December 1999 |
| Docket Number | No. 26218.,26218. |
| Citation | 207 W.Va. 28,528 S.E.2d 475 |
| Parties | Marvin T. BOWERS, et al., as Class Representatives, Plaintiffs Below, Appellants, v. Gretchen WURZBURG, the Southland Corporation, et al., Defendants Below, Appellees. |
| Court | West Virginia Supreme Court |
Paul G. Taylor, Esquire, Martinsburg, West Virginia, Attorney for Appellants.
Charles G. Printz, Jr., Esquire, Bowles Rice McDavid Graff & Love, Martinsburg, West Virginia, Attorney for Appellee Gretchen Wurzburg.
Lester Sotsky, Esquire (Pro Hac Vice), Arnold & Porter, Washington, DC, Attorney for Appellees Yakado, Ltd., et al. McGRAW, Justice:
The appellants herein and plaintiffs below, Marvin T. Bowers, Bessie C. Bowers, Esta M. Bell, and John R. Bell (hereinafter "the plaintiffs"), appeal a December 17, 1998, order of the Circuit Court of Jefferson County granting summary judgment in favor of appellee herein and defendant below Gretchen Wurzburg, whom appellants had sued (along with other parties) for damages resulting from a gasoline leak at a 7-11 convenience store near Shepherdstown, West Virginia. For reasons set forth below, we reverse the lower court's grant of summary judgment.
This represents our third encounter, to date, with this case. The underlying lawsuit stems from a leak of gasoline at a 7-11 convenience store located near Shepherdstown, West Virginia. Like many stores of its kind, this 7-11 offered self-service gasoline sales, the gasoline being stored in underground tanks. At some point in late 1994, some 10,000 gallons of gasoline leaked from the tanks, migrating onto the properties of the plaintiffs. On the ironic date of December 7, 1994, the leaking gasoline caught fire, and produced an explosion in the home of Mr. and Mrs. Bowers. As a result, the other plaintiffs were forced to evacuate their homes for various lengths of time, and suffered other damages.
Consequently, the plaintiffs filed a class action suit1 in the Circuit Court of Jefferson County against the owner of the property upon which the 7-11 was situated, Gretchen Wurzburg; the company that leased this property and owned and operated the 7-11 store, the Southland Corporation ("Southland"); and three foreign companies who hold a financial interest in Southland, to whom we shall refer to as Ito, IYG, and SEJ.2
Without reiterating verbatim the facts of the last two appeals, we find it necessary to provide some background information. The plaintiff's first appeal was a result of the lower court's dismissal of the foreign defendants for lack of personal jurisdiction. We found in Bowers v. Wurzburg, 202 W.Va. 43, 501 S.E.2d 479 (1998) ("Bowers I"), that the lower court had erred when it refused to permit discovery on the issue of personal jurisdiction. Without specifically deciding the jurisdictional question, we remanded this case to the Circuit Court of Jefferson County for the pursuit of discovery regarding the court's personal jurisdiction over the foreign defendants. See Bowers I, 202 W.Va. at 52-53, 501 S.E.2d at 488-89.
The next appeal resulted from the lower court's decision to dismiss the foreign companies for insufficient service of process. Although we agreed that the plaintiffs had not served the defendants properly, in Bowers v. Wurzburg, 205 W.Va. 450, 519 S.E.2d 148 (1999) ("Bowers II"), we modified, in part, the circuit court's decision, and remanded the case in order to allow the plaintiffs to effect proper service upon the foreign defendants.
This time around, it is the resident defendant, property owner and landlord, Gretchen Wurzburg, whom the lower court has dismissed from the action. On October 30, 1998, the lower court granted appellee Wurzburg's motion for summary judgment, which became final in an order dated December 17, 1998. It is from this order that the plaintiffs now appeal.3 Facts relevant to the instant appeal reveal that Ms. Wurzburg and her late brother Willard developed several convenience stores in the eastern panhandle of West Virginia in the late 1970's. Specifically, on November 1, 1977, the Wurzburgs entered into a lease agreement with Southland whereby the Wurzburgs would construct on their land a building that Southland would lease and operate as a 7-11 store.
In that lease, the Wurzburgs agreed to construct a building on their land in which Southland would operate the store. The Wurzburgs also agreed to maintain the structural integrity of the building, but Southland was to be responsible for all other maintenance and upkeep. Southland was to pay a base rent each month, in addition to a percentage of the store's gross sales.
Shortly after the signing of the November 1, 1977, lease, the parties signed the January 16, 1978, lease, in which the Wurzburgs agreed to let Southland construct and install pipes, pumps, and tanks necessary for the sale of gasoline. Southland also agreed in the second lease to maintain liability insurance and to hold the Wurzburgs harmless in the event others were harmed as a result of the sale of gasoline. Sales of gasoline were not included in the figures used to calculate the gross sales percentage agreed to by Southland in the earlier lease.
Wurzburg maintained in her motion for summary judgment that she had nothing to do with the operation of the 7-11 store, had no control over the day-to-day operations, was unaware of any problems with the gas storage tanks, and owes no duty to the plaintiffs. The lower court agreed, granting Ms. Wurzburg's motion for summary judgment, and subsequently denying plaintiffs' motion for reconsideration. Because we find that questions of material fact remain, we reverse the decision of the lower court.
Our standard of review of motions for summary judgment is well established and well known: "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 & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). Furthermore, "[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." Id. at Syl. pt. 6. Our review of such motions is de novo. Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
First we note that, when considering landlord or tenant liability for injuries to a third party, "the general principle [is] that once a property is leased, the tenant is liable for injuries to third persons [that] are caused by the condition of the demised premises." Andrick v. Town of Buckhannon, 187 W.Va. 706, 708, 421 S.E.2d 247, 249 (1992). See also, Cowan v. One Hour Valet, Inc., 151 W.Va. 941, 157 S.E.2d 843 (1967).
However, under certain circumstances, when a landlord knows that the tenant is engaging in potentially dangerous activity, the landlord may be liable for the actions of the tenant, even if that dangerous activity has harmed someone outside of the leased premises. Courts make such an exception to the general rule of landlord immunity to prevent a landlord from knowingly profiting (via the receipt of rent) from certain dangerous activities while passing the liability buck onto the tenant. In a case where a plaintiff, injured in a gas station explosion, sued the lessee operator as well as the lessor/owner of the property, the Ohio Court of Appeals reversed a directed verdict in favor of the landowner, stating: "Thus, there is simply no case to be made consistent with reality as to why the law should not provide the public with a remedy against a landlord out of possession and control who rents a powder factory to a known pyromaniac." Benlehr v. Shell Oil Co., 62 Ohio App.2d 1, 402 N.E.2d 1203, 1207 (1978).
This concept of imposing liability on a landlord for the actions of a tenant is best explained by reference to the Restatement (Second) of Torts:
Restatement (Second) of Torts § 379A (1963-1964).
Before continuing our discussion, we pause to explain the interrelated nature of several restatement provisions, namely Restatement (Second) of Torts §§ 379A and 837, and Restatement (Second) of Property § 18.4 (1976). First, we note that Restatement (Second) of Property is almost identical to Restatement (Second) of Torts § 379A.4
Second, we note that the authors of Restatement (Second) of Torts § 379A, quoted above, emphasize the similarity between that section and another. In the comment to Restatement (Second) of Torts § 379A, the authors write: Restatement (Second) of Torts § 379A, comment a (1963-1964). Section 837, in full, reads as follows:
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