Carrier v. City of Huntington

• Decision Date: 25 February 1998
• Docket Number: No. 24140.,24140.
• Citation: 501 S.E.2d 466,202 W.Va. 30
• Parties: Pearl R. CARRIER, Plaintiff Below, Appellant, v. CITY OF HUNTINGTON, A Municipal Corporation of the State of West Virginia, Defendant Below, Appellee.
• Court: West Virginia Supreme Court

501 S.E.2d 466

202 W.Va. 30

Pearl R. CARRIER, Plaintiff Below, Appellant, v. CITY OF HUNTINGTON, A Municipal Corporation of the State of West Virginia, Defendant Below, Appellee.

No. 24140.

Supreme Court of Appeals of West Virginia.

Submitted January 14, 1998.

Decided February 25, 1998.

Paul J. Prunty, Huntington, for Appellant.

James A. Dodrill, Dodrill, Brison & Curnutte, Charleston, for Appellee.

PER CURIAM:¹

Pearl R. Carrier, appellant/plaintiff, appealed an order by the Circuit Court of Cabell County granting summary judgment to the City of Huntington, appellee/defendant. Ms. Carrier contends that the circuit court committed error by applying premises liability principles of law to the facts of this case.² We agree.

I. FACTUAL BACKGROUND

On December 7, 1993, Ms. Carrier tripped and fell on a sidewalk in Huntington.³ Ms. Carrier sustained injuries to her face and other parts of her body. The sidewalk on which Ms. Carrier fell had "broken, uneven and missing pieces of concrete." Ms. Carrier filed suit against the City of Huntington (Huntington) on December 6, 1995. The complaint charged Huntington with negligence in failing to maintain the sidewalk in good repair.

After a period of discovery, Huntington moved for summary judgment. The circuit court ruled that premises liability principles of law governed the case. Applying those principles to the case, the circuit court concluded: (1) Ms. Carrier was an invitee on the sidewalk, (2) Ms. Carrier admitted she had a long standing prior knowledge of the sidewalk's condition, (3) the sidewalk's condition was open and obvious, (4) the alleged defect was not a hidden defect or trap on Huntington's property, and (5) Huntington owed Ms. Carrier no duty. Based upon these findings, the circuit court granted summary judgment for Huntington.

II. STANDARD OF REVIEW

A circuit court's entry of summary judgment is reviewed de novo. Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). We will reverse a circuit court's award of summary judgment if there is a genuine issue of material fact to be resolved or if, as a matter of law, the moving party is not entitled to the judgment. Williams v. Precision Coil, 194 W.Va. 52, 60, 459 S.E.2d 329, 336 (1995). "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 Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

III. DISCUSSION

A. Premises Liability Principles

The issue in this case is whether premises liability principles are applicable in an action against a municipality resulting from Huntington's negligent failure to maintain its sidewalks in good repair. The circuit court ruled that premises liability principles were applicable to this case. Specifically, the circuit court ruled that Ms. Carrier was an invitee on the sidewalks of Huntington. The circuit court also ruled that Huntington owed no duty to Ms. Carrier because the defective condition of the sidewalk was open and obvious.

Under premises liability principles an individual on private property may be an invitee, a licensee or a trespasser. Whether a party injured on the premises of another is an invitee, licensee or trespasser is significant under the law of West Virginia. The law imposes different duties of care on possessors of premises with regard to invitees, licensees and trespassers.

This Court has stated "[a] person is an invitee when for purposes connected with the business conducted on the premises he enters or uses a place of business." Syl. pt. 1, Burdette v. Burdette, 147 W.Va. 313, 127 S.E.2d 249 (1962). The duty owed to an invitee was outlined in syllabus point 2 of Burdette. In Burdette, the Court concluded "[t]he 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." Also, in syllabus point 3 of Burdette we held "[t]he owner or the occupant of premises used for business purposes is not an insurer of the safety of an invited person present on such premises and, if such owner or occupant is not guilty of actionable negligence or willful or wanton misconduct and no nuisance exists, he is not liable for injuries there sustained by such invited person."

In defining a licensee in syllabus point 2 of Cole v. Fairchild, 198 W.Va. 736, 482 S.E.2d 913 (1996), we said "[a] person is a licensee when he or she has permission or consent to enter the premises of another not in response to any inducement offered by the owner or occupant, or for a purpose having some connection with a business actually or apparently carried on there by the occupant, but for his own mere pleasure, convenience, or benefit." In the single syllabus of Hamilton v. Brown, 157 W.Va. 910, 207 S.E.2d 923 (1974) this Court held that:

Mere permissive use of the premises, by express or implied authority ordinarily creates only a license, and as to a licensee, the law does not impose upon the owner of the property an obligation to provide against dangers which arise out of the existing condition of the premises inasmuch as the licensee goes upon the premises subject to all the dangers attending such conditions.

As to a trespasser, we held in syllabus point 1 of Huffman v. Appalachian Power Co., 187 W.Va. 1, 415 S.E.2d 145 (1991) 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." In syllabus point 2 of Huffman we held that "[t]he owner or possessor of property does not owe trespassers a duty of ordinary care. With regard to a trespasser, a possessor of property only need refrain from wilful or wanton injury."

B. The Liability of Cities is Governed by Statute

This Court has never applied premises liability theories to personal injury claims arising from injury on public property. Injuries occurring on public property are governed by specific statutes. The specific statutes are W.Va.Code § 29-12A-4(c)(3)⁴ and W.Va.Code § 17-10-17.⁵ With respect to W.Va.Code § 29-12A-4(c)(3), this Court held in syllabus point 3 of Koffler v. City of Huntington, 196 W.Va. 202, 469 S.E.2d 645 (1996), in part, that:

Under W.Va.Code, 29-12A-4(c)(3) [1986], political subdivisions are liable for injury, death, or loss to persons or property caused by their negligent failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within the political subdivisions open, in repair, or free from nuisance[.]

Regarding W.Va.Code § 17-10-17, we said in Higginbotham v. City of Charleston, 157 W.Va. 724, 204 S.E.2d 1 (1974), overruled on other grounds, O'Neil v. City of Parkersburg, 160 W.Va. 694, 237 S.E.2d 504 (1977), that W.Va.Code § 17-10-17 imposed a duty upon cities to repair and to maintain streets and sidewalks. Cities can be held liable in private actions for failing to repair and maintain its streets and sidewalks in violation of the statute. We pointed out in Benson v. Kutsch, 181 W.Va. 1, 7, 380 S.E.2d 36, 42 (1989) that "[t]his statute specifically provides a right to recover damages for those injured." Citing Long v. City of Weirton, 158 W.Va. 741, 214 S.E.2d 832 (1975); Burdick v. City of Huntington, 133 W.Va. 724, 57 S.E.2d 885 (1950); Parsons v. Roane County Court, 92 W.Va. 490, 115 S.E. 473 (1922). The statute "unequivocally gives one the right to sue a city if he is injured by its negligence." O'Neil, 160 W.Va. at 700, 237 S.E.2d at 508. In syllabus point 11 of Long we held that "[a] municipal corporation shall be liable [under W.Va.Code § 17-10-17], as if a private person, for injuries inflicted upon members of the public which are proximately caused by its negligence in the performance of functions assumed by it."

When construing W.Va.Code § 29-12A-4(c)(3) or W.Va.Code § 17-10-17, this Court has never applied premises liability principles. The reason for not applying premises liability principles to actions under W.Va.Code § 29-12A-4(c)(3) or W.Va.Code § 17-10-17, is that the statutes do not expressly provide for the distinctions contained in premises liability principles.⁶ The cause of action against Huntington in the instant case was statutorily created. It is for the legislature and not this Court to craft distinctions in the duty of care under W.Va.Code § 29-12A-4(c)(3) or W.Va.Code § 17-10-17.⁷ Therefore, the circuit court committed error in applying premises liability principles to this case, as they are inapplicable.⁸

IV. CONCLUSION

For the foregoing reasons, we conclude that premises liability principles are not applicable in an action against a municipality. Accordingly, we reverse the decision of the circuit court of Cabell County and remand this case for further proceedings consistent with this opinion.

Reversed and Remanded.

1. We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W.Va. 197, 201 n. 4, 423 S.E.2d 600, 604 n. 4. (1992).

2. The plaintiff has assigned as error several specific issues, all of which relate to the application of...