Cavender v. Fouty

Citation464 S.E.2d 736,195 W.Va. 94
Decision Date26 October 1995
Docket NumberNo. 22807,22807
CourtWest Virginia Supreme Court
PartiesOtis L. CAVENDER and Marguerite M. Cavender, Plaintiffs Below, Appellants, v. Billy FOUTY and Patricia Fouty, Defendants Below, 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). Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992)." Syllabus Point 1, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

2. "Summary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove." Syllabus Point 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

3. "If the moving party makes a properly supported motion for summary judgment and can show by affirmative evidence that there is no genuine issue of a material fact, the burden of production shifts to the nonmoving party who must either (1) rehabilitate the evidence attacked by the moving party, (2) produce additional evidence showing the existence of a genuine issue for trial, or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f) of the West Virginia Rules of Civil Procedure." Syllabus Point 3, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

4. "We have consistently recognized and applied the distinctions for liability purposes among trespassers, licensees and invitees." Syllabus Point 1, Miller v. Monongahela Power Co., 184 W.Va. 663, 403 S.E.2d 406, cert. denied, 502 U.S. 863, 112 S.Ct. 186, 116 L.Ed.2d 147 (1991).

George M. Scott, Spencer, for Appellants.

David A. Sims, Debra Tedeschi Hall, Elkins, for Appellees.

PER CURIAM:

Otis L. and Marguerite M. Cavender appeal an order of the Circuit Court of Roane County granting Billy and Patricia Fouty summary judgment and dismissing Mr. and Mrs. Cavender's complaint with prejudice. On appeal, the Cavenders argue that the circuit court erred in finding that Mr. and Mrs. Fouty owed no duty to Mr. Cavender because he was a licensee. The Cavenders allege that because Mr. Cavender was an invitee, on the Foutys' property for a business purpose, the Foutys failed in their duty to him to exercise ordinary care to keep and maintain their property in a reasonably safe condition. Because the facts of this case present at least one material question of fact concerning Mr. Cavender's status as either an invitee or a licensee, we find that summary judgment should not have been granted and therefore, we reverse the circuit court's decision and remand this case for further proceedings.

I

During August 1991, Mr. Cavender, who had seen an electrical meter box attached to a pole located on the Foutys' farm, telephoned Mr. Fouty and asked him about purchasing the meter box. Mr. Cavender's original offer for the meter box was $35 but after some negotiation, the purchase price increased to $50 for the "mobile home setup" 1 and Mr. Cavender was to remove the meter box from the pole. The parties disagree about who suggested that Mr. Cavender remove the material. Mr. Cavender said, "That is difficult [to say whose idea it was for him to remove the box from the pole], but I dare say that in our conversation I agreed to take it off." Mr. Fouty said, "Well he told me that he would take it down and give me the $50.00." Mr. Fouty acknowledged that he wanted to keep the pole to which the meter box was attached. Mr. Fouty said, "the meter base box is what I sold him, and I gave him the entrance and the weather head." Mr. Cavender paid $50 to Mr. Fouty. The parties agree that Mr. Fouty has a separate and distinct occupation, namely as an automotive mechanic, and does not routinely engage in activities such as the sale of the mobile home setup.

The meter base was located about eye level between five and six feet above the ground on a black pole, which was about 16 feet high. On August 10, 1991, Mr. Cavender, working alone, started removing the meter base from the Foutys' pole. Standing on the ground, Mr. Cavender first loosened the meter base. In order to remove the wires, Mr. Cavender, without inspecting the pole, leaned his ladder against the pole and began to climb up. Mr. Cavender estimated that when he was about six feet above the ground, the pole, on which his ladder was leaning, collapsed. Mr. Cavender said, "when the pole broke, it shot me and the ladder over the hill with the pole." Apparently the pole broke off at ground level. The record is unclear concerning what caused the pole to break. As a result of the accident, Mr. Cavender severely injured his back and had constant pain in his back, pelvis and legs. Mr. Cavender alleges he is totally disabled as a direct result of the accident.

On June 15, 1993, Mr. and Mrs. Cavender filed their complaint against Mr. and Mrs. Fouty, the owners of the property where the pole had been located. The Cavenders demanded a trial by jury. After some discovery, on April 13, 1994, the Foutys filed a motion for summary judgment arguing that because Mr. Cavender was a licensee and the Foutys did not wilfully or wantonly injure him, the Cavenders' suit should be dismissed. By order entered January 25, 1995, the circuit court granted the Foutys summary judgment and the Cavenders appealed to this Court.

II

This appeal's sole issue is the appropriateness of summary judgment. "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). Accord Williams v. Precision Coil, Inc., 194 W.Va. 52, 58, 459 S.E.2d 329, 335, rehearing denied (1995). Our traditional standard for granting summary judgment is stated in Syl. pt. 3, 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.

Accord Syl. pt. 1, Williams v. Precision Coil, Inc., supra; Syl. pt. 2, Painter v. Peavy, supra; Syl. pt. 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).

Rule 56 (1978) of the W.Va.R.Civ.P. is " 'designed to effect a prompt disposition of controversies on their merits without resort to a lengthy trial,' if there essentially 'is no real dispute as to salient facts' or if it only involves a question of law." Williams v. Precision Coil, Inc., 194 W.Va. at 58, 459 S.E.2d at 335, quoting, Painter v. Peavy, 192 W.Va. at 192 n. 5, 451 S.E.2d at 758 n. 5, quoting, Oakes v. Monongahela Power Co., 158 W.Va. 18, 22, 207 S.E.2d 191, 194 (1974). Subsection c of Rule 56 states, in pertinent part, that "[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

Syl. pt. 2, Williams v. Precision Coil, Inc., states:

Summary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.

See also Syl. pt. 4, Painter v. Peavy, supra.

Syl. pt. 3, Williams v. Precision Coil, Inc., states:

If the moving party makes a properly supported motion for summary judgment and can show by affirmative evidence that there is no genuine issue of a material fact, the burden of production shifts to the nonmoving party who must either (1) rehabilitate the evidence attacked by the moving party, (2) produce additional evidence showing the existence of a genuine issue for trial, or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f) of the West Virginia Rules of Civil Procedure.

According to Williams, the function of the circuit court at the summary judgment stage "is not 'to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.' " Williams v. Precision Coil, Inc., 194 W.Va. at 59, 459 S.E.2d at 336, quoting, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 212 (1986). See Syl. pt. 3, Painter v. Peavy, supra. In addition to drawing any permissible inference from the underlying facts in the light most favorable to the party opposing summary judgment, Williams also stated:

In assessing the factual record, we must grant the nonmoving party the benefit of inferences, as "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge[.]" Anderson, 477 U.S. at 255, 106 S.Ct. at 2513, 91 L.Ed.2d at 216. Summary judgment should be denied "even where there is no dispute as to the evidentiary facts in the case but only as to the conclusions to be drawn therefrom" Pierce v. Ford Motor Co., 190 F.2d 910, 915 (4th Cir.), cert. denied, 342 U.S. 887, 72 S.Ct. 178, 96 L.Ed. 666 (1951).

Williams v. Precision Coil, Inc., 194 W.Va. at 59, 459 S.E.2d at 336.

In this case, the ultimate question concerns the "drawing of legitimate inferences from the facts," which according to Williams is a jury function....

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