Cole v. Fairchild

• Citation: 198 W.Va. 736,482 S.E.2d 913
• Decision Date: 20 December 1996
• Docket Number: 23111,Nos. 23081,s. 23081
• Parties: Lonnie COLE, Administrator of the Estate of Stephen Brant Cole II, Plaintiff Below, Appellee v. Jack Douglas FAIRCHILD, Jr., Defendant Below, Appellee, Flat Top Lake Association, a West Virginia Corporation, Defendant and Third-Party Plaintiff Below, Appellant, Myrleen B. Fairchild, Executrix of the Estate of Jack R. Fairchild, Intervenor Third-Party Defendant Below, Appellee. Lonnie COLE, Administrator of the Estate of Stephen Brant Cole II, Plaintiff Below, Appellant v. Jack Douglas FAIRCHILD, Jr., Defendant Below, Appellee, and Flat Top Lake Association, a West Virginia Corporation, Defendant and Third-Party Plaintiff Below, Appellee.
• Court: Supreme Court of West Virginia

Page 913

482 S.E.2d 913

198 W.Va. 736

Lonnie COLE, Administrator of the Estate of Stephen Brant

Cole II, Plaintiff Below, Appellee v. Jack Douglas FAIRCHILD, Jr., Defendant Below, Appellee,

Flat Top Lake Association, a West Virginia Corporation,

Defendant and Third-Party Plaintiff Below, Appellant,

Myrleen B. Fairchild, Executrix of the Estate of Jack R.

Fairchild, Intervenor Third-Party Defendant Below,

Appellee.

Lonnie COLE, Administrator of the Estate of Stephen Brant

Cole II, Plaintiff Below, Appellant v. Jack Douglas FAIRCHILD, Jr., Defendant Below, Appellee, and Flat Top Lake Association, a West Virginia Corporation,

Defendant and Third-Party Plaintiff Below, Appellee.

Nos. 23081, 23111.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 17, 1996.

Decided Dec. 20, 1996.

[198 W.Va. 738] Syllabus by the Court

1. "We have consistently recognized and applied the distinctions for liability purposes among trespassers, licensees and invitees." Syl. Pt. 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).

2. 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.

3. "Mere permissive use of the premises, by express or implied authority ordinarily creates only a license, and as to a licensee,

[198 W.Va. 739] 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." Syllabus, Hamilton v. Brown, 157 W.Va. 910, 207 S.E.2d 923 (1974)

4. " 'An agent in the restricted and proper sense is a representative of his principal in business or contractual relations with third persons; while a servant or employee is one engaged, not in creating contractual obligations, but in rendering service, chiefly with reference to things but sometimes with reference to persons when no contractual obligation is to result.' Syllabus Point 3, State, ex rel. Key v. Bond, 94 W.Va. 255, 118 S.E. 276 (1923)." Syl. Pt. 2, Teter v. Old Colony Co., 190 W.Va. 711, 441 S.E.2d 728 (1994).

5. "One of the essential elements of an agency relationship is the existence of some degree of control by the principal over the conduct and activities of the agent." Syl. Pt. 3, Teter v. Old Colony Co., 190 W.Va. 711, 441 S.E.2d 728 (1994).

6. "In order to obtain a proper assessment of the total amount of the plaintiff's contributory negligence under our comparative negligence rule, it must be ascertained in relation to all of the parties whose negligence contributed to the accident, and not merely those defendants involved in the litigation." Syl. Pt. 3, Bowman v. Barnes, 168 W.Va. 111, 282 S.E.2d 613 (1981).

7. The parental immunity doctrine does not prohibit the negligence of a parent from being asserted as a defense in an action brought by the parent for the wrongful death of a child.

8. "A party is not barred from recovering damages in a tort action so long as his negligence or fault does not equal or exceed the combined negligence or fault of the other parties involved in the accident." Syl. Pt. 3, Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979).

9. Where one or both of the parents of a deceased child are found negligent in contributing to the death of such child, either the judge or the jury should apportion the damages between the parents and other beneficiaries, if any, pursuant to West Virginia Code § 55-7-6 (1994), and then assess the relative liability of each tortfeasor in order to apply our comparative negligence rule.

Michael E. Froble and John D. Wooton, Wooton, Wooton & Fragile, Beckley, for Lonnie Cole.

James R. Sheatsley, Gorman, Sheatsley & Company, L.C., Beckley, for Jack Douglas Fairchild, Jr.

Gary E. Pullin and Scott D. Maddox, Pullin, Knopf, Fowler & Flanagan, Charleston, for Flat Top Lake Association.

James M. Brown and Jane E. Harkins, Brown & Levicoff, Beckley, for Myrleen B. Fairchild.

WORKMAN, Justice:

Although the two appeals ¹ addressed in this opinion involve different assignments of error, we consolidated these actions because they arise from the same set of facts litigated in a single trial. On March 31, 1995, a jury verdict was returned for the wrongful death of Stephen Brant Cole, II, (hereinafter Stephen), in favor of the plaintiff below, Lonnie Cole (hereinafter Mr. Cole), Administrator of the Estate of Stephen Brant Cole II, awarding $6,398.98 for stipulated medical and funeral expenses and $88,000 for sorrow, mental anguish, and solace, totaling $94,398.98.

[198 W.Va. 740] The jury awarded no damages for projected lost income or for loss of services, protection, care, and assistance. The jury also assessed 80% of the negligence against Flat Top Lake Association (hereinafter Flat Top), a defendant below, and 20% of the negligence against Jack Douglas Fairchild, Jr., (hereinafter Fairchild, Jr.), also a defendant below.

I. FACTS

On July 28, 1991, six-year-old Stephen was killed in a motorcycle accident on property owned by Flat Top. Stephen was invited to go motorcycle riding that day by Fairchild, Jr., who had taken Stephen to Flat Top to ride motorcycles on other occasions. Stephen was given permission to go either by his mother, Diane Lilly (hereinafter Stephen's mother), his father, Stephen B. Cole, Sr., (hereinafter Stephen's father), and/or his paternal grandparents, Mr. Cole and his wife, Ginger Cole.

At the time of the accident, Stephen's parents were divorced, and Stephen's father lived with his parents, Mr. and Mrs. Cole. ² As a result of this situation, Stephen spent a significant amount of time at his paternal grandparents' house located in Beckley, West Virginia. The Coles were neighbors with Fairchild, Jr., and, according to Fairchild, Jr., Stephen and his son, Justin, frequently would play together on weekends when Stephen was at his grandparents' house.

Stephen's father testified he taught Stephen to ride a motorcycle when Stephen was around five years old, and he believed Stephen was a pretty good rider. In addition, Stephen's mother and stepfather, Ken Lilly, purchased a motorcycle for Stephen which they kept at their house. Stephen also rode an "Indian" model motorcycle which belonged to Fairchild, Jr., but was repaired by Stephen's father and stored at the Mr. Coles' house. Before Stephen left to go motorcycle riding on the day of the accident, his mother dropped off his boots and a motorcycle helmet at the Cole residence. However, she did not bring Stephen's chest protection equipment. Flat Top states the trial court improperly excluded evidence that Stephen was not wearing his chest protection equipment when the accident occurred because his mother failed to drop it off with the other equipment. According to the report filed by the Office of the West Virginia Medical Examiner, Stephen died of chest injuries.

On the day of the accident, Fairchild, Jr., took his two sons, Jeremy and Justin; Stephen; and his brother-in-law, Robert Douglas Meador to Flat Top. The accident occurred when the group was motorcycle riding on an area of property owned by Flat Top referred to as the "upper field" and "upper track." Fairchild, Jr., testified that he stayed in front of Justin and Stephen as they rode the motorcycles around the upper track and he taught them to ride in a clockwise direction. ³ At some point, all five members of the group stopped at the entrance to the upper track and Fairchild, Jr., began talking to Gene Kessler.

At the time of trial, Mr. Kessler had worked as a conservator/superintendent at Flat Top for the past fourteen years. ⁴ While Fairchild, Jr., and Mr. Kessler were talking, Mr. Kessler noticed that Jeremy rode one of the motorcycles toward an area known as the "big field," but Jeremy then returned to the upper track and began traveling in a counterclockwise direction. In the meantime, Mr. Kessler observed that Stephen took off in a clockwise direction around the upper track with Mr. Meador following behind him. Mr. Kessler said that Fairchild, Jr., "kind of yelled out to [Jeremy], but he didn't hear or

                [198 W.Va. 741] anything."   As they "went around the upper turns" of the track, Mr. Meador testified that Jeremy and Stephen collided at a point where high grass caused a "blind spot."   Mr. Meador said the grass was about four to four and one-half feet high and over Stephen's head.  At the point of the accident, Mr. Meador described the upper track to be approximately eight feet wide.  Several experts testified on behalf of the parties generally with regard to the condition of the property, the high grass, and the suitability of the areas for motorcycle riding
                

II. DISCUSSION

A. Standard of Review

Many issues presented in this case involve mixed questions of facts and law. Resolving these mixed questions entails merging "fact-finding with an elucidation of the applicable law." Fraternal Order of Police v. Fairmont, 196 W.Va. 97, 100 n. 3, 468 S.E.2d 712, 715 n. 3 (1996). Ordinarily, we review a resolution of mixed questions "along the degree-of-deference continuum...." Id. When a question is more dominated by facts, the more apt we are to accept the trier of fact's resolution of the matter, unless the decision is clearly erroneous. Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 106, 459 S.E.2d 374, 383 (1995). Ostensible "findings of fact," however, are subject to de novo review when they involve applying the law or making legal judgments which exceed ordinary factual determinations. Appalachian Power Co. v. State Tax Dept. of West Virginia, 195 W.Va. 573, 582 n. 5, 466...