Gable v. Gable

Citation858 S.E.2d 838
Decision Date01 June 2021
Docket NumberNo. 19-1077,19-1077
Parties Ronald A. GABLE, Petitioner v. Deborah GABLE, and John Doe(s), Respondents
CourtSupreme Court of West Virginia

858 S.E.2d 838

Ronald A. GABLE, Petitioner
Deborah GABLE, and John Doe(s), Respondents

No. 19-1077

Supreme Court of Appeals of West Virginia.

Submitted: March 17, 2021
Filed: June 1, 2021

James A. Villanova, Esq., Michael E. Metro, Esq., Villanova Law Offices, P.C., Pittsburgh, Pennsylvania, Counsel for the Petitioner.

Perry W. Oxley, Esq., David E. Rich, Esq., Oxley Rich Sammons, Huntington, West Virginia, Counsel for the Respondents.


858 S.E.2d 842

In this appeal from the Circuit Court of Ohio County, we examine an order dismissing a complaint in a premises liability case. The complaint alleged that the defendant owed the plaintiff a duty to keep the porch and stairs of her home safe but breached that duty by allowing "golf balls and other objects and debris" to accumulate on the porch and adjacent steps. The plaintiff contends that during a visit to the defendant's house, as he exited the front porch, an object

858 S.E.2d 843

on defendant's front stairs caused him to slip, fall, and be seriously injured.

The defendant moved to dismiss the complaint pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, arguing that it failed to state a claim upon which relief could be granted. The circuit court granted the defendant's motion and dismissed the complaint. The circuit court concluded that, because the complaint did not allege facts demonstrating that the plaintiff was not a trespasser on the defendant's porch, then the plaintiff effectively was a trespasser who was owed no duty of care. Alternatively, after weighing the facts contained in the defendant's motion to dismiss and the plaintiff's response, the circuit court decided that any hazard on the defendant's steps, such as a golf ball, could easily be seen; because the complaint did not allege that the hazard was not open and obvious, it could not be the basis for imposing liability on the defendant.

We find the circuit court plainly erred in making factual determinations based upon assertions in the defendant's motion to dismiss. Moreover, we take this opportunity to reaffirm our century-old rule that a plaintiff's complaint need only plead a cause of action; a plaintiff is under no duty to anticipate or attempt to defuse the defenses that might be raised in the defendant's answer. The plaintiff's complaint asserted that the defendant owed him a duty of care, alleged that the defendant breached that duty, and claimed that the plaintiff was injured as a proximate result of the breach. The plaintiff was under no obligation to anticipate and plead around any and all possible claims that might be asserted by the defendant – including a claim that the plaintiff might have been a trespasser or that a hazard was "open and obvious."

As set forth below, we reverse the circuit court's dismissal order, reinstate the plaintiff's complaint, and remand the case for further proceedings.

I. Factual and Procedural Background

In this appeal, we consider whether a plaintiff's complaint sufficiently asserts a claim upon which relief can be granted. Because the preference is to decide cases on their merits, we must construe the complaint in the light most favorable to the plaintiff and take all allegations in the complaint as true. Mountaineer Fire & Rescue Equip., LLC v. City Nat'l Bank of W. Va. , 244 W. Va. 508, ––––, 854 S.E.2d 870, 877 (2020).

The complaint alleges that on September 18, 2017, plaintiff Ronald A. Gable visited a residence in Wheeling, West Virginia. The residence has a front porch and front steps, and the plaintiff went on to the porch. The complaint maintains that there were "golf balls and other objects and debris ... [on] the surface of the aforesaid steps and front porch[.]" The plaintiff asserts that, because of this debris, he slipped and fell to the ground, "severely and permanently injuring himself."1

The complaint further alleges that the property is owned and controlled by the defendant, Deborah Gable.2 The complaint avers that the defendant "had a duty to maintain the aforesaid front steps in a reasonably safe condition," and that "[a]s a direct and proximate result of the [d]efendant's breach of said duty, the [p]laintiff has incurred damages ... for which the [d]efendant is liable."

The defendant moved to dismiss the complaint on the ground that it failed to state a claim upon which relief could be granted. See W. Va. R. Civ. Pro. Rule 12(b)(6). Specifically, the defendant asked the circuit court to dismiss the complaint because (1) the plaintiff was a trespasser on the defendant's property and, contrary to the allegation in the

858 S.E.2d 844

complaint, the defendant owed him no duty under the law; and (2) the defendant owed the plaintiff no duty of care because the items that the plaintiff "allege[d] he slipped on were open and obvious to anyone paying attention."

To support her arguments, the defendant's motion to dismiss asserted various new facts not raised in the complaint. These factual allegations are not supported by affidavits or any other substantive evidence in the record.

First, the defendant's motion averred that the plaintiff was "a trespasser on her property." The motion pointed out that the plaintiff is the father of the defendant. The defendant claimed that the "relationship between the two has been acrimonious for some time," culminating in an earlier lawsuit over the ownership of the defendant's residence. The defendant's motion also claimed that the "parties have not communicated civilly for years," that the plaintiff "had been told previously he was not welcome on the property," and that the plaintiff "knows he is not welcome on the [d]efendant's property[.]" The motion went on to assert that the plaintiff "showed up unannounced and was not invited onto the premises by [the d]efendant," and therefore was a trespasser who was owed no duty of care by the defendant. In summary, the motion contended that "[t]he instant suit is nothing more than another attempt to harass the [d]efendant by advancing a claim which is clearly unsupported by the law."

Second, the defendant argued that even if she did owe the plaintiff a general duty of ordinary care, she owed "no duty of care to protect others against dangers that are open, obvious, reasonably apparent or as well known to the person injured as they are to the owner or occupant[.]" W. Va. Code § 55-7-28(a) (2015). The defendant suggested that, factually, the plaintiff might say in his case that "repair work was being performed on the porch" and say that the porch was "covered in paint" and "paint flakes" so as to have "made the debris on the steps unnoticeable." Still, the defendant contended that a reasonably careful person would have seen the open, obvious, and reasonably apparent dangers like "golf balls and other objects and debris" on the porch or, because of all the paint and paint flakes, would have recognized that the front porch and steps were not a safe point to access the house. Either way, on these facts, the defendant contended that the plaintiff's complaint failed to state a claim upon which relief could be granted.

In his response to the defendant's motion to dismiss, the plaintiff also alleged new facts and/or interpretations of the facts; however, he attached several affidavits in support of these new allegations. First, the plaintiff's response alleged facts to show he was not a trespasser, and he argued that if there was any dispute on the question, it was one of fact. The plaintiff noted that when he fell, he was a 78-year-old retired steelworker and that his defendant-daughter was aged 55. The plaintiff admitted that his relationship with the defendant began to deteriorate in 2011, yet around the same time he purchased the residence at issue for the defendant's use. The defendant paid rent to the plaintiff until 2015 when the plaintiff says he "signed paperwork giving her control of the property." The plaintiff contends that, several times thereafter, he visited his daughter at the residence. The plaintiff also said that the defendant never "informed me that she no longer wished to communicate or that my presence at her home was unwelcome. I was never asked to leave the property by her or anyone else. My daughter [the defendant] never indicated that I was not welcome at the property."

Moreover, the plaintiff asserted that he visited his daughter's home on September 18, 2017, to inform her of the death of Richard Dyer, who was the father-in-law of one of his sons. At oral argument, plaintiff's counsel expanded upon this allegation and pointed out that the defendant is a pastor. Apparently, the plaintiff was visiting the residence to ask the defendant if she would, on behalf of her brother, say a few words at Mr. Dyer's funeral. Accordingly, the plaintiff argued that any allegation he was a "trespasser," and therefore was not owed a duty of care, was a question of material fact to be developed in discovery and, eventually, to be resolved by a factfinder. The plaintiff argued these factual disputes cannot be resolved through a motion to dismiss the complaint.

858 S.E.2d 845

Second, the plaintiff's response addressed the defendant's argument that the...

To continue reading

Request your trial
11 cases
  • Yurish v. Sinclair Broad. Grp., Inc.
    • United States
    • Supreme Court of West Virginia
    • November 19, 2021 expected to anticipate all defenses that may be raised by Respondents to the Third-Party Complaint, See Syllabus Point 5, Gable v. Gable , 245 W. Va. 213, 858 S.E.2d. 838 (2021), in this case Petitioners are seeking to characterize the communications as those that fall within a narrow ex......
  • Yurish v. Sinclair Broad. Grp.
    • United States
    • Supreme Court of Virginia
    • November 19, 2021 dismissing a complaint "because the plaintiff failed to anticipate and plead facts to rebut potential defenses available to the defendant." Id. at, 858 S.E.2d at 850. Court cited a litany of cases which have "universally ruled that '[c]omplaints need not anticipate or attempt to defuse p......
  • Judy v. E. W. Va. Cmty. & Technical Coll.
    • United States
    • Supreme Court of West Virginia
    • April 25, 2022
    ...has found that matters involving qualified immunity also require a "heightened pleading standard."); Gable v. Gable , 245 W. Va. 213, 222 n.6, 858 S.E.2d 838, 847 n.6 (2021) ("We believe that in civil actions where immunities are implicated, the trial court must insist upon heightened plead......
  • Butner v. Highlawn Mem'l Park Co.
    • United States
    • Supreme Court of West Virginia
    • November 17, 2022 Ms. Drew as to respondents and would have been as readily apparent to Ms. Drew as to respondents."). The instant case is factually akin to Gable and Liberty University in that the petitioner's sworn testimony that he saw no holes or voids at the gravesite on the day of his fall, together......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT