Gillingham v. Stephenson

• Decision Date: 02 July 2001
• Docket Number: No. 28852.,28852.
• Citation: 551 S.E.2d 663,209 W.Va. 741
• Court: West Virginia Supreme Court
• Parties: Darlene GILLINGHAM and Carl Bumgardner, Plaintiffs Below, Appellants, v. Albert H. STEPHENSON, Defendant Below, Appellee, and Amber Goddard, David Goddard and Carrie Goddard, Individually, and Carrie Goddard, Mother, Natural Guardian and Next Friend, Plaintiffs Below, v. Ronald G. Taylor and Albert Stephenson, Defendants Below.

551 S.E.2d 663

209 W.Va. 741

Darlene GILLINGHAM and Carl Bumgardner, Plaintiffs Below, Appellants, v. Albert H. STEPHENSON, Defendant Below, Appellee, and Amber Goddard, David Goddard and Carrie Goddard, Individually, and Carrie Goddard, Mother, Natural Guardian and Next Friend, Plaintiffs Below, v. Ronald G. Taylor and Albert Stephenson, Defendants Below.

No. 28852.

Supreme Court of Appeals of West Virginia.

Submitted June 6, 2001.

Decided July 2, 2001.

Dissenting Opinion of Chief Justice McGraw July 6, 2001.

Dissenting Opinion of Justice Starcher July 10, 2001.

James G. Bordas, Jr., James B. Stoneking, Christopher J. Regan, Bordas, Bordas & Jividen, Wheeling, for Appellants.

Jeffrey A. Holmstrand, Jennifer A. Keadle, McDermott & Bonenberger, Wheeling, for Appellee.

Jackson & Kelly, Wheeling, for Defendant Taylor.

PER CURIAM.

This is an appeal by Darlene Gillingham and Carl Bumgardner, appellants/plaintiffs below (hereinafter referred to as Ms. Gillingham and Mr. Bumgardner), from an adverse jury verdict rendered in the Circuit Court of Ohio County. Ms. Gillingham and Mr. Bumgardner filed a negligence action against Albert H. Stephenson, appellee/defendant below (hereinafter referred to as Mr. Stephenson), as a result of injuries and damages sustained in an automobile accident. The action was bifurcated. The issue of liability was tried first. The jury returned a verdict finding no liability. Ms. Gillingham and Mr. Bumgardner now appeal and assign as error: (1) the trial court's denial of their pre-verdict motion for judgment as a matter of law, (2) the trial court's denial of their motion for new trial, and (3) two jury instructions given by the trial court. After reviewing the briefs and the record, we affirm the circuit court's judgment.

I. FACTUAL AND PROCEDURAL HISTORY

During the early evening hours of December 5, 1997, Ms. Gillingham and Mr. Bumgardner were riding in a pickup truck owned by Ms. Gillingham and driven by Mr. Bumgardner. Ms. Gillingham and Mr. Bumgardner were proceeding along Route 2 in Benwood, West Virginia. They came upon several vehicles that were blocking the road because of an accident.¹ Mr. Bumgardner was able to stop the pickup truck in the right hand lane without incident.² Shortly thereafter Ms. Gillingham and Mr. Bumgardner were rear-ended by a van driven by Mr. Stephenson. As a result of the collision, Ms. Gillingham and Mr. Bumgardner sustained numerous injuries and the total loss of the pickup truck.

On February 27, 1998, Ms. Gillingham and Mr. Bumgardner filed separate actions against Mr. Stephenson. The two actions were consolidated for trial.³ The consolidated actions proceeded with the issues of liability and damages being bifurcated. Liability was tried before a jury on January 5, 2000. Ms. Gillingham and Mr. Bumgardner moved for judgment as a matter of law at the close of all the evidence. The trial court denied the motion and submitted the case to the jury. The jury returned a verdict finding no liability against Mr. Stephenson. On January 7, 2000, Ms. Gillingham and Mr. Bumgardner moved for post-trial judgment as a matter of law or, alternatively, a new trial. The post-trial motions were denied by order dated April 17, 2000. It is from this order that Ms. Gillingham and Mr. Bumgardner now appeal.

II. STANDARD OF REVIEW

Ms. Gillingham and Mr. Bumgardner contend that the trial court committed error in (1) denying their pre-verdict motion for judgment as a matter of law, (2) denying their motion for new trial, and (3) giving two jury instructions submitted by Mr. Stephenson.

Ms. Gillingham and Mr. Bumgardner filed motions for judgment as a matter of law at both the pre-verdict and post-verdict stage of the proceedings below. Before this Court, they argue generally that the circuit court erred by not granting their motion for judgment as a matter of law, and make only one reference indicating the particular motion to which they are referring. That reference requested relief from the circuit court's denial of their pre-verdict motion. Consequently, we treat their first assignment of error as challenging the circuit court's ruling denying their pre-judgment motion.⁴ This distinction, however, is not crucial to our analysis as the standard for reviewing the circuit court's rulings on pre-verdict and post-verdict motions for judgment as a matter of law is identical. See Barefoot v. Sundale Nursing Home, 193 W.Va. 475, 481-82 n. 6, 457 S.E.2d 152, 158-59 n. 6 (1995)

("The standard for granting a judgment notwithstanding the verdict is the same as for a directed verdict.") We apply a de novo standard of review to the grant or denial of a pre-verdict or post-verdict motion for judgment as a matter of law. After considering the evidence in the light most favorable to the nonmovant party, we will sustain the granting or denial of a pre-verdict or post-verdict motion for judgment as a matter of law when only one reasonable conclusion as to the verdict can be reached. See Syl. pt. 3, Brannon v. Riffle, 197 W.Va. 97, 475 S.E.2d 97 (1996).

In Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995), this Court addressed the issue of the standard of review of a trial court's ruling on a motion for new trial. Tennant stated:

We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Tennant, 194 W.Va. at 104, 459 S.E.2d at 381.

As to the standard of review on the issue of jury instructions, this Court has held that:

The formulation of jury instructions is within the broad discretion of a circuit court, and a circuit court's giving of an instruction is reviewed under an abuse of discretion standard. A verdict should not be disturbed based on the formulation of the language of the jury instructions so long as the instructions given as a whole are accurate and fair to both parties.

Syl. pt. 6, Tennant. However, "our review of the legal propriety of the trial court's instructions is de novo." Skaggs v. Elk Run Coal Co., Inc., 198 W.Va. 51, 63, 479 S.E.2d 561, 573 (1996)

(citation omitted).

III. DISCUSSION

A. Pre-verdict Motion for Judgment as a Matter of Law

Ms. Gillingham and Mr. Bumgardner moved for pre-verdict judgment as a matter of law. The trial court denied the motion. Rule 50(a) of the West Virginia Rules of Civil Procedure authorizes a party to move for pre-verdict judgment as a matter of law. However, our cases have held that in evaluating a request for judgment as a matter of law "all reasonable doubts and inferences should be resolved in favor of the party against whom the verdict is asked to be directed." Syl. pt. 5, Wager v. Sine, 157 W.Va. 391, 201 S.E.2d 260 (1973). We have also ruled that " `[w]here the evidence given on behalf of defendant is so clearly insufficient to support a verdict for him that such verdict, if returned by the jury, must be set aside, and the evidence in support of plaintiff's claim is clear and convincing, it is the duty of the trial court, when so requested, to [grant judgment as a matter of law] for the plaintiff.' Syl. pt. 4, Vaccaro Brothers & Company v. Farris, 92 W.Va. 655, 115 S.E. 830 (1923)." Syl. pt. 2, Adkins v. City of Hinton, 149 W.Va. 613, 142 S.E.2d 889 (1965).

In the instant case, Ms. Gillingham and Mr. Bumgardner contend that they presented evidence to show that Mr. Stephenson negligently violated motor vehicle safety statutes, thus causing the accident. Specifically, they contend that their evidence established that Mr. Stephenson violated W. Va.Code § 17C-6-1, by driving at speed in excess of what was reasonable; that he violated W. Va.Code § 17C-7-10, by following too closely; and that he violated W. Va.Code § 17C-6-1, by failing to maintain control of his vehicle. This Court has held that a "[v]iolation of a statute is prima facie evidence of negligence." Syl. pt. 1, in part, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990). "A prima facie case of actionable negligence is that state of facts which will support a jury finding that the defendant was guilty of negligence which was the proximate cause of plaintiff's injuries[.]" Syl. pt. 6, in part, Morris v. City of Wheeling, 140 W.Va. 78, 82 S.E.2d 536 (1954).

Three witnesses were called during the case-in-chief. There was testimony by both Ms. Gillingham and Mr. Bumgardner. They also called Mr. Stephenson during the case-in-chief. The testimony by Ms. Gillingham and Mr. Bumgardner revealed that they were able to safely stop the vehicle without incident. Mr. Stephenson was unable to stop and ran into them. Ms. Gillingham and Mr. Bumgardner further assert that there was also testimony by other witnesses (called by Mr. Stephenson) that showed these witnesses were able to stop at the accident scene without incident. Ms. Gillingham and Mr. Bumgardner also assert that testimony by one of the investigating officers (called by Mr. Stephenson) indicated the accident report clearly demonstrates that Mr. Stephenson⁵ failed to maintain control of his vehicle.

In contrast, Mr. Stephenson points out that "[t]he prima facie presumption of negligence created upon violation of a traffic statute or safety regulation may be rebutted by evidence tending to show that the person violating the statute did what might reasonably have been expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law." Syl. pt. 3, Waugh v. Traxler, 186 W.Va. 355, 412 S.E.2d 756 (1991). Accordingly, Mr. Stephenson contends that his evidence was sufficient to show that he acted reasonably under the circumstances.

Mr. Stephenson testified that he unexpectedly came upon "black ice," which caused him to lose control of his vehicle. Mr. Stephenson testified as...