Haba v. Big Arm Bar and Grill, Inc.

• Decision Date: 01 March 1996
• Docket Number: No. 22706,22706
• Citation: 468 S.E.2d 915,196 W.Va. 129
• Court: West Virginia Supreme Court
• Parties: Andrew HABA, Janet Lowry Haba, as Administrators of the Estate of Andrew J. Haba, Plaintiffs Below, Appellants, v. The BIG ARM BAR AND GRILL, INC.; Alto's Club, Inc.; Harry Camper, Commissioner, Alcohol Beverage Control Commission; State of West Virginia; James H. Paige, III, Secretary, West Virginia Department of Taxation and Revenue; Michael Ian Hulburt; Robert A. Hulburt; James K. Hutzler; Robert Vaughn, Trustee; and Robert Vaughn and Ruth Vaughn, Defendants Below, Appellees.

Page 915

468 S.E.2d 915

196 W.Va. 129

Andrew HABA, Janet Lowry Haba, as Administrators of the Estate of Andrew J. Haba, Plaintiffs Below, Appellants, v. The BIG ARM BAR AND GRILL, INC.; Alto's Club, Inc.; Harry Camper, Commissioner, Alcohol Beverage Control Commission State of West Virginia; James H. Paige, III, Secretary West Virginia Department of Taxation and Revenue; Michael Ian Hulburt; Robert A. Hulburt; James K. Hutzler; Robert Vaughn, Trustee; and Robert Vaughn and Ruth Vaughn Defendants Below, Appellees.

No. 22706.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 17, 1996.

Decided March 1, 1996.

[196 W.Va. 131] Syllabus by the Court

1. "Collateral estoppel will bar a claim if four conditions are met: (1) The issue previously decided is identical to the one presented in the action in question; (2) there is a final adjudication on the merits of the prior action; (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action." Syllabus point 1, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

2. Although there are certain circumstances in which a landlord will be liable to individuals injured due to the physical condition of his property, there is no liability of a landlord to third parties for the failure of a tenant to lawfully conduct an otherwise lawful business involving the sale of alcoholic beverages.

3. " ' "Parties will not be permitted to assume successive inconsistent positions in the course of a suit or a series of suits in reference to the same fact or state of facts." Syllabus, MacDonald v. Long, 100 W.Va. 551, 131 S.E. 252 (1926).' Syllabus point 2, Dillon v. Board of Education, 171 W.Va. 631, 301 S.E.2d 588 (1983)." Syllabus point 3, E.H. v. Matin, 189 W.Va. 102, 428 S.E.2d 523 (1993).

4. "A fundamental due process point relating to the utilization of collateral estoppel is that any person against whom collateral estoppel is asserted must have had a prior opportunity to have litigated his claim." Syllabus point 8, Conley v. Spillers, 171 W.Va. 584, 301 S.E.2d 216 (1983).

5. In the absence of a claim of under-representation, parties to a prior civil action who resisted consolidation of that action with a separate cause of action based on the identical factual issues are bound by the factual determinations made in the prior action and estopped from re-litigating those issues in the second action, even though those parties consider their participation in the prior litigation passive.

6. "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." Syllabus Point 3, Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979).

7. "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." Syllabus point 3, Bowman v. Barnes, 168 W.Va. 111, 282 S.E.2d 613 (1981).

8. Where a jury has determined a defendant's contributory negligence in relation to all of the persons whose negligence contributed to a particular event, and such defendant's negligence exceeds the combined negligence of the other persons involved in the event, such defendant is barred by the doctrine of comparative negligence from recovering damages in a subsequent tort action.

Appeal from the Circuit Court of Jefferson County; Honorable Thomas W. Steptoe, Jr., Judge. Civil Action No. 92-C-512.

Homer Speaker, Martinsburg, for Appellants.

Robert J. Schiavoni, Joseph R. Ferretti, Hammer, Ferretti & Schiavoni, Martinsburg, for Appellee, Alto's Club, Inc.

Catherine D. Munster, Robert W. Trumble, McNeer, Highland & McMunn, Clarksburg, for Appellees, Michael Ian Hulburt and Robert A. Hulburt.

Patrick G. Henry, III, Henry, Grant, Taylor & Janelle, Martinsburg, Michael D. Lorensen ALBRIGHT, Justice:

[196 W.Va. 132] Bowles, Rice, McDavid, Graff & Love, Martinsburg, for Appellee, James K. Hutzler.

This is an appeal from orders of the Circuit Court of Jefferson County granting summary judgment in favor of the defendants in a wrongful death action. Appellants, Andrew and Janet Haba, argue that the circuit court erred in using collateral estoppel and comparative negligence as the bases for granting summary judgment. Appellants contend that their claim is not barred by either theory under the specific facts and circumstances of this case. We disagree. We find that the circuit court properly applied the doctrines of collateral estoppel and comparative negligence in this case. Accordingly, we affirm.

On November 29, 1990, Andrew J. Haba, along with some of his friends, went to the Big Arm Bar & Grill (Big Arm) where he apparently became intoxicated from drinking alcoholic beverages. Haba, a freshman football player at Shepherd College, was under the legal drinking age of twenty-one years. In the early morning hours of November 30, 1990, Haba and his friends left Big Arm and traveled to Alto's Club (Alto's). Haba parked his car on the shoulder of the west bound lane of Route 45, a public highway, and attempted to cross the road to Alto's. He ran into the path of a Pontiac Fiero that was owned by Robert A. Hulburt and operated by Robert's son, Michael Hulburt. The vehicle struck Haba, and the force of the impact caused his body to land on the vehicle, thereby crushing the roof over the passenger seat. Both Haba and Douglas Cleaver, who was in the passenger seat of the Fiero, died from injuries sustained in the accident.

Two wrongful death suits were subsequently filed in Jefferson County. A suit on behalf of the Estate of Douglas Cleaver was filed on or about March 26, 1992, against various defendants, including Big Arm, Michael Hulburt, the Sheriff of Jefferson County, West Virginia, as Ancillary Administrator of the Estate of Andrew J. Haba, deceased, and Erie Insurance Company (Erie), Mr. Haba's insurer. ¹ Erie assumed the defense of the Haba interests in the Cleaver case. On November 25, 1992, Andrew Haba and Janet Lowry Haba, as Administrators of the Estate of Andrew J. Haba, deceased, filed their complaint in the instant case, naming as defendants, among others, Big Arm, Alto's, Michael Hulburt and his father, Robert Hulburt, and James K. Hutzler, one of the owners of the real estate which Big Arm rented to conduct its business. ²

Separate motions to consolidate the two cases were filed by the attorneys provided by Erie to defend the interests of the Sheriff of Jefferson County as Ancillary Administrator of the Estate of Andrew J. Haba and by the Hulburts. The senior Habas, in their capacity as Administrators of the Estate of Andrew J. Haba and as plaintiffs in the case before this Court, opposed both motions, arguing that their suit named defendants not included in the Cleaver suit and, consequently, their case would incorporate legal issues and facts regarding negligence and liability that would not be included in the Cleaver suit. ³ They also claimed that because Cleaver included two insurers as named defendants, it would raise contract and liability issues that would not be raised in their own suit. Finally, the Habas asserted that consolidating the cases would confuse a jury by placing them in the position of being both plaintiffs and defendants. The circuit court denied both motions to consolidate.

The Cleaver case was set for trial first. On the eve of the Cleaver trial, Andrew and Janet Haba, as Administrators of the Estate of Andrew J. Haba, were substituted in the Cleaver action for the Sheriff of Jefferson County, as the personal representatives of the decedent Haba. However, Erie continued to provide counsel to the Habas, appellants here, in the Cleaver case. Upon trial, the Cleaver jury returned a verdict finding Andrew J. Haba 80% at fault for the subject accident, Big Arm 20% at fault, and Michael Hulburt 0% at fault.

After the verdict was returned in the Cleaver case, each of the remaining defendants in this case filed separate motions for summary judgment on the Habas' complaint. The circuit court granted summary judgments in this action by separate orders filed on June 14, 1994, finding that the claims presented by the Haba plaintiffs were the same claims litigated in the Cleaver case. The court reasoned that the plaintiffs had a full and fair opportunity to litigate all claims relevant to the subject accident during the Cleaver trial, and thus their claim was barred by collateral estoppel. The circuit court further found the Haba claim barred by comparative negligence since the Cleaver jury found that the Habas' decedent was 80% at fault, while defendant Big Arm was only 20% at fault and defendant Hulburt was 0% at fault.

SUMMARY JUDGMENT

On appeal, "[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). Moreover, " '[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)." Syl. pt. 2, Miller v. Whitworth, 193 W.Va. 262, 455 S.E.2d 821 (1995). Based upon the following, we believe the circuit court properly granted summary judgment.

COLLATERAL ESTOPPEL

We have held that "[c]ollateral estoppel will bar a claim if four conditions are met: (1) The issue previously decided is identical to the one presented in the action in question; (2) there is a final adjudication on the...