Harris v. RA Martin, Inc., No. 24998.

• Court: Supreme Court of West Virginia
• Writing for the Court: PER CURIAM
• Citation: 204 W.Va. 397,513 S.E.2d 170
• Parties: Kevin C. HARRIS, Appellant, v. R.A. MARTIN, INC., Appellee.
• Decision Date: 15 December 1998
• Docket Number: No. 24998.

513 S.E.2d 170
204 W.Va. 397

Kevin C. HARRIS, Appellant,
v.
R.A. MARTIN, INC., Appellee

No. 24998.

Supreme Court of Appeals of West Virginia.

Submitted September 22, 1998.

Decided December 15, 1998.

513 S.E.2d 172

J. Michael Ranson, Esq., Cynthia Morrone Salmons, Esq., Leslie R. Stotler, Esq., Ranson Law Offices, Charleston, West Virginia, Attorney for the Appellant

Richard E. Rowe, Esq., Lisa Tackett, Esq., Goodwin & Goodwin, Charleston, West Virginia, Attorney for the Appellee.

PER CURIAM:

This case is before this Court upon an appeal of a final order of the Circuit Court of Jackson County entered on July 31, 1997. The appellant, Kevin Harris, a summer employee for the City of Ripley, sustained injuries when a garbage dumpster fell on his leg. He instituted an action against the appellee, R.A. Martin, a construction company, alleging that it was negligent in placing heavy construction materials in the dumpster. Pursuant to the July 31, 1997 order, the circuit court entered summary judgment in

513 S.E.2d 173

favor of the appellee. In this appeal, the appellant contends that the circuit court erred by finding that the appellee owed him no legal duty of care

This Court has before it the petition for appeal, all matters of record, and the briefs and argument of counsel. For the reasons discussed below, the final order of the circuit court is reversed, and this case is remanded.

I. Facts

In August 1994, the appellant was employed as a summer worker for the City of Ripley. While helping with the city garbage collection, the appellant was injured as he attempted to position a garbage dumpster for emptying. The dumpster which contained several large blocks of concrete on top of trash tilted forward and fell on the appellant's leg, pinning him between the dumpster and the pavement. As a result, the appellant suffered a broken ankle.

An investigation into the accident revealed that the blocks of concrete had been placed in the dumpster by employees of the appellee, a contractor hired by the Jackson County Board of Education to repair tennis courts located in the Ripley City Park.¹ The dumpster at issue was located about ten yards from the swimming pool in the park and was intended for swimming pool use only. The evidence indicated that the appellee had not been given permission to place concrete or any kind of heavy construction materials in the City's dumpsters. In addition, an ordinance of the City of Ripley specifies that it is "unlawful for any unauthorized person to dispose of refuse, trash, garbage or any other materials in, at or near a commercial dumpster owned or serviced by the City."²

After the accident, the appellant sued the appellee alleging that it was negligent in placing the construction material in the dumpster. Subsequently, the appellee moved for summary judgment on the basis that it owed no duty to the appellant. On July 31, 1997, the circuit court granted summary judgment in favor of the appellee finding that "in the absence of extraordinary circumstances, a person who disposes of nonhazardous materials in a dumpster has no duty to dispose of those materials in such a way as to assure that a worker emptying the dumpster avoids injury and that no extraordinary circumstances were present in this case."

II. Standard of Review

On numerous occasions, we have indicated that "[a] circuit court's entry of summary judgment is reviewed de novo." Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). See also Syllabus Point 4, Dieter Eng'g Servs., Inc. v. Parkland Dev., Inc., 199 W.Va. 48, 483 S.E.2d 48 (1996); Syllabus Point 1, Smith v. Stacy, 198 W.Va. 498, 482 S.E.2d 115 (1996). Pursuant to Rule 56 of the West Virginia Rules of Civil Procedure, summary judgment is required when the record shows 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." In Syllabus Point 3 of Aetna Casualty & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963), this Court held: "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." See also Syllabus Point 3, Evans v. Mutual Mining, 199 W.Va. 526, 485 S.E.2d 695 (1997); Syllabus Point 1, McClung Invs., Inc. v. Green Valley Community Pub. Serv. Dist., 199 W.Va. 490, 485 S.E.2d 434 (1997). We have also observed that:

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

513 S.E.2d 174

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). See also Syllabus Point 2, Cottrill v. Ranson, 200 W.Va. 691, 490 S.E.2d 778 (1997); Syllabus Point 2, McGraw v. St. Joseph's Hosp., 200 W.Va. 114, 488 S.E.2d 389 (1997).

In Williams, we clarified the function of the circuit court at the summary judgment stage. We explained that the circuit court is not "`to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" 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)). Consequently, any permissible inference from the underlying facts must be drawn in the light most favorable to the party opposing the motion. Painter, 192 W.Va. at 192, 451 S.E.2d at 758. "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.'" Williams, 194 W.Va. at 59, 459 S.E.2d at 336 (quoting 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)).

III. Existence of Duty

The establishment of a prima facie case of negligence requires a showing that a defendant is guilty of some act or omission in violation of a duty owed to the plaintiff. See Syllabus Point 1, Parsley v. General Motors Acceptance Corp., 167 W.Va. 866, 280 S.E.2d 703 (1981). In this case, the appellant contends that the circuit court erred by finding that the appellee owed him no duty of care. We agree.

In Robertson v. LeMaster, 171 W.Va. 607, 301 S.E.2d 563 (1983), we discussed the modern trend of expanding the concept of duty in tort cases. In Syllabus Point 1 of Robertson, we stated that "[t]he liability to make reparation for an injury, by negligence, is founded upon an original moral duty, enjoined upon every person, so to conduct himself, or exercise his own rights, as not to injur [sic] another." In this regard, we explained that "[i]t is well-established that one who engages in affirmative conduct, and thereafter realizes or should realize that such conduct has created an unreasonable risk of harm to another, is under a duty to exercise reasonable care to prevent the threatened harm." Syllabus Point 2, Robertson. We further explained that "`[Duty]' is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in light of the apparent risk." 171 W.Va. at 611, 301 S.E.2d at 567, quoting W. Prosser, The Law of Torts, § 53 (4th ed. 1971). While the existence of a duty is defined in terms of foreseeability, it also involves policy considerations including "the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant." Id.

As we stated in Syllabus Point 3 of Sewell v. Gregory, 179 W.Va. 585, 371 S.E.2d 82 (1988):

The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. The test is, would the ordinary man in the defendant's position, knowing what he knew or should have known,

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