Hersh v. E-T Enters., Ltd.

• Decision Date: 27 December 2013
• Docket Number: No. 12–0106.,12–0106.
• Citation: 752 S.E.2d 336,232 W.Va. 305
• Court: West Virginia Supreme Court
• Parties: Walter E. HERSH and Mary L. Hersh, Plaintiffs Below, Petitioners v. E–T ENTERPRISES, LIMITED PARTNERSHIP; Ralph L. Eckenrode; P & H Investments, Inc., a Virginia Corporation; and Trollers Associates, LLC, a Virginia limited liability company, Defendants Below, Respondents.

232 W.Va. 305

752 S.E.2d 336

Walter E. HERSH and Mary L. Hersh, Plaintiffs Below, Petitioners

v.E–T ENTERPRISES, LIMITED PARTNERSHIP; Ralph L. Eckenrode; P & H Investments, Inc., a Virginia Corporation; and Trollers Associates, LLC, a Virginia limited liability company, Defendants Below, Respondents.

No. 12–0106.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 11, 2013.

Decided Nov. 12, 2013.

Dissenting Opinion of Justice Benjamin

Dec. 27, 2013.

Dissenting Opinion of Justice Loughry

Nov. 12, 2013.

Syllabus by the Court

1. “When a statute imposes a duty on a person for the protection of others, it is a public safety statute and a violation of such a statute is prima facie evidence of negligence unless the statute says otherwise. A member of a class protected by a public safety statute has a claim against anyone who violates such a statute when the violation is a proximate cause of injury to the claimant.” Syllabus Point 7, Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 524 S.E.2d 688 (1999).

2. “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, 880 (1979).

3. “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, anticipate that harm of the general nature of that suffered was likely to result?” Syllabus Point 3, Sewell v. Gregory, 179 W.Va. 585, 371 S.E.2d 82 (1988).

4. “In determining whether a defendant in a premises liability case met his or her burden of reasonable care under the circumstances to all non-trespassing entrants, the trier of fact must consider (1) the foreseeability that an injury might occur; (2) the severity of injury; (3) the time, manner and circumstances under which the injured party entered the premises; (4) the normal or expected use made of the premises; and (5) the magnitude of the burden placed upon the defendant to guard against injury.” Syllabus Point 6, Mallet v. Pickens, 206 W.Va. 145, 522 S.E.2d 436 (1999).

5. In the ordinary premises liability case against the owner or possessor of the premises, if it is foreseeable that an open and obvious hazard may cause harm to others despite the fact it is open and obvious, then there is a duty of care upon the owner or possessor to remedy the risk posed by the hazard. Whether the actions employed by the owner or possessor to remedy the hazard were reasonable is a question for the jury.

6. The open and obvious doctrine in premises liability negligence actions is abolished. To the extent Sesler v. Rolfe Coal & Coke Co., 51 W.Va. 318, 41 S.E. 216 (1902) and Burdette v. Burdette, 147 W.Va. 313, 127 S.E.2d 249 (1962) hold otherwise, they are overruled.

7. In the ordinary premises liability case against the owner or possessor of the premises, the finder of fact may consider whether a plaintiff failed to exercise reasonable self-protective care when encountering an open and obvious hazard on the premises. The plaintiff's confrontation of an open and obvious hazard is merely an element to be considered by the jury in apportioning the relative fault of the parties.

8. The owner or the possessor of premises is not an insurer of the safety of every person present on the premises. If the owner or possessor is not guilty of negligence or willful or wanton misconduct and no nuisance exists, then he or she is not liable for injuries sustained by a person on the premises.

Harry P. Waddell, Esq., Martinsburg, WV, for the Petitioners.

Christopher J. Regan, Esq., Bordas & Bordas, PLLC, Wheeling, WV, for Amicus Curiae West Virginia Association for Justice.

Joseph L. Caltrider, Esq., Bowles Rice McDavid Graff & Love LLP, Martinsburg, WV, for Respondents E–T Enterprises, Limited Partnership, and Ralph L. Eckenrode.

Johnnie E. Brown, Esq., Jeffrey W. Molenda, Esq., Kameron T. Miller, Esq., Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Charleston, WV, for Respondents P & H Investments, Inc., and Trollers Associates, LLC.

Jeffrey A. Holmstrand, Esq., Flaherty Sensabaugh Bonasso PLLC, Wheeling, WV, for Amicus Curiae Defense Trial Counsel of West Virginia.

Jill Cranston Bentz, Esq., Mychal Sommer Schulz, Esq., Jacob A. Manning, Esq., Dinsmore & Shohl, LLP, for Amicus Curiae West Virginia Insurance Federation.

KETCHUM, Justice:

In this appeal from the Circuit Court of Berkeley County, we are asked to examine the “open and obvious” doctrine as it applies in premises liability actions. Under this common-law doctrine, if a plaintiff is injured by a hazard on another's land that was “open and obvious” such that it was or could have been known to the reasonable plaintiff, then the plaintiff is barred as a matter of law from recovering any damages from the premises owner or possessor. Under the doctrine, the premises owner or possessor owes no duty of care to eliminate open and obvious hazards; instead, he or she only has a duty to correct hidden dangers.

The plaintiff below fell down a staircase in a commercial parking lot that lacked handrails. He asserts that the defendant property owners were prima facie negligent because a local ordinance legally required the installation of at least one handrail. The defendants claimed that the missing handrail was an open and obvious danger, and that the plaintiff knew there was no handrail. In two orders dated December 15, 2011, the circuit court granted summary judgment to the defendants, finding no actionable negligence because the defendants had no duty of care toward the plaintiff.

We reverse the circuit court's orders. As set forth below, we abolish the “open and obvious” doctrine. If a hazard is open and obvious on premises, it does not preclude a cause of action by a plaintiff for injuries caused by that hazard. Instead, a jury may consider the obviousness of the hazard in determining the comparative negligence of the plaintiff against that of the owner or possessor of the premises.

I.FACTUAL AND PROCEDURAL BACKGROUND

On the morning of October 9, 2009, plaintiff Walter E. Hersh drove to a shopping plaza in Martinsburg, West Virginia. The plaza has two parking lots separated by an embankment. The lower parking lot is owned by third-party defendants P & H Investments, Inc. and Trollers Associates, LLC. The upper parking lot is owned by defendants Ralph Eckenrode and E–T Enterprises Limited Partnership.

On the embankment between the two parking lots is a set of wooden stairs, and the stairs rest on the real property owned by both sets of defendants. However, the stairs were constructed and maintained solely by Mr. Eckenrode and E–T Enterprises Limited Partnership.

The parties agree that the building code ordinance for the City of Martinsburg required at least one handrail on the wooden stairs.¹ The parties also agree there were no handrails on the stairs. Mr. Eckenrode testified in a deposition that he had removed the handrails.²

Mr. Hersh parked in the lower parking lot and climbed up the stairs to visit a store on the upper lot. After about 25 minutes, he left the store to return to his car. As he was descending the wooden stairs, he fell to the parking lot below and sustained a severe head injury.

Mr. Hersh and his wife (plaintiff Mary L. Hersh) brought the instant case against the defendants seeking damages for Mr. Hersh's fall down the stairs. Mr. Hersh asserted that the missing handrails, which were required by law, caused or contributed to his injuries. The defendants filed motions for summary judgment because it was undisputed that the missing handrails were an “open and obvious” condition, and undisputed that Mr. Hersh knew there were no handrails on the stairs before he fell.

In two orders dated December 15, 2011, the circuit court granted summary judgment to all of the defendants. The circuit court stated that it is a fundamental principle of West Virginia premises liability law that “a property owner is not liable for injuries sustained as a result of dangers that are ‘obvious, reasonably apparent, or as well known to the person injured as they are to the owner.’ ” ³ The circuit court found no “disputed material facts regarding the open and obvious missing handrails along the stairs in question or [Mr. Hersh's] admitted knowledge of those missing handrails before he fell.” Stating it another way, the circuit court found that the missing handrail was a condition that “was open, obvious, reasonably apparent, and as well known to Mr. Hersh as it was to the Defendants on October 9, 2009[.]”

The circuit court concluded that Mr. Hersh had failed to state an actionable case of negligence by the defendants. Under West Virginia law, the circuit court was of the belief that an open, obvious and known condition—“like the missing handrails along the subject stairs in the case sub judice ”—could not, as a matter of law, establish a case of negligence by a defendant that could be submitted to a jury. The circuit court determined that “open, obvious, and known conditions cannot create actionable negligence in West Virginia premises liability cases, even if those conditions are a violation of a regulation or ordinance.” Accordingly, the circuit court granted summary judgment to all of the defendants and dismissed the plaintiffs' case.

The plaintiffs now appeal the circuit court's December 15, 2011, summary judgment orders.

II.STANDARD OF REVIEW

When we review a circuit court's order granting summary judgment under Rule 56 of the Rules of Civil Procedure, we consider the order de novo.⁴ We apply the same guidelines as the circuit court, and examine the record to assess whether there is a genuine issue of fact to be tried or whether an inquiry concerning the facts is desirable to clarify...