Hovermale v. Berkeley Springs Moose Lodge No. 1483

Citation165 W.Va. 689,271 S.E.2d 335
Decision Date07 October 1980
Docket NumberNo. 14754,14754
PartiesSyvillia HOVERMALE v. BERKELEY SPRINGS MOOSE LODGE NO. 1483.
CourtSupreme Court of West Virginia

William B. Carey, Berkeley Springs, for appellant.

Martin & Seibert, Clarence E. Martin, Jr. and Clarence E. Martin, III, Martinsburg, for appellee.

McGRAW, Justice.

Syvillia Hovermale, plaintiff below, appeals from an order of the Circuit Court of Morgan County granting the defendant below, the Berkeley Springs Moose Lodge No. 1483, its motion for a directed verdict in this wrongful death action. In addition to her contention that the trial court took from the jury an issue of fact, the appellant asks us to review certain jury instructions involving, respectively, the standard of care owed to an invitee, the credibility of certain medical testimony, and the issue of contributory negligence. She also appeals from an order denying her motion for a new trial based upon newly discovered evidence. We find merit in several of the appellant's contentions and award her a new trial.

During the evening of June 2, 1974, the appellant's decedent, Charles Watson Hovermale, stopped at the Berkeley Springs Moose Lodge to have a drink with his fellow Moose. While standing at the bar talking with friends, Hovermale collapsed and fell to the floor. Two patrons, fellow Moose members, picked Hovermale up from the floor. One of the bartenders on duty instructed them to take him out to his car to "sleep it off." Although there is some conflict in the evidence, it appears that Hovermale consumed one drink and was starting another when he collapsed.

The brothers grabbed Hovermale under each arm and supported him out to the parking lot. They asked him which car was his but his responses were mumbled and unintelligible. After ascertaining his vehicle, the two patrons placed him in the front seat and asked him to tuck his feet up so that they could close the door. This he did. After rolling the window down halfway, the patrons returned to the bar and informed the bartender of their actions. When the Moose Lodge closed for the evening, the bartenders went to the parking lot where the only cars there were their own and Hovermale's. They left that night without checking his condition.

About 7:15 the next evening, several employees and members of the Moose discovered Hovermale's body in the front seat of the vehicle. According to the medical testimony, he died of a coronary thrombosis, a heart attack, sometime within two to five hours after being placed in the vehicle.

The first trial of the case resulted in a hung jury. Sensing that the jury's inability to reach a verdict may have resulted from the close ties between the local community and the Moose, the trial judge prudently moved the retrial from Morgan County to Jefferson County. Prior to the case going to the jury in the second trial, the appellee moved the court to grant a directed verdict on the grounds that the evidence of negligence produced by the appellant was insufficient to go to the jury. The court reserved ruling on the motion. After the jury in the second trial was unable to reach a verdict, the motion was renewed and granted.

The appellant's first assignment of error is that the trial court should have imposed a high duty of care on the Moose rather than the ordinary duty of care the trial court found proper. In his order directing a verdict, the trial judge defined the legal status of Hovermale as an invitee. As such, the agents, employees, servants and membership of the Moose owed to him an ordinary degree of care. This is indeed a correct statement of the rule in this jurisdiction. Puffer v. The Hub Cigar Store, Inc., 140 W.Va. 327, 84 S.E.2d 145 (1954). The acts constituting ordinary and reasonable care, however, are commensurate with the circumstances. Dicken v. Liverpool Salt & Coal Co., 141 W.Va. 511, 23 S.E. 582 (1895). A definition of reasonable and ordinary care in this circumstance is best set out in the Restatement (Second) of Torts, § 314A (1965) which states that a possessor of lands open to the public is under a duty to those members of the public who enter in response to its invitation to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others. 1

We are influenced by the Wisconsin court. It applied the Restatement standard in Lloyd v. S. S. Kresge Co., 85 Wis.2d 296, 270 N.W.2d 423 (1978). There the plaintiff was doing business at the defendant's store when she was informed by store employees it was closing time and she would have to leave. She informed the employees she had developed a cold and a fever and asked if she could stand between the exit door and the inner door while she waited for her ride. She further explained to them there was a possibility she would be chilled to the bone unless she could stand in the foyer. The employees insisted she leave while they closed the store. She did wait outside for five to ten minutes as a result of the employee's request. Subsequently, she brought suit to recover damages she allegedly suffered as a result of exposure to the elements. The trial court granted the defendant's motion for summary judgment and the plaintiff appealed. The Wisconsin court cited Restatement standard and reversed the lower court, holding that a proprietor owes a duty to render aid when he knows or should know an invitee is in need of attention.

The rule is not new. In the 1907 case of Depue v. Flateau, 100 Minn. 299, 111 N.W. 1 (1907), the Minnesota court also confronted a fact situation similar to the one before us. There the plaintiff, who was transacting business during dinner at a farmhouse some distance from his own, fell violently ill and collapsed on the floor. The defendants refused to permit him to stay at their farm and instead, placed him in his wagon and started the horses drawing it toward his home. The plaintiff was found the next morning in an advanced state of ill health due to exposure. The court held that since he was an invitee, the defendants owed him a duty, upon discovering his illness, to exercise reasonable care in their own conduct not to expose him to danger by sending him away from their house.

There is also a large body of case law to this effect. Some cases deal with common carriers, see, e. g., Korn v. Tamiami Trail Tours, Inc., 89 Miss. 308, 42 So. 286 (1906) and others with traditional businesses, Baca v. Baca, 81 N.M. 734, 472 P.2d 997 (1970); Delvin v. Safeway Stores, 235 F.Supp. 882 (S.D.N.Y.1964); Zelenko v. Gimbel Bros., Inc., 158 Misc. 904, 287 N.Y.S. 134 (1935). While the cases involving common carriers speak in terms of a high duty of care, others, similar to the case at bar, require only the exercise of reasonable and ordinary care. We conclude, therefore, that the trial court correctly instructed the jury that a proprietor is under an ordinary duty of care to render aid to an invitee after he knows or has reason to know the invitee is ill or injured.

The appellant's second contention is the trial court incorrectly ruled that she produced no facts upon which the jury could find that the agents of the Moose Lodge breached the aforementioned duty. We agree.

At trial testimony was adduced to the effect that a layman, and perhaps a physician, could not have foreseen that Hovermale was having a heart attack. The appellee, relying on the foreseeability rule laid down in Puffer v. The Hub Cigar Co., supra, argued that since no one could distinguish between intoxication and a heart attack, it was not foreseeable that Hovermale's collapse was the result of anything more than intoxication. The trial judge embraced this argument and ruled that because it was impossible to make such a distinction, no duty arose upon which to base a breach. This rationale, however, confuses rather than illuminates the distinction between the existence of a duty as a matter of law and the breach of a duty as a question of fact. The trial court's use of the word "foreseeability" is unfortunate here because it obscures the distinction between the event giving rise to the duty to render aid and the duty itself.

In the context of foreseeability, Puffer, supra, stands for the proposition that a proprietor is not an insurer and as such should not be held responsible for events over which he has no control and could not reasonably foresee. While this undoubtedly is a correct statement of the law, it is not applicable to the facts of this case. Here, the appellant makes no claim that the Moose could foresee Hovermale's heart attack or was responsible for it. She only asked the jury to find that the appellee breached the duty to render aid which arose once the attack occurred. The question thus becomes one of the reasonableness of the acts of the Moose with regard to that duty. 2

In the order directing the verdict, the trial court may well have meant, in light of the evidence that Hovermale was drinking, that no reasonable man would have had reason to know Hovermale was in need of care. 3 Such an inquiry, however, is more properly left with the jury, especially when the facts are in dispute, or when not in dispute, are such that reasonable men may draw different conclusions from them. We have often held that questions of negligence are for the trier of fact when the evidence is conflicting or when the facts, although undisputed, are such that reasonable people may draw different conclusions from them. Bradley v. Sugarwood, Inc., W.Va., 260 S.E.2d 839 (1979); Sullivan v. Billey, W.Va., 245 S.E.2d 626 (1978). In the instant case Hovermale appeared sober, although the bartenders were in conflict as to the number of drinks he consumed. The record is replete with testimony from which a reasonable person could deduce that Hovermale was reacting to something other than intoxicants. Accordingly, the trial court erred in taking these questions of negligence from...

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