Huffman v. Appalachian Power Co.

Decision Date19 March 1992
Docket NumberNo. 20118,20118
Citation187 W.Va. 1,415 S.E.2d 145
PartiesPaul HUFFMAN, Plaintiff Below, Appellee, v. APPALACHIAN POWER COMPANY, a Virginia Corporation Qualified to do Business in West Virginia, et al., Defendants Below, Appalachian Power Company, a Virginia Corporation Qualified to do Business in West Virginia, Appellant.
CourtWest Virginia Supreme Court
Concurring Opinion of Justice Neely Jan. 8, 1992.

Rehearing Denied March 19, 1992.

Syllabus by the Court

1. A trespasser is one who goes upon the property or premises of another without invitation, express or implied, and does so out of curiosity, or for his own purpose or convenience, and not in the performance of any duty to the owner.

2. The owner or possessor of property does not owe trespassers a duty of ordinary care. With regard to a trespasser, a possessor of property only need refrain from wilful or wanton injury.

3. " ' "Those who operate and maintain wires charged with dangerous voltage of electricity are required to exercise a degree of care commensurate with the dangers to be reasonably apprehended therefrom; but they are not insurers against all injury therefrom." Pt. 1, syllabus, Maggard v. Appalachian Electric Power Co., 111 W.Va. 470 [163 S.E. 27 (1932) ].' Syllabus Point 7, Sutton v. Monongahela Power Co., 151 W.Va. 961, 158 S.E.2d 98 (1967)." Syllabus Point 2, Miller v. Monongahela Power Co., 184 W.Va. 663, 403 S.E.2d 406, cert. denied, 502 U.S. 863, 112 S.Ct. 186, 116 L.Ed.2d 147 (1991).

4. For a trespasser to establish liability against the possessor of property who has created or maintains a highly dangerous condition or instrumentality upon the property, the following conditions must be met: (1) the possessor must know, or from facts within his knowledge should know, that trespassers constantly intrude in the area where the dangerous condition is located; (2) the possessor must be aware that the condition is likely to cause serious bodily injury or death to such trespassers; (3) the condition must be such that the possessor has reason to believe trespassers will not discover it; and (4), in that event, the possessor must have failed to exercise reasonable care to adequately warn the trespassers of the condition.

5. In order to assert a motion for judgment notwithstanding the verdict under Rule 50(b) of the West Virginia Rules of Civil Procedure, a defendant must move for a directed verdict at the close of the plaintiff's case and assert therein the insufficiency of the evidence to establish a prima facie case. A similar motion for a directed verdict must be made at the close of all the evidence. Finally, the motion for judgment notwithstanding the verdict must be filed within ten days from the date of the entry of the judgment order on the jury verdict.

6. In considering whether a motion for judgment notwithstanding the verdict under Rule 50(b) of the West Virginia Rules of Civil Procedure should be granted, the evidence should be considered in the light most favorable to the plaintiff, but, if it fails to establish a prima facie right to recover, the court should grant the motion.

A.L. Emch, Thomas J. Hurney, Jr., Jackson & Kelly, Charleston, for appellant.

Allan H. Masinter, William E. Pepper, Charleston, for appellee.

MILLER, Chief Justice:

This is an appeal from a final order of the Circuit Court of Kanawha County, dated March 13, 1990, which denied the motions of the defendant below, Appalachian Power Company (APCO), to set aside a verdict in favor of the plaintiff below, Paul Huffman, in a personal injury action. The plaintiff was injured when he received an electrical shock while climbing a high-voltage transmission tower owned by APCO and located in a public park in Kanawha County. On appeal, APCO raises numerous assignments of error. The dispositive point is APCO's assertion that there was no evidence showing that it had willfully or wantonly caused injury to the plaintiff, a trespasser on its tower. We agree, and we reverse the judgment of the circuit court.

I.

There is no material dispute as to the facts of the case. At the time of his injury, the plaintiff was an eighteen-year-old senior at South Charleston High School and had lived independently since the age of seventeen. 1 The plaintiff was enrolled in a cooperative education program which allowed him to attend classes in the mornings and work in the afternoons. He had a previous history of climbing various structures and had been injured in falls while climbing on an interstate highway access ramp and on a rock formation known as "Devil's Tea Table," located in Little Creek Park in South Charleston.

In the early afternoon of November 8, 1984, the plaintiff left school and went to the home of his cousin, Harry Wallot, where the two youths may have drunk several beers. The plaintiff and Wallot then rode the plaintiff's motorcycle around the Spring Hill area of South Charleston until they arrived at Little Creek Park, a public park located within the city limits. The plaintiff drove through the park to the end of a dirt road, where he parked the motorcycle and walked with Wallot along a hiking trail towards Devil's Tea Table.

APCO's transmission tower No. 279 was located alongside the hiking trail approximately 150 yards from the dirt road. A soap box derby track, a picnic pavilion, picnic tables, and a playground are located nearby. Built in 1923, tower No. 279 is made of steel, is approximately forty feet high, and is located within APCO's right-of-way. Climbing pegs are located on one leg of the tower, the lowest peg being four feet nine inches from the ground, the next lowest, four feet higher. At the time of the accident, the three electrical lines on the tower carried 46,000 volts of electricity. Signs reading "Danger, High Voltage, Keep Off" were posted on the tower approximately twelve to fifteen feet from the ground.

After sitting at the base of the tower for a while, the plaintiff and Wallot began to climb the tower to get a better view of the area. The plaintiff had apparently reached the highest cross-piece on the tower when he received an electrical shock. 2 The plaintiff fell to a lower brace, and Wallot ran for help. The plaintiff subsequently fell to the ground, where Wallot found him when he returned. The plaintiff suffered severe and permanent injuries as a result.

On August 4, 1988, the plaintiff filed suit against APCO 3 in the Circuit Court of Kanawha County, alleging that APCO had violated industry safety standards and failed to use reasonable care in the maintenance of tower No. 279, thereby proximately causing the plaintiff's injuries. In its answer, APCO alleged that the plaintiff's injuries were the proximate result of his own conduct.

Trial commenced in the circuit court on November 9, 1989. On November 20, 1989, the jury returned a verdict for the plaintiff in the amount of $1.5 million. The verdict was subsequently reduced by the court to reflect the jury's finding that APCO was 78 percent at fault and the plaintiff was 22 percent at fault in causing the injuries. APCO subsequently filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The circuit court denied the motion by order dated March 13, 1990, and entered judgment for the plaintiff. It is from this order that the defendant now appeals.

II.

The dispositive point is APCO's contention that it breached no duty it owed to the plaintiff which would support the civil action below. APCO contends that because the plaintiff was a trespasser on its property, the only duty it owed to him was to refrain from willfully or wantonly injuring him. The plaintiff contends that because APCO controls a dangerous instrumentality, it owed him a high degree of care.

A.

"A trespasser is one who goes upon the property or premises of another without invitation, express or implied, and does so out of curiosity, or for his own purpose or convenience, and not in the performance of any duty to the owner." Waddell v. New River Co., 141 W.Va. 880, 884, 93 S.E.2d 473, 476 (1956). See generally 65 C.J.S. Negligence § 63(3) (1966 & Supp.1991); 62 Am.Jur.2d Premises Liability §§ 72, 114 (1990). The owner or possessor of property 4 does not owe trespassers a duty of ordinary care: "[W]ith regard to a trespasser, a possessor of property only need refrain from wilful or wanton injury." 5 Miller v. Monongahela Power Co. 184 W.Va. 663, 668, 403 S.E.2d 406, 411, cert. denied, 502 U.S. 863, 112 S.Ct. 186, 116 L.Ed.2d 147 (1991). See Buckley v. Valley Camp Coal Co., 324 F.2d 244 (4th Cir.1963); Waddell v. New River Co., supra; Simmons v. Chesapeake & O. Ry. Co., 97 W.Va. 104, 124 S.E. 503 (1924). Thus, under ordinary circumstances, the possessor of property is not liable to trespassers for injuries caused by his failure to use reasonable care to maintain the property in a reasonably safe condition or to carry on his activities so as not to endanger them. See generally Restatement (Second) of Torts § 333 (1965); 65 C.J.S. Negligence §§ 63(7), 63(9).

There are, of course, exceptions to the rule of nonliability to trespassers. Where the trespass is merely technical, for example, the possessor of the property is not insulated from liability for his failure to exercise reasonable care. 65 C.J.S. Negligence § 63(19). We considered an issue of technical trespass in Miller v. Monongahela Power Co., supra. The plaintiff, an electrician employed by a chinaware manufacturer, was injured when he erroneously entered an unmarked power company substation located in the same area as seven smaller electrical substations owned by the employer. The evidence showed that Mr. Miller had only recently been employed as an electrician, had never been to any of the substations, and had no experience with the much higher voltage flowing through the power company's substation. The power company had intentionally failed to mark its...

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