Jividen v. Law, No. 22513

CourtSupreme Court of West Virginia
Writing for the CourtWORKMAN; MILLER, Retired J., and FOX
Citation461 S.E.2d 451,194 W.Va. 705
PartiesRex JIVIDEN, Executor of the Estate of Delvious Jividen, Plaintiff Below, Appellant, v. Robert LAW and Joyce Law, Defendants and Third-Party Plaintiffs Below, Appellees, v. Paul KOVACS, Barbara Kovacs, and William Penn Home Farm, Third-Party Defendants Below, Appellees, and Rex JIVIDEN, Executor of the Estate of Delvious Jividen, Plaintiff Below, Appellant, v. Paul KOVACS, Barbara Kovacs, and William Penn Home Farm, Defendants and Third-Party Plaintiffs Below, Appellees, v. Robert LAW and Joyce Law, Third-Party Defendants Below, Appellees.
Docket NumberNo. 22513
Decision Date11 July 1995

Page 451

461 S.E.2d 451
194 W.Va. 705
Rex JIVIDEN, Executor of the Estate of Delvious Jividen,
Plaintiff Below, Appellant,
v.
Robert LAW and Joyce Law, Defendants and Third-Party
Plaintiffs Below, Appellees,
v.
Paul KOVACS, Barbara Kovacs, and William Penn Home Farm,
Third-Party Defendants Below, Appellees,
and
Rex JIVIDEN, Executor of the Estate of Delvious Jividen,
Plaintiff Below, Appellant,
v.
Paul KOVACS, Barbara Kovacs, and William Penn Home Farm,
Defendants and Third-Party Plaintiffs Below, Appellees,
v.
Robert LAW and Joyce Law, Third-Party Defendants Below, Appellees.
No. 22513.
Supreme Court of Appeals of
West Virginia.
Submitted May 9, 1995.
Decided July 11, 1995.

Page 453

[194 W.Va. 707] Syllabus by the Court

1. The mere fact that a particular cause of action contains elements which typically raise a factual issue for jury determination does not automatically immunize the case from summary judgment. The plaintiff must still discharge his or her burden under West Virginia Rule of Civil Procedure 56(c) by demonstrating that a legitimate jury question, i.e. a genuine issue of material fact, is present.

2. Where a domestic animal injures one who is lawfully in the place where the injury occurs, the injured party may pursue either of two causes of action for damages against the owner or keeper of the animal. The first cause of action is one for strict liability, and it may be maintained where the injured party can show that (1) the animal had a dangerous or vicious propensity, and (2) the owner or keeper had actual or constructive knowledge of that propensity. The second cause of action sounds in negligence and can be maintained where the plaintiff can prove that the owner or keeper failed to exercise the ordinary care that was necessary to prevent the injury. Liability will not attach, however, unless the injured party can demonstrate, with particular emphasis on the animal's past behavior and characteristics, that the injury could reasonably and foreseeably have been anticipated by the defendant.

3. "If the moving party makes a properly supported motion for summary judgment and can show by affirmative evidence that there is no genuine issue of material fact, the burden of production shifts to the nonmoving party who must either (1) rehabilitate the evidence attacked by the moving

Page 454

[194 W.Va. 708] party, (2) produce additional evidence showing the existence of a genuine issue for trial, or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f) of the West Virginia Rules of Civil Procedure." Syl.Pt. 3, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (W.Va.1995).

4. "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).

5. Roughly stated, a "genuine issue" for purposes of West Virginia Rule of Civil Procedure 56(c) is simply one half of a trialworthy issue, and a genuine issue does not arise unless there is sufficient evidence favoring the non-moving party for a reasonable jury to return a verdict for that party. The opposing half of a trialworthy issue is present where the non-moving party can point to one or more disputed "material" facts. A material fact is one that has the capacity to sway the outcome of the litigation under the applicable law.

6. An expert witness' affidavit that is wholly conclusory and devoid of reasoning does not comply with West Virginia Rule of Civil Procedure 56(e).

Steven M. Recht, Arthur J. Recht, William E. Galloway, Weirton, for appellants.

John P. Davis, III, Jones, Gregg, Creehan & Gerace, Pittsburgh, PA, for appellee, William Penn Home Farm.

J.P. McMullen, Jr., Charles D. Bell, Wellsburg, for appellees, Paul and Barbara Kovacs.

Michael G. Gallaway, Jeffrey A. Holmstrand, McDermott, Bonenberger, McDermott & Gallaway, Wheeling, for appellees, Robert and Joyce Law.

WORKMAN, Justice:

This wrongful death action arises out of the events leading to the demise of Delvious Jividen (hereinafter the "decedent"). The decedent's executor, the Appellant Rex Jividen, appeals from an order of the Circuit Court of Brooke County granting summary judgment to the Appellees, Robert and Joyce Law, Paul and Barbara Kovacs, and the William Penn Home Farm (hereinafter the "Home"). While the Appellant's brief sets forth a plethora of errors, he essentially asserts that the circuit court (1) applied the wrong standard of care to the Appellees; and (2) ignored or improperly resolved certain genuine issues of material fact. Finding no error in the circuit court's ruling, we hereby affirm.

I. FACTUAL DEVELOPMENT

The Home is located in Wellsburg, West Virginia. While it was formerly a personal care facility, it was closed for financial reasons at the end of February 1991. At all times relevant, the Home was owned by the William Penn Association, a fraternal non-profit organization. Mr. Kovacs was employed by the Home and served as its administrator. Mrs. Kovacs was the Home's business and office manager and performed various bookkeeping duties.

On January 26, 1988, the Laws leased approximately ninety-five of the Home's 565 acres with the intention of raising hay and possibly field corn on the property. The lease agreement contained provisions which mandated (1) that the barn be available to the Home (and presumably its employees); 1 (2) that the Laws permit the Home to maintain five horses in the barn; (3) that the Laws furnish the Home with 500 bales of hay; and (4) that the Laws purchase the Home's remaining head of cattle. Mr. Law purchased all but three of the cattle. While there is some dispute, for purposes of summary judgment we must assume that these

Page 455

[194 W.Va. 709] remaining three steers were purchased from the Home by the decedent. 2

On September 28, 1988, the decedent came to the Home to collect the three steers and met Mr. and Mrs. Law. At the time of the decedent's visit, Mrs. Kovacs' registered quarterhorse colt, Keno, 3 was present in a corral adjacent to the barn pursuant to the above-described lease agreement. Keno was apparently corralled to facilitate the healing of injuries that he sustained when he ran into a barbed wire fence a couple of days prior to September 28. This was apparently the first time that the colt had been either corralled or away from its mother for an extended period. According to Mr. Law's deposition, the decedent was aware of Keno's leg injury and how it occurred.

Shortly after the decedent arrived, the Laws decided to place the three steers into the corral adjacent to the barn. This was the same corral where Keno was being kept. From there, the parties intended to back a loading trailer to the gate in the corral's fence and then, via a loading ramp, move the three steers into the trailer. Prior to moving the steers into the corral, however, Mr. Law testified that a halter was placed on Keno and that Mrs. Law took the colt out of the corral a short distance away. The steers and some other cattle were then herded into the corral.

Just prior to loading the steers, however, Mr. Law testified that Keno began pulling back on the rope that Mrs. Law was holding. According to the record, both Mr. Law and the decedent appear to have noticed that Keno was not being entirely cooperative with Mrs. Law. As a result, both men then approached Keno, and Mr. Law jerked the colt's rope and calmed him. The decedent then apparently took the rope and held onto Keno thereafter. 4 Mr. and Mrs. Law then commenced moving the trailer into position to load the cattle. While there is some confusion in the record, we will assume for purposes of summary judgment that Keno kicked the decedent. 5 The decedent was rushed to the hospital with, among other things, a fractured skull and blunt chest injuries. He died a few days later.

The Appellant originally filed a wrongful death action against the Laws in April 1990. In September 1990, the Appellant filed a virtually identical complaint against the Kovacs and the Home. Additionally, the Laws and the Kovacs filed third-party complaints against each other. Discovery proceeded and the Appellees filed motions for summary judgment. The Appellees pointed to evidence in the record which indicated that Keno had never demonstrated any vicious or dangerous propensities prior to attacking the decedent and that, consequently, the Appellees could not have predicted or reasonably foreseen such an uncharacteristic attack. The Appellant countered, however, by submitting (1) the statements of Mr. and Mrs. Law that Keno was a bit frisky; (2) a statement from a relative of the decedent who testified that Mr. Law told her that Keno was a "rambunctious ... wild colt;" (3) a statement by Mr. Law that Keno preferred to "run and play" rather than being penned; and (4) a one-page affidavit from an expert. The circuit court granted summary judgment to the Appellees because, inter alia, "[n]o

Page 456

[194 W.Va. 710] evidence ... [was] ... found in the extensive discovery process ... indicat[ing] that Keno was dangerous, vicious or had any predisposition toward violent behavior." 6 The Appellant then pursued the instant appeal.

In our view, the principal issues on appeal are whether the circuit court (1) applied the wrong standards of care to the Appellees; or (2) ignored or improperly resolved certain genuine issues of material fact. A discussion of each issue and related sub-issues are set forth below.

II. LEGAL ISSUES

A. The Applicable Standards of Care:

According to the Appellant, our existing case law dealing with the applicable standards of care for injuries caused by domestic animals has engendered some confusion. Indeed, the law of torts as it relates to animals has often generated uncertainty, in part, due to " 'a pot-pourri of specialised rules of mediaeval origin.' " P.M. North, The Modern Law of Animals 1 (1972) (commenting on the common law generally and stating...

To continue reading

Request your trial
73 practice notes
  • Vendrella v. Astriab Family Ltd. P'ship, SC 18949
    • United States
    • Court of Federal Claims
    • April 1, 2014
    ...v. Laird, 94 Wn. 2d 867, 871, 621 P.2d 138 (1980) (applying rule set forth in § 518 of Restatement [Second], supra); Jividen v. Law, 194 W. Va. 705, 712, 461 S.E.2d 451 (1995) (West Virginia rule recognizing negligence action against owner of animal that does not have known, abnormally dang......
  • Shaffer v. Acme Limestone Co., Inc., No. 26114.
    • United States
    • Supreme Court of West Virginia
    • December 3, 1999
    ...A material fact is one that has the capacity to sway the outcome of the litigation under the applicable law. Syl. pt. 5, Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 All reasonable doubts regarding the evidence must be resolved in favor of the non-moving party. "A party who moves for summa......
  • Fayette County Nat. Bank v. Lilly, No. 23360
    • United States
    • Supreme Court of West Virginia
    • March 14, 1997
    ...A material fact is one that has the capacity to sway the outcome of the litigation under the applicable law." Syl. Pt. 5, Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 3. Although our standard of review for summary judgment remains de novo, a circuit court's order granting summary judgment ......
  • Banfi v. American Hosp. for Rehabilitation, No. 26659.
    • United States
    • Supreme Court of West Virginia
    • April 24, 2000
    ...A material fact is one that has the capacity to sway the outcome of the litigation under the applicable law. Syl. pt. 5, Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995). Accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211-12 (1986) (A "d......
  • Request a trial to view additional results
73 cases
  • Vendrella v. Astriab Family Ltd. P'ship, SC 18949
    • United States
    • Court of Federal Claims
    • April 1, 2014
    ...v. Laird, 94 Wn. 2d 867, 871, 621 P.2d 138 (1980) (applying rule set forth in § 518 of Restatement [Second], supra); Jividen v. Law, 194 W. Va. 705, 712, 461 S.E.2d 451 (1995) (West Virginia rule recognizing negligence action against owner of animal that does not have known, abnormally dang......
  • Shaffer v. Acme Limestone Co., Inc., No. 26114.
    • United States
    • Supreme Court of West Virginia
    • December 3, 1999
    ...A material fact is one that has the capacity to sway the outcome of the litigation under the applicable law. Syl. pt. 5, Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 All reasonable doubts regarding the evidence must be resolved in favor of the non-moving party. "A party who moves for summa......
  • Fayette County Nat. Bank v. Lilly, No. 23360
    • United States
    • Supreme Court of West Virginia
    • March 14, 1997
    ...A material fact is one that has the capacity to sway the outcome of the litigation under the applicable law." Syl. Pt. 5, Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 3. Although our standard of review for summary judgment remains de novo, a circuit court's order granting summary judgment ......
  • Banfi v. American Hosp. for Rehabilitation, No. 26659.
    • United States
    • Supreme Court of West Virginia
    • April 24, 2000
    ...A material fact is one that has the capacity to sway the outcome of the litigation under the applicable law. Syl. pt. 5, Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995). Accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211-12 (1986) (A "d......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT