Johnson v. Mays

• Decision Date: 19 July 1994
• Docket Number: No. 21959,21959
• Citation: 447 S.E.2d 563,191 W.Va. 628
• Court: West Virginia Supreme Court
• Parties: Doris JOHNSON, Individually and as a Parent and Natural Guardian of Michael Johnson, a Minor, Plaintiff Below, Appellant, v. Marvin MAYS, Individually and as a Parent and Natural Guardian of Tracy Mays and Shane Mays; and Loudermilk Services, Inc., a West Virginia Corporation, Defendants Below, Appellees.

Page 563

447 S.E.2d 563

191 W.Va. 628

Doris JOHNSON, Individually and as a Parent and Natural Guardian of Michael Johnson, a Minor, Plaintiff Below, Appellant, v. Marvin MAYS, Individually and as a Parent and Natural Guardian of Tracy Mays and Shane Mays; and Loudermilk Services, Inc., a West Virginia Corporation Defendants Below, Appellees.

No. 21959.

Supreme Court of Appeals of West Virginia.

Submitted May 4, 1994.

Decided July 18, 1994.

Dissenting Opinion of Justice Neely

July 19, 1994.

Syllabus by the Court

1. " '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.' Syl. pt. 3, Aetna Casualty & Surety Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963)." Syl. pt. 1, Blake v. Wendy's International, Inc., 186 W.Va. 593, 413 S.E.2d 414 (1991).

2. " ' " 'Questions of negligence, due care, proximate cause and concurrent negligence present issues of fact for jury determination when the evidence pertaining to such issues is conflicting or where the facts, even though undisputed, are such that reasonable men may draw different conclusions from them.' Syl. pt. 1, Ratlief v. Yokum , 280 S.E.2d 584 (W.Va.1981), quoting syl. pt. 5, Hatten v. Mason Realty Co., 148 W.Va. 380, 135 S.E.2d 236 (1964)." Syllabus Point 6, McAllister v. Weirton Hosp. Co., 173 W.Va. 75, 312 S.E.2d 738 (1983).' Syl.Pt. 17, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990)." Syl. pt. 1, Waugh v. Traxler, 186 W.Va. 355, 412 S.E.2d 756 (1991).

3. "If there is no genuine issue as to any material fact summary judgment should be granted but such judgment must be denied if there is a genuine issue as to a material fact." Syl. pt. 4, Aetna Casualty & Surety Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963).

Donald R. Jarrell, Wayne, for appellant.

William L. Mundy, Renatha S. Garner, Mundy & Adkins, Huntington, for appellee, Marvin Mays.

Mark E. Garren, Huntington, for appellee, Loudermilk Services, Inc.

PER CURIAM:

This case is before this Court upon the May 12 and 14, 1993, orders of the Circuit Court of Cabell County, West Virginia, in which the circuit court granted the appellees', Marvin, Shane and Tracy Mays and Loudermilk Services, Inc. (hereinafter "Loudermilk"), motions for summary judgment. The appellant, Doris Johnson, asks that this Court reverse the orders of the circuit court. For the reasons stated below, the decision of the circuit court is affirmed, in part, reversed, in part, and remanded.

I.

On the morning of January 26, 1990, the brothers, Shane and Tracy Mays, were dropped off at their high school by their mother, but rather than going to school that day they decided they were going to "skip" school and stay home. The appellant's son, Michael Johnson, and three other boys also decided to miss school that day and met Shane and Tracy at the Mays' residence.

Neither Mr. nor Mrs. Mays was home, and Mr. Mays claimed that he was unaware that his sons were "skipping" school and present at his home that day. Nevertheless, the boys then decided they wanted to become intoxicated by "huffing" gasoline. Subsequently, Michael Johnson and two other boys drove to Loudermilk's to purchase the gasoline. They parked their vehicle behind Loudermilk's. Michael Johnson approached a Loudermilk employee with a Pepsi can, and he purchased a small amount of gasoline that was put in the Pepsi can. When Michael Johnson returned to the vehicle and his waiting friends, the boys informed him that it was the wrong kind of gasoline and told him to go back and get the right kind. Michael Johnson proceeded back to Loudermilk's and once again purchased a nickel's worth of gasoline in the Pepsi can.

The three boys then returned to the Mays' residence. The gasoline was poured into two plastic cups in order to facilitate the "huffing" process. The boys proceeded to "huff" the gasoline. The parties are in dispute as to how Michael Johnson was actually injured and burned by the gasoline. It appears, however, from the record that Michael Johnson went to the bathroom carrying a plastic cup of gasoline and cigarettes. The gasoline fumes were either ignited by the bathroom heater or a lit cigarette.

Michael Johnson received medical attention. At the Mays' residence, Shane and Tracy Mays attempted to clean up the rubble in the bathroom. Thereafter, Mr. Mays claimed that he continued to clean up and repair the bathroom without any knowledge that Michael Johnson had been injured.

Following the filing of this action and discovery proceedings, the appellees, the Mays and Loudermilk, filed motions for summary judgment. The circuit court found that no genuine issue as to any material fact existed and granted the appellees' motions. It is from this finding of the circuit court that the appellant appeals to this Court.

II.

Procedural mechanisms, at times, can be efficient and effective tools in resolving cases. We have recognized on previous occasions that summary judgment is a useful mechanism to resolve controversies where there is no real dispute as to the facts or the law. See Sartin by and through Sartin v. Evans, 186 W.Va. 717, 719, 414 S.E.2d 874, 876 (1991); Oakes v. Monongahela Power Co., 158 W.Va. 18, 207 S.E.2d 191 (1974). With respect to summary judgments, this Court has consistently reasoned that " '[a] party is not entitled to summary judgment unless the facts established show a right to judgment with such clarity as to leave no room for controversy and show affirmatively that the adverse party cannot prevail under any circumstances.' Aetna Casualty & Sur. Co., 148 W.Va. at 171, 133 S.E.2d at 777 (citing 3 Barron and Holtzoff, Federal Practice and Procedure, Rules Edition, Section 1234)[.]" Sartin, 186 W.Va. at 719, 414 S.E.2d at 876. When this Court is reviewing a summary judgment ruling, we construe the facts in the light most favorable to the party against whom summary judgment is granted. Id. With these important standards and principles in mind, we turn to the arguments presented on behalf of the parties.

On appeal, the appellant contends that material issues of fact remain in dispute and inquiry is warranted in order to clarify and determine the appropriate application of the law. For instance, the appellant asserts the following issues and questions remain unresolved and unanswered: was there a duty owed by the appellees to Michael Johnson; was there a breach of that duty; what was the degree of care, if any, that was to be exercised by the appellees; and, what was the proximate cause of Michael Johnson's injuries.

The appellant relies upon syllabus point 1 of Blake v. Wendy's International, Inc., 186 W.Va. 593, 413 S.E.2d 414 (1991) which states:

'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.' Syl. pt. 3, Aetna Casualty & Surety Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963).

The appellant submits that genuine issues of fact remain with respect to the appellees and Michael Johnson's injuries. Because questions regarding such issues as proximate cause and negligence remain unanswered, the appellant maintains that these questions should be resolved by a jury as stated in syllabus point 1 of Waugh v. Traxler, 186 W.Va. 355, 412 S.E.2d 756 (1991):

' " 'Questions of negligence, due care, proximate cause and concurrent negligence present issues of fact for jury determination when the evidence pertaining to such issues is conflicting or where the facts, even though undisputed, are such that reasonable men may draw different conclusions from them.' Syl. pt. 1, Ratlief v. Yokum , 280 S.E.2d 584 (W.Va.1981), quoting syl. pt. 5, Hatten v. Mason Realty Co., 148 W.Va. 380, 135 S.E.2d 236 (1964)." Syllabus Point 6, McAllister v. Weirton Hosp. Co., 173 W.Va. 75, 312 S.E.2d 738 (1983).' Syl. Pt. 17, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990).

A.

The appellant contends that material issues of fact remain with respect to the Mays and their actions or lack thereof regarding Michael Johnson's injuries. Specifically, the appellant argues that because Michael Johnson was a guest in the Mays' home, the Mays owed a duty of care to Michael Johnson and that duty was breached. The appellant suggests that Mr. Mays is guilty of failing to supervise his sons and was aware of his sons' truancy from school and their involvement in committing troublesome acts in the past, and therefore, he should have reasonably foreseen the events that occurred at the Mays' residence on the day that Michael Johnson was injured.

The Mays rebut the appellant's contentions with this Court's interpretation of Rule 56 of the W.Va.R.Civ.P. as stated in Crain v. Lightner, 178 W.Va. 765, 769, 364 S.E.2d 778, 782 (1987): "[I]f, after adequate time for discovery and upon motion, the record contains no evidence to support an essential element of the nonmovant's case, there is no 'genuine issue' as to material fact, ... [then] the moving party is entitled to a summary judgment." (citation omitted). This premise, as the Mays' contend, represents the circumstances in this case.

The Mays maintain that the appellant has failed to produce any evidence that the Mays were negligent and that their negligence, if any, was the proximate cause of Michael Johnson's injuries. Mr. Mays stated in his deposition that he did not know nor did he have any reason to know what was going on in his home that day or that such events would be foreseeable. Mr. Mays, however, admitted to knowing that on previous occasions his sons have "skipped" school or exhibited troublesome behavior in the past, but he stated that he has never known them to inhale gasoline or any other similar substance.

The Mays submit that ...