Kizer v. Harper

• Decision Date: 28 November 2001
• Docket Number: No. 29694.,29694.
• Citation: 211 W.Va. 47,561 S.E.2d 368
• Parties: James D. KIZER and Joyce Kizer, Plaintiffs Below, Appellees, v. Charles HARPER, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

561 S.E.2d 368

211 W.Va. 47

James D. KIZER and Joyce Kizer, Plaintiffs Below, Appellees, v. Charles HARPER, Defendant Below, Appellant.

No. 29694.

Supreme Court of Appeals of West Virginia.

Submitted October 3, 2001.

Decided November 28, 2001.

Dissenting Opinion of Justice Davis November 30, 2001.

Stephen P. Meyer, Meyer & Ford, Anne E. Shaffer, Charleston, for the Appellees.

Brent K. Kesner, Ellen R. Archibald, Kesner, Kesner & Bramble, Charleston, David A. Sims, Elkins, for the Appellant.

PER CURIAM.

Appellant Charles Harper seeks a reversal of the September 11, 2000, order of the Circuit Court of Kanawha County denying his post-trial motions for a new trial or judgment as a matter of law.¹ As grounds for the relief he seeks, Appellant argues that he was entitled to judgment as a matter of law because Appellees, James D. and Joyce Kizer, failed to prove a prima facie case of negligent hiring against him. In addition, Appellant asserts that the circuit court erred in denying his new trial motion based on various instructional errors, sufficiency of the evidence, and a generalized plea that a miscarriage of justice will result through enforcement of the judgment. Having carefully reviewed the record in this case, we find no reversible error and accordingly, we affirm.

I. Factual and Procedural Background

Mr. Kizer, a CableComm employee, fell from an Appalachian Power Company utility pole on August 5, 1996, and sustained various injuries as a result of the fall.² Just before the fall, Mr. Kizer was working on cable strung from a utility pole which was located on property owned by Appellant's mother, Venila Harper. Mr. Kizer and his wife³ brought suit against Appalachian Power, alleging that Mr. Kizer's injuries were the result of faulty wiring. The Kizers later amended their complaint to name Appellant and his brother, Ronald Harper, as defendants based on their actions in arranging for the wiring upgrade at their mother's home.⁴

By order entered March 29, 1999, the Kizers dismissed Appalachian Power as a defendant.⁵ On October 12, 1999, the trial began in the Kizers' negligence action against Charles and Ronald Harper. Following the presentation of the Kizers' case-in-chief, the trial court directed a verdict in favor of Ronald Harper. The jury returned its verdict in favor of the Kizers on October 15, 1999, apportioning fault as follows: Appalachian Power—90%; CableComm—9%; Charles Harper—1%. The jury awarded damages in the amount of $1,299,000.01, for which Mr. Harper is liable under principles of joint and several liability.

Appellant filed his motion for a new trial or alternatively, judgment as a matter of law on October 25, 1999. As grounds for this motion, Appellant argued that the Kizers failed to present evidence establishing that Larry Vance, the "electrician" hired by Mr. Harper to install a circuit breaker box at his mother's home, committed an act of negligence which caused the Kizers' injuries, and further that the Kizers failed to establish that he was negligent in hiring Mr. Vance.⁶ In addition, Appellant asserted that the trial court erred in ruling that the installation of a breaker box is an inherently dangerous activity; in giving the Kizers' instructions on an inherently dangerous instrumentality; and in refusing his proffered instruction on the independent contractor defense. Finally, Appellant maintained that it was error for the trial court to permit the Kizers to read the deposition testimony of Larry Vance into the record in this case, on the grounds that Mr. Vance was not an unavailable witness under the rules of civil procedure.⁷ After hearing oral argument on these issues, the trial court denied Appellant's motions for post-trial relief by order entered on September 11, 2000. Through this appeal, Appellant seeks a reversal of the lower court's denial of his post-trial motions.

II. Standard of Review

The standard of review governing the denial of Appellant's motion for judgment as a matter of law is the same standard previously applied to rulings concerning motions for judgment notwithstanding the verdict.⁸ That standard, as we explained in syllabus point one of Mildred L.M. v. John O.F., 192 W.Va. 345, 452 S.E.2d 436 (1994), requires that

in ruling on a motion for a judgment not-withstanding the verdict, the evidence must be viewed in the light most favorable to the nonmoving party. If on review, the evidence is shown to be legally insufficient to sustain the verdict, it is the obligation of this Court to reverse the circuit court and to order judgment for the appellant.

Id. at 347, 452 S.E.2d at 438, syl. pt. 1, in part. We expanded upon this standard by holding in syllabus point three of Alkire v. First National Bank, 197 W.Va. 122, 475 S.E.2d 122 (1996), that

[t]he granting of a motion for judgment notwithstanding the verdict is reviewed de novo, which triggers the same stringent decisional standards that are used by the circuit courts. While a review of this motion is plenary, it is also circumscribed because we must review the evidence in a light most favorable to the nonmoving party.

Our reviewing standard for denial of a new trial motion was articulated in Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995):

We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Id. at 104, 459 S.E.2d at 381. With these principles in mind, we proceed to review this case.

III. Discussion

A. Failure to Grant Judgment as Matter of Law

In support of Appellant's argument that the lower court committed error by not awarding him judgment as a matter of law, Appellant maintains that the Kizers failed to prove a prima facie case of negligent hiring against him. Notwithstanding the introduction in evidence of a statutory violation concerning electrical work performed by an unlicensed individual,⁹ Appellant argues that the Kizers still had to prove that he was negligent in hiring Mr. Vance to perform electrical work at his mother's house. In short, Appellant contends that prima facie proof of a statutory violation related to licensing was not the equivalent of prima facie proof of negligent hiring.¹⁰

Under West Virginia law, a "[v]iolation of a statute is prima facie evidence of negligence." Syl. Pt. 1, in part, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990); accord Spurlin v. Nardo, 145 W.Va. 408, 415, 114 S.E.2d 913, 918 (1960)

. "In order to be actionable," however, "such violation must be the proximate cause of the plaintiff's injury." Syl. Pt. 1, in part, Anderson, 183 W.Va. at 79,

394 S.E.2d at 63; accord Waugh v. Traxler, 186 W.Va. 355, 358, 412 S.E.2d 756, 759 (1991). As we explained in Traxler, "`[o]nly a rebuttable prima facie presumption of negligence arises on a showing that the statute was violated.'" Id. at 358, 412 S.E.2d at 759 (quoting Flanagan v. Mott, 145 W.Va. 220, 226, 114 S.E.2d 331, 335 (1960)).

The statutory violation in issue in this case was a licensing statute governing the performance of electrical work in this state. Under West Virginia Code § 29-3B-2 (2001), "no electrical work may be performed, offered or engaged in for compensation or hire ... unless such person ... possesses a license and a certificate...." A separate statute, West Virginia Code § 55-7-9 (1923) (Repl. Vol.2000), provides that "[a]ny person injured by the violation of any statute may recover from the offender such damages as he may sustain by reason of the violation...."

We concur with Appellant's contention that proof of a statutory violation, in this case a licensing violation as Mr. Harper was not a licensed electrician, is not sufficient to establish negligent hiring. See Thomson v. McGinnis, 195 W.Va. 465, 465 S.E.2d 922 (1995)

(setting forth cause of action for negligent hiring or selection). Nonetheless, we are still without a basis to find error on this issue for two reasons. First and foremost is the fact that proof of the statutory violation did get the Kizers' claim of negligence before the jury. Once the statutory violation was demonstrated, and there is no dispute regarding the fact of the violation, it was up to Appellant to rebut the presumption of negligence that was created. Whether Appellant rebutted this presumption of negligence was a matter for the jury.¹¹

See Traxler, 186 W.Va. at 358,

412 S.E.2d at 759; accord Spurlin, 145 W.Va. at 415,

114 S.E.2d at 918 (stating that "entire matter is a question for jury determination" where statutory violation relating to operable brakes was demonstrated). A jury question was also presented by virtue of the need to determine whether the Kizers' injuries were proximately caused by the statutory violation, as we explained in Anderson:

While a statutory violation gives rise to a prima facie case of negligence, "`the determination as to whether there was in fact a violation and whether the violation was the proximate cause of the injury is within the province of the jury.' Syllabus Point 3, Simmons v. City of Bluefield, , 225 S.E.2d 202, 88 A.L.R.3d 105 (1975)." Syllabus Point 3, in part, Jones v. Two Rivers Ford, Inc. 171 W.Va. 561, 301 S.E.2d 192 (1983).

183 W.Va. at 90, 394 S.E.2d at 74.

Our second basis for denying Appellant relief from the lower court's ruling arises from the parties' failure to submit any special interrogatories to the jury. While the Kizers were required to connect the acts of negligence upon which they sued to the statutory violation to prove negligent hiring, the absence of special interrogatories separating these two issues prevents us from concluding that the jury did not determine, as part of their finding of negligence, that the statutory violation was the proximate cause of the injuries suffered by...