Maples v. West Virginia Dept. of Commerce, Div. of Parks and Recreation, 23112

• Decision Date: 05 July 1996
• Docket Number: No. 23112,23112
• Court: West Virginia Supreme Court
• Parties: Sandra Gayle MAPLES and John Maples, Plaintiffs Below, Appellants, v. WEST VIRGINIA DEPARTMENT OF COMMERCE, DIVISION OF PARKS AND RECREATION, Defendant Below, Appellee.

Page 410

475 S.E.2d 410

197 W.Va. 318

Sandra Gayle MAPLES and John Maples, Plaintiffs Below, Appellants, v. WEST VIRGINIA DEPARTMENT OF COMMERCE, DIVISION OF PARKS AND RECREATION, Defendant Below, Appellee.

No. 23112.

Supreme Court of Appeals of West Virginia.

Submitted April 30, 1996.

Decided July 5, 1996.

[197 W.Va. 319] Syllabus by the Court

1. A litigant may not silently acquiesce to an alleged error, or actively contribute to such error, and then raise that error as a reason for reversal on appeal.

2. " 'Where objections were not shown to have been made in the trial court, and the matters concerned were not jurisdictional in character, such objections will not be considered on appeal.' Syl. pt. 1, State Road Commission v. Ferguson, 148 W.Va. 742, 137 S.E.2d 206 (1964)." Syllabus point 1, Estep v. Brewer, 192 W.Va. 511, 453 S.E.2d 345 (1994).

3. "To trigger application of the 'plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial 4. " 'An instruction should not be given when there is no evidence tending to prove the theory upon which the instruction is based.' Syl. pt. 4, Hovermale v. Berkeley Springs Moose Lodge No. 1483, W.Va. , 271 S.E.2d 335 (1980)." Syllabus point 3, Jenrett v. Smith, 173 W.Va. 325, 315 S.E.2d 583 (1983).

                [197 W.Va. 320] proceedings."   Syllabus point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995)
                

5. "It will be presumed that a trial court acted correctly in giving or in refusing to give instructions to the jury, unless it appears from the record in the case that the instructions given were prejudicially erroneous or that the instructions refused were correct and should have been given." Syllabus point 1, State v. Turner, 137 W.Va. 122, 70 S.E.2d 249 (1952).

6. " 'In determining whether there is sufficient evidence to support a jury verdict, the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.' Syl. Pt. 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984)." Syllabus point 3, Realcorp, Inc. v. Gillespie, 193 W.Va. 99, 454 S.E.2d 393 (1994) (per curiam).

John D. Wooton, Michael E. Froble, Wooton, Wooton & Fragile, Beckley, for Appellants.

David E. Schumacher, David F. Nelson, Schumacher & Stennett, Charleston, for Appellee.

ALBRIGHT, Justice:

Sandra Gayle Maples and her husband, John Maples, plaintiffs below and appellants, appeal a judgment in favor of the West Virginia Department of Commerce, Division of Parks and Recreation (Division of Parks), entered by the Circuit Court of Wyoming County in a personal injury action that arose after Mrs. Maples fell and injured herself at the Twin Falls State Park Lodge. Appellants argue that the court erred in allowing testimony regarding certain inspection reports that were not disclosed during discovery and in failing to give one of appellants' instructions, which would have informed the jury that a violation of building and safety codes is negligence per se. Finally, appellants assert that the verdict was contrary to the evidence. After reviewing the arguments of both parties and carefully reviewing the record submitted with this appeal, we find that appellants failed to object to the testimony regarding the inspection reports and the error was not saved by plain error; that appellants failed to establish that the building and safety codes upon which their negligence per se instruction was based had been adopted by Wyoming County; and finally that the evidence was sufficient to sustain the verdict. In accordance with these findings, we affirm.

Appellant Sandra Gayle Maples and her son, both residents of Marshall, Texas, were guests in the lodge at Twin Falls State Park in Wyoming County, West Virginia, in June of 1989, while they attended a family reunion being held at the park. Mrs. Maples and other members of her family had rented rooms 210 and 211 in the lower part of the lodge. On the evening of June 16, 1989, Mrs. Maples and her son were returning to their room after having gone outside to retrieve a bottle of cola from Mrs. Maples' vehicle. It had rained all afternoon and was still drizzling; consequently, the ground was wet and puddles had formed at various places. There was no floor mat inside the entrance that led to the rooms where Mrs. Maples and her family were staying. Therefore, Mrs. Maples could not wipe the moisture from her sneakers when she entered the building. As Mrs. Maples placed her hand on the hand rail ¹ and began to descend the stairs toward her room, her foot slipped out from under her. She fell backwards and suffered injuries to her back.

Mrs. Maples and her husband, John, subsequently filed this personal injury action against the owner of the lodge, the West Virginia Department of Commerce, Division of Parks and Recreation, appellee here. A jury trial was held in August, 1994. At the end of the Maples' evidence, both parties filed motions for a directed verdict. Both motions were denied by the court. The motions were renewed at the end of all the evidence and were again denied. The case was submitted to the jury, and a verdict was returned in favor of the Division of Parks. The Maples, appellants here, then moved for a new trial. This appeal is from the court's order of February 23, 1995, which denied appellants' motion for a new trial.

SAFETY INSPECTION TESTIMONY

Before we discuss appellants' contention that the testimony regarding certain safety inspection reports should have been excluded, a brief discussion of related events that transpired during trial is necessary.

The trial of this case lasted three days. Mr. Durham, the park superintendent, was called by appellants and testified at the end of the first day of trial. During cross-examination by appellee, superintendent Durham testified that an engineering firm conducted yearly safety inspections and advised the park of any possible safety hazards. He further stated that the engineering firm had never recommended placing a mat or other moisture gathering device in the area where Mrs. Maples fell. Appellants made no objections during superintendent Durham's testimony regarding the safety inspections. Similarly, no objections or motions to strike were made immediately following his testimony.

On the second day of trial, appellants called their expert, Mr. Sober, as the first witness. During appellants' direct examination, counsel asked Mr. Sober whether he had observed any safety hazards during his visit to the park that he would have included in a safety report if he had been asked to provide one. Mr. Sober described several conditions that he considered safety hazards. Appellee objected, stating that Mr. Sober had testified to matters which had not been previously raised. Appellants' counsel then commented that he was attempting to show notice on the part of the park in response to superintendent Durham's earlier testimony that yearly safety inspections had been performed. The court overruled appellee's objection.

On the afternoon of the third day of trial, superintendent Durham was again called to testify, this time as a witness for appellee. On direct examination, appellee asked superintendent Durham additional questions regarding the safety inspections. Appellants' counsel asked to approach the bench, where he explained that he was objecting to the written reports of the safety inspections. Counsel stated that he had requested the production of safety reports during discovery, and appellee's counsel failed to produce any such reports. Appellee's counsel stated that he had not been aware of the reports prior to the first day of trial and that he furnished appellants with copies of the reports after obtaining the same. He further stated that he did not intend to enter the reports into evidence, but that he did intend to question superintendent Durham about the reports and their contents.

During the exchange regarding this testimony, appellants' counsel commented to the court, "[l]et me ask you this: He has already testified about this to a certain extent. I don't know how we are going to deal with the stuff he has already testified to." To which the court responded, "[w]e're not going to do anything about it." The transcript is not clear, but it appears that the court thereafter ruled to exclude the reports and any testimony regarding their contents. After further discussion, however, appellants' counsel said, "[l]et him talk about it because you're not going to put the report[s] in." The court then stated that it would change its ruling, but was interrupted before it could explain the change. Appellee's counsel subsequently questioned superintendent Durham regarding the safety inspections and the contents of the resulting reports, including the absence of recommendations regarding the stairwell in question. The reports were not offered into evidence.

Appellants complain that appellee improperly withheld the safety inspection reports Appellee asserts that the trial judge did not abuse his discretion by allowing Mr. Durham's testimony, because appellants waived any objection to Mr. Durham's testimony by failing to timely object, as required by Rule 103(a)(1) of the West Virginia Rules of Evidence and footnote four of Reed v. Wimmer, 195 W.Va. 199, 465 S.E.2d 199 (1995) ("an objection must be interposed at the time the evidence has been offered and the trial court thus be given an opportunity to rule on the admissibility of the evidence."). Moreover, appellee contends...