Massey v. Jim Crockett Promotions, Inc.

• Decision Date: 18 December 1990
• Docket Number: No. 19481,19481
• Citation: 400 S.E.2d 876,184 W.Va. 441
• Court: West Virginia Supreme Court
• Parties: Roy MASSEY and Ruby Massey v. JIM CROCKETT PROMOTIONS, INC., a North Carolina Corporation, Licensed to do business in the State of West Virginia; Stan Lane, a/k/a "Sweet Stan," Individually; Bobby Lee Eaton, a/k/a "Beautiful Bobby," Individually; and Jim Cornette, Individually; and Stan Lane, Bobby Lee Eaton, and Jim Cornette, all doing business as "The Midnight Express;" and Freedom Security & Detective Agency, Inc., a West Virginia Corporation.

Page 876

400 S.E.2d 876

184 W.Va. 441

Roy MASSEY and Ruby Massey v. JIM CROCKETT PROMOTIONS, INC., a North Carolina Corporation Licensed to do business in the State of West Virginia; Stan Lane, a/k/a "Sweet Stan," Individually; Bobby Lee Eaton a/k/a "Beautiful Bobby," Individually; and Jim Cornette Individually; and Stan Lane, Bobby Lee Eaton, and Jim Cornette, all doing business as "The Midnight Express;" and Freedom Security & Detective Agency, Inc., a West Virginia Corporation.

No. 19481.

Supreme Court of Appeals of

West Virginia.

Dec. 18, 1990.

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 & Sur. Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963).

2. "The owner or the occupant of premises owes to an invited person the duty to exercise ordinary care to keep and maintain the premises in a reasonably safe condition. This duty requires the owner or the occupant of premises to exercise ordinary care to protect an invited person from injury inflicted by other persons present on such premises; and if such owner or occupant fails to perform such duty and his negligence is the proximate cause of injuries inflicted upon an invited person by another person such owner or occupant is liable to such invited person." Syl. pt. 4, Puffer v. Hub Cigar Store, Inc., 140 W.Va. 327, 84 S.E.2d 145 (1954).

3. " ' "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 (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).

J. Robert Rogers, Charleston, for Roy Massey, Ruby Massey.

John L. MacCorkle, Meyer, Darragh, Buckler, Bebener Eck & Hall, Charleston, for Jim Crockett Promotions.

E. Elton Byron, Jr., Abrams, Byron, Henderson & Richmond, Beckley, for Lane, Eaton, Cornette & Midnight Express.

F. Alfred Sines, Jr., Beckley, for Freedom Security & Detective Agency, Inc.

PER CURIAM:

The appellants, Roy and Ruby Massey, instituted an action in the Circuit Court of Raleigh County seeking to recover damages for personal injuries alleged to have been caused by the negligence of the appellees, Jim Crockett Promotions, Inc. (hereinafter referred to as Crockett Promotions) and Freedom Security & Detective Agency, Inc. (hereinafter referred to as Freedom Security), in failing to protect Mr. Massey against injuries inflicted upon him by a wrestler while he was attending a wrestling exhibition at the Raleigh County Armory. The Circuit Court of Raleigh County entered an order on June 9, 1989, granting the motion to dismiss filed by Freedom Security, ¹ and entered another order on July 17, 1989, granting the motion of Crockett Promotions for summary judgment. The appellants contend that the circuit court erred in granting the appellees' motion to dismiss, and motion for summary judgment. We agree.

On May 29, 1987, Mr. Massey attended a wrestling exhibition at the Raleigh County Armory which had been leased by the promoter of the exhibition, the appellee, Crockett Promotions. ² The final event of the wrestling exhibition featured a tag team match between "The Rock 'n' Roll Express" and "The Midnight Express." Stan Lane, known as "Sweet Stan," and Bobby Eaton, known as "Beautiful Bobby," were the two wrestlers on the tag team "Midnight Express" and were managed by Jim Cornette. ³

The "Rock 'n' Roll Express" was declared the winner of the final match, and was escorted from the ring to their dressing room by security personnel employed by the appellee, Freedom Security. ⁴ "Sweet Stan" and "Beautiful Bobby" remained in the ring with their manager, Mr. Cornette, awaiting the return of the security personnel so that they could be escorted to their dressing room. ⁵ While they were standing in the ring, one of the spectators threw an aisle marker into the ring which struck "Beautiful Bobby" on the neck and shoulder. "Sweet Stan," believing that Mr. Massey was the one who threw the aisle marker into the ring, left the ring in pursuit of him. "Sweet Stan" then struck Mr. Massey on the left side of his face, fracturing the orbit of his left eye and other facial bones. ⁶ Mr. Massey was hospitalized for eight days and had to undergo surgery.

Mr. Massey filed a complaint against Crockett Promotions, Freedom Security, "Sweet Stan," "Beautiful Bobby," and Jim Cornette to recover damages for the injuries he sustained. All of the parties named as defendants in the complaint subsequently moved for summary judgment. By order entered on June 9, 1989, the circuit court granted the motion to dismiss filed by Freedom Security. Then, by order entered on July 17, 1989, the circuit court granted the motion for summary judgment filed by Crockett Promotions. ⁷ It is from that order that the appellant now appeals.

The sole issue in this appeal is whether the circuit court erred in granting the motion to dismiss filed by Freedom Security, and the motion for summary judgment filed by Crockett Promotions. The circuit court granted the motions on the grounds that "Sweet Stan" was not acting within the scope of his employment with Crockett Promotions, and that "Sweet Stan's" assault on Mr. Massey was not foreseeable by either Crockett Promotions or Freedom Security.

We stated in syllabus point 3 of Aetna Casualty & Surety Co. v. Federal Insurance Company of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963):

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.

We further observed in Aetna Casualty and Surety Co. v. Federal Insurance Company of New York, 148 W.Va. at 171, 133 S.E.2d at 777, 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 can not prevail under any circumstances." (citation omitted) We recently discussed, in Smith v. Buege, 182 W.Va. 204 , ----, 387 S.E.2d 109, 114 (1989) and Crain v. Lightner, 178 W.Va. 765, 769 n. 2, 364 S.E.2d 778, 782 n. 2 (1987), the respective burdens of proof of the parties when a motion for summary judgment has been filed pursuant to Rule 56 of the West Virginia Rules of Civil Procedure. See also Thornton v. The Town of Eleanor, 182 W.Va. 634, 390 S.E.2d 833 (1990). We have traditionally recognized that the burden is on the moving party to show that there is no genuine issue as to any material fact in the case. Smith v. Buege, 182 W.Va. at 208, 387 S.E.2d at 113; Crain v. Lightner, 178 W.Va. at 769, 364 S.E.2d at 782; Lengyel v. Lint, 167 W.Va. 272, 279-80, 280 S.E.2d 66, 70, 71 (1981); Gillespie v. City of Charleston, 154 W.Va. 565, 177 S.E.2d 354 (1970); Aetna Casualty & Surety Co. v. Federal Ins. Co. of N.Y., supra. We have identified two distinct components of this burden of persuasion: "an initial burden of production, which may shift to the nonmovant, and an ultimate burden of persuasion as to the nonexistence of a 'genuine issue' which burden always remain on the movant." Smith v. Buege, 182 W.Va. at 209, 387 S.E.2d at 114; Crain v. Lightner, 178 W.Va. at 769 n. 2, 364 S.E.2d at 782 n. 2. We further explained in Smith v. Buege, 182 W.Va. at 209 , 387 S.E.2d at 114, and Crain v. Lightner, 178 W.Va. at 769 n. 2, 364 S.E.2d at 782 n. 2:

If the burden of persuasion on the merits at trial would be on the nonmovant, the movant may satisfy the burden of production under Rule 56 in either of two ways. First, the movant may submit affirmative evidence that negates an essential element of the nonmovant's case. Second, the movant may demonstrate to the trial court that the nonmovant has not mustered any evidence to establish an essential element of the nonmovant's case. Where the movant adopts this second option, the movant may not simply make the conclusory assertion that the nonmovant has no evidence. Instead, the movant must affirmatively show the absence of evidence in the record by reviewing for the court the affidavits, if any, discovery materials, etc. [citations omitted].

The duty owed to an invited person by the occupant of the premises on which a business or an event, such as a wrestling match, is conducted was explained by this Court in syllabus point 4 of Puffer v. Hub Cigar Store, Inc., 140 W.Va. 327, 84 S.E.2d 145 (1954):

The owner or the occupant of premises owes to an invited person the duty to exercise ordinary care to keep and maintain the premises in a reasonably safe condition. This duty requires the owner or the occupant of premises to exercise ordinary care to protect an invited person from injury inflicted by other persons present on such premises; and if such owner or occupant fails to perform such duty and his negligence is the proximate cause of injuries inflicted upon an invited person by another person such owner or occupant is liable to such invited person.

Moreover, "[t]o be actionable, negligence must be the proximate cause of the injury complained of and must be such as might have been reasonably expected to produce an injury." Syl. pt. 4, Haddox v. Suburban Lanes, Inc., 176 W.Va. 744, 349 S.E.2d 910 (1986); syl. pt. 3, Hartley v. Crede, 140 W.Va. 133, 82 S.E.2d 672 (1954). "A person is not liable for damages which result from an event which was not expected and...