McDonald v. University of West Virginia Bd. of Trustees

• Decision Date: 22 April 1994
• Docket Number: No. 21751,21751
• Citation: 191 W.Va. 179,444 S.E.2d 57
• Court: West Virginia Supreme Court
• Parties: , 91 Ed. Law Rep. 707 Holly McDONALD, Plaintiff Below, Appellant, v. UNIVERSITY OF WEST VIRGINIA BOARD OF TRUSTEES, Defendant Below, Appellee.

Page 57

444 S.E.2d 57

191 W.Va. 179, 91 Ed. Law Rep. 707

Holly McDONALD, Plaintiff Below, Appellant, v. UNIVERSITY OF WEST VIRGINIA BOARD OF TRUSTEES, Defendant Below, Appellee.

No. 21751.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 18, 1994.

Decided April 22, 1994.

Syllabus by the Court

1. "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." Syllabus point 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983).

2. "A person is an invitee when for purposes connected with the business conducted on the premises he enters or uses a place of business." Syllabus point 2, Puffer v. The Hub Cigar Store, Inc., 140 W.Va. 327, 84 S.E.2d 145 (1954).

3. "The owner or the occupant of premises used for business purposes is not an insurer of the safety of an invited person present on such premises and, if such owner or occupant is not guilty of negligence or willful or wanton misconduct and no nuisance exists, he is not liable for injuries there sustained by such invited person." Syllabus point 3, Puffer v. The Hub Cigar Store, Inc., 140 W.Va. 327, 84 S.E.2d 145 (1954).

David J. Straface, Angotti & Straface, and Gary Wigal, Morgantown, for appellant.

William E. Galeotta, Laurie L. Cryster, Steptoe & Johnson, Morgantown, for appellee.

PER CURIAM:

In this appeal, the appellant, Holly McDonald, claims that the Circuit Court of Monongalia County erred in setting aside a jury verdict for her in a personal injury action against the trustees of West Virginia University. After reviewing the questions presented, this Court disagrees and affirms the judgment of the circuit court.

On October 2, 1990, the appellant, a theater major at West Virginia University, broke her leg and ankle on the lawn of the Creative Arts Center at the University. The injury occurred while the appellant, in the course of a stage movement class, was running across the lawn and was performing body movements intended to convey the emotion of fright.

The appellant instituted the personal action giving rise to this appeal against the trustees of the University for damages resulting from the incident. In instituting the action, the appellant, in essence, claimed that the University had been negligent in maintaining its premises and that that negligence, in conjunction with the negligence of her professor in preparing for and conducting her stage movement class, had caused her injury.

The case was tried before a jury on October 20, 1992, and at the conclusion of the trial, the jury returned a verdict for the appellant but assigned 34% of the total fault to her.

On October 29, 1992, counsel for the trustees filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The motion was heard on November 16, 1992, and at the conclusion of the hearing, the trial judge set aside the jury's verdict and entered judgment in favor of the trustees.

In setting aside the verdict, the trial judge stated:

I can't rest with this verdict. It is wrong and there is no evidence to sustain that the University was in any way negligent whatsoever. No doubt the girl slipped and fell and broke her ankle which is tragic but there was nothing that the University did in this case that I can see that will let that verdict stand so that the defendant can prepare an appropriate order and you have your exceptions.

On appeal, the appellant argues that the trial judge erred in setting aside the verdict and in awarding judgment to the trustees.

The test to be used for determining whether a judgment should be entered notwithstanding a verdict is the same test which is used to determine whether there is sufficient evidence to support the jury's verdict. 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). That test, as articulated in syllabus point 5 of Orr v. Crowder, states:

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.

See McClung v. Marion County Commission, 178 W.Va. 444, 360 S.E.2d 221 (1987).

As previously indicated, the appellant in the present case, in essence, alleged that West Virginia University was negligent in maintaining its premises and that that negligence, in conjunction with the negligence of her professor, caused her injury.

In Puffer v. The Hub Cigar Store, Inc., 140 W.Va. 327, 84 S.E.2d 145 (1954), this Court indicated that a person injured in circumstances such as those surrounding the appellant's injury is technically a "business invitee." In syllabus point 2 of Puffer, the Court stated:

A person is an invitee when for purposes connected with the business conducted on the premises he enters or uses a place of business.

See also Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966); and Haddox v. Suburban Lanes, Inc., 176 W.Va. 744, 349 S.E.2d 910 (1986).

In syllabus point 3 of Puffer, the Court proceeded to state:

The owner or the occupant of premises used for business purposes is not an insurer of the safety of an invited person present on such premises and, if such owner or occupant is not guilty of negligence or willful or wanton misconduct and no nuisance exists, he is not liable for injuries there sustained by such invited person.

See also, Roach v. McCrory Corp., 158 W.Va. 282, 210 S.E.2d 312 (1974); Curry v. Heck's, Inc., 157 W.Va. 719, 203 S.E.2d 696 (1974); O'Flaherty v. Tarrou, 130 W.Va. 326, 43 S.E.2d 392 (1947); and Spears v. Goldberg, 122 W.Va. 514, 11 S.E.2d 532 (1940).

In the present case, the appellant does not claim that the University was guilty of willful or wanton conduct or that a nuisance existed. Rather, she claims that it was guilty of negligence.

In Burdette v. Burdette, 147 W.Va. 313, 127 S.E.2d 249 (1962), the Court discussed at some length what constitutes negligence in the maintenance of premises. While recognizing that the owner or occupant of premises used for business purposes has some duty to keep the premises safe for invitees, the Court quoted with approval generally accepted principles set forth in 65 C.J.S. Negligence § 50 relating to the owner or occupant's duties. The Court stated:

In 65 C.J.S. Negligence § 50, the text contains this language: "The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal, obvious, or ordinary risks attendant on the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers." In 38 Am.Jur., Negligence, § 97, the principle is expressed in these terms: "There is no liability for injuries from dangers that are obvious, reasonably apparent, or as well known to the person injured as they are to the owner or occupant."

Burdette v. Burdette, Id. at 318, 127 S.E.2d at 252.

What this, in effect, says is that an owner of business premises is not legally responsible for every fall which occurs on his premises. He is only liable if he allows some hidden, unnatural condition to exist which precipitates the fall. He is not responsible if some small characteristic, commonly known to be a part of the nature of the premises, precipitates the fall. This has been otherwise stated as follows:

In order to make out a prima facie case of negligence in a slip and fall case, the invitee must show (1) that the owner had actual or constructive knowledge of the foreign substance or defective condition and (2) that the invitee had no knowledge of the substance or condition or was prevented by the owner from discovering it ... With respect to slip-and-fall cases,...