Miller v. Warren

• Decision Date: 21 February 1990
• Docket Number: No. 19021,19021
• Citation: 182 W.Va. 560,390 S.E.2d 207
• Court: West Virginia Supreme Court
• Parties: David L. MILLER, Linda D. Grapes, and Joshua Grapes, an Infant, v. Barbara J. WARREN, Individually and Doing Business as Flagg Motel.

Page 207

390 S.E.2d 207

182 W.Va. 560

David L. MILLER, Linda D. Grapes, and Joshua Grapes, an Infant, v. Barbara J. WARREN, Individually and Doing Business as Flagg Motel.

No. 19021.

Supreme Court of Appeals of West Virginia.

Feb. 21, 1990.

Syllabus by the Court

1. Failure to comply with a fire code or similar set of regulations constitutes prima facie negligence, if an injury proximately flows from the non-compliance and the injury is of the sort the regulation was intended to prevent; on the other hand, compliance with the appropriate regulations is competent evidence of due care, but does not constitute due care per se or create a presumption of due care.

2. "The negligence of a parent cannot be imputed to the infant child, too young to know how to take care of itself; nor can such child be guilty of contributory negligence." Syllabus Point 5, Dicken v. Liverpool Salt & Coal Co., 41 W.Va. 511, 23 S.E. 582 (1895).

3. It is error to instruct the jury in a negligence action that negligence by one of two adults alone will bar recovery by both; except as otherwise established in law, the jury should be instructed that the negligence of one adult cannot be imputed to another.

Joseph M. Farrell, Jr., K. Alan Perdue, Hunt & Wilson, Huntington, for David L. Miller, Linda and Joshua Grapes.

William Richard McCune, Jr., Martinsburg, for Barbara J. Warren and Leonard J. Frantz d/b/a Flagg Motel.

NEELY, Chief Justice:

The plaintiffs, David Miller, Linda Grapes, and Joshua Grapes, (Ms. Grapes's son, then two years old), were residents of Berkeley County. On 18 April 1983, they checked into Room 8 of the Flagg Motel, in Martinsburg, which was operated by the defendant, Barbara Warren, and Leonard Frantz. ¹ Ms. Warren had owned the motel since 1973. The plaintiffs had been driving for several hours, and they fell asleep shortly after entering their room in the early afternoon. In the late afternoon, Ms. Grapes awoke to hear her son crying. Smoke filled the motel room. Ms. Grapes woke Mr. Miller. Mr. Miller tried the room door, but it was too hot to open. At that time, the motel clerk saw smoke coming from Room 8 and used his pass-key to open the room door. The guests crawled to safety. Mr. Miller, Ms. Grapes and Joshua sustained serious burns in the fire.

On 12 October 1983, the plaintiffs filed their complaint in Berkeley County circuit court, alleging that their injuries were the result of the defendant's negligence. The action proceeded to trial on 16 June 1987. The plaintiffs' theory was that the fire was caused by the defendant's placing the bed in the room too close to the baseboard heater. Expert witnesses for the plaintiffs and the defendant agreed that the fire started in the area between the heater and the bed. The plaintiffs' expert opined that the heater caused the fire, and the defendant's expert opined that the cause was instead a burning cigarette dropped by the plaintiffs. ² Furthermore, the plaintiffs argued, the absence of a smoke alarm at least aggravated their injuries.

The jury returned a verdict for the defendant, and this appeal followed. We now reverse and remand for a new trial.

I.

The plaintiffs argue that the jury was improperly instructed on the defendant's standard of care. The parties agree that the motel was in compliance with the local fire code, which did not require a smoke detector in each room. The judge's instructions indicated that the appropriate standard of due care in the matter of a smoke detector is met if the motel complies with the fire code. ³ This was error.

Failure to comply with a fire code or similar regulation constitutes prima facie negligence, if an injury proximately flows from the non-compliance and the injury is of the sort the regulation was intended to prevent. Johnson v. Monongahela Power Co., 146 W.Va. 900, 123 S.E.2d 81 (1961). On the other hand, the converse, that compliance with a regulation is per se the exercise of due care, is not the law. Compliance with a regulation does not constitute due care per se. Compliance with the appropriate regulations is competent evidence of due care, but not conclusive evidence of due care. If the defendants knew or should have known of some risk that would be prevented by reasonable measures not required by the regulation, they were negligent if they did not take such measures. It is settled law that a statute or regulation merely sets a floor of due care. Restatement (Second) of Torts, § 288C (1965); Prosser and Keaton on Torts, 233 (5th ed. 1984). Circumstances may require greater care, if a defendant knows or should know of other risks not contemplated by the regulation.

In a case like this one, an instruction such as that given by the trial court goes to the heart of the cause of action. The instruction given was misleading. It implied that there is a rebuttable presumption that compliance with regulations constitutes due care. The instruction given purported to follow the learning of Johnson v. Monongahela Power Co., supra. In Johnson, this Court held:

Valid rules and regulations of the Public Service Commission of West Virginia ... have the force of statutory law and the failure to comply therewith would constitute prima facie negligence. The compliance therewith would meet the standard of care and duty required in such cases unless other circumstances appear which would require additional care in order to comply with the requirement to use ordinary care in attendant circumstances.

Syllabus Point 1, Johnson v. Monongahela Power Co., supra. The syllabus point, while correctly stating the law, is of little use as a jury instruction. It is tautological. Truth is, no care at all will meet the standard of care if circumstances do not appear that require some care. That is to say, because the plaintiff has the burden of proof on the defendant's negligence, he must point to some risk that the defendant should have been aware of. But the plaintiff must always do so to avoid a directed verdict for the defendant. If the plaintiff is unable to show prima facie negligence by failure to comply with a statute, he must prove negligence in some other particular.

Thus, the syllabus point in Johnson merely states the rule for a directed verdict. Such a rule is of no use as a jury instruction. There was sufficient evidence of "other circumstances," calling for more care than the fire code, for the plaintiffs to avoid a directed verdict. Certainly, compliance with regulations is relevant evidence of due care, and the jury should be told that. But such evidence does not have behind it any of the weight of a presumption.

II.

The plaintiffs argue that the trial court did not properly instruct the jury on the negligence of the infant plaintiff that might have contributed to the injuries. The jury was instructed that all the plaintiffs' combined negligence should be...