Neely v. Belk Inc., 33597.

• Citation: 668 S.E.2d 189
• Decision Date: 26 June 2008
• Docket Number: No. 33597.,33597.
• Court: Supreme Court of West Virginia
• Parties: Betty K. NEELY and Johnny L. Neely, Plaintiffs Below, Appellees, v. BELK INCORPORATED, Crown American Crossroads, LLC, d/b/a Crossroads Mall and Newport Trading Company, Inc., Defendants Below, Appellants.

668 S.E.2d 189

Betty K. NEELY and Johnny L. Neely, Plaintiffs Below, Appellees, v. BELK INCORPORATED, Crown American Crossroads, LLC, d/b/a Crossroads Mall and Newport Trading Company, Inc., Defendants Below, Appellants.

No. 33597.

Supreme Court of Appeals of West Virginia.

Submitted February 27, 2008.

Decided June 26, 2008.

Syllabus by the Court

1. "When a trial judge vacates a jury verdict and awards a new trial pursuant to Rule 59 of the West Virginia Rules of Civil Procedure, the trial judge has the authority to weigh the evidence and consider the credibility of the witnesses. If the trial judge finds the verdict is against the clear weight of the evidence, is based on false evidence or will result in a miscarriage of justice, the trial judge may set aside the verdict, even if supported by substantial evidence, and grant a new trial. A trial judge's decision to award a new trial is not subject to appellate review unless the trial judge abuses his or her discretion." Syllabus point 3, in part, In re State Public Building Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994), cert. denied, 515 U.S. 1160, 115 S.Ct. 2614, 132 L.E.2d 857 (1995).

2. "Where the trial court improperly sets aside a verdict of a jury, such verdict will be reinstated by this Court and judgment rendered thereon." Syllabus point 4, Bronson v. Riffe, 148 W.Va. 362, 135 S.E.2d 244 (1964).

3. The action of the trial court in setting aside a verdict and awarding a new trial will be reversed by this Court where it appears that the case, as a whole, was fairly tried and no error prejudicial to the losing party was committed during the trial.

4. "The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. The test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" Syllabus point 3, Sewell v. Gregory, 179 W.Va. 585, 371 S.E.2d 82 (1988).

5. "A court's overall purpose in its consideration of foreseeability in conjunction with the duty owed is to discern in general terms whether the type of conduct at issue is sufficiently likely to result in the kind of harm experienced based on the evidence presented. If the court determines that disputed facts related to foreseeability, viewed in the light most favorable to the plaintiff, are sufficient to support foreseeability, resolution of the disputed facts is a jury question." Syllabus point 12, Strahin v. Cleavenger, 216 W.Va. 175, 603 S.E.2d 197 (2004).

6. "`"`"`Questions of 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 (W.Va.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)." Syl. Pt. 1, Waugh v. Traxler, 186 W.Va. 355, 412 S.E.2d 756 (1991).' Syl. Pt. 2, in part, Johnson v. Mays, 191 W.Va. 628, 447 S.E.2d 563 (1994)." Syllabus point 10, Strahin v. Cleavenger, 216 W.Va. 175, 603 S.E.2d 197 (2004).

7. "The owner or the occupant of a premise 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), overruled on other grounds by Mallet v. Pickens, 206 W.Va. 145, 522 S.E.2d 436 (1999).

8. "In determining whether a defendant in a premises liability case met his or her burden of reasonable care under the circumstances to all non-trespassing entrants, the trier of fact must consider (1) the foreseeability that an injury might occur; (2) the severity of the injury; (3) the time, manner and circumstances under which the injured party entered the premises; (4) the normal or expected use made of the premises; and (5) the magnitude of the burden placed upon the defendant to guard against injury." Syllabus point 6, Mallet v. Pickens, 206 W.Va. 145, 522 S.E.2d 436 (1999).

9. "`"When a case involving conflicting testimony and circumstances has been fairly tried, under proper instructions, the verdict of the jury will not be set aside unless plainly contrary to the evidence or without sufficient evidence to support it." Point 4, Syllabus, Laslo v. Griffith, 143 W.Va. 469, 102 S.E.2d 894.' Syllabus Point 2, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963)." Syllabus point 5, Toler v. Hager, 205 W.Va. 468, 519 S.E.2d 166 (1999).

10. "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).

11. "`"It is the peculiar and exclusive province of the jury to weigh the evidence and to resolve questions of fact when the testimony is conflicting." Point 3, Syllabus, Long v. City of Weirton, , (1975) 214 S.E.2d 832.' Syllabus Point 2, Bourne v. Mooney, 163 W.Va. 144, 254 S.E.2d 819 (1979)." Syllabus point 2, Toler v. Hager, 205 W.Va. 468, 519 S.E.2d 166 (1999).

12. "`In determining whether the verdict of a jury is supported by the evidence every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.' Syllabus Point 3, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963)." Syllabus Point 6, Toler v. Hager, 205 W.Va. 468, 519 S.E.2d 166 (1999).

Heather Heiskell Jones, Brian J. Warner, Spilman Thomas & Battle, PLLC, Charleston, for Appellant Belk Incorporated.

James C. Stebbins, Stebbins & Pinkerton, PLLC, Charleston, for Appellant Newport Trading Company.

Corey Palumbo, Bowles Rice McDavid Graff & Love, Charleston, for Appellant Crown American Crossroads d/b/a Crossroads Mall.

John D. Wooton, The Wooton Law Firm, Beckley, for Appellees.

BENJAMIN, J:

Appellants herein and defendants below, Belk Incorporated, Crown American Crossroads, LLC, d/b/a Crossroads Mall and Newport Trading Company Inc., seek reinstatement of a jury verdict rendered in their favor after an eight day trial in this personal injury action. Upon motion by the appellees, the Circuit Court of Raleigh County set aside the jury's verdict and ordered a new trial finding the original jury verdict was against the clear weight of evidence. Appellants argue the circuit court erred in making this finding. After a comprehensive review of the trial transcript, record below, pertinent legal authorities and arguments of the parties, we agree with the appellants. Accordingly, for the reasons set forth herein, the circuit court's January 2, 2007, order setting aside the jury's verdict and ordering a new trial is reversed and this matter is remanded with directions to promptly enter a judgment order consistent with the jury's verdict.

I. FACTUAL AND PROCEDURAL HISTORY

This personal injury action arises from an October 7, 2002, incident at the Belk Department Store¹ located at the Crossroads Mall² in Beckley, West Virginia, wherein appellee Betty Neely (hereinafter "Ms. Neely") was allegedly injured while opening the store's outer entrance door. The facts regarding what actually happened on October 7, 2002, was disputed at trial. According to Ms. Neely, the entrance door came completely off its hinges when she tried to open it, striking her as it fell to the ground. Ms. Neely maintains the door struck her right knee and side as it fell. Ms. Neely's daughter, Haley Clark, did not testify that she actually saw the door fall and strike her mother, although she did state she saw it on the ground. By contrast, two former Belk employees, Frankie Lawson and Avis Bailey, testified that the door did not come completely off its hinges and fall to the ground, but that it was still in its frame, attached at the top hinge and askew at the bottom, after the incident. These employees testified that after they assisted Ms. Neely, they removed the door from its frame and leaned it against the wall in the entryway. Ms. Lawson and Ms. Bailey were apparently the first Belk employees to see the door after the incident.

At trial, the case presented by the Neelys focused mainly on establishing damages and attempting to utilize circumstantial evidence to infer a problem existed with the door in order to establish liability. With respect to liability, the Neelys presented evidence that the door had previously been repaired due to problems with locking,³ that an independent witness had seen the door off of its hinges at some unknown time and that none of the appellants⁴ had a record of repairing the door after the incident in question. The Neelys' liability expert, Donald Lyons, did not inspect the door prior to forming his opinions and was unable to provide an opinion as to what actually happened to cause the door to come loose from its frame.⁵ He gave several opinions as to what might have happened and admitted that he did not know which scenario was the more probable cause of the door malfunctioning. He...