Pack v. Van Meter, No. 16561

CourtSupreme Court of West Virginia
Writing for the CourtMILLER
Citation177 W.Va. 485,354 S.E.2d 581
PartiesZolene PACK, Plaintiff Below, v. Doyle VAN METER and C. Gregory Van Meter, Defendants Below, v. NELSON'S DRESS SHOP, INC., a West Virginia corporation, Third-Party Defendant Below.
Decision Date29 October 1986
Docket NumberNo. 16561

Page 581

354 S.E.2d 581
177 W.Va. 485
Zolene PACK, Plaintiff Below,
v.
Doyle VAN METER and C. Gregory Van Meter, Defendants Below,
v.
NELSON'S DRESS SHOP, INC., a West Virginia corporation,
Third-Party Defendant Below.
No. 16561.
Supreme Court of Appeals of
West Virginia.
Oct. 29, 1986.

Page 582

[177 W.Va. 486] Syllabus by the Court

1. "The amount of compensation received for injury or death from the Workmen's Compensation Fund is not a proper subject for a remittitur in an action by the injured person, or the administrator of his estate in case of death, against a third party responsible for his injury or death." Syllabus Point 3, Jones v. Appalachian Electric Power Co., 145 W.Va. 478, 115 S.E.2d 129 (1960).

2. " ' "Statutes which relate to the same subject matter should be read and applied together so that the Legislature's intention can be gathered from the whole of the enactments." Syllabus Point 3, Smith v. State Workmen's Compensation Commissioner, W.Va. , 219 S.E.2d 361 (1975).' Syllabus Point 1, Newton v. Dailey, W.Va., 280 S.E.2d 91 (1981)." Syllabus Point 3, ACF Industries, Inc. v. Credithrift of America, Inc., 173 W.Va. 83, 312 S.E.2d 746 (1983).

3. Under W.Va.Code, 21-3-1, the employer and the owner of a place of employment, place of public assembly, or a public building is affixed with a statutory responsibility to maintain such place in a reasonably safe condition.

4. The defense of assumption of risk is available to bar a claim based upon a breach of a duty imposed by a statutory safety scheme only where the defendant bears the burden of proving (1) that there was available to the wage earner an alternative to encountering the risk; (2) that the wage earner's choice between the risk and such alternative was fully voluntary; (3) that such alternative afforded the wage earner the safety mandated by statute, rule, or regulation; and (4) that the wage earner's determination to encounter the risk was, under the circumstances, made with willful, wanton, or reckless disregard for his own safety.

5. "In the trial of an action for recovery of damages for personal injury, wrongful death, or for property loss, alleged to be the result of negligence of the defendant ... the fact that such defendant does or ... does not carry insurance protecting him ... is immaterial." Syllabus Point 1, in part, Graham v. Wriston, 146 W.Va. 484, 120 S.E.2d 713 (1961), overruled on other grounds, Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979).

Stephen P. Meyer, Meyer & Perfater, Charleston, Michael T. Clifford, Charleston, for plaintiff.

Page 583

[177 W.Va. 487] John C. Lobert, Charleston, W. Graham Smith, Smith & Rumora, Williamson, for defendants.

MILLER, Chief Justice:

This case involves the right of an employee to sue the owners of her place of employment for personal injuries suffered on the leased premises.

On April 29, 1980, Zolene Pack, the plaintiff and an employee of Nelson's Dress Shop, fell down an interior stairway in the store during the course of her employment. There was no handrail on the stairway, which connected the first and second floors of the store. The stairway steps were made of hard tile with the edges capped with metal strips. In the fall, the plaintiff sustained rather severe injuries to her left knee and back. The building in which Nelson's Dress Shop is located was rented from R. Doyle and C. Gregory Van Meter. On January 20, 1982, the plaintiff filed a personal injury action against the Van Meters as a result of her accident.

The Van Meters filed a third-party action against their tenant, Nelson's Dress Shop, claiming that under their written lease, the tenant had agreed to indemnify and hold them harmless for injuries occurring on the leased premises. 1 A jury in the Circuit Court of Mingo County awarded the plaintiff $450,000 in damages. Since the jury found the plaintiff to have been ten percent negligent, the award was reduced by $45,000. The trial court further reduced the award by $103,000 to offset the amount of money the plaintiff had received in workers' compensation benefits, leaving a total award of $302,000.

When this case was originally appealed, we discovered that the trial court had not ruled on all of the grounds asserted in the motion for a new trial and we remanded the matter back for further rulings. After examining all of the Van Meters' assignments of error, the trial court ruled that five of the grounds asserted had merit. Consequently, the verdict was set aside and a new trial was awarded. The plaintiff appeals the trial court's decision in setting aside the verdict. The Van Meters ask this Court to affirm the trial court's final decision and further cross assign additional errors supporting the decision to set aside the verdict. After examining all of the issues presented, we conclude the trial court was correct in setting aside the verdict.

I.

WORKERS' COMPENSATION OFFSET

One of the pivotal issues in this case involves the trial court's decision allowing the amount of workers' compensation benefits received by the plaintiff to be brought to the jury's attention and subtracted from its award of damages. After her injury, the plaintiff filed a workers' compensation claim against her employer, Nelson's Dress Shop, since the injury was work related. Her claim was approved and she was granted a permanent total disability award. At the time of the trial, she had received approximately $103,000 in workers' compensation benefits.

The trial court permitted this figure to be disclosed to the jury. Also, the plaintiff's counsel was allowed to argue to the jury that if it did not return a verdict in excess of $103,000 for the plaintiff, she would, in effect, receive nothing. This argument was predicated on the fact that the trial court had ruled the workers' compensation benefits would be subtracted from the jury's award of damages. The plaintiff argues that the trial court should not have offset the workers' compensation benefits against the jury's award of damages. The trial court concluded after the trial that the procedures it had followed in handling the

Page 584

[177 W.Va. 488] offset issue were improper and, therefore, set aside the verdict on that ground.

The trial court was incorrect in initially assuming that the workers' compensation offset was proper in this case. This suit was brought against the Van Meters as the landlords of the plaintiff's place of employment. Our law is quite clear that the amount of money that an injured plaintiff receives from a collateral source is not admissible. In Jones v. Appalachian Electric Power Co., 145 W.Va. 478, 115 S.E.2d 129 (1960), the defendant sought to have its adverse verdict reduced in a wrongful death action by the amount of benefits the widow had received from workers' compensation for her husband's death. We held in Syllabus Point 3 that this could not be done:

"The amount of compensation received for injury or death from the Workmen's Compensation Fund is not a proper subject for a remittitur in an action by the injured person, or the administrator of his estate in case of death, against a third party responsible for his injury or death."

See also National Fruit Product Co. v. Baltimore & Ohio R.R. Co., 174 W.Va. 759, ---, 329 S.E.2d 125, 127-31 (1985); Syllabus Point 3, Jones v. Laird Foundation, Inc., 156 W.Va. 479, 195 S.E.2d 821 (1973); Syllabus Point 3, Mercer v. Ott, 78 W.Va. 629, 89 S.E. 952 (1916). 2

Although the amount of workers' compensation benefits should not have been injected into this case nor offset from the jury's verdict, this error cannot be cured by simply adding $103,000 to the final verdict. The amount of workers' compensation benefits was presented to the jury, which was told that any award of damages would have to exceed $103,000 before the plaintiff would receive any compensation. This argument brought a substantial base figure before the jury that had no direct correlation to the actual damages that could have been awarded for the plaintiff's personal injuries. The jury may have concluded that the workers' compensation benefits represented actual losses the plaintiff had incurred which could have caused them to overvalue the plaintiff's claim. 3 For the foregoing reasons, we conclude the trial court erred in reducing the verdict by the amount of workers' compensation benefits received by the plaintiff.

II.

LIABILITY UNDER SAFETY STATUTES

The trial court accepted the plaintiff's theory that the Van Meters could be found liable for maintaining the interior stairway of the store in an unsafe manner under W.Va.Code, 21-3-6. W.Va.Code, 21-3-6, provides in pertinent part: "In all factories, mercantile establishments, mills or workshops, proper and substantial handrails shall be provided on all stairways, and the treads thereon shall be so constructed as to furnish a firm and safe foothold."

It is clear that W.Va.Code, 21-3-6, mandates that stairways in mercantile establishments must have handrails and the

Page 585

[177 W.Va. 489] treads on the steps must furnish a firm and safe foothold. This statute does not state explicitly who is responsible for seeing that these requirements are met. The Van Meters argue that W.Va.Code, 21-3-6, only applies to employers and their employees and cite several of our past decisions interpreting related statutes.

In order to fully understand W.Va.Code, 21-3-6, it must be read in conjunction with other related statutes, particularly W.Va.Code, 21-3-1. In Syllabus Point 3 of ACF Industries, Inc. v. Credithrift of America, Inc., 173 W.Va. 83, 312 S.E.2d 746 (1983), we quoted one of the cardinal rules of statutory construction:

" ' "Statutes which relate to the same subject matter should be read and applied together so that the Legislature's intention can be gathered from the whole of the enactments." Syllabus Point 3, Smith v. State Workmen's Compensation Commissioner, W.Va. , 219 S.E.2d 361 (1975).' Syllabus...

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26 practice notes
  • State v. Chase Securities, Inc., No. 20863
    • United States
    • Supreme Court of West Virginia
    • November 25, 1992
    ...the plaintiff complains.' Point 3, Syllabus, Alexander v. Jennings, 150 W.Va. 629 [149 S.E.2d 213 (1966) ]." 26 In Pack v. Van Meter, 177 W.Va. 485, 494, 354 S.E.2d 581, 590 (1986), we said: "We have customarily defined negligence as 'conduct unaccompanied by that degree of consideration at......
  • Washington v. Union Carbide Corp., No. 88-3957
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • March 27, 1989
    ...Corp., Indus. Systems Div., 528 F.2d 65 (4th Cir.1975); Davis v. Monsanto Co., 627 F.Supp. 418, 422 (S.D.W.Va.1986); Pack v. Van Meter, 354 S.E.2d 581, 585 (W.Va.1986) (citing cases). It seems to me no great leap to find in it a public policy that would be violated by an employer's conduct ......
  • Kenney v. Liston, No. 13–0427.
    • United States
    • Supreme Court of West Virginia
    • July 18, 2014
    ...7, Ratlief v. Yokum, 167 W.Va. 779, 280 S.E.2d 584 (1981). 13. Krauss & Kidd, 48 U. Louisville L.Rev. at 11.See also, Pack v. Van Meter, 177 W.Va. 485, 488, 354 S.E.2d 581, 584 (1986) (“Our law is quite clear that the amount of money that an injured plaintiff receives from a collateral sour......
  • Kenney v. Liston, No. 13-0427
    • United States
    • Supreme Court of West Virginia
    • June 4, 2014
    ...Ratlief v. Yokum, 167 W.Va. 779, 280 S.E.2d 584 (1981). 13. Krauss & Kidd, 48 U. Louisville L. Rev. at 11. See also, Pack v. Van Meter, 177 W.Va. 485, 488, 354 S.E.2d 581, 584 (1986) ("Our law is quite clear that the amount of money that an injured plaintiff receives from a collateral sourc......
  • Request a trial to view additional results
26 cases
  • State v. Chase Securities, Inc., No. 20863
    • United States
    • Supreme Court of West Virginia
    • November 25, 1992
    ...the plaintiff complains.' Point 3, Syllabus, Alexander v. Jennings, 150 W.Va. 629 [149 S.E.2d 213 (1966) ]." 26 In Pack v. Van Meter, 177 W.Va. 485, 494, 354 S.E.2d 581, 590 (1986), we said: "We have customarily defined negligence as 'conduct unaccompanied by that degree of consideration at......
  • Washington v. Union Carbide Corp., No. 88-3957
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • March 27, 1989
    ...Corp., Indus. Systems Div., 528 F.2d 65 (4th Cir.1975); Davis v. Monsanto Co., 627 F.Supp. 418, 422 (S.D.W.Va.1986); Pack v. Van Meter, 354 S.E.2d 581, 585 (W.Va.1986) (citing cases). It seems to me no great leap to find in it a public policy that would be violated by an employer's conduct ......
  • Kenney v. Liston, No. 13–0427.
    • United States
    • Supreme Court of West Virginia
    • July 18, 2014
    ...7, Ratlief v. Yokum, 167 W.Va. 779, 280 S.E.2d 584 (1981). 13. Krauss & Kidd, 48 U. Louisville L.Rev. at 11.See also, Pack v. Van Meter, 177 W.Va. 485, 488, 354 S.E.2d 581, 584 (1986) (“Our law is quite clear that the amount of money that an injured plaintiff receives from a collateral sour......
  • Kenney v. Liston, No. 13-0427
    • United States
    • Supreme Court of West Virginia
    • June 4, 2014
    ...Ratlief v. Yokum, 167 W.Va. 779, 280 S.E.2d 584 (1981). 13. Krauss & Kidd, 48 U. Louisville L. Rev. at 11. See also, Pack v. Van Meter, 177 W.Va. 485, 488, 354 S.E.2d 581, 584 (1986) ("Our law is quite clear that the amount of money that an injured plaintiff receives from a collateral sourc......
  • Request a trial to view additional results

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