Reed v. Phillips

Decision Date12 December 1994
Docket NumberNo. 22196,22196
Citation192 W.Va. 392,452 S.E.2d 708
CourtWest Virginia Supreme Court
PartiesDonna Lou REED, Administratrix of the Estate of James George Reed, Plaintiff Below, Appellee, v. Lula A. PHILLIPS and George Phillips, Defendants Below, Appellants.
Dissenting Opinion of Justice Neely

Dec. 12, 1994.

Syllabus by the Court

1. " 'Violation of a statute is prima facie evidence of negligence. In order to be actionable, such violation must be the proximate cause of the plaintiff's injury.' Syllabus Point 1, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990)." Syl. Pt. 3, Courtney v. Courtney, 186 W.Va. 597, 413 S.E.2d 418 (1991).

2. " 'The following is the appropriate test to determine when a State statute gives rise by implication to a private cause of action: (1) the plaintiff must be a member of the class for whose benefit the statute was enacted; (2) consideration must be given to legislative intent, express or implied, to determine whether a private cause of action was intended; (3) an analysis must be made of whether a private cause of action is consistent with the underlying purposes of the legislative scheme; and (4) such private cause of action must not intrude into an area delegated exclusively to the federal government.' Syllabus Point 1, Hurley v. Allied Chemical Corp., W.Va. , 262 S.E.2d 757 (1980)." Syl. Pt. 1, Jenkins v. J.C. Penney Casualty Ins. Co., 167 W.Va. 597, 280 S.E.2d 252 (1981).

3. " 'A prima facie case of actionable negligence is that state of facts which will support a jury finding that the defendant was guilty of negligence which was the proximate cause of plaintiff's injuries, that is, it is a case that has proceeded upon sufficient proof to the stage where it must be submitted to a jury and not decided against the plaintiff as a matter of law. Pt. 6, syllabus, Morris v. City of Wheeling, 140 W.Va. 78 [82 S.E.2d 536 (1954) ].' Syllabus Point 2, Spurlin v. Nardo, 145 W.Va. 408, 114 S.E.2d 913 (1960)." Syl. Pt. 3, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990).

4. "Failure to comply with a fire code or similar set of regulations constitutes prima facie negligence, if an injury proximately flows from a non-compliance and the injury is of the sort the regulation was intended to prevent." Syl. Pt. 1, in part, Miller v. Warren, 182 W.Va. 560, 390 S.E.2d 207 (1990).

5. In light of West Virginia Code § 37-6-30 (1985) and the rules and regulations promulgated by the West Virginia State Fire Commission pursuant to West Virginia Code § 29-3-5 (1992), the absence of a smoke detector in a one- or two-family dwelling constitutes prima facie evidence of negligence on the part of a landlord if the injury proximately flows from the non-compliance.

David A. Mohler, James W. Gabehart, Campbell, Woods, Bagley, Emerson, McNeer & Herdon, Charleston, for appellants.

Michael J. Del Giudice, Ciccarello, Del Giudice & LaFon, Charleston, for appellee.

WORKMAN, Justice:

This case is before the Court from the November 22, 1993, order of the Circuit Court of Kanawha County denying the Appellants' motion for summary judgment and certifying the following questions to this Court: 1

1. Whether the absence of a smoke detector in a one or two family dwelling is admissible as evidence of negligence on the part of the landlord in light of W.Va.Code § 29-3-16a, W.Va.Code § 37-6-, Title 87 C.S.R., and other applicable laws?

2. If the absence of a smoke detector is admissible as evidence of negligence on the part of landlord, does such absence constitute prima facie negligence?

The circuit court answered each of these questions in the affirmative. In answering the questions certified, we agree with the findings of the circuit court.

I.

On or about September 1, 1989, Appellants, Lula A. Phillips and George Phillips, owned real property located at 1213 1/2 Grosscup Avenue in Dunbar, Kanawha County, West Virginia. James George Reed resided as a tenant in the ground floor apartment owned by Mr. and Mrs. Phillips.

On September 1, 1989, Mr. Reed died due to smoke inhalation during a fire which occurred in the apartment which he rented from Mr. and Mrs. Phillips. It is alleged that the fire was caused by the ignition of grease on one of the heating elements of the stove. It is also contended that Mr. Reed had been cooking with the grease in an open aluminum frying pan. Appellee Donna Lou Reed filed the underlying civil action against Mr. and Mrs. Phillips as the administratrix of Mr. Reed's estate alleging that the apartment occupied by Mr. Reed and owned by Mr. and Mrs. Phillips did not provide a sufficient means of egress in the event of an emergency, that such failure constitutes negligence on the part of Mr. and Mrs. Phillips, and that the failure to provide a sufficient means of egress caused Mr. Reed's death. Following discovery, Appellants filed a motion for summary judgment, pursuant to Rule 56 of the West Virginia Rules of Civil Procedure, contending there was no genuine issue as to any material fact and that they were entitled to judgment as a matter of law. In her response to Appellant's motion for summary judgment, the Appellee argued the evidence created an issue regarding whether a smoke detector was present in the apartment and that the absence of a smoke detector, if proved, would support liability against the Appellants. Appellants' motion for summary judgment was denied by the circuit court and the above questions were certified to this Court for answer.

II.

The parties agree that in the absence of common law duty, the only basis for placing liability on a landlord for personal injury caused by fire would be a violation of a duty imposed by agreement or statute. There is no allegation that a lease or other agreement addressing this issue existed between the parties. Accordingly, the certified questions direct our examination to pertinent statutory authority to determine the civil liability, if any, for personal injury caused by fire based on the landlord's failure to install operational smoke detectors within a one- or two-family dwelling.

West Virginia Code § 29-3-16a(a) (1989) provides, in part, that "within all one and two-family dwellings which are not occupied by the owner thereof ... an operational smoke detector shall be installed outside of each separate sleeping area in the immediate vicinity of the sleeping area." 2 Subsection (f) of this provision makes any violation of this section a misdemeanor punishable by fine. See West Virginia Code 29-3-16a(f). Subsection (g) of this section provides:

A violation of this section shall not be deemed by virtue of such violation to constitute evidence of negligence or contributory negligence or comparative negligence in any civil action or proceeding for damages.

West Virginia Code § 29-3-16a(g).

In addition, under West Virginia Code § 29-3-5(b) (1992), the West Virginia State Fire Commission is given the authority to adopt comprehensive fire code regulations for the safeguarding of life and property from the hazards of fire and explosion. 3 Pursuant to this statutory authority, the State Fire Commission has adopted the "National Fire Codes" published by the National Fire Protection Association ("NFPA") as a part of the West Virginia Fire Code. 7 W.Va. C.S.R. § 87-1-4.1 (1984). The NFPA Life Safety Code, § 22-3.3.1 requires a smoke detector in one and two family private dwellings. Through regulation, the State Fire Commission also requires that "[a]ll existing apartments shall have approved self-contained smoke detector(s) located at entrance to bedrooms." 4 7 W.Va. C.S.R. § 87-1-11.6B. (2) (1984).

Finally, West Virginia Code § 37-6-30 (1985) 5 provides:

With respect to residential property:

(a) A landlord shall:

(2) Maintain the leased property in a condition that meets requirements of applicable health, safety, fire and housing codes, unless the failure to meet those requirements is the fault of the tenant, a member of his family or other person on the premises with his consent;

West Virginia Code § 37-6-30(a)(2).

The Appellee argues the Appellants' failure to comply with the fire code regulations requiring installation of smoke detectors in all one- and two-family dwellings is not only admissible as evidence of negligence in this action, but constitutes prima facie evidence of negligence. To the contrary, Appellants argue that West Virginia Code § 29-3-16a(g) prohibits the introduction of a landlord's failure to provide smoke alarms as evidence of negligence. They argue that to permit Appellee to introduce the absence of a smoke detector as evidence of a violation of state regulations, as opposed to following West Virginia Code § 29-3-16a(g), would violate every rule of statutory construction.

III.

This Court has consistently recognized that violation of a statute is prima facie evidence of negligence. In order to be actionable, such violation must be the proximate cause of the injury. Courtney v. Courtney, 186 W.Va. 597, 413 S.E.2d 418 (1991); Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990); Miller v. Warren, 182 W.Va. 560, 390 S.E.2d 207 (1990); White v. Lock, 175 W.Va. 227, 332 S.E.2d 240 (1985); Jones v. Two Rivers Ford, Inc., 171 W.Va. 561, 301 S.E.2d 192 (1983); Jenkins v. J.C. Penney Casualty Insurance Co., 167 W.Va. 597, 280 S.E.2d 252 (1981). 6

In syllabus point one of Jenkins, this Court developed guidelines to determine whether a violation of a statute gives rise to a private cause of action:

'The following is the appropriate test to determine when a State statute gives rise by implication to a private cause of action: (1) the plaintiff must be a member of the class for whose benefit the statute was enacted; (2) consideration must be given to legislative intent, express or implied, to determine whether a private cause of action was intended; (3) an analysis must be made of whether a private cause of action is consistent with the underlying...

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