Roof Serv. of Bridgeport, Inc. v. Trent

• Decision Date: 20 November 2020
• Docket Number: No. 19-0200,19-0200
• Citation: 854 S.E.2d 302
• Court: West Virginia Supreme Court
• Parties: ROOF SERVICE OF BRIDGEPORT, INC., Defendant Below/Petitioner v. Robert Joseph TRENT and Charlotte Trent, Plaintiffs Below/Respondents

854 S.E.2d 302

ROOF SERVICE OF BRIDGEPORT, INC., Defendant Below/Petitioner

v.Robert Joseph TRENT and Charlotte Trent, Plaintiffs Below/Respondents

No. 19-0200

Supreme Court of Appeals of West Virginia.

Submitted: October 6, 2020

Filed: November 20, 2020

Concurring and Dissenting Opinion of Chief Justice Armstead and Justice Jenkins December 21, 2020

Ancil G. Ramey, Esq., Steptoe & Johnson PLLC, Huntington, WV, Counsel for Petitioner.

Scot S. Dieringer, Esq., Clarksburg, WV, Counsel for Respondents.

WORKMAN, Justice:

The Petitioner, Roof Service of Bridgeport, Inc. (hereinafter "Roof Service"), appeals from an order denying its motion for judgment as a matter of law or, in the alternative, for a new trial entered on February 15, 2019, by the Circuit Court of Harrison County, West Virginia, following a jury trial in a personal injury action brought by the Respondents, Robert Joseph Trent and Charlotte Trent (hereinafter "Mr. and/or Mrs. Trent"). The action arose from an incident on June 9, 2015, when Mr. Trent, while at the sidewalk by the street in front of his home, was severely injured when he was struck and run over by a truck owned and operated by Bruce Wilfong, a foreman and employee of Roof Service. Mr. Wilfong was backing his truck down the sidewalk for the purpose of retrieving scrap metal debris from the roof project that Roof Service had contracted with Mr. and Mrs. Trent to perform on their home. Following deliberation, the jury returned a verdict finding that Mr. Wilfong was acting within the scope of his employment and apportioning one hundred percent of the fault for the incident to Mr. Wilfong. The jury awarded $181,000 in largely stipulated medical expenses; $250,000 for Mr. Trent's past, present, and future physical pain, mental anguish, and emotional distress; $250,000 for Mr. Trent's present and future loss of enjoyment of life; and $250,000 for Mrs. Trent's loss of spousal consortium.

Roof Service timely filed its post-trial motion and it is from the order denying the motion that Roof Service appeals raising five assignments of error that we address in turn. First, Roof Service seeks remand for entry of judgment as a matter of law in its favor. Second, in the alternative, it seeks to have the verdict set aside and the matter remanded for a new trial. Finally, in the alternative, it seeks a remand for remittitur of damages.

Having considered the record, the various briefs submitted, the relevant law, and the oral arguments presented, we find no error in the circuit court's denial of Roof Service's motion for judgment as a matter of law or, in the alternative, for a new trial, or for remittitur.

I. FACTS AND PROCEDURAL HISTORY

On September 9, 2016, Mr. and Mrs. Trent filed suit grounded in claims of negligence against Roof Service, Mr. Wilfong, as an agent and employee of Roof Service, and John Cole, individually and as owner, operator, employer, and supervisor of Mr. Wilfong. The action arose from an incident on June 9, 2015, when Mr. Wilfong struck and backed over Mr. Trent with his vehicle thereby allegedly resulting in painful, serious, and permanent bodily injury to Mr. Trent for which Mr. Trent sought compensatory and general damages. Mrs. Trent sought damages for the loss of comfort, care, and consortium of her husband. Mr. Cole filed a motion to dismiss for failure to state a cause of action against him on the grounds that as President of Roof Service no action or omission was claimed against him. Roof Service filed an answer generally denying the claims, admitting that Mr. Wilfong was an employee, but denying that he was an employee at the time of the incident, and specifically asserting that Mr. Wilfong was not acting within the scope of his employment at the time of the incident. Roof Service also filed a cross-claim against Mr. Wilfong. Subsequently, Mr. Wilfong filed answers generally denying the claims.

On December 18, 2017, the parties, by joint stipulation, agreed to dismiss Mr. Cole from the action. Mr. and Mrs. Trent settled their claims with Mr. Wilfong and he was dismissed from the action on January 23, 2018. Subsequently, the circuit court denied Roof Service's motion for summary judgment on September 11, 2018, finding that material questions of fact existed regarding the argument that Mr. Wilfong was not acting within the scope of his employment or was an independent contractor at the time of the injury to Mr. Trent. The matter then proceeded to trial by jury.

Inasmuch as the assignments of error and the jury verdict require evaluation of the evidence adduced at trial and consideration of the inferences to be drawn from the evidence, we briefly summarize the trial proceedings.

Officer Gregory Todd Collins, a police officer with the City of Bridgeport, West Virginia, testified that he was dispatched to the scene and upon arrival, he saw the truck and observed Mr. Trent on the ground with his legs partially on the sidewalk and his upper body in the street. He made an accident report diagram of the scene depicting the placement of the truck and the position of Mr. Trent on the ground. Officer Collins took a statement from Mr. Wilfong and attached it to his accident report. Mr. Wilfong stated that he was backing up on the sidewalk and Mr. Trent came through his yard and onto the sidewalk behind the truck such that he did not see Mr. Trent and hit him. Officer Collins discussed the narrative section of his accident report which indicated that Mr. Wilfong was attempting to back his truck onto the yard to load scrap metal from the construction at the residence of Mr. and Mrs. Trent. Mr. Wilfong drove past the residence and started to back the truck up onto the sidewalk when he heard yelling, stopped, and found Mr. Trent on the ground. Mr. Trent reported that he had been across the street moving the neighbor's trash cans from the road because they were out-of-town. He saw a truck coming down the street and, after it passed by, he crossed to return to his home. Mr. Trent described having stepped up onto the sidewalk when he was struck and knocked to the ground. On cross-examination, Officer Collins agreed that a pedestrian has a duty to use due care and look both ways when crossing a street. Officer Collins also agreed that as he stepped up to the sidewalk, Mr. Trent should have been able to see the truck and therefore agreed Mr. Trent "had to have been violating basic due care." However, on re-direct, Officer Collins also agreed that a person is not normally supposed to look for a truck driving backwards down a sidewalk. He also agreed that Mr. Trent did nothing wrong. Officer Collins testified that he found Mr. Wilfong at fault for improper backing of the truck and gave him a warning for the conduct.

Mr. Wilfong testified that he and Mr. Cole had been good friends for some thirty-five years. He is a foreman for Roof Service and worked on the job at Mr. and Mrs. Trent's residence the day of the incident. At the conclusion of the workday, Mr. Wilfong returned the Roof Service vehicle and got his 2003 pick-up truck with a camper cab on the bed of the truck which he conceded can impair vision when driving backwards. He returned to the jobsite to pick up scrap aluminum. He stated that he squared his truck up, kept his eyes on the street and the sidewalk and slowly backed up. He did not see Mr. Trent. He heard Mr. Trent yelling and found him on the ground with his head on the sidewalk. Mr. Wilfong called 911 and then called Mr. Cole. Mr. Wilfong believes he was not at fault for the accident. Although he did not see Mr. Trent anywhere at the time of the incident, he blamed Mr. Trent for "walking behind a moving vehicle."

Mr. Wilfong testified that part of the job of roofing requires the removal of all debris. However, he stated that he does not retrieve and remove the scrap metal for Roof Service. He retrieves the scrap metal to take it to the junk yard where he is paid for it. He keeps the money and does not give any portion of it to Roof Service. He does it on his own time, for his own benefit, and Roof Services has nothing to do with his picking up scrap metal. If he did not want the scrap metal, it would be thrown in the jobsite dump truck with other waste material.

John Cole, the President of Roof Service, testified that part of the agreement with Mr. and Mrs. Trent was to remove old roofing, clean up, and haul away debris. Mr. and Mrs. Trent paid to have the whole job completed including the removal of trash and debris. He remarked that it is a typical part of any roofing contract and job that before you leave the jobsite, the yard and property is all cleaned up. As foreman, Mr. Wilfong's responsibilities include making sure the job is done in accordance with the customer contract including removing debris. He testified that Mr. Wilfong asked him some twenty years ago if he could have the scrap metal from the roofing jobs. According to Mr. Cole, he told Mr. Wilfong he could have the scrap, but he had to do it on his own time and with his own vehicle. Over the years, it had become the custom for Mr. Wilfong to gather the scrap metal from the jobsites. Mr. Wilfong makes the decision on every job as to whether debris goes to the dump or he takes it. Mr. Cole testified: "I allowed him to do it—as long—as long as the yard got cleaned up. And that was our contract—cleaned up and hauled away." Mr. Wilfong is not paid by Roof Service for time spent retrieving the scrap metal.

According to Mr. Cole, one "could say" that Mr. Wilfong was an independent contractor in terms of the activities of scrap metal retrieval. He acknowledged that nobody informed Mr. and Mrs. Trent that the foreman on the Roof Service job was an independent contractor for purposes of removing debris. Mr. Cole agreed that during his deposition he acknowledged that the customary arrangement with Mr. Wilfong increased the amount of money Mr. Wilfong made and that he referred to it as a bonus or a reward for working as an employee...