Roof Service of Bridgeport, Inc. v. Trent, 112020 WVSC, 19-0200

Docket Nº:19-0200
Opinion Judge:WORKMAN, JUSTICE
Party Name:ROOF SERVICE OF BRIDGEPORT, INC., Defendant Below/Petitioner v. ROBERT JOSEPH TRENT and CHARLOTTE TRENT, Plaintiffs Below/Respondents
Attorney:Ancil G. Ramey, Esq. Steptoe & Johnson PLLC Huntington, WV Counsel for Petitioner Scot S. Dieringer, Esq. Clarksburg, WV Counsel for Respondents
Judge Panel:CHIEF JUSTICE ARMSTEAD AND JUSTICE JENKINS dissent and reserve the right to file separate opinions.
Case Date:November 20, 2020
Court:Supreme Court of Appeals of West Virginia

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

November 20, 2020

Submitted: October 6, 2020

Appeal from the Circuit Court of Harrison County The Honorable Christopher McCarthy, Judge Civil Action No. 16-C-333-3

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

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

CHIEF JUSTICE ARMSTEAD AND JUSTICE JENKINS dissent and reserve the right to file separate opinions.

SYLLABUS BY THE COURT

1. "In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review." Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).

2. "Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence." Syl. Pt. 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).

3. "A trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard." Syl. Pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).

4. "The appellate standard for review for an order granting or denying a renewed motion for judgment as a matter of law after trial pursuant to Rule 50(b) of the West Virginia Rules of Civil Procedure [1998] is de novo." Syl. Pt. 1, Fredeking v. Tyler, 224 W.Va. 1, 680 S.E.2d 16 (2009).

5. "When this Court reviews a trial court's order granting or denying a renewed motion for judgment as a matter of law after trial under Rule 50(b) of the West Virginia Rules of Civil Procedure [1998], it is not the task of this Court to review the facts to determine how it would have ruled on the evidence presented. Instead, its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, when considering a ruling on a renewed motion for judgment as a matter of law after trial, the evidence must be viewed in the light most favorable to the nonmoving party." Syl. Pt. 2, Fredeking v. Tyler, 224 W.Va. 1, 680 S.E.2d 16 (2009).

6. "In determining whether there is sufficient evidence to support a 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." Syl. Pt. 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981 (1984).

7. "An agent or employee can be held personally liable for his own torts against third parties and this personal liability is independent of his agency or employee relationship. Of course, if he is acting within the scope of his employment, then his principal or employer may also be held liable." Syl. Pt. 3, Musgrove v. Hickory Inn, Inc., 168 W.Va. 65, 281 S.E.2d 499 (1981).

8. "Whether an act by a servant is within the scope of employment is determined by the relation which the act bears to the employment." Syl. Pt. 1, Cochran v.

Michaels, 110 W.Va. 127, 157 S.E. 173 (1931).

9. "An act specifically or impliedly directed by the master, or any conduct which is an ordinary and natural incident or result of that act is within the scope of employment." Syl. Pt. 2, Cochran v. Michaels, 110 W.Va. 127, 157 S.E. 173 (1931).

10. "There are four general factors which bear upon whether a master-servant relationship exists for purposes of the doctrine of respondeat superior: (1) Selection and engagement of the servant; (2) Payment of compensation; (3) Power of dismissal; and (4) Power of control. The first three factors are not essential to the existence of the relationship; the fourth, the power of control, is determinative." Syl. Pt. 5 Paxton v. Crabtree, 184 W.Va. 237, 400 S.E.2d 245 (1990).

11. "An injury incurred by a workman in the course of his travel to his place of work, and not on the premises of the employer, does not give right to participation in such [Workers Compensation] fund, unless the place of injury was brought within the scope of employment by an express or implied requirement in the contract of employment of its use by the servant in going to and returning from work." Syl. Pt. 2, De Constantin v. Pub. Serv. Comm'n, 75 W.Va. 32, 83 S.E. 88 (1914).

12. "Where an injury is of such character as to be obvious, the effects of which are reasonably common knowledge, it is competent to prove future damages either by lay testimony from the injured party or others who have viewed his injuries, or by expert testimony, or from both lay and expert testimony, so long as the proof adduced thereby is to a degree of reasonable certainty. But where the injury is obscure, that is, the effects of which are not readily ascertainable, demonstrable or subject of common knowledge, mere subjective testimony of the injured party or other lay witnesses does not provide sufficient proof; medical or other expert testimony is required to establish the future effects of an obscure injury to a degree of reasonable certainty." Syl. Pt. 11, Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974).

13. "Courts must not set aside jury verdicts as excessive unless they are monstrous, enormous, at first blush beyond all measure, unreasonable, outrageous, and manifestly show jury passion, partiality, prejudice or corruption." Syl. Pt., Addair v. Majestic Petroleum Co., Inc., 160 W.Va. 105, 232 S.E.2d 821 (1977).

OPINION

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...

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