Simmons v. City of Bluefield

• Decision Date: 18 November 1975
• Docket Number: No. 13557,13557
• Citation: 159 W.Va. 451,225 S.E.2d 202,88 A.L.R.3d 105
• Court: West Virginia Supreme Court
• Parties: , 88 A.L.R.3d 105 Regina SIMMONS, an infant, etc. v. The CITY OF BLUEFIELD, etc.

Page 202

225 S.E.2d 202

159 W.Va. 451, 88 A.L.R.3d 105

Regina SIMMONS, an infant, etc. v. The CITY OF BLUEFIELD, etc.

No. 13557.

Supreme Court of Appeals of West Virginia.

Nov. 18, 1975.

Rehearing Denied March 26, 1976.

Syllabus by the Court

1. The failure of a party to move to have the verdict and the judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict at the close of all the evidence at the trial of the case under the provisions of Rule 50(b), West Virginia Rules of Civil Procedure, does not affect the party's right to appeal or cross-appeal but may limit the relief in the appellate court.

2. Where the evidence is conflicting, turning on the credibility of witnesses, or where the evidence though undisputed is such that reasonable men may properly draw different conclusions from it, questions of primary negligence, due care, proximate cause and contributory negligence are proper questions for jury determination.

3. The violation of a municipal ordinance creates a prima facie case of negligence and the determination as to whether there was in fact a violation and whether the violation was the proximate cause of the injury is within the province of the jury.

4. Compliance with the provisions of the notice requirement contained in Code, 8--12--20, As amended, is a condition precedent to the right of a claimant to sue a municipality.

5. Substantial compliance with the notice requirement contained in Code, 8--12--20, As amended, is sufficient if the city is thereby afforded a full, timely and complete opportunity to investigate all of the circumstances surrounding the injury and to formulate its defense.

6. A party may recover the cost of reasonable and necessary medical and hospital services and for future pain and suffering where the evidence shows that it is reasonably certain that such future expenses will be incurred and are proximately related to the negligence of the defendant.

7. The cost of plastic surgery in an attempt to correct disfigurement is a recoverable medical expense in an action for personal injury. However, a plaintiff is not entitled to recover for both permanent disfigurement and the expenses of correcting the disfigurement.

8. A new trial may be granted on all or part of the issues, and where the question of liability has been resolved in favor of the plaintiff leaving only the issue of damages, the verdict of the jury may be set aside and a new trial granted on the single issue of damages. W.Va.R.C.P. 59(a).

David Burton, Princeton, for appellant.

Fred O. Blue, Bluefield, for appellee.

BERRY, Justice:

This is an appeal by Regina Simmons, an infant, by Acie L. Simmons, her guardian, and by Acie L. Simmons and Georgia Simmons, the parents of Regina Simmons, from a final judgment of the Circuit Court of Mercer County in their favor and against the City of Bluefield.

This action was instituted on behalf of Regina Simmons, an infant, by her guardian, against the City of Bluefield for damages for personal injuries suffered by the infant as a result of an explosion from a fire which had been started and supervised by an employee of the City of Bluefield at a public playground maintained and operated by the City. In addition, special damages for hospital and medical expenses were sought by the infant's father, Acie L. Simmons, and by her mother, Georgia Simmons. The jury returned a verdict in the amount of $3,500.00 for the infant plaintiff and $507.90 for her parents. Following the entry of a judgment order on the jury's verdict, the appellants moved the court to set aside the verdict and to grant them a new trial on the issue of damages only, contending that the award was inadequate and that the court had improperly excluded from the jury's consideration certain evidence relating to future medical expenses. The Circuit Court denied the motion for a new trial and entered final judgments for the plaintiffs in accordance with the verdict of the jury.

On the afternoon of July 7, 1971, the appellant, Regina Simmons, then nine years of age, went to play at the Hardy Street playground, a public facility operated and maintained by the appellee, the City of Bluefield. The playground was supervised by Mrs. Constance Pannell, an employee of the City, whose responsibilities included looking after the children who used the playground facilities, teaching and instructing the children in games and other activities and conducting marshmallow and weiner roasts. Shortly after Regina Simmons arrived at the playground, it was decided that Mrs. Pannell would hold a marshmal low roast for the benefit and enjoyment of the children playing there. In preparation for building a fire, Regina and Mrs. Pannell cleared the area used earlier that day as a fireplace. Although it appeared that there was some debris including broken glass, bottles and other trash scattered around the playground and that there was a refuse pitsituated a few feet from the proposed location of the fire which contained bottles, cans and other rubbish collected from the playground, no bottles or cans were observed in the immediate vicinity of the fire site.

Following the preliminary preparation, the infant plaintiff and the playground supervisor gathered up cardboard, newspapers and twigs to be burned in the fire. Mrs. Pannell lit the fire and the children were assembled and each given marshmallows for roasting. While the children were roasting their marshmallows, Mrs. Pannell heard a 'hissing noise' which she attributed to either the marshmallows cooking or the twigs burning in the fire. After all of the children had roasted two marshmallows apiece, Mrs. Pannell distributed a third to each and, having done this, returned her attention to the activities around the fire. At this point, Mrs. Pannell heard Tyrone Buchanan, another child present in the area of the fire, shout 'something's going to blow, something's going to blow', and within seconds the fire exploded throwing hot and burning material on Regina Simmons, Mrs. Pannell, and other persons there.

The City, as an aspect of its contest of liability, introduced numerous prior statements of Regina Simmons that she had observed Tyrone Buchanan throw a can in the fire before the explosion. At the trial, the infant plaintiff testified that she did not actually see Tyrone Buchanan throw the can into the fire but that she had seen him previously with a can and assumed that he had put it in the fire. Tyrone Buchanan said that he had seen a can near the fire but had not thrown it in the fire.

As a result of the explosion, Regina Simmons sustained first, second and third degree burns over the entire length of her right arm from the shoulder to her fingers, on two areas of her back, and on her face and neck. On the day of the accident, the infant plaintiff was treated as an out-patient at the Bluefield Sanitarium and released. However, because of the severity of her burns she was readmitted to hospitalization on the following day and her treatment continued in the hospital for six days. After treatment and healing, the infant plaintiff suffered no functional limitation but was substantially scarred over her right arm and on portions of her back.

The plaintiffs, in support of their allegation that the negligence of the agent of the City proximately caused the injuries to Regina Simmons, introduced a copy of Article 31, section 1 of the Municipal Code of the City. That ordinance reads, in relevant part:

'No person shall ignite, burn, or set fire to any leaves, debris, garbage or rubbish on any street or sidewalk area. It shall be unlawful to ignite or burn such materials at any other place without properly safeguarding the same so that said fire will not cause damage . . . to any person . . ..'

This ordinance was admitted in evidence and read to the jury over the objection of counsel for the City.

The amount of special damages representing the actual medical expenses incurred by the parents of Regina Simmons was stipulated at $507.90. However, a substantial controversy arose over whether there could be a recovery for future plastic reconstructive surgery and this question is the central issue raised by the apppellants before this Court.

The appellants introduced the medical report of Dr. Clyde Litton, a specialist in the field of plastic surgery. Dr. Litton's report described the soft tissue injuries suffered by Regina Simmons and stated that he would recommend that she be given the benefit of plastic reconstructive surgery for the right upper extremity consisting of six to eight split thickness skin grafting sessions in which the skin would have to be taken from another part of the body to graft to the burned area. This treatment would necessitate multiple hospitalizations of approximately a week or ten days each and the procedures would have to be done under general anesthesia with the usual pain and suffering associated with such operations. He stated the professional fee would be approximately $600.00 for each operation.

The appellee introduced the report of Dr. Henry T. Brobst, a plastic surgeon from Roanoke, Virginia, in which he stated that he had reviewed Dr. Litton's report and that he agreed completely with it except that he questioned whether such surgery was actually warranted since it would entail a long period of hospitalization and immobilization of the plaintiff. He stated that no functional disability appeared at the time of his examination but with the rapid growth of the child that some surgery might be required in the future. He estimated the cost of the surgery recommended by Dr. Litton to be in the neighborhood of $800.00 or $1,000.00 for each operation, contingent on how much actual surgery was to be done.

Dr. James Phillips Thomas, a general surgeon with particular expertise in cardiovascular surgery and experience in the treatment of burns, testified on behalf of the City with...