Stillwell v. City of Wheeling, No. 28663.

CourtSupreme Court of West Virginia
Writing for the CourtDAVIS, Justice.
Citation210 W.Va. 599,558 S.E.2d 598
PartiesAdaline STILLWELL, et al., Plaintiffs Below, Appellees, v. The CITY OF WHEELING, et al., Defendants Below, Colaianni Construction, Inc., a West Virginia Corporation, Defendant Below, Appellant.
Docket NumberNo. 28663.
Decision Date26 October 2001

558 S.E.2d 598
210 W.Va.
599

Adaline STILLWELL, et al., Plaintiffs Below, Appellees,
v.
The CITY OF WHEELING, et al., Defendants Below,
Colaianni Construction, Inc., a West Virginia Corporation, Defendant Below, Appellant

No. 28663.

Supreme Court of Appeals of West Virginia.

Submitted September 18, 2001.

Decided October 26, 2001.

Dissenting Opinion of Chief Justice McGraw January 11, 2002.


210 W.Va. 601
Richard C. Polley, Dickie, McCamey & Chilcote, L.C., Wheeling, George N. Stewart, Dara A. DeCourcy, Zimmer Kunz, P.L.L.C., Pittsburgh, PA, for the Appellant

James G. Bordas, Jr., James B. Stoneking, Bordas, Bordas & Jividen, Wheeling, for the Appellees.

210 W.Va. 599

210 W.Va. 600
DAVIS, Justice

Colaianni Construction, Inc., appeals from an order of the Circuit Court of Ohio County granting a new trial in this wrongful death/personal injury action. Colaianni Construction had been sued on a theory of vicarious liability arising from the alleged negligence of an independent contractor against whom a default judgment was ultimately entered. In granting a new trial, the circuit court reasoned that, because the negligence of the independent contractor had been determined by virtue of the default judgment, it had erred by allowing the jury to decide that question. Consequently, the circuit court ruled that in the new trial Colaianni would be precluded from litigating the issue of the independent contractor's negligence. We conclude that a default judgment is not a proper foundation for the application of offensive collateral estoppel. Therefore, the question of the independent contractor's negligence was properly before the jury. For this reason, we reverse this case and remand for entry of an order reinstating the jury verdict.

I.

FACTUAL AND PROCEDURAL HISTORY

On March 10, 1989, the City of Wheeling entered into a contract with Colaianni Construction, Inc. (hereinafter "Colaianni"), a defendant below and the appellant herein, for construction of the Veteran's Memorial Amphitheater.1 Pursuant to the contract, the amphitheater was constructed along the bank of the Ohio River in Wheeling and included a public dock. A series of banner flag poles, each of which included a light to illuminate its flag, were installed at the end of the dock. In addition, navigation lights were installed on the northernmost and southernmost flag poles. Colaianni subcontracted the electrical work required on the project to Young Electric, Inc. (hereinafter "Young"). Included in the electrical work was the job of running electrical service to the lights in the dock area, where occasional flooding was anticipated. To complete this task, Young used metal conduit and ran it under the dock.

In approximately 1990 or 1991, the City of Wheeling removed the lights from the banner flag poles; however, electrical service to the dock area was left intact. At some point, the navigation lights were also removed. Again, electrical service to the dock area remained intact.

Thereafter, the dock area was flooded in 1996. As a result of the flood, the electrical/breaker room from which electrical service to the dock area was provided sustained damage. The City hired Yahn Electric, Inc.

210 W.Va. 602
to perform repair work. Yahn Electric replaced all the breakers in the electrical/breaker room, including those that powered the lines to the flag poles in the dock area. Apparently, there was no inspection of the conduit below the dock that carried the electrical lines to the flag poles.

It was later learned that this conduit had deteriorated and dislodged, and had come to rest on the river bed. As a result of this damage, several live wires were exposed in the water of the Ohio River. On August 2, 1997, prior to the discovery of this damage and the exposed wires, Adaline Stillwell, a plaintiff below and an appellee herein, and her fourteen-year-old daughter, Susan, were tubing on the Ohio River in the vicinity of the amphitheater, a public area commonly used for such recreational activities. As Adaline Stillwell approached the dock she began to feel tingling and numbness in her legs and needed assistance to exit the water. In the meantime, Susan also reached the dock area. Before Susan was able to get out of the water, however, she came into contact with the exposed electrical wires that were energizing the water and was electrocuted. Efforts to resuscitate her were unsuccessful and she was later pronounced dead at Wheeling Hospital.

Adaline Stillwell, as administrator of the estate of the deceased, and in her own right, filed a wrongful death and personal injury suit in the Circuit Court of Ohio County. The defendants named in the suit included the City of Wheeling; McKinley & Associates, Inc., f/k/a McKinley Engineering Company; Colaianni Construction, Inc.; and Young Electric, Inc.2 Susan's father, Alvin Stillwell,3 also filed a wrongful death suit in the Circuit Court of Ohio County in his capacity as the administrator of Susan's estate.4 Alvin Stillwell's suit was asserted against the same defendants named in Adaline Stillwell's suit. Colaianni filed a motion to dismiss as duplicative the action filed by Alvin Stillwell. The circuit court then made Adaline and Alvin Stillwell (hereinafter "the Stillwells") co-administrators of Susan's estate and directed a single trial.5 Yahn Electric, Inc., was added to the suit as a third-party defendant.

Young did not file an answer or otherwise appear in this action.6 Due to Young's failure to respond, the Stillwells moved for a default judgment under Rule 55 of the West Virginia Rules of Civil Procedure. The motion was granted over Colaianni's objection. In addition to obtaining a default judgment against Young, the Plaintiffs negotiated settlements with the City of Wheeling, McKinley & Associates, Inc., and Yahn Electric. The circuit court approved the settlements, also over Colaianni's objections.

A jury trial was then had with Colaianni as the only remaining defendant. After hearing the evidence presented, the jury returned a verdict finding that neither Young nor Colaianni had been negligent in installing the electrical system at the amphitheater. In addition, however, the jury concluded that Young's work in this regard was inherently dangerous.7

Following the return of the jury verdict, the Stillwells filed a motion for a new trial claiming, in part, that the circuit court should have entered judgment against Colaianni as a matter of law following the default by its subcontractor, Young. The circuit court then set aside the verdict and granted the Stillwells a new trial. In its order granting a new trial, the circuit court explained:

Based upon [the jury's finding that the work being performed by Young Electric

210 W.Va. 603
was inherently dangerous], the negligence of the defendant, Young Electric Company, Inc., as subcontractor, was imputed to the defendant, Colaianni Construction, Inc., as general contractor, under the principles set forth in King v. Lens Creek Limited Partnership, 199 W.Va. 136, 483 S.E.2d 265 (1996).

The circuit court then concluded that it had erred in submitting to the jury the issue of Young's negligence. Allowing the verdict to stand, the court reasoned, would result in a miscarriage of justice. Consequently, the circuit court ordered a new trial and directed that the issues to be addressed would be only: (1) Colaianni's negligence, (2) the inherent dangerousness of Young Electric's work, and (3) damages. It is this order that Colaianni now appeals.8

II.

STANDARD OF REVIEW

In this appeal we are asked to consider a circuit court's ruling on a motion for a new trial. It is well established that:

"A trial judge's decision to award a new trial is not subject to appellate review unless the trial judge abuses his or her discretion." Syl. Pt. 3, in part, In re State Public Bldg. Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994), cert. denied sub nom. W.R. Grace & Co. v. West Virginia, 515 U.S. 1160, 115 S.Ct. 2614, 132 L.Ed.2d 857 (1995).

Syl. pt. 2, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). Elaborating on this point, we have held:

When a trial judge vacates a jury verdict and awards a new trial pursuant to Rule 59 of the West Virginia Rules of Civil Procedure, the trial judge has the authority to weigh the evidence and consider the credibility of the witnesses. If the trial judge finds the verdict is against the clear weight of the evidence, is based on false evidence or will result in a miscarriage of justice, the trial judge may set aside the verdict, even if supported by substantial evidence, and grant a new trial. A trial judge's decision to award a new trial is not subject to appellate review unless the trial judge abuses his or her discretion.

Syl. pt. 3, in part, In re State Pub. Bldg. Asbestos Litig., 193 W.Va. 119, 454 S.E.2d 413 (1994). Typically,

"`[i]t takes a stronger case in an appellate court to reverse a judgment awarding a new trial than one denying it and giving judgment against the party claiming to have been aggrieved.' Point 1, Syllabus, The Star Piano Co. v. Brockmeyer, 78 W.Va. 780[, 90 S.E. 338 (1916) ]." Syl. pt. 2, Young v. Duffield, 152 W.Va. 283, 162 S.E.2d 285 (1968).

Syl. pt. 1, id. See also Syl. pt. 4, Young v. Duffield, 152 W.Va. 283, 162 S.E.2d 285 (1968) ("An appellate court is more disposed to affirm the action of a trial court in setting aside a verdict and granting a new trial than when such action results in a final judgment denying a new trial."), overruled on other grounds by Tennant v. Marion Health Care Found., 194 W.Va. 97, 459 S.E.2d 374 (1995). This does not mean, however, that an order granting a new trial is never reversed. We have previously explained that "`the judgment of a trial court in awarding a new trial should be reversed ... if a consideration of the evidence shows that the case was a proper one for jury determination.'" Andrews v. Reynolds Mem'l Hosp., Inc., 201 W.Va. 624, 630, ...

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16 practice notes
  • Foster v. Sakhai, No. 29339.
    • United States
    • Supreme Court of West Virginia
    • 12 December 2001
    ...evidence. Syl. pt. 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976). Accord, Stillwell v. The City of Wheeling, 210 W. Va. 599, 604, 558 S.E.2d 598, 603 (2001); Syl. pt. 1, Andrews v. Reynolds Mem'l Hosp., Inc., 201 W.Va. 624, 499 S.E.2d 846 Although the standard wh......
  • Brooks v. Galen of West Virginia, Inc., No. 33207.
    • United States
    • Supreme Court of West Virginia
    • 19 April 2007
    ...in the prior action." Syllabus Point 1, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). See also Stillwell v. City of Wheeling, 210 W.Va. 599, 605, 558 S.E.2d 598, 604 (2001) ("The doctrine of collateral estoppel applies to preclude the litigation of an issue that has been previously r......
  • W. Va. Dep't of Transp. v. Veach, No. 16-0326
    • United States
    • Supreme Court of West Virginia
    • 17 April 2017
    ...or where collateral estoppel was otherwise applied to a party who was not permitted to participate. See Stillwell v. City of Wheeling , 210 W.Va. 599, 607, 558 S.E.2d 598, 606 (2001) ("[a]pplying collateral estoppel to prevent one party from mounting a defense when the estoppel is based sol......
  • Leavitt v. Siems, No. 59369.
    • United States
    • Nevada Supreme Court of Nevada
    • 10 July 2014
    ...to turn Sutherland on its head. Default judgments are punitive sanctions that are not favored by the law. Stillwell v. City of Wheeling, 210 W.Va. 599, 558 S.E.2d 598, 605–06 (2001). And we decline to use a default judgment as a foundation for vicarious liability against an answering codefe......
  • Request a trial to view additional results
16 cases
  • Foster v. Sakhai, No. 29339.
    • United States
    • Supreme Court of West Virginia
    • 12 December 2001
    ...evidence. Syl. pt. 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976). Accord, Stillwell v. The City of Wheeling, 210 W. Va. 599, 604, 558 S.E.2d 598, 603 (2001); Syl. pt. 1, Andrews v. Reynolds Mem'l Hosp., Inc., 201 W.Va. 624, 499 S.E.2d 846 Although the standard wh......
  • Brooks v. Galen of West Virginia, Inc., No. 33207.
    • United States
    • Supreme Court of West Virginia
    • 19 April 2007
    ...in the prior action." Syllabus Point 1, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). See also Stillwell v. City of Wheeling, 210 W.Va. 599, 605, 558 S.E.2d 598, 604 (2001) ("The doctrine of collateral estoppel applies to preclude the litigation of an issue that has been previously r......
  • W. Va. Dep't of Transp. v. Veach, No. 16-0326
    • United States
    • Supreme Court of West Virginia
    • 17 April 2017
    ...or where collateral estoppel was otherwise applied to a party who was not permitted to participate. See Stillwell v. City of Wheeling , 210 W.Va. 599, 607, 558 S.E.2d 598, 606 (2001) ("[a]pplying collateral estoppel to prevent one party from mounting a defense when the estoppel is based sol......
  • Leavitt v. Siems, No. 59369.
    • United States
    • Nevada Supreme Court of Nevada
    • 10 July 2014
    ...to turn Sutherland on its head. Default judgments are punitive sanctions that are not favored by the law. Stillwell v. City of Wheeling, 210 W.Va. 599, 558 S.E.2d 598, 605–06 (2001). And we decline to use a default judgment as a foundation for vicarious liability against an answering codefe......
  • Request a trial to view additional results

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