Strahin v. Cleavenger

• Decision Date: 30 June 2004
• Docket Number: No. 31373.,31373.
• Citation: 216 W.Va. 175,603 S.E.2d 197
• Parties: Daniel R. STRAHIN, James A. Strahin, and Willa Strahin, Plaintiffs Below, Appellees v. Robert Glenn CLEAVENGER, Larry Cleavenger, Jr., and Mary Cleavenger, Defendants Below, Appellees and Earl Sullivan, Defendant and Third-Party Plaintiff Below, Appellant.
• Court: West Virginia Supreme Court

603 S.E.2d 197

216 W.Va. 175

Daniel R. STRAHIN, James A. Strahin, and Willa Strahin, Plaintiffs Below, Appellees v. Robert Glenn CLEAVENGER, Larry Cleavenger, Jr., and Mary Cleavenger, Defendants Below, Appellees and Earl Sullivan, Defendant and Third-Party Plaintiff Below, Appellant.

No. 31373.

Supreme Court of Appeals of West Virginia.

Submitted February 24, 2004.

Decided June 30, 2004.

Concurring Opinion of Justice Starcher July 2, 2004.

H. Gerald Kelley, Catherine A. McGuire, Kelley Legal Services, P.L.L.C., Philippi, for the Appellees.

James A. Varner, Tiffany R. Durst, Debra T. Hall Herron, McNeer, Highland, McMunn & Varner, Clarksburg, for the Appellant.

ALBRIGHT, Justice.

Through this appeal from the March 20, 2002, judgment order and the May 24, 2002, order denying post-trial motions of the Circuit Court of Barbour County, Earl Sullivan, defendant and third-party plaintiff below, appellant herein, challenges the jury verdict in a negligence action entered against him for the benefit of Appellee, Daniel Strahin, plaintiff below, appellee herein.¹ Appellant maintains that the lower court erred in the following ways: by finding a duty to protect present in the case and/or allowing the jury to determine the legal question of foreseeability in relation to the duty owed to Appellee; by finding that joint and several liability applies to situations in which both a negligent actor and an intentional actor bear responsibility for the injury incurred; by allowing the jury to award future damages for a permanent injury when no evidence was adduced at trial establishing the permanency to a reasonable degree of medical certainty; and by failing to grant a new trial on the basis of a clearly excessive verdict.

Having before us the petition for appeal, all matters of record and the briefs and argument of counsel, we affirm the order of the lower court for the reasons set forth later in this opinion.

II. Factual and Procedural Background

The civil action underlying this appeal arose from a criminal incident that occurred on May 31, 1998, outside a house being built by Appellant and Appellee's older sister Marissa Strahin. On that day, Robert Cleavenger, armed with a high powered rifle, shot into Appellant's car where Appellant, Appellee and Marissa Strahin were seated, injuring both Appellant and Appellee. Robert Cleavenger pleaded guilty to two counts of malicious assault and served a sentence in the state penitentiary.

Based on the shooting incident, Appellee² filed a lawsuit in February 1999 against Robert Cleavenger, Mr. Cleavenger's parents, Mary and Larry Cleavenger, and Appellant.³ Appellee's complaint alleged, among other things, that the injuries he sustained from the shooting were proximately caused by Appellant's negligence in light of the foreseeable conduct of Robert Cleavenger under the facts of the case.⁴

During the jury trial, which lasted from March 4 through March 7, 2002, evidence was presented about the strained relationship between Appellant and Robert Cleavenger. As one of the parties describes it, the rivalry between Appellant and Robert Cleavenger was the result of a love triangle involving Marissa Strahin. The record in this case reflects that beginning in high school and over several years, Marissa Strahin dated Appellant and Robert Cleavenger, albeit at what appears to be different times. As adduced from the testimony, the rivalry intensified for Robert Cleavenger when Marissa Strahin spent time with Appellant building a new house and working at Appellant's bar which is located in an adjoining county.⁵ Examples of how the rivalry manifested itself, as explained in testimony, included an episode one night where Robert Cleavenger drove his car directly at the car Marissa Strahin was driving and in which Appellant was a passenger, only to sharply turn away at the last minute. This incident of "chicken," which was not reported to the police, occurred during the same month that Robert Cleavenger shot at Appellant's car — the incident giving rise to the instant lawsuit.

The testimony was undisputed that on the day of the shooting, Marissa Strahin went to the house where Appellee was helping Appellant lay block when a neighbor arrived announcing that he discovered gun shell casings on his property. The discovery of shell casings was relevant to incidents of vandalism, involving damage from gun shots to a hot water tank and water lines, a propane tank, house windows and windshield and rear window of a vehicle, that had occurred at or near Appellant and Marissa Strahin's house for a month or so before the shooting at issue. Although no one was present at the house when the acts of vandalism occurred, Appellant found shell casings afterward. The various instances of property destruction were reported to the state police by Appellant.⁶ According to the testimony of Appellant and Ms. Strahin, the officers responding to the calls were provided with the names of suspects, including Robert Cleavenger; however, the troopers testified that they were not given the actual name of any suspect.

Upon hearing about the shell casings, Appellant decided to drive over to the neighbor's property to look at them to see if they were the same type he had found near his house when the property was damaged. Daniel and Marissa Strahin decided to join Appellant on the trip, with Daniel getting into the back seat of the car behind Appellant and Marissa taking the front passenger seat. At the same time, Robert Cleavenger was hiding in the woods watching the trio get into the car through the scope of a rifle. As the car began moving, Robert Cleavenger shot into the vehicle. A bullet entered the windshield, grazed Appellant's neck and shoulder and continued in its trajectory to strike Appellee in his upper arm. Appellant got out of the car and fired a gun in the direction of the shooter and, according to some testimony, at the same time called out Robert Cleavenger's name. Appellant then got Appellee out of the back seat of the car. Appellee testified at trial, orally and through demonstration, that the bullet wound severely and permanently injured his arm despite several corrective surgical procedures.

The jury returned a verdict for Appellee, apportioning thirty percent liability to Appellant based on negligence and seventy percent liability to Robert Cleavenger based on his intentional act. The lower court, through its judgment order, directed Appellant to pay the entire amount of the verdict based upon the doctrine of joint and several liability. Following the denial of his post-trial motions by the court below, Appellant petitioned this Court for appeal. The petition was granted by order of this Court dated and entered June 10, 2003.

II. Standard of Review

Appellant asserts that the lower court erred by denying his motions for judgment as a matter of law, to alter or amend the judgment, and for a new trial. The standard of review for each of these circumstances is determined somewhat differently.

As we reaffirmed in syllabus point five of Smith v. First Community Bancshares, Inc., 212 W.Va. 809, 575 S.E.2d 419 (2002): "`The appellate standard of review for the granting of a motion for a [judgment as a matter of law] pursuant to Rule 50 of the West Virginia Rules of Civil Procedure is de novo. On appeal, this court, after considering the evidence in the light most favorable to the nonmovant party, will sustain the granting of a [judgment as a matter of law] when only one reasonable conclusion as to the verdict can be reached. But if reasonable minds could differ as to the importance and sufficiency of the evidence, a circuit court's ruling granting a [judgment as a matter of law] will be reversed.' Syllabus Point 3, Brannon v. Riffle, 197 W.Va. 97, 475 S.E.2d 97 (1996)." Since this case involves the denial of such motion, the circuit court's ruling will be sustained unless only one reasonable and contrary conclusion can be made. We finally note that even though the challenge being raised is to rulings on motions made pre-verdict and post-verdict, our task proceeds along the same course because "[w]e apply a de novo standard of review to the grant or denial of a pre-verdict or post-verdict motion for judgment as a matter of law." Gillingham v. Stephenson, 209 W.Va. 741, 745, 551 S.E.2d 663, 667 (2001).

With regard to review of motions to alter or amend a judgment, our standard of review is dependent upon the nature of "the underlying judgment upon which the motion is based and from which the appeal ... is filed." Syl. Pt. 1, in part, Wickland v. American Travellers Life Ins., 204 W.Va. 430, 513 S.E.2d 657 (1998). Hence, because the matter being contested is the legal issue of the lower court's application of the doctrine of joint and several liability, our review is de novo. See Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996) ("conclusions of law are reviewed de novo").

Finally, "[w]e 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 ...[,] the circuit court's underlying factual findings under a clearly erroneous standard [and] [q]uestions of law ... [under] a de novo" standard. Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 104, 459 S.E.2d 374, 381 (1995). Put another way, "the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, [and] the trial court's ruling will be reversed on appeal [only] when it is clear that the trial court has acted under some misapprehension of the law or the evidence." Syl. Pt. 4, in part, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).

III. Discussion

A. Duty and Foreseeability

Appellant's challenge to various actions of the lower court centers on that court's determination that an owner or occupier of property has a duty to protect a...