Summers v. Martin
| Decision Date | 05 June 1997 |
| Docket Number | No. 23462,23462 |
| Parties | Herbert W. SUMMERS, Jr., Administrator of the Estate of Shawn Patrick Haney, Plaintiff Below, Appellee, v. Kimberly L. MARTIN, Defendant Below, HKD Enterprises Inc., an Ohio Corporation, dba Rugby's Bistro, Defendant Below, Appellant. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. Syl. pt. 2, In re State Public Bldg. Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994), cert. denied, 515 U.S. 1160, 115 S.Ct. 2614, 132 L.Ed.2d 857 (1995).
2. "A motion for a new trial is governed by a different standard than a motion for a directed verdict. When a trial judge vacates a jury verdict and awards a new trial pursuant to Rule 59 of the West Virginia Susan S. Brewer and Beth A. Raffle, Steptoe & Johnson, Morgantown, for Appellant.
[199 W.Va. 566] 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 re State Public Bldg. Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994), cert. denied, 515 U.S. 1160, 115 S.Ct. 2614, 132 L.Ed.2d 857 (1995)
Robert G. Coury, Sherry, Smith & Coury Woodsfield, Ohio, for Appellee.
This is a wrongful death action. The appeal was taken by the appellant/defendant below, HKD Enterprises, Inc., dba Rugby's Bistro, from an order of the Circuit Court of Monongalia County granting a new trial to the appellee/plaintiff below, Herbert W. Summers, Jr., administrator of the estate of decedent Shawn Patrick Haney. 1 A verdict was returned by the jury in this case in favor of the defendant. However, the circuit court granted the plaintiff's post-trial motion for a new trial, on the basis that the verdict was against the weight of the evidence. Defendant contends on appeal that the circuit court abused its discretion in setting aside the jury's verdict and granting a new trial. We affirm.
The primary factual contentions in this appeal are set out in part III of the opinion. We pause here to establish the foundation of this case. The facts of this matter begin on August 7, 1991, at about 9:00 p.m. On that date and time Kimberly L. Martin and a female friend named B.J. Findo met, as pre-arranged, at a tavern located inside the Ramada Inn, in Morgantown. While at the tavern Kimberly and B.J. each consumed one beverage. 2 Within a short span of time the two friends got into their respective cars and drove to a tavern called Archie's Bar, in Saberton. Kimberly testified that while at Archie's Bar she drank two alcoholic beverages. At around 10:00 p.m. the pair left Archie's Bar, in their respective cars, and drove to defendant's establishment in Morgantown. The defendant proffered evidence to show that it checks the identification of patrons to assure that no one under the age of twenty-one is served alcohol. Kimberly, who was twenty years old at the time, testified that none of the defendant's employees checked her identification or inquired as to her age. Kimberly stated that she recalled drinking one alcoholic beverage at the defendant's establishment, but may have had two. While inside the premises Kimberly met the decedent, Shawn Patrick Haney. The discussion between Kimberly and Shawn culminated in plans for Shawn to spend the night with Kimberly at an apartment to which she had access in Saberton.
Kimberly and Shawn left defendant's establishment together in Kimberly's car. When the two reached Interstate 68 eastbound, in route to Saberton, the car left the highway at the inside shoulder, plowed into the median and flipped over, before coming to a rest against an embankment on the far shoulder of the westbound side of traffic. Medical emergency personnel arrived at the scene of the accident. Kimberly and Shawn were transported to Ruby Memorial Hospital. Kimberly was hospitalized for several On July 30, 1993, the plaintiff filed the instant suit against the defendant. 3 The plaintiff alleged that the defendant was responsible for Shawn's death, in that Kimberly became intoxicated on its premises. Plaintiff further alleged that Kimberly was driving the vehicle at the time of the accident. Defendant's principle defense was that Kimberly was not driving the vehicle when the accident occurred. The case was tried before a jury on June 21 through June 26, 1995. On June 27, the jury returned a verdict for the defendant. The plaintiff filed a post-trial motion seeking judgment notwithstanding the verdict, or in the alternative, a new trial. By order entered September 14, 1995, the circuit court granted plaintiff's motion for a new trial. The circuit court's order concluded that the verdict was against the weight of the evidence. The defendant thereafter prosecuted this appeal. The issue presented by defendant is whether the circuit court abused its discretion in granting a new trial.
[199 W.Va. 567] days due to head and shoulder injuries. It was determined at the hospital that Kimberly had a blood alcohol level of .258 percent--more than twice the legal limit--at the time of the accident. Shawn was pronounced dead upon arrival at the hospital. His blood alcohol level was not definitively determined, but was approximately .06 or .15 percent.
We begin by outlining the appropriate doctrines used by this Court in reviewing a trial court's decision to grant a new trial. We note that Syl. pt. 2, In re State Public Bldg. Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994), cert. denied, 515 U.S. 1160, 115 S.Ct. 2614, 132 L.Ed.2d 857 (1995). "[T]he role of the appellate court in reviewing a trial judge's determination that a new trial should be granted is very limited." Id., 193 W.Va. at 126, 454 S.E.2d at 420. In syllabus point 3 of In re State Public Bldg. Asbestos Litigation this court stated:
A motion for a new trial is governed by a different standard than a motion for a directed verdict. 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.
See also Payne v. Gundy, 196 W.Va. 82, 85, 468 S.E.2d 335, 338 (1996); Syl. pt. 1, Toothman v. Brescoach, 195 W.Va. 409, 465 S.E.2d 866 (1995); Coleman v. Sopher, 194 W.Va. 90, 96, 459 S.E.2d 367, 373 (1995); Syl. pt. 2, Maynard v. Adkins, 193 W.Va. 456, 457 S.E.2d 133 (1995). Justice Cleckley in his concurring opinion in In re State Public Bldg. Asbestos Litigation, stated that "[b]y broadening the authority of trial courts [to grant new trials] and limiting that of the appellate court [to review the same], we strike a decent note for judicial restraint and judicial economy." Id. 193 W.Va. at 132, 454 S.E.2d at 426. The general proposition that this Court review a circuit court's rulings on a motion for a new trial under an abuse of discretion standard was molded into its particulars in Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 104, 459 S.E.2d 374, 381 (1995), where we stated:
[I]n 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 We indicated in syllabus point 1 of Johnson v. Garlow, 197 W.Va. 674, 478 S.E.2d 347 (1996) that
[199 W.Va. 568] factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
'[i]n determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.' Syl. pt. 3, Walker v. Monongahela Power Company, 147 W.Va. 825, 131 S.E.2d 736 (1963).
We stated in Maynard v. Adkins, 193 W.Va. at 459, 457 S.E.2d at 136, that "[a] factor to be considered in the granting of a new trial is whether 'substantial justice' would be effectuated." As Justice Cleckley, in his concurring opinion in the [In re State Public Bldg.] Asbestos Litigation case, stated: " 'We merely are upholding the right of a trial court to grant a new trial when it believes that substantial justice has not been done on the theory that it is an exercise of the trial...
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...may set aside the verdict, even if supported by substantial evidence, and grant a new trial." Syl. Pt. 2, in part, Summers v. Martin, 199 W. Va. 565, 486 S.E.2d 305 (1997). In the instant case, the circuit court found that the verdict must be set aside because the jury "based its verdict on......