Tippie v. Tippie

• Decision Date: 15 December 1995
• Docket Number: No. 22914,22914
• Citation: 466 S.E.2d 548,195 W.Va. 697
• Court: West Virginia Supreme Court
• Parties: James Edward TIPPIE, Jr., Plaintiff Below, Appellee, v. James Edward TIPPIE, Sr., Defendant Below, Appellant.

Page 548

466 S.E.2d 548

195 W.Va. 697

James Edward TIPPIE, Jr., Plaintiff Below, Appellee, v.James Edward TIPPIE, Sr., Defendant Below, Appellant.

No. 22914.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 26, 1995.

Decided Dec. 15, 1995.

Syllabus by the Court

1." 'The owner or the occupant of premises owes to an invited person the duty to exercise ordinary care to keep and maintain the premises in a reasonably safe condition.This duty requires the owner or the occupant of premises to exercise ordinary care to protect an invited person from injury inflicted by other persons present on such premises; and if such owner or occupant fails to perform such duty and his negligence is the proximate cause of injuries inflicted upon an invited person by another person such owner or occupant is liable to such invited person.'Syl. Pt. 4, Puffer v. Hub Cigar Store, 140 W.Va. 327, 84 S.E.2d 145(1954)."Syl Pt. 3, Haddox v. Suburban Lanes, Inc., 176 W.Va. 744, 349 S.E.2d 910(1986).

2." 'To be actionable, negligence must be the proximate cause of the injury complained of and must be such as might have been reasonably expected to produce an injury.'Syl. Pt. 3, Hartley v. Crede, 140 W.Va. 133, 82 S.E.2d 672(1954)[, overruled on other grounds, State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412(1983) ]."Syl. Pt. 4, Haddox v. Suburban Lanes, Inc., 176 W.Va. 744, 349 S.E.2d 910(1986).

3." 'A person is not liable for damages which result from an event which was not expected and could not reasonably have been anticipated by an ordinarily prudent person.'Syl Pt. 6, Puffer v. Hub Cigar Store, 140 W.Va. 327, 84 S.E.2d 145(1954)."Syl. Pt. 5, Haddox v. Suburban Lanes, Inc., 176 W.Va. 744, 349 S.E.2d 910(1986).

4." ' " 'Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence.'Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85, 163 S.E. 767(1932)."Point 1, Syllabus, Jenkins v. Chatterton, 143 W.Va. 250, 100 S.E.2d 808(1957).'Syl. pt. 1, Jividen v. Legg, 161 W.Va. 769, 245 S.E.2d 835(1978)."Syl. Pt. 1, Yeager v. Morgan, 189 W.Va. 174, 429 S.E.2d 61(1993).

5." 'In a case where the evidence is such that the jury could have properly found for either party upon the factual issues, a motion for judgment notwithstanding the verdict should not be granted.'Syl. pt. 7, McClung v. Marion County Commission, W.Va. , 360 S.E.2d 221(1987)."Syl. Pt. 4, Sias v. W-P Coal Co., 185 W.Va. 569, 408 S.E.2d 321(1991).

6."In considering whether a motion for judgment notwithstanding the verdict under Rule 50(b) of the West Virginia Rules of Civil Procedure should be granted, the evidence should be considered in the light most favorable to the plaintiff, but, if it fails to establish a prima facie right to recover, the court should grant the motion."Syl. Pt. 6, Huffman v. Appalachian Power Co., 187 W.Va. 1, 415 S.E.2d 145(1991).

7." 'When a case involving conflicting testimony and circumstances has been fairly tried, under proper instructions, the verdict of the jury will not be set aside unless plainly contrary to the weight of the evidence or without sufficient evidence to support it.'Syl. pt. 4, Laslo v. Griffith, 143 W.Va. 469, 102 S.E.2d 894(1958)."Syl. Pt. 6, Johnson ex rel. Johnson v. General Motors Corp., 190 W.Va. 236, 438 S.E.2d 28(1993).

8."The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised.The test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?"Syl. Pt. 3, Sewell v. Gregory, 179 W.Va. 585, 371 S.E.2d 82(1988).

9." ' "It is not error to refuse to give an instruction to the jury, though it states a correct and applicable principle of law, if the principle stated in the instruction refused is adequately covered by another instruction or other instructions given."Syl. Pt. 3, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897(1966).'Syllabus point 3, Roberts v. Stevens Clinic Hosp., Inc., 176 W.Va. 492, 345 S.E.2d 791(1986)."Syl. Pt. 2, Howe v. Thompson, 186 W.Va. 214, 412 S.E.2d 212(1991).

10." 'Even if a requested instruction is a correct statement of the law, refusal to grant such instructions not error when the jury was fully instructed on all principles that applied to the case and the refusal of the instruction in no way impeded the offering side's closing argument or foreclosed the jury's passing on the offering side's basic theory of the case as developed through the evidence.'Syllabus point 2, Shia v. Chvasta, 180 W.Va. 510, 377 S.E.2d 644(1988)."Syl. Pt. 1, Howe v. Thompson, 186 W.Va. 214, 412 S.E.2d 212(1991).

Appeal from the Circuit Court of Kanawha County; Lyne Ranson, Circuit Judge.

Robert A. Taylor, Masters & Taylor, Charleston, for Appellee.

Elliot G. Hicks, Kay, Casto, Chaney, Love & Wise, Charleston, for Appellant.

PER CURIAM:

This is an appeal by James E. Tippie, Sr., (hereinafter "the Appellant") from a December 17, 1994, order of the Circuit Court of Kanawha County denying the Appellant's motion for a judgment notwithstanding the verdict in a civil action instituted by the Appellant's adult son, James E. Tippie, Jr., (hereinafter "the Appellee") against his father for injuries sustained in a lawn mower accident.The Appellant contends that the lower court erred by failing to set aside the jury verdict in favor of the Appellee or, in the alternative, granting a new trial.We affirm the decision of the lower court.

I.

While residing in an apartment in St. Albans, West Virginia, with his brother, Rick Tippie, in 1988, the Appellee purchased a lawn mower.The Appellee was thereafter transferred to Pittsburgh, Pennsylvania, and used the lawn mower at his residence in Pittsburgh during the summer of 1989.Upon his return to West Virginia in September 1989, he resided in an apartment which did not require him to mow grass, and he stored his lawn mower in the basement of the Appellant's home in Dunbar, West Virginia.The lawn mower remained in that basement from the fall of 1989 until the accident which injured the Appellee on April 23, 1990.

Although the Appellee testified that he had no objection to anyone using the lawn mower, there was no evidence that anyone actually used the lawn mower during its storage at the Appellant's home.The Appellee testified, however, that he had seen James "Midget" Tippie, the Appellee's half-brother who resided at the Appellant's home, attempting to start the mower in the Spring of 1990.¹On April 23, 1990, the Appellee visited the Appellant's home and decided to mow the grass for his father.²The Appellee testified that the mower appeared to be in good condition and that he attempted to start it in the conventional manner while it was sitting in the basement.As he did so, flames erupted from beneath the mower, and the Appellee was severely burned.Firefighters at the scene later testified that the gas tank was disconnected from the mower at the time of the fire and that tools were scattered around the mower as if someone had recently worked on it.The Appellee denied working on the mower, and there was no other evidence that any other individual worked on it prior to the Appellee's attempt to start the engine.

At trial, the Appellee sought to establish the negligence of the Appellant by eliciting testimony regarding the Appellant's lack of parental supervision over Midget and other teenage boys allegedly working on lawn mowers in the Appellant's basement.Specifically, the Appellee presented evidence at trial indicating that the Appellant knew that the boys tinkered with lawn mowers in his basement, knew that such attempts to repair mowers could leave the mowers in a potentially unsafe condition, and failed to prevent the boys from working on the mowers.The Appellee asserted that the Appellant had a duty to exercise reasonable care for the safety of an invitee, such as the Appellee, and had a duty to warn the Appellee of any hazards of which he knew or should have known.³

The Appellant testified that he had personally never touched the mower, that he had not directed anyone else to use or repair it, and that he did not know whether Midget had touched the mower.The Appellant did explain that Midget attended classes in the morning at South Charleston High School and proceeded to Ben Franklin Technical School, where he worked on motors, later in the afternoon.In the two-hour break between the two schools, Midget and other boys would typically congregate in the Appellant's basement.The Appellant admitted that he knew that Midget and his friends worked on lawn mowers in the basement, but he had no specific knowledge regarding whether anyone had worked on the particular lawn mower that injured the Appellee.

The Appellee called Dr. Rex Haynes, a mechanical engineer teaching at West Virginia University, as an expert.He explained the basic components of a lawn mower to the jury and stated that a cracked spark plug wire or the spark plug connection could cause a spark of electricity and a fire.He surmised that the lawn mower housing had been disassembled and had not been correctly reassembled.Because the bolts which anchored the housing and the gas tank were not properly reinstalled, Dr. Haynes testified that any attempt to start the mower would cause the gas line between the fuel tank and the carburetor to separate.This would have allowed fuel to collect under the housing, creating a vapor which ignited into a fire when the mower was started.It was Dr. Haynes' opinion that the explosion then caused the housing to be blown off the mower, explaining why...