Ventura v. Winegardner, No. 17186

CourtSupreme Court of West Virginia
Writing for the CourtBROTHERTON
Citation178 W.Va. 82,357 S.E.2d 764
Docket NumberNo. 17186
Decision Date15 May 1987
Parties, 40 Ed. Law Rep. 1047 Diane VENTURA v. Roy E. WINEGARDNER and John Q. Hammons, Trustees; Roy E. Winegardner and John Q. Hammons, Partners, doing business as Morgan Hills Operating Company, a partnership; Winegardner and Hammons, Inc., a corporation, doing business as the Holiday Inn.

Page 764

357 S.E.2d 764
178 W.Va. 82, 40 Ed. Law Rep. 1047
Diane VENTURA
v.
Roy E. WINEGARDNER and John Q. Hammons, Trustees; Roy E.
Winegardner and John Q. Hammons, Partners, doing business as
Morgan Hills Operating Company, a partnership; Winegardner
and Hammons, Inc., a corporation, doing business as the Holiday Inn.
No. 17186.
Supreme Court of Appeals of
West Virginia.
May 15, 1987.

Page 765

[178 W.Va. 83] Syllabus by the Court

1. Evidence in a negligence action that no one before the plaintiff was injured at a particular location in a manner similar to the plaintiff is generally admissible.

2. "Where [in a trial by jury] there is competent evidence tending to support a pertinent theory in the case, it is the duty of the trial court to give an instruction presenting such theory when requested to do so. McAllister v. Weirton Hospital Co., 173 W.Va. 75, 81, 312 S.E.2d 738, 744 (1983) (citations omitted)." Syl. pt. 2, Brammer v. Taylor, 175 W.Va. 728, 338 S.E.2d 207 (1985).

3. "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." W.Va.R.Evid. 702.

4. An expert may base his opinion on a professional treatise or publication, but must first show the authoritative nature of the work.

David L. Solomon, Solomon & Solomon, Morgantown, for appellant.

Richard E. Hamstead, Hamstead & Hamstead, Morgantown, for appellee.

BROTHERTON, Justice:

In this appeal, the appellant, Holiday Inn, is contesting a judgment entered on a jury verdict rendered in favor of the appellee, Diane Ventura, by the Circuit Court of Monongalia County. We agree with Holiday Inn that there were errors in the conduct of the trial, particularly the failure of the trial court to instruct on assumption of risk and the lack of qualifications of Ventura's damage expert, and we therefore reverse.

On April 27, 1984, Diane Ventura was a college senior and a member of the Rutgers tennis team. That year she had played at the number three position and compiled a 15-4 record. She was staying with the team at the Holiday Inn in Star City, West Virginia, while the team competed in the Atlantic 10 Tennis Tournament being held at West Virginia University. That night fellow members of the team surprised Diane with a water battle. She attempted to run away from her friends, and ran thirty feet beyond a walkway, into an unlit area, and fell over a steep bank. The fall injured her right knee. The injury has shown not to be a crippling one, but it has given her continuing trouble in several areas, such as climbing stairs and running or jumping, and, most notably, has interfered

Page 766

[178 W.Va. 84] with her ability to play competitive tennis. She sued for negligence in the Circuit Court of Monongalia County. The jury awarded Ventura $147,000 for the injury. Holiday Inn raises several assignments of error which we now discuss.

I.

Several points of error merit only short discussion.

At trial, Holiday Inn attempted to introduce a site plan of its property to show that the steep bank was not on its property. The trial court allowed the site plan to come in, but would not let it be used to show boundary lines unless the surveyor was present to authenticate it. We find no error in the trial court's ruling. None of Holiday Inn's witnesses could say with certainty that the site plan showed the true boundaries, and the plan itself was ambiguous on that point.

Holiday Inn further argues that Ventura had the burden of proving that the hazard, i.e., the steep bank, was on Holiday Inn property or that Holiday Inn had knowledge of the dangerous condition. We agree. The owner of a hotel can only be held liable for failing to warn a guest about a defect on property not his if the property is immediately adjacent to the hotel, 1 the hotel knew or should have known of the defect, and the defect is of such a nature that a reasonable hotel operator would have warned his guests. See generally Annotation, Liability of Operator of Business Premises to Patron Injured by Condition of Adjacent Property, 39 A.L.R.3d 579 (1971). Nevertheless, in this case it is clear that Holiday Inn knew of the defect. The area was inspected by Holiday Inn's director of safety and was quite open and obvious to all concerned. It was also an obvious hazard. Holiday Inn could hardly argue that it had never noticed the steep embankment a few feet from its property line.

Another assignment of error is that Holiday Inn was not allowed to put on evidence that no prior falls of this type had taken place at the embankment. We have had occasion to speak on this subject before. In Barnett v. Coal & Coke Ry., 81 W.Va. 251, 94 S.E. 150 (1917), one of the defendant's employees was crushed by a railroad car which he was pushing through a narrow door in the defendant's shop. We found no error in permitting the defendant's supervisor to testify that he had never heard of any other worker being injured in the same manner. We noted that this tended to prove that the defendant was not negligent in furnishing his employees a reasonably safe place in which to work. 81 W.Va. at 262, 94 S.E. at 154. Holiday Inn's evidence that there was no prior occurrence of this sort at that spot was therefore relevant and should have been admitted into evidence by the trial court. 2

Finally, evidence showed that the Rutgers' women's tennis team often conducted water fights at the hotels where they stayed. During previous matches at other hotels there had been several such fights. On one occasion certain hotel rooms had to be dried out because the walls were soaked with water. Ventura had participated in some of these fights in the past. A question arises as to the extent of the innkeeper's liability for an injury to a guest caused, at least in part, by horseplay of the victim and other guests. The general rule is that the hotel must exercise reasonable care to restrain its guests where there is a foreseeable risk of danger. See, e.g., syl. pt. 1, Connolly v. Nicollette Hotel, 254 Minn. 373, 95 N.W.2d 657 (1959), aff'd, 258 Minn. 405, 104 N.W.2d 721 (1960).

Holiday Inn complains that the omission on the jury form of Ventura's fellow team mates, and their last-minute addition onto the form by the trial court during the jury's deliberations, prejudiced [178 W.Va. 85] Holiday Inn, not allowing them the benefit

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of the horseplay...

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18 practice notes
  • Craighead v. Norfolk and Western Ry. Co., No. 22946
    • United States
    • Supreme Court of West Virginia
    • July 5, 1996
    ...(citations omitted).' Syl. pt. 2, Brammer v. Taylor, 175 W.Va. 728, 338 S.E.2d 207 (1985)." Syllabus Point 2, Ventura v. Winegardner, 178 W.Va. 82, 357 S.E.2d 764 (1987).' Syl. pt. 6, King v. Kayak Manufacturing Corporation, 182 W.Va. 276, 387 S.E.2d 511 (1989)." Syllabus Point 8, In re Sta......
  • Johnson by Johnson v. General Motors Corp., No. 21611
    • United States
    • Supreme Court of West Virginia
    • November 23, 1993
    ...on a professional treatise or publication, but must first show the authoritative nature of the work." Syl. pt. 4, Ventura v. Winegardner, 178 W.Va. 82, 357 S.E.2d 764 10. " 'Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be distur......
  • Board of Educ. of McDowell County v. Zando, Martin & Milstead, Inc., No. 18773
    • United States
    • Supreme Court of West Virginia
    • February 22, 1990
    ...or education may testify thereto in the form of an opinion or otherwise.' W.Va.R.Evid. 702." Syllabus Point 3, Ventura v. Winegardner, 178 W.Va. 82, 357 S.E.2d 764 12. " 'Whether a witness is qualified to state an opinion is a matter which rests within the discretion of the trial court and ......
  • King v. Kayak Mfg. Corp., No. 18910
    • United States
    • Supreme Court of West Virginia
    • November 9, 1989
    ...(citations omitted).' Syl. pt. 2, Brammer v. Taylor, 175 W.Va. 728, 338 S.E.2d 207 (1985)." Syllabus Point 2, Ventura v. Winegardner, 178 W.Va. 82, 357 S.E.2d 764 7. It is permissible for a physician to testify as to the causal connection between the accident and the manner in which the pla......
  • Request a trial to view additional results
18 cases
  • Craighead v. Norfolk and Western Ry. Co., No. 22946
    • United States
    • Supreme Court of West Virginia
    • July 5, 1996
    ...(citations omitted).' Syl. pt. 2, Brammer v. Taylor, 175 W.Va. 728, 338 S.E.2d 207 (1985)." Syllabus Point 2, Ventura v. Winegardner, 178 W.Va. 82, 357 S.E.2d 764 (1987).' Syl. pt. 6, King v. Kayak Manufacturing Corporation, 182 W.Va. 276, 387 S.E.2d 511 (1989)." Syllabus Point 8, In re Sta......
  • Johnson by Johnson v. General Motors Corp., No. 21611
    • United States
    • Supreme Court of West Virginia
    • November 23, 1993
    ...on a professional treatise or publication, but must first show the authoritative nature of the work." Syl. pt. 4, Ventura v. Winegardner, 178 W.Va. 82, 357 S.E.2d 764 10. " 'Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be distur......
  • Board of Educ. of McDowell County v. Zando, Martin & Milstead, Inc., No. 18773
    • United States
    • Supreme Court of West Virginia
    • February 22, 1990
    ...or education may testify thereto in the form of an opinion or otherwise.' W.Va.R.Evid. 702." Syllabus Point 3, Ventura v. Winegardner, 178 W.Va. 82, 357 S.E.2d 764 12. " 'Whether a witness is qualified to state an opinion is a matter which rests within the discretion of the trial court and ......
  • King v. Kayak Mfg. Corp., No. 18910
    • United States
    • Supreme Court of West Virginia
    • November 9, 1989
    ...(citations omitted).' Syl. pt. 2, Brammer v. Taylor, 175 W.Va. 728, 338 S.E.2d 207 (1985)." Syllabus Point 2, Ventura v. Winegardner, 178 W.Va. 82, 357 S.E.2d 764 7. It is permissible for a physician to testify as to the causal connection between the accident and the manner in which the pla......
  • Request a trial to view additional results

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