Ventura v. Winegardner

• Decision Date: 15 May 1987
• Docket Number: No. 17186,17186
• 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.
• Court: West Virginia Supreme Court

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.

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 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 Holiday Inn, not allowing them the benefit of the horseplay defense. We disagree. Holiday Inn did not timely request Ventura's team mates to be included on the jury form, and no objection was made to the team mates being added late. It is therefore waived on appeal. See Konchesky v. S.J. Groves & Sons, 148 W.Va. 411, 414, 135 S.E.2d 299, 302 (1964).

II.

In a more serious assignment of error, Holiday Inn objects to the trial court's refusal of an instruction to the jury on assumption of risk. Generally, a jury instruction should be given if there is evidence in the trial which would support such an instruction and it was requested. See syl. pt. 2, Brammer v. Taylor, 175 W.Va. 728, 338 S.E.2d 207 (1985). In this case there was evidence to support an assumption of risk defense. The elements of an assumption of risk defense are: (1) knowledge of the danger; (2) an appreciation of the danger; and (3) voluntary exposure to the danger. See Spurlin v. Nardo, 145 W.Va. 408, 418-19, 114 S.E.2d 913, 920 (1960). Ventura knew her surroundings, having been a guest at the Holiday Inn during daylight hours and passed the area where the embankment was located going to and from her room. By her own testimony, she went running at a full sprint into a dark, unlit area, with her eyes unadjusted to the night. She testified that her field of vision was only about five feet. While Ventura may not have realized the specific danger of the embankment, she had to know that running at a fast rate of speed in the dark is a danger--a danger which any reasonable person would appreciate, and to which she voluntarily exposed herself as she ran from her team mates, who sought to throw water on her as they had in the past.

Analogous cases support our holding that assumption of risk is a proper defense in this situation. In Newell v. Zurich Ins. Co., 325 So.2d 745 (La.App.1976), the court upheld a judgment against the plaintiff on the grounds of assumption of risk where the plaintiff had been running across a wet sidewalk with bare feet in rainy weather. The court held that no discussion of the assumption of risk by the plaintiff was necessary. Anyone who runs on a wet sidewalk with bare feet assumes a known and well-understood danger. See 325 So.2d at 747. In Moss v. Atlanta Housing Authority, 160 Ga.App. 555, 556, 287 S.E.2d 619, 620 (1981), the Georgia Appeals Court held that the plaintiff, a guest at the defendant's building, assumed the risk by walking into an unlit area. This case, with Ventura running into an unlit area on uncertain ground, potentially presents a stronger assumption of risk defense than either of the above cases.

There being sufficient evidence before the jury from which it could have found an assumption of risk by the plaintiff, the defendant, Holiday Inn, was entitled to an instruction on that defense. It was error for the court to withhold it. ³

III.

Holiday Inn also objects to the various experts used by Ventura to prove her injury. Ventura's experts ran from the top to the bottom of the scale, superbly qualified, qualified, and unqualified. We will examine all three.

The most qualified expert Ventura called was Dr. K. Douglas Bowers. Dr. Bowers testified as to the extent of the injury to Ventura's knee. He was an orthopedic surgeon, specializing in sports medicine, who had been practicing nineteen years. He was also the treating physician. Thus, Dr. Bowers could rely on his own observations and a wealth of experience in the narrow specialty of sports medicine over his nineteen years...