W. Liberty Univ. Bd. of Governors & W. Liberty Univ. v. Lane, 16-0942

• Decision Date: 05 January 2018
• Docket Number: No. 16-0942,16-0942
• Parties: West Liberty University Board of Governors and West Liberty University, Defendants Below, Petitioners v. Stewart Lane, Plaintiff Below, Respondent
• Court: West Virginia Supreme Court

West Liberty University Board of Governorsand West Liberty University, Defendants Below, Petitioners v. Stewart Lane, Plaintiff Below, Respondent

No. 16-0942

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

January 5, 2018

(Ohio County 13-C-322)

MEMORANDUM DECISION

Petitioners West Liberty University Board of Governors and West Liberty University, by counsel, Thomas E. Buck and Bruce M. Clark, appeal various pretrial rulings in Respondent Stewart Lane's action for premises liability and/or defective or dangerous condition. Respondent, by counsel James R. Leach and Victoria J. Sopranik, filed a response in support of the circuit court's order and also raised a cross-assignment of error. Petitioner filed a reply.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

Late in the afternoon of March 1, 2012, nineteen-year-old Stewart Lane (the "plaintiff"), then a full-time student at West Liberty University (the "University" or "defendant"), was swimming in the University's pool with several friends. The lifeguard on duty was West Liberty University student/employee M.C. Boyd. Plaintiff and his friends asked the lifeguard to set up the University's portable basketball hoop (the "hoop") so they could play basketball in the pool. The lifeguard retrieved the basketball hoop from a storage room and set it at the edge of the pool.

The basketball hoop was four to five feet tall and about as wide. It had a square plastic base that could be filled with water. The base was composed of translucent white plastic through which one could see if the base contained water. There was little or no water in the hoop's base. There were no warnings on the hoop. The lifeguard later admitted she was not trained in how to set up the hoop, she knew the hoop was unstable without water in the base, and the hoop could tip over if touched. The lifeguard claimed she asked the men if they had used the hoop before and twice warned that the hoop could fall into the water. Plaintiff claims he heard neither the lifeguard's question nor her warning.

Soon thereafter, one of the swimmers dunked a basketball through the hoop causing the hoop to fall. The swimmers righted the hoop and continued their basketball game. Thereafter,another player dunked the basketball; the hoop again fell and was again reset on the pool's edge. During these "dunks," the players held onto the rim of the hoop, so that when the hoop fell, it did not land in the pool.

Minutes later, plaintiff dunked the basketball and then went under the water's surface. However, as he emerged from the water, the steel rim of the falling hoop struck plaintiff's face causing lacerations and heavy bleeding that was difficult to staunch. Plaintiff was taken to a hospital for treatment. Plaintiff's injuries required plastic surgery, which was followed by a hospitalization for infectious cellulitis. A few years later, plaintiff underwent a scar revision surgery. Plaintiff's medical expenses totaled an undisputed $36,000, and he was left with a permanent facial scar.

The lifeguard did not see the hoop's rim strike plaintiff's face because she was studying for a test. She later admitted she knew it was a violation of her duties to be studying while patrons were at the pool. She also admitted it was her job to keep the pool safe, to enforce pool rules, to stop any dangerous activity by pool patrons, to remove any defective or dangerous pool equipment, and to notify her supervisor of any issues.

After plaintiff was taken to the hospital, the lifeguard placed the basketball hoop in a dumpster near the pool. The next morning, the lifeguard notified her supervisor, Robin Brunner, of plaintiff's injuries. Subsequently, Dr. Rhonda Noble, the University's Chairperson of the Department of Health and Human Resources, who was responsible for the pool, was also notified of plaintiff's injuries. Plaintiff claims that the timing of these notices would have allowed the University's staff to retrieve the hoop from the dumpster, but the staff failed to do so. Dr. Noble later testified at her deposition that the "[f]irst thing you do is inspect the equipment because that's the first thing how they prove negligence if the equipment was unsafe or they were not supervised."

Plaintiff sued the University and its Board of Governors (the "defendants") for the damages caused by his injuries. Plaintiff alleged that the hoop was not intended to be used without filling the base with water, and that by allowing plaintiff to use the hoop without its base being filled with water, defendants breached their duty to protect him from an unsafe, defective, and dangerous condition located on the University's property. Defendants countered that the hoop was safe; that it could be used with or without water in its base depending on whether a permanent or temporary use was contemplated; and that the condition of the hoop was obvious.

Prior to trial, the parties debated the impact of the lifeguard's decision to dispose of the basketball hoop before it could be inspected. Plaintiff made a motion to preclude the defendants from introducing evidence that the hoop was "not unsafe." By order entered April 29, 2016, the circuit court granted plaintiff's motion largely because defendants failed to preserve the hoop. Specifically, the court ruled that,

plaintiff will be permitted to argue and present evidence that the hoop was unsafe and dangerous due to the fact that it had no or very little water in it prior to the incident. Defendants will not be permitted to argue, present evidence, or attack/impeach plaintiff's expert/evidence that the hoop was not unsafe, notdangerous, and/or not defective. In the event that defendants attempt to attack/impeach plaintiff's expert/evidence in this way, a spoliation instruction will be given at that time.

However, in a May 5, 2016, order, the circuit court modified and clarified its April 29, 2016, order and ruled that, because the specifics of the hoop were unknown, "no evidence may be presented [by any party] as to whether this hoop was 'assembled' safely." However, the court also ruled that if the proper foundation was laid, plaintiff would be allowed to provide general opinions regarding poolside basketball hoops, and to mention that defendants disposed of the hoop and, as a result, its make, model, and safety instructions could not be determined.

Thereafter, the defendants filed a motion for summary judgment. In their motion, defendants argued (1) that plaintiff failed to provide any evidence that the hoop was unsafe, therefore, he could not succeed on a premises liability/unsafe condition claim; (2) plaintiff's only evidence regarding the hoop was an expert who admitted in his deposition that he knew nothing about the hoop that had caused plaintiff's injuries; and (3) plaintiff's claims were barred by the "open and obvious" doctrine. Following oral argument, the circuit court denied defendants' motion by order entered June 6, 2016.

Defendants also filed a pretrial motion in limine to exclude any evidence regarding whether the University's employees had failed to properly report plaintiff's injuries up the University's chain of command. Defendants maintained that plaintiff's complaint regarded the duties/actions of the parties prior to, and at the time of, plaintiff's injuries; accordingly, defendants argued that what occurred thereafter, such as the post-injury reporting, had no bearing on the case. In a June 8, 2016, order, the circuit court deferred its ruling on defendants' alleged "failure to report." Thereafter, at trial, the circuit court allowed plaintiff to enter evidence regarding how the incident was reported up the chain of command.

Plaintiff's three-day trial commenced on August 2, 2016. The lifeguard and plaintiff testified that the hoop fell at least twice before plaintiff was injured. The case was thereafter submitted to the jury, which was asked the following question: "Do you believe that the fact that the basketball hoop could fall was open, obvious, reasonably apparent, or was as well-known to Plaintiff as it was to Defendant?" The jury answered, "No." The jury also found that both plaintiff and defendants were negligent, but found that plaintiff's negligence did not contribute to his injury. Finally, the jury found that defendants' negligence proximately caused plaintiff's injuries. The jury awarded plaintiff his undisputed medical expenses of $36,000, and $44,000 in damages for pain, mental anguish, emotion distress, loss of enjoyment of life, and permanent scarring.

Defendants did not file a motion for a new trial. Instead, on October 4, 2016, they filed a direct appeal which this Court dismissed by order entered October 19, 2016, due to defendants' failure to file a motion for a new trial. See W.Va. Dep't of Transp., Div. of Highways v. Newton, 235 W.Va. 267, 271, 773 S.E.2d 371, 375 (2015) (failure to file motion under Rule 59 for new trial precludes appeal of alleged trial errors). Defendants responded with a second notice of appeal, followed by a motion to docket the second notice of appeal, which requested leave to appeal certain pretrial rulings in the record. On December 15, 2016, this Court, on its ownmotion, consolidated defendants' two notices of appeal under No. 16-0942; however, we cautioned that any assignments of error requiring the filing of a post-trial motion would not be considered.

Defendants now appeal and raise five assignments of error. Plaintiff raises a cross-assignment of error.

Defendants' first and second arguments are that the circuit court erred in...