Wal-Mart Stores E., L.P. v. Ankrom, No. 19-0666

• Decision Date: 23 November 2020
• Docket Number: No. 19-0666
• Parties: Wal-Mart Stores East, L.P. v. Johna Diane Ankrom
• Court: West Virginia Supreme Court

Wal-Mart Stores East, L.P. v. Johna Diane Ankrom

No. 19-0666

Supreme Court of Appeals of West Virginia

November 23, 2020

Jenkins, Justice, concurring, in part, and dissenting, in part:

I agree with the majority's affirmance of the trial court's assignment of responsibility for the damage award in proportion to the percentage of liability that the jury found as to each party, i.e. Wal-Mart and Mr. Leist. Such ruling is consistent with the jury's liability determination and award of damages, as well as the applicable law for the recovery of a judgment from multiple defendants found to be responsible for a plaintiff's injuries.

However, I simply cannot agree with the majority's determination that no instructional error occurred during the trial of this case. A trial court should instruct the jury on a party's theory of the case where the facts and the law support the instruction. As the majority astutely notes in Syllabus point 10 of its opinion,

"'"'[i]f there be evidence tending in some appreciable degree to support the theory of proposed instructions, it is not error to give such instructions to the jury, though the evidence be slight, or even insufficient to support a verdict based entirely on such theory.' Syllabus Point 2, Snedeker v. Rulong, 69 W. Va. 223, 71 S.E. 180 (1911)." Syllabus Point 4, Catlett v. MacQueen, 180 W. Va. 6, 375 S.E.2d 184 (1988) [(per curiam)].' Syllabus point 6, Wilt v. Buracker, 191 W. Va. 39, 443 S.E.2d 196 (1993), cert. denied, 511 U.S. 1129, 114 S. Ct. 2139, 128 L. Ed. 2d 868 (1994)." Syllabus point 3, Craighead v. Norfolk & Western Railway Company, 197 W. Va. 271, 475 S.E.2d 363 (1996).

Syl. pt. 4, Coleman v. Sopher, 201 W. Va. 588, 499 S.E.2d 592 (1997). During the underlying jury trial, Wal-Mart introduced evidence to support its theory of the case: that Mr. Leist's actions in running from its employees and through the store constituted an unforeseeable intervening cause that proximately caused Ms. Ankrom's injuries. However, the trial court substituted its view of the evidence for that of the jury and determined that Wal-Mart had not established its entitlement to this defense and, thus, that an instruction on intervening cause was not warranted. Because, as the majority also recognizes, in footnote 51 of its opinion, a trial court's "refus[al] to instruct the jury on a litigant's theory of the case when it is supported by competent evidence prevents consideration of that theory by the jury, and thus invites reversal," Danco, Inc. v. Donahue, 176 W. Va. 57, 60, 341 S.E.2d 676, 679 (1985), I respectfully dissent from that portion of the majority's opinion affirming the trial court's rejection of Wal-Mart's intervening cause jury instruction.

The primary issue presented to the jury in the underlying trial was a determination of who was responsible for Ms. Ankrom's injuries: Wal-Mart, Mr. Leist, or Wal-Mart and Mr. Leist. To guide the jury's determination of this issue, the trial court instructed the jury on proximate cause and joint negligence, but it rejected Wal-Mart's intervening cause instruction. In doing so, the trial court usurped the jury's role as the finder of fact by substituting its own judgment for that of the jury when it found that the facts did not support the giving of an intervening cause instruction. The trial court did so despite the fact that Wal-Mart repeatedly argued and presented evidence at trial supporting its theory of the case that Mr. Leist's actions were an intervening cause that proximately caused Ms. Ankrom's injuries. Evidence that the trial court usurped the jury's determination of the operative facts supporting Wal-Mart's theory of the case is included in the court's amended post-trial order entered July 2, 2019, wherein it specifically stated that "[t]he [c]ourt properly determined that the evidence failed to establish that Leist's conduct was an intervening cause[.]" This summation is disturbing because it suggests that the trial court did not appreciate either the role of the jury or the function of its charge to the jury during the underlying proceedings, particularly when this Court specifically has stated that "determination of . . . intervening causation [is] [an] issue[] to be resolved by the finder of fact," here, the jury. Marcus v. Staubs, 230 W. Va. 127, 139, 736 S.E.2d 360, 372 (2012) (per curiam).

In a trial by jury, the jury is the ultimate finder of fact. Recognizing the importance of this principle, this Court specifically has held that "'[i]t is the peculiar and exclusive province of the jury to weigh the evidence and to resolve questions of fact when the testimony of witnesses regarding them is conflicting[.]' Syllabus Point 2[, in part], Graham v. Crist, 146 W. Va. 156, 118 S.E.2d 640 (1961)." Syl. pt. 2, Faris v. Harry Green Chevrolet, Inc., 212 W. Va. 386, 572 S.E.2d 909 (2002) (per curiam). Accord Syl. pt. 3, Toler v. Hager, 205 W. Va. 468, 519 S.E.2d 166 (1999) ("'"'Where, in the trial of an action at law before a jury, the evidence is conflicting, it is the province of the jury to resolve the conflict, and its verdict thereon will not be disturbed unless believed to be plainly wrong.' Point 2, Syllabus, French v. Sinkford, 132 W. Va. 66[, 54 S.E.2d 38 (1948)]." Syllabus Point 6, Earl T. Browder, Inc. v. County Court [of Webster County], 145 W. Va. 696, 116 S.E.2d 867 (1960).' Syllabus Point 2, Rhodes v. National Homes Corp., 163 W. Va. 669, 263 S.E.2d 84 (1979).").

The trial judge's charge to the jury, in turn, provides the jury with instructions regarding the applicable law that serve to guide the jury's consideration and analysis of the facts. In other words,

[t]he purpose of instructing the jury is to focus its attention on the essential issues of the case and inform it of the permissible ways in which these issues may be resolved. If instructions are properly delivered, they succinctly and clearly will inform the jury of the vital role it plays and the decisions it must make. . . . "Without [adequate] instructions as to the law, the jury becomes mired in a factual morass, unable to draw the appropriate legal conclusions based on the facts."

State v. Guthrie, 194 W. Va. 657, 672, 461 S.E.2d 163, 178 (1995) (quoting State v. Miller, 194 W. Va. 3, 16 n.20, 459 S.E.2d 114, 127 n.20 (1995)) (footnote omitted). Thus, while "[t]he jury is the trier of the facts[,] . . . 'there is no presumption that they are familiar with the law.'" State v. Lindsey, 160 W. Va. 284, 291, 233 S.E.2d 734, 739 (1977) (quoting State v. Loveless, 139 W. Va. 454, 469, 80 S.E.2d 442, 450 (1954)).

Although a trial court is vested with discretion in formulating its charge to the jury, such discretion does not permit the court to exclude an instruction that correctly states the law applicable to the case, where such instruction is supported by the evidence adduced at trial, and is not otherwise covered in the jury's charge. Appreciating this concept, the majority held, in Syllabus point 11 of its opinion, as follows:

A trial court's refusal to give a requested instruction is reversible error only if: (1) the instruction is a correct statement of the law; (2) it is not substantially covered in the charge actually given to the jury; and (3) it concerns an important point in the trial so that the failure to give it seriously impairs a defendant's ability to effectively present a given defense.

Syl. pt. 11, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994). In the case presently before the Court, it is quite apparent that Wal-Mart satisfied each of these factors when it requested the trial court to instruct the jury on intervening cause. However, in affirming the trial court's ruling, the majority determined that these criteria had not, in fact, been met. I disagree.

First, the requested instruction must be "a correct statement of the law." Syl. pt. 11, in part, Derr, id. The instruction Wal-Mart requested concerned intervening cause. This Court has defined intervening cause as follows, which the majority also reiterated in Syllabus point 8 of its opinion:

"'"An intervening cause, in order to relieve a person charged with negligence in connection with an injury, must be a negligent act, or omission, which constitutes a new effective cause and operates independently of any other act, making it and it only, the proximate cause of the injury." Syllabus Point 16, Lester v. Rose, 147 W. Va. 575, 130 S.E.2d 80 (1963) [modified on other grounds by State ex rel. Sutton v. Spillers, 181 W. Va. 376, 382 S.E.2d 570 (1989)].' Syllabus Point 1, Perry v. Melton, 171 W. Va. 397, 299 S.E.2d 8 (1982)." Syl. Pt. 3, Wehner v. Weinstein, 191 W. Va. 149, 444 S.E.2d 27 (1994).

Syl. pt. 8, Harbaugh v. Coffinbarger, 209 W. Va. 57, 543 S.E.2d 338 (2000) (per curiam). In other words, "where the actions of one or more tortfeasors constitute an intervening cause, such actions operate to break the chain of causation and relieve the remainder from liability." Marcus v. Staubs, 230 W. Va. at 139, 736 S.E.2d at 372. Cf. Syl. pt. 13, Anderson v. Moulder, 183 W. Va. 77, 394 S.E.2d 61 (1990) ("A tortfeasor whose negligence is a substantial factor in bringing about injuries is not relieved from liability by the intervening acts of third persons if those acts were reasonably foreseeable by the original tortfeasor at the time of his negligent conduct.").

Here, Wal-Mart's proffered intervening cause instruction provided as follows:

Wal[-M]art claims that [it] [was] not the proximate cause of Plaintiff, Diane Ankrom's injuries and damages because there was an intervening negligent act that caused the injury and damages of Plaintiff.

Wal[-M]art is not responsible for Plaintiff^['^]s injuries and damages if it is proven, by the greater weight of the evidence, all of the following:

1. That there was a new independent, negligent act or omission of another party that occurred after the conduct of Wal[-M]art; and

2. That the new independent, negligent act or omission was a new, effective cause of the

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