Wehner v. Weinstein

• Decision Date: 20 April 1994
• Docket Number: Nos. 21911,s. 21911
• Citation: 191 W.Va. 149,444 S.E.2d 27
• Parties: , 91 Ed. Law Rep. 695 William E. WEHNER, Jr., Administrator of the Estate of Jennifer Wehner; Nicole Fisher; and Jessica Landau, Plaintiffs Below, Appellees v. Brett Barry WEINSTEIN; Mark Weinstein; Associated Hearing Instruments of King of Prussia, Inc.; Bossio Enterprises, Inc., DBA Mario's Pizza; Sigma Phi Epsilon, a National Fraternal Organization and Association; Sigma Phi Epsilon Building Association, Inc., a Corporation; and the West Virginia University Board of Trustees, a Corporation, Defendants Below, Appellees, Matthew Kiser, Defendant Below, Appellant. William E. WEHNER, Jr., Administrator of the Estate of Jennifer Wehner; Nicole Fisher; and Jessica Landau, Plaintiffs Below, Appellees v. Brett Barry WEINSTEIN; Mark Weinstein; Associated Hearing Instruments of King of Prussia, Inc.; Bossio Enterprises, Inc., DBA Mario's Pizza; Matthew Kiser; Sigma Phi Epsilon, a National Fraternal Organization and Association; and the West Virginia University Board of Trustees, a Corporation, Defendants Below, Appellees, Sigma Phi Epsilon Building Association, Inc., a Corporation, Defendant Below, Appellant. William E. WEHNER, Jr., Administrator of the Estate of Jennifer Wehner; Nicole Fisher; and Jessica Landau, Plaintiffs Below, Appellees v. Brett Barry WEINSTEIN; Mark Weinstein; Associated Hearing Instruments of King of Prussia, Inc.; Bossio Enterprises, Inc., DBA Mario's Pizza; Matthew Kiser; Sigma Phi Epsilon Building Association, Inc., a Corporation; and the West Virginia University Board of Trustees, a Corporation, Defendants Below, Appellees, Sigma Phi Epsilon, a National Fraternal Organization and Association, Defendant Below, Appellant. William E. WEHNER, Jr., Administrator of the Estate of Jennifer Wehner; Nicole Fisher; and Jessica Landau, Plaintiffs Below, Appellees, v. Brett Barry WEINSTEIN; Mark Weinstein; Associated Hearing Instruments of King of Prussia, Inc.; Matthew Kiser; Sigma Phi Epsilon Building Association, Inc., a Corporation; Sigma Phi Epsilon, a
• Court: West Virginia Supreme Court

Page 27

444 S.E.2d 27

191 W.Va. 149, 91 Ed. Law Rep. 695

William E. WEHNER, Jr., Administrator of the Estate of

Jennifer Wehner; Nicole Fisher; and Jessica

Landau, Plaintiffs Below, Appellees v. Brett Barry WEINSTEIN; Mark Weinstein; Associated Hearing

Instruments of King of Prussia, Inc.; Bossio Enterprises,

Inc., DBA Mario's Pizza; Sigma Phi Epsilon, a National

Fraternal Organization and Association; Sigma Phi Epsilon

Building Association, Inc., a Corporation; and the West

Virginia University Board of Trustees, a Corporation,

Defendants Below, Appellees,

Matthew Kiser, Defendant Below, Appellant.

William E. WEHNER, Jr., Administrator of the Estate of

Jennifer Wehner; Nicole Fisher; and Jessica

Landau, Plaintiffs Below, Appellees v. Brett Barry WEINSTEIN; Mark Weinstein; Associated Hearing

Instruments of King of Prussia, Inc.; Bossio Enterprises,

Inc., DBA Mario's Pizza; Matthew Kiser; Sigma Phi Epsilon,

a National Fraternal Organization and Association; and the

West Virginia University Board of Trustees, a Corporation,

Defendants Below, Appellees,

Sigma Phi Epsilon Building Association, Inc., a Corporation,

Defendant Below, Appellant.

William E. WEHNER, Jr., Administrator of the Estate of

Jennifer Wehner; Nicole Fisher; and Jessica

Landau, Plaintiffs Below, Appellees v. Brett Barry WEINSTEIN; Mark Weinstein; Associated Hearing

Instruments of King of Prussia, Inc.; Bossio Enterprises,

Inc., DBA Mario's Pizza; Matthew Kiser; Sigma Phi Epsilon

Building Association, Inc., a Corporation; and the West

Virginia University Board of Trustees, a Corporation,

Defendants Below, Appellees,

Sigma Phi Epsilon, a National Fraternal Organization and

Association, Defendant Below, Appellant.

William E. WEHNER, Jr., Administrator of the Estate of

Jennifer Wehner; Nicole Fisher; and Jessica

Landau, Plaintiffs Below, Appellees, v. Brett Barry WEINSTEIN; Mark Weinstein; Associated Hearing

Instruments of King of Prussia, Inc.; Matthew Kiser; Sigma

Phi Epsilon Building Association, Inc., a Corporation;

Sigma Phi Epsilon, a National Fraternal Organization and

Association; and the West Virginia University Board of

Trustees, a Corporation, Defendants Below, Appellees,

Bossio Enterprises, Inc., dba Mario's Pizza, Defendant

Below, Appellant.

Nos. 21911 to 21914.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 25, 1994.

Decided April 20, 1994.

Syllabus by the Court

1. " ' "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).' Syllabus Point 4, Haddox v. Suburban Lanes, Inc., 176 W.Va. 744, 349 S.E.2d 910 (1986)." Syllabus Point 11, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990).

2. " ' "Questions of negligence, due care, proximate cause and concurrent negligence present issues of fact for jury determination when the evidence pertaining to such issues is conflicting or where the facts, even though undisputed, are such that reasonable men may draw different conclusions from them." Syl. pt. 1, Ratlief v. Yokum, , 280 S.E.2d 584 (W.Va.1981), quoting, syl. pt. 5, Hatten v. Mason Realty Co., 148 W.Va. 380, 135 S.E.2d 236 (1964).' Syllabus Point 6, McAllister v. Weirton Hosp. Co., 173 W.Va. 75, 312 S.E.2d 738 (1983)." Syllabus Point 17, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990).

3. " '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, 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).

4. Where an act or omission is negligent, it is not necessary to render it the proximate cause of injury that the person committing it could or might have foreseen the particular consequence or precise form of the injury, or the particular manner in which it occurred, or that it would occur to a particular person.

5. " 'Where separate and distinct negligent acts of two or more persons continue unbroken to the instant of an injury, contributing directly and immediately thereto and constituting the efficient cause thereof, such acts constitute the sole proximate cause of the injury.' Point 1, Syllabus, Brewer v. Appalachian Constructors, Inc., et al., 135 W.Va. 739 [65 S.E.2d 87 (1951), overruled on other grounds, Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978) ]." Syllabus Point 6, Frye v. McCrory Stores Corp., 144 W.Va. 123, 107 S.E.2d 378 (1959).

6. " ' "In a concurrent negligence case, the negligence of the defendant need not be the sole cause of the injury, it being sufficient that it was one of the efficient causes thereof, without which the injury would not have resulted; but it must appear that the negligence of the person sought to be charged was responsible for at least one of the causes resulting in the injury." Syllabus point 5, Long v. City of Weirton, , 214 S.E.2d 832 (1975).' Syllabus Point 6, Burdette v. Maust Coal & Coke Corp., 159 W.Va. 335, 222 S.E.2d 293 (1976)." Syllabus Point 2, Peak v. Ratliff, 185 W.Va. 548, 408 S.E.2d 300 (1991).

7. " 'In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.' Syllabus Point 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984)." Syllabus Point 3, Powell v. Wyoming Cablevision, Inc., 184 W.Va. 700, 403 S.E.2d 717 (1991).

8. " 'The burden is upon the plaintiff to establish a prima facie case of negligence against the defendant in order to warrant jury consideration but such showing may be made by circumstantial as well as direct evidence.' Point 2 Syllabus, Smith v. Edward M. Rude Carrier Corp., 151 W.Va. 322, 151 S.E.2d 738 (1966). [ (Emphasis added).]" Syllabus Point 2, Burgess v. Jefferson, 162 W.Va. 1, 245 S.E.2d 626 (1978).

9. " ' "When, upon the trial of a case, the evidence decidedly preponderates against the verdict of a jury or the finding of a trial court upon the evidence, this Court will, upon review, reverse the judgment; and, if the case was tried by the court in lieu of a jury, this Court will make such finding and render such judgment on the evidence as the trial court should have made and rendered." Syllabus Point 9, Bluefield Supply Co. v. Frankel's Appliances, Inc., 149 W.Va. 622, 142 S.E.2d 898 (1965).' Syllabus Point 5, Estate of Bayliss v. Lee, 173 W.Va. 299, 315 S.E.2d 406 (1984)." Syllabus Point 5, Starr v. State Farm Fire and Casualty Co., 188 W.Va. 313, 423 S.E.2d 922 (1992).

10. "In this jurisdiction there is a clear distinction between the proximate cause of an injury and the condition or occasion of the injury." Syllabus Point 4, Webb v. Sessler, 135 W.Va. 341, 63 S.E.2d 65 (1950).

11. "Not only has the Legislature liberalized the wrongful death recovery statute through the years, but this Court has adopted a liberal construction of the statute from our earliest cases." Syllabus Point 1, Bond v. City of Huntington, 166 W.Va. 581, 276 S.E.2d 539 (1981).

12. The language of W.Va.Code, 55-7-6(c)(1)(B)(i), that allows as part of the elements of damages in a wrongful death action compensation for reasonably expected loss of income of the decedent, does not require a deduction for estimated personal living expenses.

Marvin W. Masters, Paula L. Wilson, Masters & Taylor, Charleston, Thomas W. Pettit, Vinson, Meck, Pettit & Colburn Huntington, for appellees William E. Wehner, Jr., Adm'r, and Nicole Fisher.

Susan S. Brewer, Laurie L. Crytser, Steptoe & Johnson, Morgantown, for appellant Sigma Phi Epsilon.

Phillip C. Petty, Elisabeth H. Rose, Rose, Padden & Petty, Fairmont, for appellant Sigma Phi Epsilon Bldg. Ass'n, Inc.

James A. McKowen, Hunt, Lees, Farrell & Kessler, Charleston, for amicus curiae WV Trial Lawyers Ass'n.

Mark E. Gaydos, Wilson, Frame & Metheney, Morgantown, for appellee, Jessica Landau.

David J. Straface, Angotti & Straface, Morgantown, Avrum Levicoff, Douglas L. Price, Anstandig, Levicoff & McDyer, Pittsburgh, PA, for appellant, Bossio Enterprises, Inc., dba Mario's Pizza.

Richard W. Gallagher, Jeffrey A. Kimble, Robinson & McElwee, Clarksburg, P. Brennan Hart, Timothy R. Smith, Marshall, Dennehey, Warner, Coleman & Goggin, Pittsburgh, PA, for appellant Matthew Kiser.

MILLER, Justice:

These appeals are brought by the defendants in three civil actions that were consolidated for trial in the Circuit Court of Monongalia County. The plaintiffs are the administrator of the estate of Jennifer Wehner, who was killed when she was struck on a public sidewalk by a runaway pizza delivery car, and Nicole Fisher and Jessica Landau, who were injured in the same accident. The decedent and the two individual plaintiffs were students at West Virginia University. The jury returned verdicts against all the defendants ¹ and awarded $1,978,623 to the Wehner estate; $132,090.25 to Nicole Fisher; and $87,158.85 to Jessica Landau.

Brett Barry Weinstein, a defendant below and a member of the Sigma Phi Epsilon Fraternity (Fraternity), does not appeal the adverse jury verdict which found him to be 75 percent at fault. Shortly before the accident, Mr. Weinstein was at the Fraternity and was attempting to leave in his car, but...