Wheeling Park Comm'n v. Dattoli

• Decision Date: 02 June 2016
• Docket Number: No. 14–1332,14–1332
• Citation: 787 S.E.2d 546,237 W.Va. 275
• Parties: Wheeling Park Commission, Defendant Below, Petitioner, v. Joseph Dattoli and Kerry Dattoli, his wife, Plaintiffs Below, Respondents.
• Court: West Virginia Supreme Court

237 W.Va. 275

787 S.E.2d 546

Wheeling Park Commission, Defendant Below, Petitioner,

v.Joseph Dattoli and Kerry Dattoli, his wife, Plaintiffs Below, Respondents.

No. 14–1332

Supreme Court of Appeals of West Virginia.

Submitted: January 20, 2016

Filed: June 2, 2016

Thomas E. Buck, Esq., Bruce M. Clark, Esq., Bailey & Wyant PLLC, Wheeling, West Virginia, Attorneys for Petitioner.

Jacob M. Robinson, Esq., Brent E. Robinson, Esq., Robinson Law Offices, Ronald W. Zavolta, Esq., Zavolta Law Offices, Wheeling, West Virginia, Attorneys for Respondents.

Benjamin

, Justice:

Petitioner and defendant below, Wheeling Park Commission (the “Commission”), appeals the Circuit Court of Ohio County's denial of its motion for a judgment as a matter of law in a negligence action brought against the Commission by the respondents and plaintiffs below, Joseph Dattoli and Kerry Dattoli. The Commission also appeals the circuit court's December 3, 2014, order that awarded the Dattolis a new trial limited to the issue of damages for Joseph Dattoli's past pain and suffering. After considering the parties' arguments, the applicable law, and the appendix in this case, this Court finds that the circuit court erred in denying the Commission's motion for judgment as a matter of law.¹

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from an incident which occurred on September 1, 2007, at Oglebay Park Resort and Conference Center (“the Park”) in Ohio County. Joseph Dattoli and his wife, Kerry Dattoli, were attending activities at the Park when Mr. Dattoli leaned against a split rail fence on the park grounds. Prior to doing so, Mr. Dattoli glanced at the fence to ensure that the parts of the fence were attached. As Mr. Dattoli leaned against a post of the fence and put his hand on the top rail, the end of the top rail broke into several pieces causing Mr. Dattoli to fall down a hill and injure his shoulder. Consequently, the Dattolis brought a negligence claim against the Commission which maintains the Park.

The Dattolis adduced evidence at trial that Mr. Dattoli suffered a rotator cuff tear

that required surgical repair. There also was evidence that following surgery, Mr. Dattoli went through months of physical therapy and missed six months of work. Additional evidence was presented regarding the effect of Mr. Dattoli's injury on the respondents' marriage and finances.

Further, the Dattolis presented the testimony of the Commission's corporate designee, John Hargleroad, the Director of Operations at the Park since 1990. According to Mr. Hargleroad, the fence in question was installed at some point between the 1970s and the 1990s. In addition, Mr. Hargleroad testified that the Commission produced no records or documents in response to the Dattolis' request for repair and maintenance records regarding the fence. Additionally, in testifying regarding Defense Exhibit 17 which was several pieces of the broken fence, Mr. Hargleroad indicated it was his understanding that it was the piece of the fence that disengaged causing Mr. Dattoli's fall. Moreover, Mr. Hoagleroad testified that he understood that wood has a life expectancy. Finally, Mr. Hargleroad testified that the Park was in a better position to ensure that the fence was in a state of good repair than a guest of the Park.

At the close of the Dattolis' case, the Commission moved for judgment as a matter of law based on insufficient evidence of the Commission's duty with regard to maintenance of the fence and breach of that duty. The circuit court denied this motion, and the case was submitted to the jury. The Commission presented no witnesses in its case in chief. Subsequently, the jury returned a verdict in which it awarded the Dattolis $36,894.47 in past medical expenses and $19,000 in past lost wages. The jury awarded nothing for all other forms of damages including but not limited to past pain and suffering.

By order dated September 2, 2014, the circuit court entered judgment for the Dattolis based on the jury's verdict. Thereafter, the Dattolis filed a motion for a new trial arguing that the jury's verdict was insufficient. By order dated December 3, 2014, the circuit court granted the Dattolis a new trial only on the amount of damages for Mr. Dattoli's past pain and suffering. The Commission now challenges the circuit court's denial of its motion for judgment as a matter of law and the circuit court's order that granted the Dattolis a new trial only on the issue of damages.

II. STANDARD OF REVIEW

In this appeal, the Commission calls upon this Court to review the circuit court's denial of its pre-verdict motion for judgment as a matter of law pursuant to Rule 50(a) of the West Virginia Rules of Civil Procedure

. This Court applies “a de novo standard of review to the ... denial of a pre- verdict ... motion for judgment as a matter of law.” Gillingham v. Stephenson , 209 W.Va. 741, 745, 551 S.E.2d 663, 667 (2001)

. We also have indicated that a motion for “judgment as a matter of law should be granted at the close of the evidence when, after considering the evidence in the light most favorable to the nonmovant, only one reasonable verdict is possible.” Waddy v. Riggleman , 216 W.Va. 250, 255, 606 S.E.2d 222, 227 (2004), quoting Yates v. University of West Virginia Bd. of Trs. , 209 W.Va. 487, 493, 549 S.E.2d 681, 687 (2001). In addition, “[u]pon a motion for [pre-verdict judgment as a matter of law], all reasonable doubts and inferences should be resolved in favor of the party against whom the verdict is asked to be directed.” Syl. pt. 5, Wager v. Sine , 157 W.Va. 391, 201 S.E.2d 260 (1973). It has been explained that

in reviewing a motion for judgment as a matter of law, a court should (1) resolve direct factual conflicts in favor of the nonmovant, (2) assume as true all facts supporting the nonmovant which the evidence tended to prove, (3) give the nonmovant the benefit of all reasonable inferences, and (4) deny the motion if the evidence so viewed would allow reasonable jurors to differ as to the conclusions that could be drawn.

Franklin D. Cleckley, Robin J. Davis, & Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 50(a)(1), at 1108 (4th ed. 2012) (footnote omitted). Nevertheless, “[w]hen the plaintiff's evidence, considered in the light most favorable to him, fails to establish a prima facie right of recovery, the trial court should direct a verdict in favor of the defendant.” Syl. pt. 3, Roberts v. Gale , 149 W.Va. 166, 139 S.E.2d 272 (1964)

. With these standards to guide us, we turn to the issues presented on appeal.

III. ANALYSIS

In its first assignment of error, the Commission asserts that the circuit court erred in denying its pre-verdict motion for judgment as a matter of law because the Dattolis failed to present prima facie evidence of duty and a breach of duty in order to have the issue of liability submitted to the jury under our negligence law. The Commission explains that the Dattolis presented two theories of negligence below. The first theory dealt with the maintenance of the fence that broke and injured Mr. Dattoli. The second theory of negligence was that the Commission did not provide adequate seating in the area surrounding the site of the subject accident. As a result, Mr. Dattoli leaned against the fence which subsequently broke.

Regarding the Dattolis' allegation of negligence in maintaining the fence, the Commission contends that the Dattolis failed to adduce any evidence whatsoever of what action a reasonable park commission should take in order to maintain a split rail fence. According to the Commission, the Dattolis presented no evidence of what the Commission should have done differently in maintaining the subject fence. In other words, avers the Commission, no witness testified as to how the Commission's maintenance of the fence was improper or insufficient or what alternative maintenance should have been undertaken to ensure that the fence would not break.²

The Dattolis counter that they presented sufficient evidence that the Commission owed them a duty regarding the maintenance of the fence, and that the Commission breached that duty. According to the Dattolis, the Commission's duty regarding the maintenance of the fence is set forth in W. Va. Code § 29–12A–4(c)(2)–(4) (1986)

, and they contend that they clearly established at trial that the Commission breached this duty. The Dattolis further disagree with the Commission's claim that they presented no evidence to support a finding of liability. The Dattolis point to evidence that Mr. Dattoli simply leaned against the fence post, and a portion of the fence immediately broke causing Mr. Dattoli to fall. Moreover, the Dattolis assert that the testimony of Mr. Hargleroad is more than sufficient for a finding of liability against the Commission. The Dattolis conclude that Mr. Hargleroad's testimony, taken as a whole, makes it clear that the Commission breached its duty to the Dattolis by failing to keep the fence in good repair.

This Court finds that the Dattolis failed to present a prima facie case of negligence and, as a result, the circuit court erred in denying the Commission's motion for judgment as a matter of law. Our laws governing negligence claims are well-settled. This Court has explained that to prevail in a negligence suit “it is incumbent upon the plaintiff to establish, by a preponderance of the testimony, three propositions: (1) A duty which the defendant owes him; (2) A negligent breach of that duty; (3) injuries received thereby, resulting proximately from the breach of that duty.” Webb v. Brown & Williamson Tobacco Co. , 121 W.Va. 115, 118, 2 S.E.2d 898, 899 (1939)

(citations omitted). We held in syllabus point 1 of Parsley v. General Motors Acceptance Corp. , 167 W.Va. 866, 280 S.E.2d 703 (1981), “In order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission in violation of a...