Yeager v. Morgan
| Decision Date | 25 March 1993 |
| Docket Number | No. 20659,20659 |
| Citation | 189 W.Va. 174,429 S.E.2d 61 |
| Court | West Virginia Supreme Court |
| Parties | , 82 Ed. Law Rep. 686, 23 A.L.R.5th 849 Denise Rene YEAGER, Plaintiff Below, Appellant, v. James Gregory MORGAN, Defendant Below, and The Board of Education of the County of Harrison, a West Virginia Corporation, Defendant Below, Appellee. |
Syllabus by the Court
1. " ' ' Syl. pt. 1, Jividen v. Legg, 161 W.Va. 769, 245 S.E.2d 835 (1978).
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. 5, Hatten v. Mason Realty Co., 148 W.Va. 380, 135 S.E.2d 236 (1964).
Scot S. Dieringer, Clarksburg, for appellant.
James A. Varner, Catherine D. Munster, Clarksburg, for appellee.
This action is before this Court upon an appeal from the February 20, 1991, order of the Circuit Court of Harrison County, West Virginia. The circuit court granted the appellee's, the Board of Education of Harrison County, motion for directed verdict and dismissed any claim the appellant, Denise Rene Yeager, had against the appellee. On appeal, the appellant asks that this Court reverse the ruling of the circuit court and grant the appellant a new trial. This Court has before it the petition for appeal, all matters of record and the briefs of counsel. For the reasons stated below, the judgment of the circuit court is reversed and remanded.
On the afternoon of March 26, 1979, Billie Allen, a bus driver for the appellee, was transporting children from school to their respective destinations. The appellant, then 14 years old, was a passenger on Ms. Allen's bus. Upon arriving at the appellant's home, Ms. Allen turned on the school bus safety lights, and all traffic stopped. Ms. Allen then discharged the appellant at her driveway in front of her home. The appellant exited the bus and ran down beside the bus, along the right-hand side, to the rear of the bus. She then attempted to cross the road to check her mail box, which she had done on a number of occasions. It was when the appellant was running across the road that she was struck by the appellee, James Gregory Morgan, in the opposite lane of traffic from which the school bus was traveling. Mr. Morgan was driving a small sports car and collided with the appellant causing her severe injuries. The safety lights on the bus were turned off when the accident occurred. However, it is disputed by the parties as to how far the bus traveled prior to the occurrence of the accident.
In March of 1985, the appellant filed a civil action in the Circuit Court of Harrison County, West Virginia, against James Gregory Morgan and the Harrison County Board of Education. Subsequently, Mr. Morgan settled with the appellant and was dismissed from the case.
The appellee, the Board of Education of Harrison County, moved for summary judgment against the appellant. On August 29, 1989, the trial judge denied the appellee's motion.
Subsequently, the trial commenced on February 3, 1991. The appellant called the following people as witnesses in her case-in-chief: Dr. Kent Thrush, an orthopedic surgeon, testified as to the extent of the appellant's injuries; Mr. Gerald Towns, a bus driver for the Clarksburg Transit Authority, testified as to how the accident occurred; Mr. George Dawson, the Director of School Transportation at the time of the accident, testified as to the procedures and policies of the Harrison County School Board regarding the discharge of students from school buses; and, Denise (Yeager) Minear, 1 the appellant, and Ms. Eileen Wagner, the appellant's mother, also testified as to the events and other information pertinent to the accident. It should be noted that due to the severity of her injuries, the appellant is unable to remember the actual turn of events that occurred surrounding the accident.
At the close of the appellant's case, the appellee moved for a directed verdict on the grounds that the appellant failed to present evidence that the appellee had breached any duty owed to the appellant, and thus, the proximate cause of the appellant's injuries was her own negligence. On February 20, 1991, the circuit court granted the appellee's motion for a directed verdict and dismissed any claim the appellant had against the appellee.
It is from the order of February 20, 1991, that the appellant appeals to this Court.
The primary issue on appeal is whether the circuit court erred in directing a verdict against the appellant and in favor of the appellee. The appellant maintains that there was sufficient evidence presented regarding the question of the appellee's liability, and therefore, contends that the circuit court's decision constitutes reversible error.
This Court stated in syllabus point 1 of Hinkle v. Martin, 163 W.Va. 482, 256 S.E.2d 768 (1979): This Court also recognized in Totten v. Adongay, 175 W.Va. 634, 635, 337 S.E.2d 2, 3 (1985): "However, it is equally established that a claim should remain within the hands of a jury unless manifest insufficiencies in the evidence compel otherwise."
Accordingly, it is well recognized in this jurisdiction that:
' ' Point 1, Syllabus, Jenkins v. Chatterton, 143 W.Va. 250, 100 S.E.2d 808 (1957).
Syl. pt. 1, Jividen v. Legg, 161 W.Va. 769, 245 S.E.2d 835 (1978). With these standards in mind, we turn to whether the plaintiff's evidence, taken in the light most favorable, established a prima facie case.
"In an action founded on negligence the plaintiff must show affirmatively the defendant's failure to perform a duty owed to the former proximately resulting in injury[.]" Syl. pt. 1, in part, Keirn v. McLaughlin, 121 W.Va. 30, 1 S.E.2d 176 (1939). See also syl. pt. 1, Matthews v. Cumberland & Allegheny Gas Co., 138 W.Va. 639, 77 S.E.2d 180 (1953).
In the case at hand, the appellant's burden is two-fold. First, the appellant must prove that the appellee owed the appellant a duty when transporting her to and from school. W.Va.Code, 18-5-13(6)(a) [1990] provides that "[t]he boards, subject to the provisions of this chapter and the rules and regulations of the state board, shall have authority: (a) to provide at public expense adequate means of transportation ... for all children of school age[.]" Furthermore, W.Va.Code, 18A-5-1 [1983] provides, in part, that:
The teacher shall stand in the place of the parent or guardian in exercising authority over the school, and shall have control of all pupils enrolled in the school from the time they reach the school until they have returned to their respective homes, except that where transportation of pupils is provided, the driver in charge of the school bus or other mode of transportation shall exercise such authority and control over the children while they are in transit to and from the school.
According to the Code, the appellee had the responsibility to provide transportation for the appellant, and the bus driver had authority and control over the appellant when transporting the appellant from school to her home. Furthermore, it has been noted in the case law that "children, wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution toward them, must calculate upon this, and take precaution accordingly." Deputy v. Kimmell, 73 W.Va. 595, 603-04, 80 S.E. 919, 923 (1914).
At trial, the appellant presented evidence on the procedures and policies of the Harrison County School Board regarding the discharge of students from school buses by eliciting testimony from Mr. George Dawson, Director of School Transportation for the Harrison County Schools at the time of the accident. Mr. Dawson testified that he trained Billie Allen and other bus drivers at the time in question. When Mr. Dawson was questioned by counsel regarding the standards and policies concerning the transportation of students, the following exchange took place:
Q. Okay, was it not a policy of the state of West Virginia and also the Harrison County School Board that bus drivers were trained that when they discharge a pupil or a student from a bus that before they turn off their warning lights and proceeded to move forward that they insure that the child arrived at a safe place?
A. Yes, that's right. When--if they are discharging a passenger, why they pull in and they open the door, they let the children out. They check their mirrors the one on the right, the one overhead and the one on the left and as their obligation is to get out from where they are sitting without hitting any of the students that they let out.
....
Q. Okay.
A....
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