David R. Rexroad
Buckhannon, West Virginia
Counsel for Appellants
James M. Wilson
Laurie L. Crytser
Steptoe & Johnson
Clarksburg, West Virginia
Counsel for Appellees
This Opinion was delivered PER CURIAM.
"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).
This is an appeal by Laura B. Weese and Ralph Weese from a
September 13, 1991, final order of the Circuit Court of Upshur
County granting summary judgment in favor of the Appellees, Daryl
Eugene Muir and the Upshur County Board of Education. The
Appellants contend that summary judgment was inappropriate. We
agree, reverse the decision of the Circuit Court of Upshur County,
and remand this matter for trial by jury for resolution.
On January 12, 1990, the Appellants were involved in an auto
accident in which their car was struck by a school bus owned by the
Upshur County Board of Education and driven by Daryl Eugene Muir.
The bus, transporting students home from school early due to an
unexpected snow storm, was travelling down a gradual grade when it
lost control and slid across the road into the Appellants' vehicle.
The Appellants' vehicle was pushed into a ditch on the Appellants'
side of the road. Although neither Appellant was injured in that
initial collision, Mrs. Weese fell and broke her leg as she was
crossing the road after the accident. Mrs. Weese had waited
approximately twenty minutes for the police to arrive and had then
been assisted out of the vehicle by a police officer. Mrs. Weese
apparently succeeded in exiting the vehicle and climbing out of the
ditch but then fell as she attempted to cross the icy roadway.
The Appellants filed a civil action in the Circuit Court of Upshur County alleging that Daryl Muir operated the bus in a careless, reckless, negligent manner and caused injury to Mrs. Weese. On August 28, 1991, the Appellees filed a motion for summary judgment contending (1) that Daryl Eugene Muir, as an employee of a political subdivision, was immune from liability pursuant to West Virginia Code § 29-12A-5(b) (1992); (2) that the Upshur County Board of Education was immune from liability for losses or claims resulting from snow or icy conditions, pursuant to West Virginia Code § 29-12A-5(a)(6) (1992); and (3) that the Appellants had failed to allege facts sufficient to establish that the actions of Daryl Eugene Muir were the proximate cause of Mrs. Weese's injuries.
After a September 13, 1991, hearing, the lower court granted
summary judgment against the Appellants on the ground that there
was no causal connection between any negligence and the injury.
Specifically, the lower court held as follows:
In order for the Plaintiffs to recover, the
negligence of the Defendants must be the proximate
cause of the Plaintiffs['] injury and damages. The
Defendants [sic] negligence did cause the
collision, but there were no injuries as a result
of this collision. More than 15 to 20 minutes had
passed before Mrs. Weese exited the automobile with
the assistance of her husband and the police
officer. She fell on the icy road and received the
injuries complained of. To establish proximate
cause, the Plaintiffs must show a causal connection
between the injuries complained of and the
negligence of the Defendants. Based upon the
pleadings, interrogatories, and depositions in this
case, this Court is of the opinion that there is no
causal connection between the injuries complained
of and the negligence of the Defendants.
The Appellants contend that the lower court erred by granting the motion for summary judgment and further in finding that there was no causal connection between Mrs. Weese's injuries and the negligence of the Appellees. The Appellants further contend that the lower court erred in granting a motion for summary judgment on questions of negligence and proximate cause. Since the lower court did not base its order of summary judgment upon the immunity from liability issues, those issues are not argued on appeal. Therefore, we limit ourselves to the correctness of the summary judgment on the grounds upon which it was granted.
With regard to the appropriateness of summary judgment, we are
guided by our previous discussions of summary judgment and its
proper usage. We have explained that negligence cases are not
typically well-suited for disposition by summary judgment. In
syllabus point 5 of Hatten v. Mason Realty Co., 148 W. Va. 380, 135
S.E.2d 236 (1964), for instance, we stated the following:
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.
The Appellants contend that the absence of proximate cause
creates justification for the summary judgment. We are not
convinced, however, that proximate cause cannot be established.
While some factual scenarios may be so devoid of evidence of
proximate cause to warrant removal of that issue from the jury, we
do not view this case as such an example. The Appellants urge us
to accept the proposition that but for the negligence of the
Appellees, Mrs. Weese would not have had to walk on the icy roadway
and would consequently not have broken her leg. The Appellees
contend that the icy conditions constituted an intervening cause of
the injury and that the causal chain which was initiated by the
original accident was interrupted and severed by that intervening
In Evans v. Farmer, 148 W. Va. 142, 133 S.E.2d 710 (1963), we
encountered a situation in which two successive automobile
collisions had occurred. The first occurred between the automobile
in which the plaintiff was a passenger and an admittedly negligent
first defendant. The second accident occurred when a second
defendant's automobile struck the automobile in which the plaintiff
had been riding, causing it to strike the plaintiff herself. The
lower court directed a verdict in favor of the first defendant,
relieving him of liability. We held that whether the first
motorist's negligent conduct was the proximate cause of the
plaintiff's injuries was a jury question. Id. at 157, 133 S.E.2d
In examining that issue, we explained the following:
It must be kept in mind that the principal concern in this appeal is not the determination of whether the negligence of Farmer was the proximate cause or a proximate cause of the injuries suffered by the plaintiff but, rather, whether under the facts of this case the question of his negligence should have been submitted to the jury for a finding of the proximate cause of said injuries.
Id. at 151-52, 133 S.E.2d at 716. That concern is equally
applicable in the present case, and we must therefore refrain from
making a final determination of the proximate cause issue. We, as
in Evans, are limited to a decision regarding whether these
negligence and proximate causation issues should have been
submitted to a jury.
Evans is also instructive on the issue, as raised by the
Appellees, concerning the time interval between the initial
collision and the fall which injured the plaintiff. In discussing
the issue of proximate cause, we stated the following:
If the first act of negligence sets off a
chain of events or creates a situation
ultimately resulting in injury, such
negligence may very well constitute the
proximate cause or a proximate cause of said
injury. . . . Negligence which has produced a
static condition, even though not simultaneous
with the negligence of another defendant, may
nevertheless be the proximate cause of the
injury. Whether the negligent acts occur in
point of time is a question for the jury to
Id. at 154, 133 S.E.2d at 717. Thus, the fact that fifteen to twenty minutes elapsed between the initial accident and the injury does not necessarily reduce or nullify the causal connection between the Appellees' negligence and Mrs. Weese's injuries because a finder of fact could certainly conclude that, but for the Appellee's negligence, the Appellant would not have found herself in an icy ditch.
While we are not prepared to state unequivocally that
proximate cause should be found, we do hold that such a
determination is properly within the province of a jury
appropriately instructed by the trial court. Enough evidence
supporting the Appellants' contentions of proximate cause certainly
exists to warrant such determination, and accordingly, the removal
of that issue from the province of the jury was error.
Based upon the foregoing, we reverse the determination of the
Circuit Court of Upshur County and remand this matter for
submission to the jury.