Andrew G. Fusco
Rodney L. Bean
William J. Leon Beth A. Raffle
Jeffrey A. Ray Steptoe & Johnson
The Fusco Legal Group Morgantown, West Virginia
Morgantown, West Virginia Attorneys for Appellee
Attorneys for Appellants
The Opinion of the Court was delivered PER CURIAM.
JUDGE TOD J. KAUFMAN, sitting by temporary assignment.
JUSTICE McGRAW dissents.
JUDGE TOD J. KAUFMAN dissents and reserves the right to file a dissenting opinion.
JUSTICE SCOTT did not participate.
2. 'A judgment will not be reversed for any error in the record introduced
by or invited by the party seeking reversal.' Syllabus point 21, State v. Riley, 151 W. Va.
364, 151 S.E.2d 308 (1966). Syllabus point 4, State v. Johnson, 197 W. Va. 575, 476
S.E.2d 522 (1996).
3. 'The question of when plaintiff knows or in the exercise of reasonable
diligence has reason to know of [an injury] is for the jury.' Syllabus point 4, Hill v. Clarke,
161 W. Va. 258, 241 S.E.2d 572 (1978). Syllabus point 5, Gaither v. City Hosp., Inc., 199
W. Va. 706, 487 S.E.2d 901 (1997).
This is an appeal by Patrick and Sandra Rundle, appellants/plaintiffs, (hereinafter referred to as the Rundles), from an adverse jury verdict rendered in the Circuit Court of Monongalia County. The Rundles brought this action against the City of Morgantown, appellee/defendant, (hereinafter referred to as Morgantown), to recover for damage to their property caused by water runoff.See footnote 1 1 The jury returned a verdict in favor of Morgantown. The Rundles have assigned error (1) to a jury instruction given by the trial judge, and (2) to a ruling by the trial judge that the Rundles could only recover for the two year period prior to the filing of the lawsuit. Having reviewed the record and considered the arguments, we affirm.
On October 20, 1995, the Rundles instituted the present action against
Morgantown. The action was premised on the fact that Morgantown repaved the area around
the Rundles' building in 1983. The Rundles contend the repaving caused surface water
runoff to flow onto their building. The case was tried before a jury in August of 1998. The
jury returned a verdict for Morgantown, after finding the Rundles did not file their action
within the applicable statute of limitations period.
A verdict should not be disturbed based on the formulation of
the language of the jury instructions so long as the instructions
given as a whole are accurate and fair to both parties.
Syl. pt. 6, Tennant v. Marion Health Care Foundation, Inc., 194 W. Va. 97, 459 S.E.2d 374 (1995). Of course, our review of the legal propriety of the trial court's instructions is de novo. Skaggs v. Elk Run Coal Co., Inc., 198 W. Va. 51, 63, 479 S.E.2d 561, 573 (1996) (citation omitted). In syllabus point 4 of State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995) we observed:
A trial court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not misle[d] by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. A trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to a trial court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion.
With this standard in mind, we turn to the issues in this case.
Initially, the Rundles concede that they proffered the instruction to the trial
court. Assuming, without deciding, that the instruction was erroneous, our cases have made
clear that a party cannot benefit from invited error. This Court has held that '[a] judgment
will not be reversed for any error in the record introduced by or invited by the party seeking
reversal.' Syl. Pt. 21, State v. Riley, 151 W. Va. 364, 151 S.E.2d 308 (1966). Syl. Pt. 4,
State v. Johnson, 197 W. Va. 575, 476 S.E.2d 522 (1996). See also, Syl. Pt 1, Maples v.
West Virginia Department of Commerce, 197 W. Va. 318, 475 S.E.2d 410 (1996) (A litigant
may not silently acquiesce to an alleged error, or actively contribute to such error, and then
raise that error as a reason for reversal on appeal); Syl. Pt. 1, McElhinny v. Minor, 91 W.
Va. 755, 114 S.E. 147 (1922) (An appellant cannot complain of errors or irregularities of
the lower court, which were brought about by his own motion, and which he alone caused);
Comer v. Ritter Lumber Co., 59 W. Va. 688, 689, 53 S.E. 906, 907 (1906) (the party inviting
the error ... must accept its results).
In an effort to justify their proffered instruction, the Rundles contend that the
instruction was necessary because of the law of the case. That is, because the trial court
ruled that the statute of limitations issue would go to the jury, the Rundles contend they were
obligated to proffer the instruction. This argument is circuitous and illogical. The law of
the case doctrine does not obligate a party to give an erroneous instruction.
The Rundles next assert that no instruction on the statute of limitations should
have been given. Before this Court, the Rundles argue that the statute of limitations issue
was a question of law to be resolved by the trial judge. Therefore, any error in their proffered
instruction would not have occurred, but for the trial court's erroneous decision to send the
issue to the jury.
Morgantown correctly counters this argument on two grounds. First,
Morgantown points out that at the trial level the Rundles specifically argued that the statute
of limitations issue was for jury determination. In fact, the Rundles made such an argument
before the trial court in order to defeat Morgantown's motion for summary judgment.See footnote 4
Second, Morgantown argues that the statute of limitations issue involved disputed facts and
was therefore a proper matter for jury resolution.
Application of the statute of limitations is not a purely legal question when there is a dispute as to when the plaintiff knew or should have know of the injury. The rule in this State is that '[t]he question of when plaintiff knows or in the exercise of reasonable diligence has reason to know of [an injury] is for the jury.' Syl. Pt. 4, Hill v. Clarke, 161
W. Va. 258, 241 S.E.2d 572 (1978). Syl. Pt. 5, Gaither v. City Hosp., Inc., 199 W. Va.
706, 487 S.E.2d 901 (1997). The record in this case indicates that there was, in fact, a
dispute as to when the Rundles knew or should have known of the damage to their property
and Morgantown's role in causing the damage. The jury resolved the issue against the
Rundles. Since the Rundles only complain that the instruction should not have been given,
we need not determine whether the evidence supported the jury's finding. Therefore, we find
that because the Rundles proffered the instruction to the trial court they waived any error in
the giving of the instruction.See footnote 5