John K. Fitch
Columbus, Ohio Sonja L. Carpenter
Brett J. Preston Holly G. Light
Hendrickson & Long Offutt, Fisher & Nord
Charleston, West Virginia Huntington, West Virginia
Attorneys for Appellant Attorneys for Appellees
The Opinion of the Court was delivered PER CURIAM.
motion for summary judgment should be granted only when it is clear that there
is no genuine issue of fact to be tried and inquiry concerning the facts is
not desirable to clarify the application of the law. Syllabus point
3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York,
148 W. Va. 160, 133 S.E.2d 770 (1963).
ultimate test of the existence of a duty to use care is found in the foreseeability
that harm may result if it is not exercised. The test is, would the ordinary
man in the defendant's position, knowing what he knew or should have known,
anticipate that harm of the general nature of that suffered was likely to
result? Syllabus point 3, Sewell v. Gregory, 179 W. Va. 585,
371 S.E.2d 82 (1988).
Steven L. Story, Guardian of the Estate of Thomas Wiles, a minor, appellant/plaintiff below (hereinafter Story), appeals the circuit court's judgment order. The Circuit Court of Cabell County granted summary judgment in favor of the Estate of Eleanor A. Worden, The Twentieth Street Bank, Harold Thompson, and Loretta Allen, appellees/defendants below. (See footnote 1) In this appeal, Story contends that genuine issues of material fact were in dispute and therefore summary judgment should not have been granted. Based upon the parties' arguments on appeal, the record designated for appellate review, and the pertinent authorities, we reverse the summary judgment decision of the Circuit Court of Cabell County.
Shortly after Ms. Allen
rented the property, her adult son, Harold Thompson, moved in with her. Thomas
Wiles (hereinafter Thomas) is the son of the woman Mr. Thompson
was dating at the time of the events underlying this suit. During the summer
of 1995, Thomas, his mother and his sibling lived with Mr. Thompson at Ms.
Allen's house. On June 25, 1995, Thomas attempted to open a glass storm door
at the front of the house by pushing on it with his hands.
(See footnote 4) Thomas' hands went through
the glass door. He sustained serious injuries.
In May of 1997, Story filed
the instant lawsuit against Twentieth Street alleging negligence in failing
to maintain the house in a reasonably safe condition.
(See footnote 5) In August of 1998, after a period of discovery, Twentieth Street moved for
summary judgment. On May 5, 1999, the circuit court granted summary judgment
to Twentieth Street on the grounds that the Bank breached no duty to Story
as a licensee on the premises. Story appealed the summary judgment ruling
to this Court. On November 18, 1999, this Court entered an order accepting
the petition for appeal and summarily remanding the case to the circuit court
for reconsideration in light of the Court's decision in Mallet v. Pickens,
206 W. Va. 145, 522 S.E.2d 436 (1999) (abolishing the distinction between
the common law duties owed by landowners to licensees and invitees).
After the case was remanded,
Twentieth Street again moved for summary judgment. The circuit court again
granted Twentieth Street 's motion. It is from this summary judgment decision
that Story now appeals.
Story presented evidence
to show that the hinges on the storm door were defective, so as to cause the
door to remain slightly open. There was also evidence that a protective guard
was removed from the storm door. Based upon this evidence, Story contended
that the storm door was defective.
(See footnote 8) We interpret Story's contention
to mean that if the storm door routinely locked itself when closed, then Thomas
would not have pushed on the door with the belief that it was open.
(See footnote 9)
In addition to this evidence, Story elicited deposition testimony from the representative of Twentieth Street, James
Karnes, who was responsible for managing the house. Mr. Karnes had visited
the house prior to it being rented. According to the deposition testimony
of Mr. Karnes, Twentieth Street did nothing to determine the house's condition
prior to renting it. Mr. Karnes also stated that: [b]ased on my visits
to the house, what condition it was in. It was fairly dilapidated.
Twentieth Street argues
that there is no material issue in dispute as to whether it knew or should
have known that the glass storm door was in a defective condition that could
cause injury. Twentieth Street asserts that the only way it could have known
that the storm door was defective was if the tenant, defendant Loretta Allen,
had so advised. Twentieth Street states that Ms. Allen never advised any Bank
personnel of a need to repair the storm door.
It is clear that Story has
presented sufficient evidence as to what Twentieth Street knew or should have
known, in order to make the issue disputable and therefore a jury question.
Based upon the rental agreement, Twentieth Street had the responsibility for
maintaining the house in a safe condition. Mr. Karnes admitted visiting the
house and finding it in a dilapidated condition. Even so, Mr. Karnes admitted that
Twentieth Street did nothing to determine what specific aspects of the house
posed safety hazards that required repairs prior to its rental. This Court
has previously noted that in cases dealing with premises liability we
have generally adhered to the principle that liability results either from
control of the subject area or from a specific wrongful act. Durm
v. Heck's, Inc., 184 W. Va. 562, 565, 401 S.E.2d 908, 911 (1991) (citations
omitted). We also made clear in syllabus point 4 of Mallet, in part,
that landowners or possessors now owe any non-trespassing entrant a
duty of reasonable care under the circumstances.
Finally, Twentieth Street
contends that the accident occurred because Thomas became angry with his brother
and pushed through the storm door. This situation, according to Twentieth
Street, was not foreseeable. Therefore Twentieth Street cannot be held liable.
We are not persuaded by this argument. To make foreseeability a material issue
in dispute, Story was not required to present evidence showing that it was
reasonable to foresee a five year old boy becoming angry with his brother,
running to the storm door and pushing on the glass. Our cases have never required
such a fact specific showing to dispute foreseeability. This Court indicated
in syllabus point 3 of Sewell v. Gregory, 179 W. Va. 585, 371 S.E.2d
82 (1988), that:
The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. The test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?
(Emphasis added.) At the summary judgment stage Story was only required to present sufficient evidence to suggest that circumstances existed which showed it was reasonable for Twentieth Street to have been aware of the need to repair the storm door. Story fulfilled his burden. Summary judgment was therefore improper.
determining whether a defendant in a premises liability case met his or her
burden of reasonable care under the circumstances to all non-trespassing entrants,
the trier of fact must consider (1) the foreseeability that an injury might occur;
(2) the severity of injury; (3) the time, manner and circumstances under which
the injured party entered the premises; (4) the normal or expected use made
of the premises; and (5) the magnitude of the burden placed upon the defendant
to guard against injury.
In other words, Thomas should not have pushed on the storm door regardless of its condition. This defense, in and of itself, precluded summary judgment because it injects a material issue of fact regarding the reasonably expected manner of opening the door.