Larry E. Losch
William J. Hanna
William A. McCourt, Jr. Robert P. Lorea
Summersville, West Virginia Flaherty, Sensabaugh & Bonasso
Attorneys for Appellant Charleston, West Virginia
Attorneys for Appellee
Elk Mountain Outfitters, Inc.
Rob J. Aliff
Jackson & Kelly
Charleston, West Virginia
Attorney for Appellee
Robert M. Steptoe, Jr.
Steptoe & Johnson
Clarksburg, West Virginia
Attorneys for Appellee
Adidas American, Inc.
M. Hance Price
Steptoe & Johnson
Martinsburg, West Virginia
Attorney for Adidas American, Inc.
The Opinion of the Court was delivered PER CURIAM.
1. A circuit court's entry of summary judgment is reviewed de novo.
Syllabus point 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
2. Summary judgment is appropriate where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, such as where the
nonmoving party has failed to make a sufficient showing on an essential element of the case
that it has the burden to prove. Syllabus point 4, Painter v. Peavy, 192 W. Va. 189, 451
S.E.2d 755 (1994).
This appeal was filed by Daniel Mrotek, appellant/plaintiff below (hereinafter referred to as Mr. Mrotek), from an order of the Circuit Court of Pocahontas County granting summary judgment in favor of Coal River Canoe, Ltd., d/b/a Elk Mountain Outfitters, Inc. (hereinafter referred to as EMO), appellee/defendant below. Mr. Mrotek filed an action against EMO alleging that he sustained injuries as a result of his use of an allegedly defective ski that he rented from EMO. The circuit court granted summary judgment on two alternative grounds. The circuit court found that Mr. Mrotek did not produce any evidence of negligence on the part of EMO. Alternatively, the court found that Mr. Mrotek signed a valid release of his right to sue EMO for any injury caused by its equipment. In this appeal, Mr. Mrotek contends that genuine issues of material fact are in dispute as to whether EMO supplied him with a defective ski and that the release from liability he signed was unenforceable. Upon review of the briefs and record in this case, we affirm.
Shortly after renting the ski equipment, Mr. Mrotek and his companions ventured off to engage in night skiing. During the first run of the evening Mr. Mrotek fell and apparently hit his head. A skiing companion, Herman Serpa, saw Mr. Mrotek fall and came to his aid. Mr. Serpa states that he noticed that a toe binding on Mr. Mrotek's right ski was missing. Mr. Serpa states that he found the toe binding with three rusty screws protruding from it. The toe binding was allegedly thrown away by either Mr. Serpa or Mr. Mrotek. However, neither man appears to have recalled who threw away the toe binding.
Mr. Serpa allegedly returned the defective ski and received a replacement. Mr. Mrotek did not report the incident to EMO even though, as a result of the fall, he allegedly became very dizzy, sick at his stomach with vomiting along with severe headaches.
Upon returning to Florida, Mr. Mrotek sought medical treatment for blurred
vision, nausea and exhaustion. A medical examination revealed Mr. Mrotek suffered from
Papilledema, i.e., fluid on the brain caused by a damaged ventricle. On February 16, 1998,
Mr. Mrotek underwent surgery to place a shunt in his skull to drain the excess fluid. Due to
complications, Mr. Mrotek eventually underwent three more surgeries. Although Mr. Mrotek
has recovered from the problems caused by the excess fluid, he must permanently have a
small tube running underneath his skin from his brain down his neck and into his heart to
maintain the pressure and stability inside his skull.
Mr. Mrotek filed this action against EMO in 1999,
(See footnote 1)
alleging EMO supplied him
with a defective ski which caused him to fall and sustain a head injury.
(See footnote 2)
After a period of
discovery, EMO moved for summary judgment. By order entered June 17, 2002, the circuit
court granted summary judgment in favor of EMO.
(See footnote 3)
This appeal is a result of the circuit
The primary evidence relied upon by Mr. Mrotek was the deposition testimony of Mr. Serpa. Mr. Mrotek presented the deposition testimony of Mr. Serpa to show that the toe binding on the right ski came loose. Mr. Serpa testified that he found a piece of the binding with three rusty screws protruding from it. There was also testimony by Mr. Serpa that he returned the defective ski to EMO and was given a replacement. There was also evidence to show that the skis rented by Mr. Mrotek were not tested for weakness by EMO prior to 1997-98 ski season.
EMO took the position that nothing happened to the skis that were rented to Mr. Mrotek. According to EMO's records the skis rented to Mr. Mrotek were returned in good condition and were rented out again the day after Mr. Mrotek returned them. EMO presented an affidavit from its management employee, Charlie McDaniels. Mr. McDaniels indicated that the bindings used on the skis rented by EMO were made of aluminum or were galvanized and would not rust.
In looking at the evidence in the light most favorable to Mr. Mrotek, we do not
find a material issue of fact in dispute. EMO presented evidence to establish that no defect
existed in the skis rented to Mr. Mrotek. In fact, there was evidence that Mr. Mrotek
examined the skis before renting them and found nothing wrong. EMO also established that
they had no record to show that Mr. Serpa or Mr. Mrotek turned in a broken ski. Mr. Mrotek
presented bare testimonial evidence to show that a toe binding broke loose from the right ski.
No actual evidence was introduced showing the defective ski or the parts that were allegedly
broken from the ski. See Williams v. Precision Coil, Inc., 194 W. Va. 52, 61 n.14, 459
S.E.2d 329, 338 n.14 (1995) ([S]elf-serving assertions without factual support in the record
will not defeat a motion for summary judgment.). The only reasonable conclusion that
could be reached from all the evidence is that Mr. Mrotek fell while skiing. The mere fact
of falling while skiing is not actionable negligence. See Painter v. Peavy, 192 W. Va. 189,
192-93, 451 S.E.2d 755, 758-59 (1994) ([T]he party opposing summary judgment must
satisfy the burden of proof by offering more than a mere 'scintilla of evidence,' and must
produce evidence sufficient for a reasonable jury to find in a nonmoving party's favor.); Syl.
pt.1, in part, 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[.]). Consequently,
summary judgment was appropriate under the facts of this case.
(See footnote 5)