IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2007 Term
Plaintiff Below, Appellant
LITTLE GENERAL STORES, INC.
Defendant Below, Appellee
Appeal from the Circuit Court of Greenbrier County
The Honorable James J. Rowe, Judge
Civil Action No. 03-C-121-R
Submitted: September 19, 2007
Filed: November 8, 2007
Douglas H. Arbuckle
Shawn C. Gillispie
Lewisburg, West Virginia
MacCorkle, Lavender, Casey & Sweeney PLLC
Attorney for Appellant Charleston, West Virginia
Attorney for Appellee
The opinion of the Court was delivered PER CURIAM.
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).
3. If the moving party makes a properly supported motion for summary
judgment and can show by affirmative evidence that there is no genuine issue of material
fact, the burden of production shifts to the nonmoving party who must either (1) rehabilitate
the evidence attacked by the nonmoving party, (2) produce additional evidence showing the
existence of a genuine issue for trial, or (3) submit an affidavit explaining why further
discovery is necessary as provided in Rule 56(f) of the West Virginia Rules of Civil
Procedure. Syllabus Point 3, Williams v. Precision Coil, Inc.
, 194 W. Va. 52, 459 S.E.2d
Esther Gibson (hereinafter, Gibson), Appellant herein, appeals an order of
the Circuit Court of Greenbrier County, West Virginia, which granted summary judgment
in favor of Little General Store, Inc. (hereinafter, Little General), defendant below and
Appellee herein. In her complaint below, Gibson alleged that she was injured when Little
General's gasoline pump malfunctioned while she was filling her car with gasoline, resulting
in the pump hose coming forcefully out of the car's gasoline nozzle and spraying her with
gasoline. The circuit court found that Gibson was unable, despite being given additional time
by the circuit court to obtain an expert witness, to produce evidence in response to Little
General's motion for summary judgment, from which a trier of fact could consider her claim
on a ground other than upon pure speculation and conjecture. This Court has before it the
petition for appeal, all matters of record and the briefs and arguments of counsel. Upon the
application de novo standard of review and for the reasons set forth below, we affirm the
circuit court's order.
FACTUAL AND PROCEDURAL HISTORY
In her complaint, Gibson alleged that in undertaking to fill her vehicle with
gasoline at the Little General location on Route 60, Charmco, Greenbrier County, she
inserted the gasoline pump hose into the gasoline nozzle of her vehicle and started the pump.
Thereafter, she maintained, the hose exploded out of the vehicle's nozzle and doused her in
gasoline. As a result, Gibson claimed that she sustained multiple injuries for which she
sought damages. The gravamen of her complaint, in her later filings with the circuit court,
and in her petition for appeal with this Court was that the gasoline pump malfunctioned.
Gibson did not make a specific allegation in her complaint that Little General was negligent.
Gibson also did not allege res ipsa loquitur
in her complaint.
Following an opportunity for discovery, Little General moved for summary
judgment contending that there were no genuine issues of material fact in dispute and that
it was not liable to Gibson as a matter of law. Gibson countered the motion with her personal
affidavit which simply reiterated the claim in her complaint that the gas pump
malfunctioned and which disclaimed negligence on her part.
At a hearing on the motion, Gibson conceded that she did not have an expert
witness to testify concerning the alleged malfunction of the gasoline pump. Thereafter, the
circuit court gave Gibson forty-five additional days to find an expert and indicated that,
absent an expert, the circuit court would have to grant Little General's motion. Gibson later
acknowledged to the circuit court that she was unable to find an expert whose services she
could afford to employ.
Finding that Gibson produced no evidence that the alleged gasoline spill was
the result of a pump malfunction, that Gibson could produce no such evidence, and that the
only thing which Gibson could produce was her own self-serving statements and a
conclusory affidavit based upon unsupported speculation, the circuit court granted Little
General's motion for summary judgment. Gibson contends on appeal that the circuit court
erred in granting Little General's motion for summary judgment.
STANDARD OF REVIEW
This appeal raises the issue of whether the circuit court erred in granting
summary judgment herein to Appellee pursuant to Rule 56 of the West Virginia Rules of
Civil Procedure. A circuit court's entry of summary judgment is reviewed de novo. Syl.
Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). 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. Syl. Pt. 4, Painter. With these principles in mind, we turn to the issues presented in this case.
On appeal, Gibson presents one assignment of error, that the circuit court erred
in granting Little General's motion for summary judgment. Gibson resisted summary
judgment solely on the basis of personal claims, without supporting evidence, that Little
General's gas pump malfunctioned and that she was not negligent in operating the pump.
Gibson did not allege that Little General's negligence caused the pump to malfunction. (See footnote 1)
Our decisions interpreting and applying Rule 56 of the West Virginia Rules of
Civil Procedure demonstrate both the importance of its role in our litigation system and the
parties' respective burdens regarding the same. As Justice Cleckley stated in Williams v.
Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995),
Rule 56 of the West Virginia Rules of Civil Procedure plays an
important role in litigation in this State. It is designed to effect
a prompt disposition of controversies on their merits without
resort to a lengthy trial, if there essentially is no real dispute as
to salient facts or if it only involves a question of law. Indeed,
it is one of the few safeguards in existence that prevent frivolous
lawsuits from being tried which have survived a motion to
dismiss. Its principal purpose is to isolate and dispose of
Williams, 194 W. Va. at 58, 459 S.E.2d at 335 (internal quotations and citations omitted).
Pursuant to Rule 56(e) of the West Virginia Rules of Civil Procedure,
When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the
mere allegations or denials of the adverse party's pleading, but
the adverse party's response, by affidavits or as otherwise
provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial. If the adverse party does not so
resond, summary judgment, if appropriate, shall be entered
against the adverse party.
In Powderidge Unit Owners Association v. Highland Properties, Ltd., 196
W. Va. 692, 474 S.E.2d 872 (1996), Justice Cleckley discussed the parties' burdens relative
to motions for summary judgment. Therein he stated,
Under our summary judgment standard, a party seeking
summary judgment must make a preliminary showing that no
genuine issue of material fact exists. This means the movant
bears the initial responsibility of informing the circuit court of
the basis of the motion and identifying those portions of the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, which it
believes demonstrates the absence of a genuine issue of material
fact. However, the movant does not need to negate the elements
of claims on which the nonmoving party would bear the burden
The movant's burden is only [to] point to the absence of
evidence supporting the nonmoving party's case. If the moving
party fails to meet this initial burden, the motion must be denied,
regardless of the nonmovant's response. If the movant,
however, does make this showing, the nonmovant must go
beyond the pleadings and contradict the showing by pointing to
specific facts demonstrating a trialworthy issue. To meet this
burden, the nonmovant must identify specific facts in the record
and articulate the precise manner in which that evidence
supports its claims. As to material facts on which the
nonmovant will bear the burden at trial, the nonmovant must
come forward with evidence which will be sufficient to enable
it to survive a motion for directed verdict at trial. If the
nonmoving party fails to meet this burden, the motion for
summary judgment must be granted.
Powderidge, 196 W. Va. at 698-9, 474 S.E.2d at 878-9 (internal quotations and citations
omitted) (emphasis in original). Addressing the burden imposed by Rule 56 on a party
opposing a summary judgment motion, such as Gibson herein, we held at Syllabus Point 3
of Williams that,
If the moving party makes a properly supported motion for
summary judgment and can show by affirmative evidence that
there is no genuine issue of material fact, the burden of
production shifts to the nonmoving party who must either (1)
rehabilitate the evidence attacked by the nonmoving party, (2)
produce additional evidence showing the existence of a genuine
issue for trial, or (3) submit an affidavit explaining why further
discovery is necessary as provided in Rule 56(f) of the West
Virginia Rules of Civil Procedure.
Syl. Pt. 3, Williams. The evidence illustrating the factual controversy cannot be conjectural
or problematic. Id. 194 W. Va. at 60, 459 S.E.2d at 337. [S]elf-serving assertions without
factual support in the record will not defeat a motion for summary judgment. Williams, 194
W. Va. at 61, n. 14, 459 S.E.2d at 338, n. 14, citing McCullough Oil, Inc. v. Rezek, 176
W. Va. 638, 346 S.E.2d 788 (1986). See also Mrotek v. Coal River Canoe Livery, Ltd., 214
W. Va. 490, 493, 590 S.E.2d 683, 686 (2003) (per curiam), quoting Williams. Indeed,
unsupported speculation is insufficient to defeat a summary judgment motion. Williams,
194 W. Va. at 61, 459 S.E.2d at 338, quoting Felty v. Graves-Humphreys Co., 818 F.2d
1126, 1128 (4th Cir. 1987).
Despite an additional time period provided to Gibson by the circuit court herein
to develop evidence sufficient to rebut Little General's summary judgment motion, Gibson
failed to produce any such evidence. Rather, Gibson's claim that the gasoline pump
malfunctioned is based solely upon her own unsubstantiated opinion and conclusory
speculation. The bare fact of an injury standing alone, without supporting evidence, is not
sufficient to justify an inference of negligence. Mrotek, 214 W. Va. at 493, 590 S.E.2d at
686 (2003). The circuit court therefore did not err in finding that there were no genuine
issues of material fact in dispute, and that Gibson had failed to produce evidence through
discovery, or in response to Little General's summary judgment motion, sufficient to permit
a trier of fact to consider such claims without completely basing its determination upon pure
speculation and conjecture. Little General was entitled to summary judgment as a matter of
law based upon Gibson's failure to provide any evidence to support her claim of a
malfunctioning gasoline pump.
The Circuit Court of Greenbrier County properly granted summary judgment in favor
of Appellee, Little General. Accordingly, we affirm the Circuit Court of Greenbrier
County's June 2, 2006, order.