No. 20450 - Marthella Andrick and Joseph R. Andrick, Plaintiffs
Below, Appellants, v. The Town of Buckhannon, A West Virginia
Statutory Municipal Corporation; Sam Baxa, DBA Baxa Motel, Betty
Phillips, DBA The Cornerstone Restaurant; Linda Lemasters, DBA the
Cornerstone Restaurant, Defendants Below. Betty Phillips, DBA The
Cornerstone Restaurant; and Linda LeMasters, DBA The Cornerstone
Workman, Justice, dissenting:
The majority's opinion is troubling in that syllabus point 3
seems in rather direct conflict with syllabus point 1 in last
year's case of Durm v. Heck's, Inc., 184 W. Va. 562, 401 S.E.2d 908
(1991). The majority indicates that, at least absent an express
lease provision, any business which invites customers to park on an
off-premises parking lot is liable for injury occurring to invitees
as a result of defect or dangerous conditions. This has rather
broad liability implications for many small businesses, especially
in a case like the instant one where the parking lot owner clearly
acknowledged that he retained the responsibility to repair and
maintain the lot. Furthermore, it is a sharp departure from a
fairly long line of cases where we have taken a different view.
As we pointed out in Durm, 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. One wonders if this result might have been dictated by the existence of insurance coverage, as opposed to a coherent step in the development of the law in this area.
The majority opinion now leaves the law in this arena somewhat murky.