Filed: April 22, 1994
David J. Straface
Angottie & Straface
Attorneys for the Appellant
William E. Galeotta
Laurie L. Cryster
Steptoe & Johnson
Attorney for the Appellee
The Opinion of the Court was delivered Per Curiam.
1. "In determining whether there is sufficient evidence
to support a jury verdict the court should: (1) consider the
evidence most favorable to the prevailing party; (2) assume that
all conflicts in the evidence were resolved by the jury in favor of
the prevailing party; (3) assume as proved all facts which the
prevailing party's evidence tends to prove; and (4) give to the
prevailing party the benefit of all favorable inferences which
reasonably may be drawn from the facts proved." Syllabus point 5,
Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983).
2. "A person is an invitee when for purposes connected
with the business conducted on the premises he enters or uses a
place of business." Syllabus point 2, Puffer v. The Hub Cigar
Store, Inc., 140 W.Va. 327, 84 S.E.2d 145 (1954).
3. "The owner or the occupant of premises used for
business purposes is not an insurer of the safety of an invited
person present on such premises and, if such owner or occupant is
not guilty of negligence or willful or wanton misconduct and no
nuisance exists, he is not liable for injuries there sustained by
such invited person." Syllabus point 3, Puffer v. The Hub Cigar
Store, Inc., 140 W.Va. 327, 84 S.E.2d 145 (1954).
In this appeal, the appellant, Holly McDonald, claims
that the Circuit Court of Monongalia County erred in setting aside
a jury verdict for her in a personal injury action against the
trustees of West Virginia University. After reviewing the
questions presented, this Court disagrees and affirms the judgment
of the circuit court.
On October 2, 1990, the appellant, a theater major at
West Virginia University, broke her leg and ankle on the lawn of
the Creative Arts Center at the University. The injury occurred
while the appellant, in the course of a stage movement class, was
running across the lawn and was performing body movements intended
to convey the emotion of fright.
The appellant instituted the personal action giving rise
to this appeal against the trustees of the University for damages
resulting from the incident. In instituting the action, the
appellant, in essence, claimed that the University had been
negligent in maintaining its premises and that that negligence, in
conjunction with the negligence of her professor in preparing for
and conducting her stage movement class, had caused her injury.
The case was tried before a jury on October 20, 1992, and
at the conclusion of the trial, the jury returned a verdict for the
appellant but assigned 34% of the total fault to her.
On October 29, 1992, counsel for the trustees filed a
motion for judgment notwithstanding the verdict or, in the
alternative, for a new trial. The motion was heard on November 16,
1992, and at the conclusion of the hearing, the trial judge set
aside the jury's verdict and entered judgment in favor of the
In setting aside the verdict, the trial judge stated:
I can't rest with this verdict. It is wrong and there is no evidence to sustain that the University was in any way negligent whatsoever. No doubt the girl slipped and fell and broke her ankle which is tragic but there was nothing that the University did in this case that I can see that will let that verdict stand so that the defendant can prepare an appropriate order and you have your exceptions.
On appeal, the appellant argues that the trial judge erred in setting aside the verdict and in awarding judgment to the trustees.
The test to be used for determining whether a judgment
should be entered notwithstanding a verdict is the same test which
is used to determine whether there is sufficient evidence to
support the jury's verdict. Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 83
L.Ed.2d 319 (1984). That test, as articulated in syllabus point 5
of Orr v. Crowder, states:
In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.
See McClung v. Marion County Commission, 178 W.Va. 444, 360 S.E.2d 221 (1987).
As previously indicated, the appellant in the present
case, in essence, alleged that West Virginia University was
negligent in maintaining its premises and that that negligence, in
conjunction with the negligence of her professor, caused her
In Puffer v. The Hub Cigar Store, Inc., 140 W.Va. 327,
84 S.E.2d 145 (1954), this Court indicated that a person injured in
circumstances such as those surrounding the appellant's injury is
technically a "business invitee." In syllabus point 2 of Puffer,
the Court stated:
A person is an invitee when for purposes connected with the business conducted on the premises he enters or uses a place of business.
See also Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966); and Haddox v. Suburban Lanes, Inc., 176 W.Va. 744, 349 S.E.2d 910 (1986).
In syllabus point 3 of Puffer, the Court proceeded to
The owner or the occupant of premises used for business purposes is not an insurer of the safety of an invited person present on such premises and, if such owner or occupant is not guilty of negligence or willful or wanton misconduct and no nuisance exists, he is not liable for injuries there sustained by such invited person.
See also, Roach v. McCrory Corp., 158 W.Va. 282, 210 S.E.2d 312 (1974); Curry v. Hecks, Inc., 157 W.Va. 719, 203 S.E.2d 696 (1974); O'Flaherty v. Tarrou, 130 W.Va. 326, 43 S.E.2d 392 (1947); and Spears v. Goldberg, 122 W.Va. 514, 11 S.E.2d 532 (1940).
In the present case, the appellant does not claim that
the University was guilty of willful or wanton conduct or that a
nuisance existed. Rather, she claims that it was guilty of
In Burdette v. Burdette, 147 W.Va. 313, 127 S.E.2d 249
(1962), the Court discussed at some length what constitutes
negligence in the maintenance of premises. While recognizing that
the owner or occupant of premises used for business purposes has
some duty to keep the premises safe for invitees, the Court quoted
with approval generally accepted principles set forth in 65 C.J.S. Negligence § 50 relating to the owner or occupant's duties. The
In 65 C.J.S. Negligence § 50, the text contains this language: "The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal, obvious, or ordinary risks attendant on the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers." In 38 Am.Jur., Negligence, § 97, the principle is expressed in these terms: "There is no liability for injuries from dangers that are obvious, reasonably apparent, or as well known to the person injured as they are to the owner or occupant."
Burdette v. Burdette, Id. at 318, 127 S.E.2d at 252.
What this, in effect, says is that an owner of business
premises is not legally responsible for every fall which occurs on
his premises. He is only liable if he allows some hidden,
unnatural condition to exist which precipitates the fall. He is
not responsible if some small characteristic, commonly known to be
a part of the nature of the premises, precipitates the fall. This
has been otherwise stated as follows:
In order to make out a prima facie case of negligence in a slip and fall case, the invitee must show (1) that the owner had actual or constructive knowledge of the foreign substance or defective condition and (2) that the invitee had no knowledge of the substance or condition or was prevented by the owner from discovering it . . . With respect to slip-and-fall cases, the mere occurrence of a fall on the business premises is insufficient to prove negligence on the part of the proprietor.
3 S. Speiser, et al., The American Law of Torts § 14.14 (1986); see Hughes v. Hospital Authority of Floyd County, 165 Ga.App. 530, 301 S.E.2d 695 (1983), and Preuss v. Sambo's of Arizona, Inc., 130 Ariz. 288, 635 P.2d 1210 (1981).
This broad principle has been applied when the place of
injury is a lawn. As summarized in 62A Am.Jur.2d Premises
Liability § 653 (1990):
The owner of premises has a duty to maintain a lawn or front yard open to invitees in reasonably good condition, but he is not liable to one who steps in a small hole in the lawn where he had neither actual nor constructive notice of such defect.
See also Kluz v. Boldt, (3d Dept.) 18 App.Div.2d 1037, 238 N.Y.S.2d 504 (1963), aff'd 13 N.Y.2d 906, 243 N.Y.S.2d 691, 193 N.E.2d 514 (1963).
In describing her injury in the present case, the
appellant testified that she fell when her heel went into a "little
pit" or "little crater-type thing" in the ground. She did not
present any evidence indicating that the "little pit" was anything
other than a slightly unsmooth spot on the lawn or that it was of
such size or character as to constitute anything other than a small
irregularity of the type universally recognized to be a typical
part of a lawn.
The appellant's evidence failed to identify a specific
irregularity, later identifiable or identified, which precipitated
On the other hand, evidence was introduced which
suggested that whatever precipitated the appellant's fall was very
small irregularity which was apparently a part of the natural
character of a law. Professor Sarah Romersburger, who was in
charge of the appellant's class at the time she fell, and who
testified that she always surveyed the area where a class was to be
conducted, stated that she could not recall seeing anything which
could be characterized as a hole or pit in the ground. Similarly,
an officer in the University's department of public safety, who
inspected the lawn carefully for ten or fifteen minutes immediately
after the accident occurred, testified that he found no safety
hazard such as a hole in the ground.
In this Court's view, the overall evidence adduced in
this case, even when construed in the light most favorable to the
appellant, suggests that she fell as the result of some
irregularity of such slight proportions as would ordinary be
recognized to be a normal characteristic of a lawn by any person
going upon the lawn.
As previously stated in Burdette v. Burdette, supra, the
duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps,
snares, pitfalls, and the like. The duty to keep premises safe
does not apply to defects or conditions which should be known to
the invitee or which would be observed by him in the exercise of
ordinary care. As otherwise stated, there is no liability for
injuries from dangers that are obvious, reasonably apparent, or as
well known to the person injured as they are to the owner or
Further, as indicated in The American Law of Torts, the
law requires that before an owner can be liable under a negligence
theory, he must have had actual or constructive knowledge of the
defective condition which caused the injury. In the present case,
the appellant failed to show that the University had actual
knowledge of the defect which precipitated her fall. The record
also suggests that the defect was so minor that it could not be
later located. This fact suggests that constructive knowledge of
it should not be imputed to the University.
Given the overall circumstances, the Court cannot
conclude that the evidence adduced, even when construed in the
light most favorable to the appellant, showed that the University
breached a duty with regard to keeping its premises safe.
The Court notes that the appellant also claims that
Professor Romersburger, the professor in charge of her class, failed to prepare for and supervise the stage movement class
appropriately. In conjunction with this, she claims that the
professor negligently failed to inspect the law prior to holding
the class. The appellant argues that if Professor Romersburger had
carefully scrutinized the grass on the lawn where the accident
occurred, she would have discovered the unknown and unusual
character of it.
As previously indicated, the record fails to show that
there was any pit, bump, or depression, or the like, present in the
University's lawn that was not generally characteristic of a lawn
or that rose to the level of a hidden danger, trap, snare, pitfall,
or the like. Professor Romersburger testified that she could not
recall seeing anything in the lawn that could have precipitated the
appellant's fall, and a careful inspection by an officer
immediately after the accident failed to identify a precipitating
In view of all this, the Court cannot conclude that the
appellant has demonstrated that Professor Romersburger's failure to
inspect was a proximate cause of her injury. There is nothing to
suggest that even a thorough inspection would have identified the
defect which precipitated the injury.
The Court notes the appellant also states that students
were not given safety instructions before going outside and that
they were not properly supervised outside.
Substantial evidence was introduced during trial showing
that theater students at West Virginia University were given
instructions on safety. For instance, Professor Romersburger
testified that safety was incorporated in her instruction of the
appellant's class. She further testified that safety was included
in the syllabus of the course and that safety instruction addressed
everything from clothing to eye contact, to layering of clothing,
to body positioning. The appellant herself testified that students
were required to wear high top tennis shoes for protection.
Apart from this, the appellant introduced no evidence
demonstrating how safety instruction would have prevented her
Lastly, it appears that the appellant claims that
Professor Romersburger generally failed to supervise her properly.
It appears that Professor Romersburger was present at the
time the class was being conducted and at the time of the
appellant's injury. There is no evidence that Professor
Romersburger was aware of the alleged pit or depression in which
the appellant apparently stepped, and there is no indication that any act of supervision would have prevented the accident. The
overall evidence shows further that a number of students had
performed exercises in the same area without sustaining injury and
that on the same day, prior to her injury, the appellant herself
had performed a similar exercise without any adverse effect. In
effect, there was nothing in the overall circumstances which would
have suggested that Professor Romersburger's supervision in any way
deviated from the form of supervision that an ordinary, reasonable
professor would have conducted under the same circumstances.
After reviewing the overall record in the light most
favorable to the appellant, and even after resolving all conflicts
in her favor and assuming that all facts that her evidence tends to
prove are proven, and giving her the benefit of all reasonable
inferences which may be drawn from the facts proved, this Court
cannot conclude that the trial court erred in finding that the
jury's verdict was unsupported by the evidence or in setting aside
the jury's verdict.
The judgment of the Circuit Court of Monongalia County
is, therefore, affirmed.