Clifford F. Kinney, Jr., Esq. David A. Sims, Esq.
Hunt & Barber, L.C. Debra Tedeschi Hall, Esq.
Charleston, West Virginia Sims and Hall
Attorney for the Appellant Elkins, West Virginia
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE WORKMAN and JUSTICE STARCHER concur, and reserve the right to
file concurring Opinions.
1. "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 of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
2. "Mere permissive use of the premises, by express or implied authority
ordinarily creates only a license, and as to a licensee, the law does not impose upon the
owner of the property an obligation to provide against dangers which arise out of the existing
condition of the premises inasmuch as the licensee goes upon the premises subject to all the
dangers attending such conditions." Syllabus, Hamilton v. Brown, 157 W.Va. 910, 207
S.E.2d 923 (1974).
The appellant in this proceeding, Gaynelle Self, claims that the Circuit Court
of Wayne County erred in awarding her mother, the appellee, Mayme Queen, summary
judgment in this premises liability action. In awarding summary judgment, the circuit court
held that the appellant, who was injured in a fall on her mother's property, occupied the
status of a licensee at the time of the fall and that her mother was not guilty of willful or
wanton misconduct in the maintenance of the premises on which the fall occurred. The court
concluded that under our law a property owner is responsible to a licensee only for injuries
arising out of willful or wanton misconduct, and the appellant, as a matter of law, was not
entitled to recover. On appeal, the appellant claims that the circuit court erred in finding that
she was a licensee, rather than an invitee to whom a higher duty of care is owed, and that as
a consequence, the circuit court's granting of summary judgment was improper. The
appellant also urges this Court to change the established law in this state relating to liability
involving invitees and licensees.
After reviewing the issues presented, as well as the facts of this case, this Court
cannot conclude that the trial court erred in holding that the appellant was a licensee, and the
Court declines to alter the established law relating to licensees and invitees. As a
consequence, the Court affirms the judgment of the Circuit Court of Wayne County.
The facts in this case do not appear to be substantially in dispute. At the time
of the incident giving rise to the action, Mayme Queen, the mother of the appellant, was a
resident of Wayne County, West Virginia, and the appellant, Gaynelle Self, was a resident
of Michigan. Prior to the incident Gaynelle Self had traveled from Michigan to Wayne
County to visit her mother and other relatives and friends in the Wayne County area. The
purpose of this visit was clearly social.
On the day of the incident the appellant who was at a sister's house next to the house of their mother, agreed to purchase some milk for her mother upon leaving the sister's house. When she did leave, and as she was entering a car, her mother called out to her to come and get money for the milk. The appellant exited the car and started toward her mother's house across her mother's yard. In so doing she stepped into a deep hole and fell and broke her ankle. There is evidence suggesting that the appellant's mother knew of the hole, but there is no evidence that the mother intentionally concealed the existence of the hole although it was apparently hidden by long grass which had grown up around it.
The appellant sued her mother for the injuries sustained in the fall, but prior
to trial, the attorney for the appellant's mother moved for summary judgment. He claimed
that the appellant was a mere licensee at the time of the fall, and that the duty which her
mother owed her, was only a duty not to act willfully or wantonly to cause harm to her. This
duty is substantially different from the much greater duty owed an invitee.
The circuit court, after hearing arguments, concluded that the appellant was
in fact a licensee, rather than an invitee, of her mother. The court also concluded that since
the evidence failed to show that the appellant's mother had acted willfully or wantonly to
cause injury to the appellant, the evidence could not support a recovery for the appellant.
As a consequence, the trial court entered summary judgment for the appellant's mother.
In the present case, the appellant essentially argues that she was an invitee
rather than a licensee, and that the trial court erred in granting summary judgment.
In syllabus point 4 of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), this Court indicated that:
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.
Going beyond this, to approach the deeper legal questions in this case, the Court notes that whether a party injured on the premises of another is a licensee or invitee is significant under the law of West Virginia, because the law imposes different duties of care on possessors of premises with regard to licensees and invitees. As stated in Cavender v. Fouty, 195 W.Va. 94, 98, 464 S.E.2d 736, 740 (1995):
The duty owed to an invitee was outlined in Syl. pt. 2 of
Morgan v. Price, where we said: "The owner or the occupant of
premises owes to an invited person the duty to exercise ordinary
care to keep and maintain the premises in a reasonably safe
condition." Point 2 Syllabus, Burdette v. Burdette, 147 W.Va.
313 [127 S.E.2d 249]... However, in the case of a licensee, that
is a person on another's property with expressed or implied
permission, the property owner does not have to correct the
dangers arising from existing conditions. In the Syllabus of
Hamilton v. Brown,...[157 W.Va. 910, 207 S.E.2d 923 (1974)]
we said: "Mere permissive use of the premises, by express or
implied authority ordinarily creates only a license, and as to a
licensee, the law does not impose upon the owner of the
property an obligation to provide against dangers which arise
out of the existing condition of the premises inasmuch as the
licensee goes upon the premises subject to all the dangers
attending such conditions." See also Miller v. Monongahela
Power Co., 184 W.Va. At 667-68, 403 S.E.2d at 410-11.
Recently in Jack v. Fritts, 193 W.Va. 494, 457 S.E.2d 431 (1995), this court recognized that a social guest was nothing more than a licensee. This is consistent with a widely recognized rule in the United States, for as stated in W. Page Keeton et al., Prosser and Keeton on the Law of Torts 60, at 414 (5th ed. 1984):
"[N]early all of the decisions are agreed that a social guest,
however cordially he may have been invited and urged to come,
is not in law an invitee--a distinction which has puzzled
generations of law students, and even some lawyers and judges.
The guest is legally nothing more than a licensee, to whom the
possessor owes no duty of inspection nor affirmative care to
make the premises safe for his visit. The fact that in the course
of his visit he gratuitously performs incidental services for his
host, such as picking fruit, washing the dishes, or feeding the
dog, does not in most states improve his legal position." (Notes
In the present case, even though the appellant was ostensibly traversing her
mother's yard to help her mother procure milk, the overall context in which this was done
was that of a social guest, and it appears to this Court, as it apparently appeared to the circuit
court, that what the appellant was actually doing was gratuitously performing an incidental
service for her hostess, her mother. In effect, this Court believes that, given the law cited,
the trial court properly concluded that the appellant was a licensee rather than an invitee.
Further, since the record fails to show that the appellant's mother acted
willfully or wantonly, and since no fair reading of the record suggests that such might be
proven, the Court concludes that the appellant has failed to make a sufficient showing of the
essential elements of her case to merit going forward with trial and that the trial court
properly entered summary judgment.
The Court notes that the appellant makes an extraordinary proposal and urges
us to abandon well-settled and long-established common law relating to the circumstances
of this case, and to revisit the common law rule which now defines the duty an
owner/possessor of premises owes to persons upon those premises. Presently, the scope of
the duty owed a visitor by an owner/possessor of property is determined by the status of that
visitor while on the premises.
Since we left the Mother State we have always recognized in our jurisprudence
the distinction between invitees, licensees, and trespassers. This distinction is very specific
and provides us with a precise, definite gauge by which to measure the extent of the duty of
care owed the visitor and clearly defines the precaution to be taken. The standard is precise
and not vague. The appellant would have us depart from the precise, detailed rule, abolish
the invitee/licensee distinction, and adopt a single reasonable care standard. In other words,
change the rule from specific to vague. This is not the policy of the law. The law always
favors the more exact and specific rule as opposed to the vague and indefinite.
Oliver Wendell Holmes, Jr., writing in his 1881 book The Common Law, in the section "Trespass and Negligence," at page 112 states:
From the time of Alfred to the present day, statutes and
decisions have busied themselves with defining the precautions
to be taken in certain familiar cases; that is, with substituting for
the vague test of the care exercised by a prudent man, a precise
one of specific acts or omissions. The fundamental thought is
still the same, that the way prescribed is that in which prudent
men are in the habit of acting, or else is one laid down for cases
where prudent men might otherwise be in doubt.
And further, at page 111, with very nice Nineteenth Century language, Holmes states:
Finally, any legal standard must, in theory, be capable of being
known. When a man has to pay damages, he is supposed to
have broken the law, and he is further supposed to have known
what the law was.
If, now, the ordinary liabilities in tort arise from failure to
comply with fixed and uniform standards of external conduct,
which every man is presumed and required to know, it is
obvious that it ought to be possible, sooner or later, to formulate
these standards at least to some extent, and that to do so must at
last be the business of the court. It is equally clear that the
featureless generality, that the defendant was bound to use such
care as a prudent man would do under the circumstances, ought
to be continually giving place to the specific one, that he was
bound to use this or that precaution under these or those
circumstances. The standard which the defendant was bound to
come up to was a standard of specific acts or omissions, with
reference to the specific circumstances in which he found
himself. If in the whole department of unintentional wrongs the
courts arrived at no further utterance than the question of
negligence, and left every case, without rudder or compass, to
the jury, they would simply confess their inability to state a very
large part of the law which they required the defendant to know,
and would assert, by implication, that nothing could be learned
by experience. But neither courts nor legislatures have ever
stopped at that point.
We believe that to revise the rule, to depart from our specific and definite
standard, and to adopt a vague single reasonable care standard, which Holmes calls a
"featureless generality" would in effect, leave "every case, without rudder or compass, to
the jury." Oliver Wendell Holmes, Jr., The Common Law (1881). The rule has served us
well from the time of Alfred to the present. We see no compelling reason for change now
and will keep the rudder and the compass.
For the reasons stated, the judgment of the Circuit Court of Wayne County is affirmed.