James G. Bordas, Jr.
James B. Stoneking Jennifer A. Keadle
Christopher J. Regan McDermott & Bonenberger
Bordas, Bordas & Jividen Wheeling, West Virginia
Wheeling, West Virginia Attorneys for Appellee
Attorneys for Appellants
Susan Y. Dodd Larry W. Blalock
Wheeling, West Virginia Jackson & Kelly
Attorney for Plaintiffs Goddards Wheeling, West Virginia
Attorney for Defendant Taylor
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE MCGRAW and JUSTICE STARCHER dissent and reserve the right
to file dissenting opinions.
formulation of jury instructions is within the broad discretion of a circuit
court, and a circuit court's giving of an instruction is reviewed under an abuse
of discretion standard. A verdict should not be disturbed based on the formulation
of the language of the jury instructions so long as the instructions given as
a whole are accurate and fair to both parties. Syllabus point 6, Tennant
v. Marion Health Care Foundation, Inc., 194 W. Va. 97, 459 S.E.2d 374 (1995).
prima facie presumption of negligence created upon violation of a traffic
statute or safety regulation may be rebutted by evidence tending to show that
the person violating the statute did what might reasonably have been expected
of a person of ordinary prudence, acting under similar circumstances, who desired
to comply with the law. Syllabus point 3, Waugh v. Traxler, 186
W. Va. 355, 412 S.E.2d 756 (1991).
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).
failure to obey the mandate of a lawfully enacted statute will be treated as
the proximate cause of an injury which is a natural, probable and anticipated
consequence of the non-observance. Syllabus point 3, Pitzer v. M. D.
Tomkies & Sons, 136 W. Va. 268, 67 S.E.2d 437 (1951).
instruction which states that an automobile may skid on a highway without any
negligence on the part of the driver . . . is correct . . . under proper evidence.
Syllabus point 2, in part, Boury v. Hamm, 156 W. Va. 44, 190 S.E.2d 13
This is an appeal by Darlene Gillingham and Carl Bumgardner, appellants/plaintiffs below (hereinafter referred to as Ms. Gillingham and Mr. Bumgardner), from an adverse jury verdict rendered in the Circuit Court of Ohio County. Ms. Gillingham and Mr. Bumgardner filed a negligence action against Albert H. Stephenson, appellee/defendant below (hereinafter referred to as Mr. Stephenson), as a result of injuries and damages sustained in an automobile accident. The action was bifurcated. The issue of liability was tried first. The jury returned a verdict finding no liability. Ms. Gillingham and Mr. Bumgardner now appeal and assign as error: (1) the trial court's denial of their pre-verdict motion for judgment as a matter of law, (2) the trial court's denial of their motion for new trial, and (3) two jury instructions given by the trial court. After reviewing the briefs and the record, we affirm the circuit court's judgment.
On February 27, 1998, Ms. Gillingham and Mr. Bumgardner filed separate actions against Mr. Stephenson. The two actions were consolidated for trial.See footnote 3 3 The consolidated actions proceeded with the issues of liability and damages being bifurcated. Liability was tried before a jury on January 5, 2000. Ms. Gillingham and Mr. Bumgardner moved for judgment as a matter of law at the close of all the evidence. The trial court denied the motion and submitted the case to the jury. The jury returned a verdict finding no liability against Mr. Stephenson. On January 7, 2000, Ms. Gillingham and Mr. Bumgardner moved for post-trial judgment as a matter of law or, alternatively, a new trial. The post-trial motions were denied by order dated April 17, 2000. It is from this order that Ms. Gillingham and Mr. Bumgardner now appeal.
Ms. Gillingham and Mr. Bumgardner
filed motions for judgment as a matter of law at both the pre-verdict and post-verdict
stage of the proceedings below. Before this Court, they argue generally that
the circuit court erred by not granting their motion for judgment as a matter
of law, and make only one reference indicating the particular motion to which
they are referring. That reference requested relief from the circuit court's
denial of their pre-verdict motion. Consequently, we treat their first
assignment of error as challenging the circuit court's ruling denying their
pre-judgment motion.See footnote 4 4
This distinction, however, is not crucial to our analysis as the standard
for reviewing the circuit court's rulings on pre-verdict and post-verdict motions
for judgment as a matter of law is identical. See Barefoot v. Sundale
Nursing Home, 193 W. Va. 475, 481-82 n.6, 457 S.E.2d 152, 158-59 n.6 (1995) (The standard for granting a judgment notwithstanding
the verdict is the same as for a directed verdict.) We apply a de novo
standard of review to the grant or denial of a pre-verdict or post-verdict motion
for judgment as a matter of law. After considering the evidence in the light
most favorable to the nonmovant party, we will sustain the granting or denial
of a pre-verdict or post-verdict motion for judgment as a matter of law when
only one reasonable conclusion as to the verdict can be reached. See
Syl. pt. 3, Brannon v. Riffle, 197 W. Va. 97, 475 S.E.2d 97 (1996).
In Tennant v. Marion Health
Care Foundation, Inc., 194 W. Va. 97, 459 S.E.2d 374 (1995), this Court
addressed the issue of the standard of review of a trial court's ruling on a
motion for new trial. Tennant stated:
We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
Tennant, 194 W. Va. at 104, 459 S.E.2d at 381.
As to the standard of review
on the issue of jury instructions, this Court has held that:
The formulation of jury instructions is within the broad discretion of a circuit court, and a circuit court's giving of an instruction is reviewed under an abuse of discretion standard. A verdict should not be disturbed based on the formulation of the language of the jury instructions so long as the instructions given as a whole are accurate and fair to both parties.
Syl. pt. 6, Tennant. However, our review of the legal propriety of the trial court's instructions is de novo. Skaggs v. Elk Run Coal Co., Inc., 198 W. Va. 51, 63, 479 S.E.2d 561, 573 (1996) (citation omitted).
In the instant case, Ms. Gillingham
and Mr. Bumgardner contend that they presented evidence to show that Mr. Stephenson
negligently violated motor vehicle safety statutes, thus causing the accident.
Specifically, they contend that their evidence established that Mr. Stephenson
violated W. Va. Code § 17C-6-1, by driving at speed in excess of what was
reasonable; that he violated W. Va. Code § 17C-7-10, by following too closely;
and that he violated W. Va. Code § 17C-6-1, by failing to maintain control
of his vehicle. This Court has held that a [v]iolation of a statute is
prima facie evidence of negligence. Syl. pt. 1, in part, Anderson v.
Moulder, 183 W. Va. 77, 394 S.E.2d 61 (1990). A prima facie
case of actionable negligence is that state of facts which will support a jury
finding that the defendant was guilty of negligence which was the proximate
cause of plaintiff's injuries[.] Syl. pt. 6, in part, Morris v. City
of Wheeling, 140 W. Va. 78, 82 S.E.2d 536 (1954).
Three witnesses were called
during the case-in-chief. There was testimony by both Ms. Gillingham and Mr.
Bumgardner. They also called Mr. Stephenson during the case-in-chief. The testimony
by Ms. Gillingham and Mr. Bumgardner revealed that they were able to safely stop the vehicle without incident. Mr. Stephenson
was unable to stop and ran into them. Ms. Gillingham and Mr. Bumgardner further
assert that there was also testimony by other witnesses (called by Mr. Stephenson)
that showed these witnesses were able to stop at the accident scene without
incident. Ms. Gillingham and Mr. Bumgardner also assert that testimony by one
of the investigating officers (called by Mr. Stephenson) indicated the accident
report clearly demonstrates that Mr. StephensonSee
footnote 5 5 failed to maintain control of his vehicle.
In contrast, Mr. Stephenson
points out that [t]he prima facie presumption of negligence created
upon violation of a traffic statute or safety regulation may be rebutted by
evidence tending to show that the person violating the statute did what might
reasonably have been expected of a person of ordinary prudence, acting under
similar circumstances, who desired to comply with the law. Syl. pt. 3,
Waugh v. Traxler, 186 W. Va. 355, 412 S.E.2d 756 (1991). Accordingly,
Mr. Stephenson contends that his evidence was sufficient to show that he acted
reasonably under the circumstances.
Mr. Stephenson testified that he unexpectedly came upon black ice, which caused him to lose control of his vehicle. Mr. Stephenson testified as follows when questioned on direct examination by counsel for Ms. Gillingham and Mr. Bumgardner:
Q. In other words, at the time
before the accident, your testimony here today to this jury, to this Court, is
that you didn't notice that the roadway was icy at any point?
A. I didn't know there was ice, like iced up or black ice as we talk about later.
Q. Did you notice a glare on the roadway at any time before the wreck?
A. It seemed like, immediately before the wreck, I saw what I thought was --- was a glare of ice. But it could have been just wetness.
Mr. Stephenson called an investigating police officer, Glenn H. Cramer, who testified that he did not issue a citation as a result of the accident.See footnote 6 6 Officer Cramer testified on redirect examination as follows:
Q. Officer, during the course of your investigation, I think you testified that you observed the vehicles at the scene, observed the conditions of the roads; they looked wet, but they were icy. I believe you testified that you observed the damage to the vehicles?
A. That's correct.
Q. And after all you investigated, completed your investigation, did you determine whether you believed that, based on your investigation, that any citations were warranted?
A. Based on my investigation, no citations were warranted.
Mr. Stephenson called a witness, Elizabeth Ann Dumas, who testified to losing control of her vehicle and sliding into his van.See footnote 7 7 Three other witnesses, Arthur Brown, John David Marl, and George Stewart, were also called by Mr. Stephenson and each testified to sliding on the roadway before being struck by other vehicles.See footnote 8 8
In this Court's examination
of the relevant evidence, we find no error in the trial judge's decision to
deny the pre-verdict motion made by Ms. Gillingham and Mr. Bumgardner for judgment
as a matter of law. Clearly, to the extent that Ms. Gillingham and Mr. Bumgardner
established a prima facie case of negligence in violating traffic statutes,
the evidence submitted by Mr. Stephenson rebutted that prima facie case and
made the issue one for jury resolution.
1. Instruction on foreseeability.
During the trial judge's charge to the jury the following instruction was given:
The court instructs the jury that negligence requires a foreseeable risk of danger of injury and conduct unreasonable in proportion to the danger. If a person cannot reasonably foresee any injury as a result of one's act, or if one's conduct was reasonable in light of what one could anticipate under existing circumstances there is no negligence.
Ms. Gillingham and Mr. Bumgardner objected to the instruction on foreseeability. They contend that, because their claim of negligence was premised on the violation of traffic statutes, foreseeability was not an issue. Specifically, they argued in their brief that the legislature has already determined the standard of care and has already determined that conduct violating the standard of care creates a foreseeable risk of harm to those using the public highways.
Ms. Gillingham and Mr. Bumgardner cite a number of cases from other jurisdictions to support their contention that foreseeability is not an element of proof in a negligence action premised upon the violation of a statute. We agree with Mr. Stephenson that those cases are inapplicable. For example, Ms. Gillingham and Mr. Bumgardner cite to Taft v. Derricks, 613 N.W.2d 190 (Wis. App. 2000), wherein that court held that foreseeability was not an element in an action based upon the violation of a statute. However, Mr. Stephenson has correctly pointed out that Taft dealt with a statutory violation that constituted negligence per se. In West Virginia a violation of a statute is prima facie negligence and not negligence per se. Spurlin v. Nardo, 145 W. Va. 408, 415, 114 S.E.2d 913, 918 (1960). See Waugh v. Traxler, 186 W. Va. 355, 358, 412 S.E.2d 756, 759 (1991).See footnote 9 9
Additionally, in order to
support their theory that foreseeability is not an element of proof when negligence
is premised on the violation of a statute, Ms. Gillingham and Mr. Bumgardner
have cited to language from our decision in Haddox v. Suburban Lanes, Inc.,
176 W. Va. 744, 349 S.E.2d 910 (1986). Haddox did not involve a claim
of violation of a statute. In Haddox a patron of a bowling alley was injured
in a shooting incident that occurred at the bowling alley. The patron sued the
bowling alley's owner. The circuit court entered summary judgment in favor of
the owner. On appeal, this Court affirmed summary judgment concluding that the
owner could not have foreseen the patron's injuries. The Haddox Court
discussed the issue of foreseeability in broad terms. The Court noted that '[w]here
a course of conduct is not prescribed by a mandate of law, foreseeability of
injury to one to whom duty is owed is the very essence of negligence.'
Haddox, 176 W. Va. at 748, 349 S.E.2d at 914 (quoting Mathews v.
Cumberland Allegheny Gas Co., 138 W. Va. 639, 653, 77 S.E.2d 180, 188 (1953)).
Ms. Gillingham and Mr. Bumgardner have seized upon the latter quoted language
from Haddox to argue that foreseeability was not an element of proof
in their case.
In neither Haddox nor
Mathews did this Court explain the role of foreseeability in a case premised
on the violation of a statute. We therefore agree with Mr. Stephenson that Haddox
did not preclude foreseeability from an action based upon the violation of a
statute. This conclusion is supported by the decision in Pitzer v. M. D.
Tomkies & Sons, 136 W. Va. 268, 67 S.E.2d 437 (1951).
Pitzer was an action brought to recover damages
stemming from an injury to a child employed in violation of labor law statutes.
The child was struck by a vehicle while delivering groceries for the defendant. The plaintiff prevailed at trial.
The defendant appealed. On appeal the defendant contended, among other things,
that the vehicle which struck the child was an intervening act that absolved
the defendant of its negligence in employing the child. This Court rejected
the argument. In doing so, we held in Syllabus point 3 of Pitzer that
[a] failure to obey the mandate of a lawfully enacted statute will be
treated as the proximate cause of an injury which is a natural, probable and
anticipated consequence of the non-observance. See also Syl. pt.
2, Norman v. Virginia-Pocahontas Coal Co., 68 W. Va. 405, 69 S.E. 857
(1910) (The violation of the statute is rightly considered the proximate
cause of any injury which is a natural, probable, and anticipated consequence
of the nonobservance.).
anticipated consequence is merely another way of saying foreseeable
consequence. See Syl. pt. 7, in part, Puffer v. Hub Cigar Store,
140 W. Va. 327, 84 S.E.2d 145 (1954) (Foreseeable injury is a requisite
of proximate cause, and proximate cause is a requisite for actionable negligence[.]).
In other words, Pitzer stands for the proposition that whenever a plaintiff
makes out a prima facie case of a violation of a statute, a defendant may offer
rebuttal evidence that shows lack of foreseeability and a trial court may give
an instruction on the issue.See footnote
10 10 In the instant case, Mr. Stephenson presented rebuttal evidence from which the jury could have
determined that the collision in this case was not foreseeable. Therefore, we
find no error in the trial court's instruction on foreseeability.
2. Instruction on skidding.
Ms. Gillingham and Mr. Bumgardner assign error to an instruction given on the
legal consequences of an automobile skidding. During the trial judge's charge
to the jury the following instruction was given:
The court instructs the jury that the mere fact an automobile skids on the road is not alone evidence of negligence on the part of the driver; therefore, if you believe that Albert H. Stephenson did what might have been expected of a person of ordinary prudence acting under similar circumstances on the evening of the accident, then, you must find Albert H. Stephenson was not negligent in the operation of his vehicle[.]
Ms. Gillingham and Mr. Bumgardner contend that this instruction was confusing and is not supported by law or any syllabus point rendered by this Court. We disagree.
In Syllabus point 2 of Boury v. Hamm, 156 W. Va. 44, 190 S.E.2d 13 (1972), we held, in part, that [a]n instruction which states that an automobile may skid on a highway without any negligence on the part of the driver . . . is correct . . . under proper evidence. See also Waugh v. Traxler, 186 W. Va. 355, 359, 412 S.E.2d 756, 760 (1991) ([T]he mere fact that an automobile skids on the road is not alone evidence of negligence on the part of the driver.); Sigmon v. Mundy, 125 W. Va. 591, 595, 25 S.E.2d 636, 639 (1943) (same); Woodley v. Steiner, 112 W. Va. 356, 359, 164 S.E. 294, 295 (1932) (same). We explained the context in which skidding, in and of itself, is not negligence in Sigmon, 125 W. Va. at 396, 25 S.E.2d at 639:
It is true, of course, that an automobile may skid without the slightest negligence on the part of its driver. On the other hand, an automobile may be caused to skid by the negligence of the driver, and if established has the same consequences as to liability as negligence of any other character. The condition of the highway; the failure to take that condition into account; the speed of the vehicle considering the condition of the road; and the use of brakes are all matters which can be taken into consideration in determining the question of whether skidding was caused by some negligent act of the driver of a motor vehicle.
The instruction given in the case sub judice stated the law in West Virginia and was not confusing. The instruction required the jury to examine the issue of Mr. Stephenson's vehicle skidding in the proper context of whether he did what might have been expected of a person of ordinary prudence acting under similar circumstances on the evening of the accident[.] The instruction did not relieve Mr. Stephenson of liability if he did something before or during the skidding which an ordinary prudent person would not have done. Therefore we find no error in the instruction.See footnote 11 11
premised upon the violation of a statute. See Stanage v. Bilbo, 382 So. 2d 423, 424 (Fla. Dist. Ct. App. 1980); Gnello v. Puzzo, 110 Ill. App. 3d 913, 917, 443 N.E.2d 648, 651 (1982); Nesvig v. Town of Porter, 668 N.E.2d 1276, 1285 (Ind. Ct. App. 1996); Hartford Ins. Co. v. Manor Inn of Bethesda, Inc., 94 Md. App. 225, 238, 617 A.2d 590, 596 (1992); McCroskey v. Gene Deming Motor Sales, Inc., 94 Mich. Ct. App. 309, 314, 288 N.W.2d 418, 421 (1980); Adams v. Mills, 312 N.C. 181, 193 , 322 S.E.2d 164, 172 (1984); Nateley's Enters., Inc. v. Fortunato, 533 N.Y.S.2d 675, 678 (1988); Young v. Wheeler, 706 P.2d 552, 554 (Okl. Ct. App. 1985); Gattman v.Favro, 739 P.2d 572, 574-575 (Or. Ct. App. 1987); McClenahan v. Cooley, 806 S.W.2d 767, 770 (Tenn. 1991); Hudson v. Winn, 859 S.W.2d 504, 508 (Tex. Ct. App. 1993).