653 S.E.2d 632
| Bernard E. Layne, III, Esq.|
Greg R. Lord, Esq.
Sharon McKeny Lord, Esq.
Lord, Lord & Layne
Charleston, West Virginia
Attorneys for the Appellant
| Stephen M. Fowler, Esq.
Julie M. Meeks, Esq.
Travis A. Griffith, Esq.
Pullin, Fowler & Flanagan
Charleston, West Virginia
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE DAVIS and JUSTICE MAYNARD concur and reserve the right to file concurring opinions.
JUSTICES STARCHER and ALBRIGHT dissent and reserve the right to file dissenting opinions.
This action is before this Court upon the appeal of Susan M. Jackson, Administratrix of the Estate of her son, Timothy J. Jackson, from the June 29, 2005, order of the Circuit Court of Putnam County, West Virginia, granting summary judgment in favor of the Putnam County Board of Education. Timothy, a student at Winfield High School, died as the result of a single-vehicle accident on Interstate 77. The driver of the vehicle, Brian C. Ramsburg, was a classmate, and he and Timothy were returning home from a weekend retreat for the school choir held at a campground in Kanawha County. Appellant Jackson alleged in the complaint that the Putnam County Board of Education had a duty to provide transportation to the students attending the retreat and that the Board's breach of that duty resulted in the death of her son. In granting summary judgment in favor of the Board, however, the Circuit Court found no such duty and, moreover, determined that, even if such a duty existed, the failure to provide transportation to the retreat was not, as a matter of law, a proximate cause of Timothy's death.
This Court has before it the petition for appeal, all matters of record which were before the Circuit Court and the briefs and argument of counsel. Upon the applicable standards of review and for the reasons stated below, this Court is of the opinion that the Circuit Court was correct in granting summary judgment in favor of the Board. Accordingly, the order of the Circuit Court of Putnam County entered on June 29, 2005, is affirmed.
At the time of the September 2001 retreat, section T. 3.4. of the Board's Policy
Manual required that student trips, whether for curricular or extracurricular purposes, have
the approval of the school Principal and, if overnight or involving non-school days, have, in
addition, the approval of the County Superintendent of Schools. Overnight trips also
required the approval of the Board of Education. Moreover, the Policy Manual provided that
trips involving 10 or more students must be made on school buses or charter buses and that
under no circumstances would a student or anyone under the age of twenty-one be allowed
to serve as a driver for a student trip. However, as more fully discussed below, the Policy
Manual was never made a part of the record before the Circuit Court, and, during the course
of this appeal, this Court has twice refused appellant Jackson's requests to include the Policy
Manual in the record as a supplement.
In the proceedings below, the Board's Policy Manual was quoted, in part, in both the complaint and in the stipulated facts proposed by plaintiff portion of the joint pretrial memorandum filed with the Circuit Court. The Board asserted, however, that the Manual speaks for itself, and both parties, in the pretrial memorandum, expressed an intent to offer the Policy Manual in evidence at trial. As stated above, attached to the Board's motion for summary judgment were the following: (1) a memorandum in support of summary judgment, (2) the General Admission Handbook of Policies and Procedures, (3) the depositions of Larry J. Jackson, Brian C. Ramsburg and Jeffrey A. Haught, (4) the Permission Statement and the Health and Insurance Information form and (5) two accident reports prepared by the police. A memorandum in opposition to the motion, without attachments, was filed by the appellant, and a reply was filed by the Board. The Policy Manual was not submitted; nor was it submitted during the argument of counsel upon the motion. Thus, the Policy Manual was never before the Circuit Court during its consideration and ruling upon the Board's motion for summary judgment and was never made a part of the record in this action.
It should be noted that in July 2004, prior to the motion for summary judgment, the Board filed a certificate of service with the Circuit Court stating that various documents requested in discovery had been served upon counsel for appellant Jackson. The documents served included the Policy Manual which, according to the appellant, became part of the record before the Circuit Court by virtue of the certificate. The West Virginia Rules of Civil Procedure, however, suggest otherwise. Subsections (2) and (3) of Rule 5(d) concerning the filing of documents states in part:
(2) Unless filing is required by the court on motion or upon its own initiative, depositions, interrogatories, requests for admissions, requests for production and entry, and answers and responses thereto shall not be filed. * * * Certificates of service of discovery materials shall be filed.
(3) Unless otherwise stipulated or ordered, the party taking the deposition or obtaining any material through discovery is responsible for its custody, preservation, and delivery to the court if needed or ordered.
In that regard, prior to the filing of the July 2004 certificate of service, the Circuit Court entered a scheduling order, signed by counsel for the parties, which provided:
As discovery materials are generally not filed with the Court but are retained by the parties, any motion or response thereto which references discovery materials shall include copies of such materials referenced, particularized to the pertinent part thereof. A response by the non-moving party to a motion for summary judgment shall include specific references to the existence of facts which are claimed nonexistent by the moving party.
Upon appeal, appellant Jackson submitted portions of the Policy Manual to this Court. The Board's motion to strike that submission as not part of the record before the Circuit Court was granted. Subsequently, the appellant filed a motion to reconsider and, in addition, a request that this Court take judicial notice of the Policy Manual. By order entered on September 7, 2006, this Court denied both the motion and the request. (See footnote 6)
Rule 56 states that summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine as to any material fact and that the moving party is
entitled to a judgment as a matter of law. (emphasis added) As recognized in syllabus point
1 of Guthrie v. Northwestern Mutual Life Insurance Co., 158 W. Va. 1, 208 S.E.2d 60
(1974), summary judgment cannot be defeated on the basis of factual assertions contained
in the brief of the party opposing a motion for such judgment. Rather, the parties have an
obligation to make sure that evidence relevant to a judicial determination be placed in the
record before the lower court so that this Court may properly consider it on appeal. West
Virginia Department of Health and Human Resources ex rel. Wright v. Doris S., 197 W. Va.
489, 494 n. 6, 475 S.E.2d 865, 870 n. 6 (1996). In Powderidge Unit Owners Association v.
Highland Properties, 196 W.Va. 692, 474 S.E.2d 872 (1996), this Court stated that Rule 56
imposes no mandate upon a circuit court or this Court to sift through the record in search
of evidence to support a party's opposition to summary judgment. 196 W. Va. at 700, 474
S.E.2d at 880. Moreover, appellate review in summary judgment cases is limited to the
record as it stood before the circuit court at the time of its ruling. Id. This established
principle of West Virginia jurisprudence is particularly relevant to the instant appeal.
Summary judgment is mandated in our courts where, after appropriate discovery, there is no legitimate dispute regarding a genuine issue of material fact impacting liability apparent from the record before the circuit court. As Justice Frank D. Cleckley stated in Williams v. Precision Coil, 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 meritless litigation.
194 W. Va. at 58, 459 S.E.2d at 335 (internal quotations and citations omitted). Under West Virginia law, [a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law. Syl. pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, supra. Pursuant to Rule 56(e):
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 respond, summary judgment, if appropriate, shall be entered against the adverse party.
In Powderidge, 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 demonstrate 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, we held in 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 a material fact, the burden of production shifts to the nonmoving party who must either (1) rehabilitate the evidence attacked by the moving 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.
Because the Policy Manual was not a part of the record before the Circuit Court and was not made a part of the record by the Appellants when opposing the summary judgment motion, the General Admission Handbook of Policies and Procedures, rather than the Policy Manual, is dispositive of whether a duty existed to provide transportation to the students attending the September 2001 retreat at the Rippling Waters Campgrounds. The Handbook exclusively concerned the Choir and contained a number of rules and guidelines for individual travel, as well as travel by bus, to Show Choir events. The Handbook, which was accepted by the parents, indicated that trips to Choir events were frequently by bus and that, if so planned, no individual travel arrangements were permitted, unless in extreme circumstances and under strict regulations. The Handbook allowed for individual travel which usually occurred: (1) in the case of day trips, (2) when the Choir was performing in the immediate area and (3) when the cost of renting a bus was prohibitive. Where individual travel to an event was utilized, the Handbook provided that liability was limited to the period from the member's arrival at the event site until dismissal from the event. All other liability for the child's safety lies with the parent, or their designated drivers.
Consequently, in view of the above provisions of the Handbook, this Court finds no error in the determination of the Circuit Court that there was no duty on the part of the Putnam County Board of Education to provide transportation to the September 2001 retreat at Rippling Waters Campgrounds. In view of the record before the Circuit Court, no other conclusion is legally tenable.
A. No Action for Negligence Can Be Maintained in the Absence
of a Legal Duty and the Question of the Existence of a Legal
Duty is a Question of Law Appropriately Resolved in a Motion
for Summary Judgment
1. No action for negligence can be maintained in the absence of a legal duty. This Court has stated:
'In order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission in violation of a duty owed to the plaintiff. No action for negligence will lie without a duty broken.' Syl. pt. 1, Parsley v. General Motors Acceptance Corp., 167 W. Va. 866, 280 S.E.2d 703 (1981). Syl. pt. 4, Jack v. Fritts, 193 W. Va. 494, 457 S.E.2d 431 (1995).
Syl. pt. 3, Aikens v. Debow, 208 W. Va. 486, 541 S.E.2d 576 (2000). See also Hinkle v. Martin, 163 W. Va. 482, 486, 256 S.E.2d 768, 770 (1979) (It is axiomatic that to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission in violation of a duty owed to the plaintiff. No action for negligence will lie without a duty broken.). Where the undisputed material facts do not establish the existence of a duty, summary judgment is appropriate. Kazanoff v. United States, 753 F.Supp. 1056, 1059 (E.D.N.Y.1990). See also Gylten v. Swalboski, 246 F.3d 1139, 1144-45 (8th Cir.2001) ([W]e conclude that the grant of summary judgment was proper. Absent a duty, there can be no breach, and thus, no basis for recovery under a negligence theory.). Cf. Ads-Anker Data Systems-Midwest, Inc., 498 F.2d 517, 519 (4th Cir.1974) (applying West Virginia law) (Had appellants' injuries allegedly resulted from defective brakes or tires, summary judgment would have been appropriate, for, absent special contract, an employer ordinarily has no duty to inspect and no power to control the maintenance of an employee's automobile.). Because [s]ummary judgment is not a remedy to be exercised at the circuit court's option; [but] must be granted when there is no genuine disputed issue of a material fact[,] Powderidge Unit Owners Association v. Highland Properties, Ltd., 196 W. Va. 692, 698, 474 S.E.2d 872, 878 (1996), the circuit court's grant of summary judgment to the Board should be affirmed.
2. The question of the existence of a legal duty is a question of law. The existence of a legal duty is not a question of fact; it is an issue of law. As an issue of law, its resolution resides in the province of the court-not the jury.
The determination of whether a defendant in a particular case owes a duty to the plaintiff is not a factual question for the jury; rather the determination of whether a plaintiff is owed a duty of care by a defendant must be rendered by the court as a matter of law.
Syl. pt. 5, Aikens v. Debow, 208 W. Va. 486, 541 S.E.2d 576. I believe that, even taking Mr. Elliott's factual averments in a light most favorable to him, he has failed to show a legal duty. See, e.g., Gooch v. West Virginia Dep't of Pub. Safety, 195 W.Va. 357, 366, 465 S.E.2d 628, 637 (1995) (A central issue to the circuit court's determination is whether the record taken as a whole and in a light most favorable to the plaintiff is sufficient to create a genuine issue of material fact for trial.).
Summary judgment is appropriate if, from the totality of the evidence presented, the record 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. 2, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995).
Elliott, 213 W. Va. at 76-77, 576 S.E.2d at 803-04 (Davis, C.J., concurring, in part, and dissenting, in part).
The Circuit Court concluded that, even if a duty to provide transportation existed, the Board's failure to provide transportation was not, as a matter of law, a proximate cause of Timothy's death. As this Court recognized in Louk v. Isuzu Motors, 198 W. Va. 250, 479 S.E.2d 911 (1996): We are mindful of the principle that the breach of a duty owed, by itself, is not actionable, unless there is also sufficient evidence from which the jury may find by a preponderance of the evidence that such negligence is a proximate cause of the injury. 198 W. Va. at 262, 479 S.E.2d at 923.
Here, both the flyer distributed by Director Haught concerning the retreat and the General Admission Handbook discouraged student driving without parental accompaniment. Moreover, prior to the September 28-30 weekend, Haught received a note from Timothy specifically stating that his father, Larry J. Jackson, would drive him to the Rippling Waters Campgrounds. Nevertheless, at some point, Mr. Jackson and Timothy decided, without notice to Haught or anyone associated with the retreat, that Timothy would ride with classmate Brian C. Ramsburg.
Syllabus point 3 of Webb v. Sessler, 135 W. Va. 341, 63 S.E.2d 65 (1950), holds:
'Proximate cause' must be understood to be that cause which in actual sequence,
unbroken by any independent cause, produced the wrong complained of, without which the
wrong would not have occurred. Syl. pt. 4, Spencer v. McClure, 217 W.Va. 442, 618 S.E.2d
451 (2005); syl. pt. 4, Stewart v. George, supra. In this action, any duty of the Board under
the Handbook to provide transportation to the retreat was removed from the September 30,
2001, accident by the change, without notice to school authorities, in Timothy's travel
arrangements, despite, as the Circuit Court found, full knowledge of the purported rules and
regulations set forth by the Show Choir. Those circumstances, followed by Ramsburg's
negligent operation of the vehicle, broke the chain of causation with regard to any breach of
duty committed by the appellee Board. Consequently, the Circuit Court appropriately ruled
in favor of the Board as a matter of law on this issue.