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SENIOR STATUS JUSTICE MCHUGH sitting by temporary assignment.
2. “In the matters of negligence, liability attaches to a wrongdoer . . . because of a breach of duty which results in an injury to others.” Syllabus Point 2, in part, Sewell v. Gregory, 179 W. Va. 585, 371 S.E.2d 82 (1988).
3. “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.” Syllabus Point 1, Parsley v. General Motors Acceptance Corp., 167 W. Va. 866, 280 S.E.2d 703 (1981).
4. “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.” Syllabus Point 5, Aikens v. Debow, 208 W. Va. 486, 541 S.E.2d 576 (2000).
5. “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.” Syllabus Point 2, Williams v. Precision
Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995).
Per Curiam: (See footnote 1)
[t]he 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.
Syllabus Point 5, Aikens v. Debow, 208 W. Va. 486, 541 S.E.2d 576 (2000). The circuit court determined that Cabot and the Richardses did not owe a duty to John Cody Conley because they did not own or have any control over the property where the accident occurred. Upon review of the record, we find no error.
“[I]n 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.” Durm v. Heck's Inc., 184 W. Va. 562, 565, 401 S.E.2d 908, 910 (1991). In
other words, “liability should be assessed against the party having control of the premises.” Id. at 565, 401 S.E.2d at 910. “[A] defendant [generally] cannot be held liable for a defective
or dangerous condition of property which it does not own, possess or control[.]” Andrick v.
Town of Buckhannon, 187 W. Va. 706, 710, 421 S.E.2d 247, 251 (1992), quoting Southland
Corp. v. Superior Court, 203 Cal.App.3d 656, 664, 250 Cal.Rptr. 57, 61 (1988). Accord Gover v. Mastic Beach Property Owners Association, 57 A.D.3d 729, 869 N.Y.S.2d 593
(2008); Contreras v. Anderson, 59 Cal.App.4th 188, 69 Cal.Rptr.2d 69 (1997); 62 Am. Jur.
2d. Premises Liability § 4 (2005). In this appeal, Ms. Conley contends that genuine issues
of material fact exist concerning whether the appellees owned, possessed, or controlled the
subject property at the time of the accident. We disagree.
Upon review of the record, we find that Cabot presented undisputed evidence
that established that it did not have a possessory interest in the cable, the land adjoining the
cable, or the land where the cable was located. The evidence also showed that Cabot did not
maintain or ever repair the cable or the land. While Cabot did have a key to the lock on the
cable, the evidence in the record shows that Cabot's use of the cable was nonexclusive and
subject to approval by the property owner. In that regard, Tom Liberatore, Vice President
and Regional Manager of Cabot, testified that Joseph Richards gave a Cabot employee a key
to the lock on the cable when Cabot purchased the pipeline from DOW Chemical Company
in 2003. Contrary to Ms. Conley's assertion, we do not believe that possession of a key to
a lock on the cable is sufficient evidence to impose a duty on the part of Cabot to John Cody
Conley. Cabot merely had permission to use the road on which the cable was placed across
and to that end, was provided a key for access purposes only. As set forth above, it is clear
that Cabot never installed, maintained, or repaired the cable or had any ownership interest
in the property.
With respect to the Richardses, there was also uncontroverted evidence
presented establishing that they did not own, possess, or control the subject property at the
time of the accident. In particular, deeds were submitted showing that Joseph Richards
acquired the subject property in 1998 and then transferred his ownership interest to Steven
and Cynthia Richards by deed dated December 21, 1999. Steven and Cynthia Richards then
deeded the property on which the accident occurred to Jerry Stollings on February 17, 2005,
almost two months before the accident occurred. In summary, there was undisputed
evidence establishing that neither Cabot nor the Richardses owned or controlled the subject
property at the time of the accident. Thus, we find no merit to Ms. Conley's argument. (See footnote 8)
Ms. Conley also asserts the circuit court's grant of summary judgment was premature, particularly with regard to Cabot, because discovery was not completed. She notes that this Court has stated that,
Summary judgment is appropriate only after the
non-moving party has enjoyed “adequate time for discovery.” Celotex Corp. [v. Catrett], 477 U.S. [317] at 322, 106 S.Ct.
[2548] at 2552 [1986]; Anderson [v. Liberty Lobby Inc.], 477
U.S. [242] at 250 n. 5, 106 S.Ct. [2505] at 2511 n. 5 [1986]. As
this Court has recognized, summary judgment prior to the
completion of discovery is “precipitous.” Williams [v. Precision
Coil, Inc.], 194 W.Va. [52] at 61, 459 S.E.2d [329] at 338
[1995], quoting Board of Educ. of the County of Ohio v. Van
Buren and Firestone, Arch., Inc., 165 W.Va. 140, 144, 267
S.E.2d 440, 443 (1980).
Payne's Hardware & Bldg. Supply, Inc. v. Apple Valley Trading Co. of W. Va., 200 W. Va.
685, 690, 490 S.E.2d 772, 777 (1997). Ms. Conley points out that several depositions of
Cabot's agents had been noticed, but they were never taken because of the stay on discovery
imposed by the circuit court at the hearing on April 20, 2007. Ms. Conley contends that the
depositions would have provided her with information concerning Cabot's access to and
control of the road. She further maintains that depositions of Cabot employees would have
shown that Cabot owned the mineral rights to the subject property and, thus, had an
ownership interest sufficient to impose upon it a duty to John Cody Conley. Again, we
disagree.
Having carefully reviewed the record, we are unable to find any factual support
for Ms. Conley's assertions. The mere contention that issues are disputable is not sufficient
to preclude summary judgment. Although discovery had not been completed in this case, and
Ms. Conley did file an affidavit advising the circuit court that additional discovery was
needed, (See footnote 9) it is clear that she would be unable to establish the existence of a genuine issue of
material fact with regard to whether or not Cabot had any ownership, possessory, or
controlling interest in the subject property. The evidence submitted by Cabot in support of
its motion for summary judgment included deposition testimony and affidavits of Mr.
Liberatore. He testified that,
I have had the opportunity to review the mineral rights and
leasehold agreements of Cabot Oil & Gas Corporation and have
verified that Cabot Oil & Gas Corporation does not own,
possess a leasehold interest, or possess the mineral rights to the
property which is the situs of the accident giving rise to this
litigation.
. . . .
In addition, Cabot Oil & Gas Corporation did not own or
control the cable gate or lock.
The record shows that the parties had already conducted discovery for several months before
the appellees filed their motions for summary judgment. If Cabot owned the mineral rights
to the subject property as Ms. Conley contends, then she should have been able to submit
documentation to that effect as it would be a matter of public record. She failed to do so. (See footnote 10) Therefore, even if Ms. Conley was given additional time for discovery, she would not be able
to produce any evidence to support her assertions with regard to Cabot.
Likewise, Ms. Conley would have been unable to produce any evidence to
show that the Richardses had an ownership or controlling interest in the subject property. As
set forth above, Joseph Richards's motion for summary judgment was supported by the
December 21, 1999, deed transferring his interest in the subject property to Steven and
Cynthia Richards. Steven Richards's motion for summary judgment was supported by the
February 17, 2005, deed transferring his interest in the property to Joseph Stollings.
Therefore, we find no merit to Ms. Conley's argument that summary judgment was
premature. (See footnote 11)
Based upon all the above, we find that the circuit court did not err in granting
summary judgment in favor of Cabot and the Richardses. This Court has explained that,
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.
Syllabus Point 2, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995).
In this instance, Ms. Conley was unable to produce any evidence to show that the appellees
owed a duty to John Cody Conley.