__________________________________________________
Stephen P. Meyer
Brent
K. Kesner
Meyer & Ford
Ellen
R. Archibald
Charleston, West Virginia
Kesner,
Kesner & Bramble
and
Charleston,
West Virginia
Anne E. Shaffer
and
Charleston, West Virginia
David
A. Sims
Attorneys for the Appellees
Elkins,
West Virginia
Attorneys
for the Appellant
The Opinion of the Court was delivered PER CURIAM.
JUSTICES DAVIS and MAYNARD dissent and reserve the right to file dissenting
opinions.
1. “[I]n ruling on
a motion for a judgment not withstanding the verdict, the evidence must be
viewed in the light most favorable to the nonmoving party. If on review, the
evidence is shown to be legally insufficient to sustain the verdict, it is
the obligation of this Court to reverse the circuit court and to order judgment
for the appellant.” Syl. Pt. 1, in part, Mildred L.M. v. John O.F.,
192 W.Va. 345, 452 S.E.2d 436 (1994).
2. “The granting of
a motion for judgment notwithstanding the verdict is reviewed de novo,
which triggers the same stringent decisional standards that are used by the
circuit courts. While a review of this motion is plenary, it is also circumscribed
because we must review the evidence in a light most favorable to the nonmoving
party.” Syl. Pt. 3, Alkire v. First Nat'l Bank, 197 W.Va. 122,
475 S.E.2d 122 (1996).
3. “Violation of a statute
is prima facie evidence of negligence. In order to be actionable, such
violation must be the proximate cause of the plaintiff's injury.” Syl.
Pt. 1, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990).
4. “A trial court's
instructions to the jury must be a correct statement of the law and supported
by the evidence. Jury instructions are reviewed by determining whether the
charge, reviewed as a whole, sufficiently instructed the jury so they understood
the issues involved and were not mislead by the law. A jury instruction cannot be dissected
on appeal; instead, the entire instruction is looked at when determining its
accuracy. A trial court, therefore, has broad discretion in formulating its
charge to the jury, so long as the charge accurately reflects the law. Deference
is given to a trial court's discretion concerning the specific wording of
the instruction, and the precise extent and character of any specific instruction
will be reviewed only for an abuse of discretion.” Syl. Pt. 4, State
v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
5. “A trial court's
refusal to give a requested instruction is reversible error only if: (1) the
instruction is a correct statement of the law; (2) it is not substantially
covered in the charge actually given to the jury; and (3) it concerns an important
point in the trial so that the failure to give it seriously impairs a defendant's
ability to effectively present a given defense.” Syl. Pt. 11, State
v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).
6. “A principal has
a non-delegable duty to exercise reasonable care when performing an inherently
dangerous activity; a duty that the principal cannot discharge by hiring an
independent contractor to undertake the activity.” Syl.
Pt. 2, King v. Lens Creek Ltd. P'ship, 199 W.Va. 136, 483 S.E.2d 265
(1996).
Per Curiam:
Appellant Charles Harper
seeks a reversal of the September 11, 2000, order of the Circuit Court of
Kanawha County denying his post-trial motions for a new trial or judgment
as a matter of law.
(See footnote 1) As grounds for the relief he seeks, Appellant
argues that he was entitled to judgment as a matter of law because Appellees,
James D. and Joyce Kizer, failed to prove a prima facie case of negligent
hiring against him. In addition, Appellant asserts that the circuit court
erred in denying his new trial motion based on various instructional errors,
sufficiency of the evidence, and a generalized plea that a miscarriage of
justice will result through enforcement of the judgment. Having carefully
reviewed the record in this case, we find no reversible error and accordingly,
we affirm.
By order entered March 29, 1999, the Kizers dismissed Appalachian Power as a defendant. (See footnote 5) On October 12, 1999, the trial began in the Kizers' negligence action against Charles and Ronald Harper. Following the presentation of the Kizers' case-in-chief, the trial court directed a verdict in favor of Ronald Harper. The jury returned its verdict in favor of the Kizers on October 15, 1999, apportioning fault as follows: Appalachian Power- -90%; CableComm--9%; Charles Harper--1%. The jury awarded damages in the amount of $1,299,000.01, for which Mr. Harper is liable under principles of joint and several liability.
Appellant filed his motion for
a new trial or alternatively, judgment as a matter of law on October 25, 1999.
As grounds for this motion, Appellant argued that the Kizers failed to present
evidence establishing that Larry Vance, the “electrician” hired by
Mr. Harper to install a circuit breaker box at his mother's home, committed
an act of negligence which caused the Kizers' injuries, and further that the
Kizers failed to establish that he was negligent in hiring Mr. Vance.
(See footnote 6)
In addition, Appellant asserted that the trial court erred in ruling that
the installation of a breaker box is an inherently dangerous activity; in giving
the Kizers' instructions on an inherently dangerous instrumentality; and in
refusing his proffered instruction on the independent contractor defense. Finally,
Appellant maintained that it was error for the trial court to permit the Kizers
to read the deposition testimony of Larry Vance into the record in this case,
on the grounds that Mr. Vance was not an unavailable witness under the rules
of civil procedure.
(See footnote 7) After hearing oral argument on these issues,
the trial court denied Appellant's motions for post-trial relief by order entered
on September 11, 2000. Through this appeal, Appellant seeks a reversal of the
lower court's denial of his post-trial motions.
Under West Virginia law,
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); accord Spurlin v. Nardo, 145 W.Va. 408, 415, 114
S.E.2d 913, 918 (1960). “In order to be actionable,” however, “such
violation must be the proximate cause of the plaintiff's injury.” Syl.
Pt. 1, in part, Anderson, 183 W.Va. at 79, 394 S.E.2d at 63; accord
Waugh v. Traxler, 186 W.Va. 355, 358, 412 S.E.2d 756, 759 (1991). As we
explained in Traxler, “'[o]nly a rebuttable prima facie presumption
of negligence arises on a showing that the statute was violated.'” Id.
at 358, 412 S.E.2d at 759 (quoting Flanagan v. Mott, 145 W.Va. 220,
226, 114 S.E.2d 331, 335 (1960)).
The statutory violation
in issue in this case was a licensing statute governing the performance of
electrical work in this state. Under West Virginia Code § 29-3B-2 (2001),
“no electrical work may be performed, offered or engaged in for compensation
or hire . . . unless such person . . . possesses a license and a certificate.
. . .” A separate statute, West Virginia Code § 55-7-9 (1923) (Repl.
Vol. 2000), provides that “[a]ny person injured by the violation of any
statute may recover from the offender such damages as he may sustain by reason
of the violation. . . .”
We concur with Appellant's
contention that proof of a statutory violation, in this case a licensing violation
as Mr. Harper was not a licensed electrician, is not sufficient to establish
negligent hiring. See Thomson v. McGinnis, 195 W.Va. 465, 465 S.E.2d
922 (1995) (setting forth cause of action for negligent hiring or selection).
Nonetheless, we are still without a basis to find error on this issue for
two reasons. First and foremost is the fact that proof of the statutory violation
did get the Kizers' claim of negligence before the jury. Once the statutory
violation was demonstrated, and there is no dispute regarding the fact of
the violation, it was up to Appellant to rebut the presumption of negligence
that was created. Whether Appellant rebutted this presumption of negligence
was a matter for the jury.
(See footnote 11) See Traxler, 186
W.Va. at 358, 412 S.E.2d at 759; accord Spurlin, 145 W.Va. at
415, 114 S.E.2d at 918 (stating that “entire matter is a question for
jury determination” where statutory violation relating to operable brakes was demonstrated). A jury
question was also presented by virtue of the need to determine whether the
Kizers' injuries were proximately caused by the statutory violation, as we
explained in Anderson:
While a statutory violation
gives rise to a prima facie case of negligence, “'the determination
as to whether there was in fact a violation and whether the violation was
the proximate cause of the injury is within the province of the jury.' Syllabus
Point 3, Simmons v. City of Bluefield, [159] W.Va. [451], 225 S.E.2d
202, 88 A.L.R.3d 105 (1975).” Syllabus Point 3, in part, Jones v.
Two Rivers Ford, Inc. 171 W.Va. 561, 301 S.E.2d 192 (1983).
183 W.Va. at 90, 394 S.E.2d at 74.
Our second basis for denying
Appellant relief from the lower court's ruling arises from the parties' failure
to submit any special interrogatories to the jury. While the Kizers were required
to connect the acts of negligence upon which they sued to the statutory violation
to prove negligent hiring, the absence of special interrogatories separating
these two issues prevents us from concluding that the jury did not determine,
as part of their finding of negligence, that the statutory violation was the
proximate cause of the injuries suffered by the Kizers. By allowing the jury
to resolve the issue of negligence without first making the underlying connection
to the statutory violation through the use of special interrogatories, and
in light of the fact that we are required to view this issue in the light
most favorable to the non-moving party, we must presume that the jury did
find the necessary elements of proximate causation in reaching its verdict.
See Adkins v. Foster, 187 W.Va. 730, 736, 421 S.E.2d 271, 277 (1992) (“Failure to submit
a special interrogatory to the jury can lead to various unexpected areas of
uncertainty upon appellate review of a jury verdict.”) Accordingly, this
Court has no basis from which to conclude that the lower court was in error
in refusing to grant Appellant's motion for judgment as a matter of law.
A trial
court's refusal to give a requested instruction is reversible error only if:
(1) the instruction is a correct statement of the law; (2) it is not substantially
covered in the charge actually given to the jury; and (3) it concerns an important
point in the trial so that the failure to give it seriously impairs a defendant's
ability to effectively present a given defense.
Syl. pt. 11, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).
Appellant asserts error
with the giving of Plaintiffs' Instruction Numbers 5, 6, 7, 9, and 10. Instruction
Numbers 5
(See footnote 12) and 6
(See footnote 13) deal with prima facie negligence
and the violation of the licensing statute governing electrical work performed in
this state. Appellant argues that Instruction Numbers 5 and 6 misstate the
law by declaring that lack of an electrical license is proof of negligent
electrical work and by not requiring the jury to find that the lack of an
electrical license was the proximate cause of the Kizers' injuries. Neither
Instruction Number 5 nor Instruction Number 6 states the law as Appellant
represents with regard to permitting a conclusion of negligent electrical
work to follow from proof of a statutory violation. Instruction Number 5 properly
states the law with regard to a presumption of negligence arising from
a statutory violation. This statement is clearly in accord with the law of
prima facie negligence as announced on multiple occasions by this Court.
See Traxler, 186 W.Va. at 358, 412 S.E.2d at 759; Anderson, 183
W.Va. at 79, 394 S.E.2d at 63, syl. pt. 1; Spurlin, 145 W.Va. at 415, 114 S.E.2d at
918; Sommerville v. Dellosa, 133 W.Va. 435, 439, 56 S.E.2d 756, 760
(1949).
With regard to Instruction
Number 6, Appellant takes issue
(See footnote 14) with the concluding statement,
which instructs that “if you believe by a preponderance of the evidence
in this case that Larry Vance did 'electrical work' for hire then you may
find that Larry Vance, at least, was guilty of negligence, unless there is
sufficient evidence to rebut such presumption.” Appellant maintains that
this sentence permitted the jury to “presume[] negligent wiring based
solely on lack of a license” and further that the instruction lacks language
“requir[ing] the jury to find that Vance's lack of a license proximately
caused Kizer's injuries.” While this portion of the instruction could
have been worded more artfully, the instruction does incorporate the critical
concept that prima facie negligence can be rebutted. And, as far as
the statement that permits a finding of prima facie negligence to flow
from the violation of a statute, that is a correct statement of the law. While
Appellant suggests that the instruction wrongly directs the jury that they
may find negligent wiring from a violation of a licensing statute, the instruction
clearly refers to a finding of only prima facie negligence given the
inclusion of the rebuttable presumption language. As to the absence of language within this instruction setting forth the additional
element of causation as between the statutory violation and the plaintiffs'
injuries, Appellant offered no language to clarify this aspect of proof in
the form of either an amendment to this instruction or as a separate proximate
causation instruction.
(See footnote 15) See Rodriguez v. Consolidation
Coal Co., 206 W.Va. 317, 327, 524 S.E.2d 672, 682 (1999) (observing
that Appellant's failure to offer a jury instruction constituted waiver of
alleged error and precluded appellate review).
Plaintiffs' Instruction
Number 7 provided that: “The Court instructs the jury that electricity
is an inherently dangerous instrumentality and that its management requires
a peculiarly high degree of care.” This statement directly tracks language
from our decision in Miller v. Monongahela Power Co., 184 W.Va. 663,
668, 403 S.E.2d 406, 411, cert. denied, 502 U.S. 863 (1991). While
the trial court struggled with determining whether the holding of Miller
involving the “extraordinarily high duty of care owed by a power company
to every member of the general public” applied to non-commercial settings
-- an issue which we do not reach today
(See footnote 16) and an issue which the lower
court similarly avoided
(See footnote 17) -- the limited statement contained in the instruction regarding the nature of electricity
and the level of care required when working with electricity is nonetheless
accurate. 184 W.Va. at 669, 403 S.E.2d at 412. And, as Appellees point
out, Appellant stated “no
objection” when plaintiffs'
Instruction Number 7 was being approved by the trial court.
(See footnote 18)
According
to Appellant, the giving of plaintiffs' Instruction Number 7 “misstated
the law by stating that the breaker box was inherently dangerous and that
[Mr.] Harper had a duty of heightened care.” Instruction number 7 did
not extend the concept of an inherently dangerous activity to work on a circuit
breaker box; the instruction refers to electricity as being the inherently
dangerous activity. While Appellant
sought and obtained a ruling from the lower court that “installing a
breaker box is an inherently dangerous activity,” no specific instruction
was offered regarding this activity. Consequently, the jury was not instructed that work
on a circuit breaker box was an inherently dangerous activity, and, for the
reasons noted above, we do not address this issue at this time.
Appellant's
averment that Instruction Number 7 purports to extend an elevated duty of
care to Mr. Harper is similarly without merit.
With regard to the trial court's
refusing to give Appellant's Instruction Numbers 11 and 12 pertaining to the
independent contractor rule, we find those instructions inapplicable given the
exception to the rule which applied under King. See 199 W.Va.
at 141, 483 S.E.2d at 270. Upon a full review of these instructional issues,
we find no reversible error given that the instructions either accurately reflect
the law, error was not properly preserved, or alternate instructions were not
offered.
Appellant contends that
the only evidence that the jury considered on the issue of negligent hiring
was the lack of license held by Mr. Vance. In addition to the absence of a
license, Appellees introduced evidence that the compensation exchanged for
the electrical work performed by Mr. Vance was either $40 or a case of beer.
This Court has made clear that the issue of negligent hiring is an issue of
fact for the jury. Sipple v. Starr, 205 W.Va. 717, 724, 520 S.E.2d
884, 891 (1999). And, in making that determination the jury considers whether
“the exercise of reasonable diligence would disclose facts demonstrating
that the contractor was clearly incompetent for the particular task contemplated.”
Thomson, 195 W.Va. at 472, 465 S.E.2d at 929. We cannot say on the
record before us that the jury could not have determined that Mr. Harper,
through “the exercise of reasonable diligence,” could have learned
that Mr. Vance was not competent to do electrical work by inquiring as to
the existence of an electrician's license. Id. Accordingly, we find
no merit in Appellant's contention that the jury did not have sufficient evidence before them from
which to make a finding of negligent hiring.
(See footnote 24) As a final attempt to convince
the Court to grant his requested relief, Appellant argues that a miscarriage
of justice will result if the judgment order is permitted to be enforced.
In making this assertion, Appellant maintains that the jury verdict was “against
the clear weight of the record.” Because we do not find the verdict to
be without supporting evidence,
(See footnote 25) we find no resulting miscarriage
of justice through its enforcement.
(See footnote 26) See Syl. Pt. 3, In
re State Public Bldg. Asbestos Litig., 193 W.Va. 119, 454 S.E.2d 413 (1994),
cert. denied sub nom W.R. Grace & Co. v. West Virginia, 515 U.S. 1160
(1995).
Based on the foregoing, the
decision of the Circuit Court of Kanawha County is hereby affirmed.
Appellant complains
(See footnote 22)
that the deposition of Mr. Vance should not have been read to the jury,
arguing that he did not qualify as an unavailable witness. Mr. Vance, a Florida
resident, attended the first three days of trial and then was no longer around
when the Kizers called him as a witness on the fourth day of trial. The trial
court ruled that, while not overwhelming in nature, there were sufficient “exceptional
circumstances” to permit the reading of the deposition under Rule 32(a)(3)(E)
of the West Virginia Rules of Civil Procedure. That provision permits the reading
of a deposition, upon a showing of exceptional circumstances, “in the interest
of justice and with due regard to the importance of presenting the testimony
of witnesses orally in open court.” W.Va. R. Civ. P. 32 (a)(3)(E). While
the Kizers never took the opportunity to serve Mr. Vance with a subpoena during the first three days of trial, there was some discussion during oral
argument that Mr. Vance's identity was not known until after he was no longer
present in the courtroom.
(See footnote 23) Given the need for the deposition
testimony of Mr. Vance to establish whether he did or did not have an electrician's
license issued by this state, and due to the apparent inability of the Kizers
to serve him with a subpoena, we find no error under the facts of this case
in the trial court's finding of exceptional circumstances warranting the reading
of the deposition.
Appellant argues that there
was insufficient evidence on the issue of negligent hiring. In support of his
position, he cites Robertson v. Morris, 209 W.Va. 288, 546 S.E.2d
770 (2001), contending that Robertson stands for the proposition that
the failure to ask to see an independent contractor's license or insurance policy
does not constitute negligent hiring. No such finding was reached in
that decision. In affirming a grant of summary judgment, and almost in passing,
this Court simply identified the appellant's position that a question of fact
arose regarding whether the hiring entity failure's to require the independent
contractor “to produce, instead of simply asking him to produce, a copy
of his license or insurance policy” was a violation of her duty of care.
Id. at __, 546 S.E.2d at 774. Rather than being a negligent hiring cause
of action, however, Robertson was decided based upon general principles governing the distinction between an independent
contractor and an employee. See Shaffer v. Acme Limestone Co., 206
W.Va. 333, 524 S.E.2d 688 (1999); Pasquale v. Ohio Power Co., 187 W.Va.
292, 418 S.E.2d 738 (1992). Accordingly, Robertson is both factually
and legally inapposite.
Footnote: 2
Footnote: 3
Footnote: 4
Footnote: 5
Footnote: 6
Footnote: 7
Footnote: 8
Footnote: 9
The
Court instructs the jury that under the laws of this State a violation of
a West Virginia statute is prima facie evidence of negligence.
The
term “prima facie negligence” as used in these instructions simply
means such evidence as in this judgment of the law, is sufficient to establish
a given fact or the group or chain of facts constituting the party's claim
if not rebutted or contradicted.
The
Court instructs the jury that the Code of the State of West Virginia, Section
29-3-(b)-2 [sic] provides:
“No
electrical work may be performed, offered or engaged in for compensation or
hire within the State of West Virginia by any person, firm, or corporation
unless such person, firm or corporation possesses a license and a certificate
therefor, issued by the State Fire Marshall in accordance with this article,
and a copy of such license posted on any job in which electrical
work is being performed for hire.
As
used in this article; “electrical work” means the installation of
wires, conduits, apparatus, fixtures or other appliances, equipment or systems
for transmitting, carrying, controlling, or using electricity for light, heat
or power purposes.
The
Court further instructs the jury that one who violates the statute is guilty
of prima facie negligence. Therefore, if you believe by a preponderance of
the evidence in this case that Larry Vance did “electrical work”
for hire then you may find that Larry Vance, at least, was guilty of negligence,
unless there is sufficient evidence to rebut such presumption.
dangerous instrumentality”;
(See footnote 27)
(2) Appellant did not preserve an objection on this issue; and (3) the jury
was instructed on two causes of action (negligent hiring and nondelegable
duty of independent contractor hiring individual to perform inherently dangerous
activity), either one of which could have been the basis for their verdict.
We agree that this case, due to its posture, is not the proper vehicle in
which to resolve the reach of Mill
er.
Footnote: 17
The
Court instructs the jury that in performing an inherently dangerous activity,
a principal has a non-delegable duty to exercise reasonable care and that
duty cannot be discharged by hiring an independent contractor to undertake
that activity.
Therefore,
if you believe that either [sic] Charles Harper hired an independent contractor
to perform an activity involving electricity, then you may find that their
duty of exercising reasonable care cannot be discharged by an independent
contractor who they hired to undertake that activity, and that if the activity
was negligently performed the negligence is chargeable to the defendant, Charles
Harper.
Footnote: 20