Georgia D. Yourtee, Administratrix of the Estate of Michael Yourtee, deceased v. Robert A. Hubbard, No. 22885 (W. Va. July 19, 1996) (Recht, J.):
Affirming a JNOV for a defendant whose car was involved in an accident after it was stolen by one of plaintiff's friends, the Court held (1) a person who participates in the theft of a vehicle and is injured as a result of the operation of such vehicle is not within the class of persons designed to be protected under W. Va. Code § 17C-14-1, the unattended motor vehicle statute; (2) W. Va. Code § 17C-14-1 does not create a private cause of action for a thief against the owner of an unattended motor vehicle; and (3) the owner of a motor vehicle does not owe a common law duty of ordinary care to those who participate in its theft, but only to refrain from willful or wanton injury.
Jeanette Craighead, as Administratrix of the Estate of Steven S. Craighead v. Norfolk and Western Railway Company, a corporation, and B.R. Turner, No. 22946 (W. Va. July 5, 1996) (Albright, J.):
Affirming a comparative fault adjusted $660,000 wrongful death award arising from a death caused when the decedent was struck by a train while walking on the railroad tracks, the Court held that railroads owe a duty of reasonable care even to those who trespass upon their tracks.
Loretta Savage, Mary Kline, Patricia L. Johnson, and Thelma Baisden v. Jack Booth, No. 22876 (W. Va. February 14, 1996) (Cleckley, J.): 196 W. Va. 65, 468 S.E.2d 167:
Where plaintiffs received verdict of $40,000 in a sexual harassment case after settling with a joint tortfeasor for $50,000, the Court reversed the trial court's refusal to grant a credit against the verdict, despite plaintiffs' argument that the judgment defendant's conduct was malum in se, justifying the refusal to apply the credit, the Court held that the right to assert an act malem in se to avoid contribution belongs solely to the joint tortfeasor and may not be asserted by the plaintiff.
Osa Gooch, Executrix of the Estate of John Earl Gooch, and Osa Gooch, individually v. West Virginia Department of Public Safety; Trooper S.B. Lake; and Raleigh General Hospital, a West Virginia corporation, No. 22806 (W. Va. November 17, 1995) (Cleckley, J.): 195 W.Va. 357, 465 S.E.2d 628:
Affirming summary judgment for defendant hospital in an action arising from a death subsequent to administration of a blood-alcohol test, the Court held that (1) to establish a hospital-patient relationship, unless otherwise imposed by law, there must be a natural person who receives or should have received health care from a licensed hospital under express or implied contract; (2) a hospital-patient relationship is not created merely by virtue of an arrestee being presented to a hospital for a blood-alcohol test; (3) W. Va. Code § 17C-5-6 provides civil immunity to institutions and individuals who draw blood at the direction of a police officer unless there is gross negligence or wilful, wanton injury.
Connie Tanner and Marjorie Legg v. Rite Aid of West Virginia, Inc., No. 22647 (W. Va. July 19, 1995) (Workman, J.): 194 W.Va. 643, 461 S.E.2d 149:
Where two shoppers, angrily and wrongfully accused of shoplifting, each received separate verdicts of $12,000 in compensatory damages and $18,000 in punitive damages for false imprisonment and outrage, the Court affirmed, rejecting the defendant's complaint that no expert evidence was offered to establish a nexus between its alleged outrageous conduct and the emotional distress suffered by the plaintiffs, holding that although expert testimony may be helpful in proving a link between a tort and emotional distress, a trial court has discretion in determining whether, in the absence of such expert testimony, the plaintiff has established a sufficient causal connection between the defendant's wrongful conduct and the injuries alleged.
Larry B. Hose and Delores F. Hose v. The Berkeley County Planning Commission; William J. Teach, P.E., County Engineer; Williamsport Storage Bins, Inc., a Maryland corporation; Todd Snook; and Fox and Associates, Inc., a Maryland corporation, No. 22537 (W. Va. July 14, 1995) (McHugh, C.J.): 194 W.Va. 515, 460 S.E.2d 761:
Affirming summary judgment for governmental entity and official, but reversing as to property owner and architect, in a case arising from flooding allegedly caused by changing waterflow in conjunction with commercial development, the Court held (1) pursuant to W. Va. Code § 29-12A-5(a)(9), a political subdivision is immune from liability if a loss or claim results from licensing powers or functions such as the issuance, denial, suspension, or revocation of or failure to refusal to issue, deny, suspend, or revoke an permit, license, certificate, approval, order to similar authority, regardless of whether such loss or claim is caused by the negligent performance of acts by the political subdivision's employees while acting within the scope of employment, even where the special duty doctrine would otherwise apply and (2) governmental immunity pursuant to W. Va. Code § 29-12A-5(a)(9) does not extent to private individuals or entities to which a political subdivision has issued, denied, suspended, or revoked or has failed or refused to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authority.
Rex Jividen, Executor of the Estate of Delvious Jividen v. Robert Law and Joyce Law v. Paul Kovacs, Barbara Kovacs, and William Penn Home Farm, No. 22513 (W. Va. July 11, 1995) (Workman, J): 194 W.Va. 705, 461 S.E.2d 451:
Affirming the award of summary judgment for the defendants in a wrongful death action where a horse killed the decedent, the Court held that where a domestic animal injuries one who is lawfully in the place where the injury occurs, the injured party may recover pursuant to (1) a cause of action for strict liability where the animal had a dangerous or vicious propensity and the owner or keeper had actual or constructive knowledge of such propensity or (2) a cause of action for negligence where the owner or keeper failed to exercise the ordinary care necessary to prevent the injury and the past behavior and/or characteristics made such injury reasonably foreseeable.
Jessica Dunn and Jason Dunn, et al. v. Kanawha County Board of Education, et al., No. 22550 (W. Va. May 19, 1995) (Fox, J.): 194 W.Va. 40, 459 S.E.2d 151:
Where manufacturer in product liability case entered into good faith settlement with the plaintiffs, the Court held that, unlike claims for contribution among joint and several defendants in a tort action, in a multiparty product liability case, a good faith settlement between the plaintiff(s) and the manufacturer does not extinguish the right of the nonsettling defendant(s) to seek implied indemnity when the liability of the nonsettling defendant(s) is predicated solely on a theory of strict liability.
Sandra D. Jack v. J. Russell Fritts, No. 22183 (W. Va. March 24, 1995) (Workman, J.): 193 W.Va. 494, 457 S.E.2d 431:
Affirming summary judgment where tenant's guest was assaulted by a trespasser, the Court held that (1) because a tenant's social guest is nothing more than a licensee, a landlord owes only the minimal duty of refraining from wilfully or wantonly injuring the licensee and (2) neither the common law nor statute imposes upon landlords the obligation to protect tenants from injuries arising from the criminal conduct of third parties.
Robert L. Miller and Cynthia Miller v. Richard Whitworth and Audley Mobile Home Estates, Inc., a West Virginia corporation, No. 22182 (W. Va. March 3, 1995) (McHugh, J.): 193 W.Va. 262, 455 S.E.2d 821:
Affirming summary judgment where mobile home park resident was assaulted by the visitor of another resident, the Court held that (1) a landlord does not have a duty to protect a tenant from criminal acts by third parties; (2) a landlord's knowledge of prior criminal acts committed upon leased premises is alone insufficient to impose liability; and (3) a landlord may be liable if the landlord's acts or omissions have unreasonably created or increased the risk of injury to tenants from the criminal acts of third parties.
Donna Lou Reed, Administratrix of the Estate of James George Reed v. Lula A. Phillips and George Phillips, No. 22196 (W. Va. December 8, 1994) (Workman, J.): 192 W.Va. 392, 452 S.E.2d 708:
In a wrongful death case where the absence of a smoke detector arguably contributed to the decedent's demise, the Court held that the absence of a smoke detector in a one- or two-family dwelling, in light of W. Va. Code § 37-6-30 and administrative regulations promulgated pursuant to W. Va. Code § 29-3-5, constitutes prima facie evidence of negligence on the part of a landlord if an injury is proximately caused by its absence.
Jeffrey Kyriazis v. University of West Virginia; University of West Virginia Board of Trustees, a/k/a University System of West Virginia Board of Trustees; the Rugby Club of University of West Virginia; and William Fitzpatrick, No. 22086 (W. Va. October 28, 1994) (Neely, J.): 192 W.Va. 60, 450 S.E.2d 649:
Reversing an order invalidating an anticipatory release in an action brought by an intramural rugby player, the Court held (1) in the absence of an applicable safety statute, an anticipatory release of negligent or reckless conduct which is (i) clear, (ii) express, (iii) voluntary, (iv) made between parties of equal bargaining power, and (v) not violative of public policy, will be held valid; (2) an anticipatory release will be held invalid if (i) it attempts to exempt a party charged with providing a public service from liability to persons to whom the party owes a duty to provide such service or (ii) it attempts to exempt a party of a class similar to the party from whom the release is obtained; (3) whether a party is providing a "public service" for purposes of determining the validity of an anticipatory release will depend upon the nature of the activity involved; and (4) when a university provides recreational activities, including intercollegiate and intramural athletics, to its students, it is fulfilling its educational mission, and may not protect itself from liability through the use of anticipatory releases.
Dale F. Morris v. Consolidation Coal Company, et al., Nos. 22034 and 22035 (W. Va. July 18, 1994)(as modified) (McHugh, J.): 190 W.Va. 426, 446 S.E.2d 648:
Where employer unilaterally and without notice to the claimant, played a surveillance videotape for the treating physician's private viewing and, where subsequent to the viewing, the treating physician changed his opinion regarding the claim for workers' compensation benefits, the Court held (1) a fiduciary relationship exists between a workers' compensation claimant and a treating physician; (2) unless otherwise authorized by statute, regulation, or specific release, this fiduciary relationship prohibits oral, ex parte communication between the treating physician and third parties involving confidential physician/patient information; (3) the filing of a workers' compensation claim pursuant to W. Va. Code § 23-4-7, with the attendant general release of medical information, is inadequate to waive the fiduciary relationship which precludes oral, ex parte communication of confidential physician/patient information; (4) a patient has a cause of action against a treating physician who wrongfully divulges confidential physician/patient information; and (5) a patient has a cause of action against third-parties who (i) knew or reasonably should have known of the physician/patient relationship, (ii) induced or attempted to induce the physician to wrongfully divulge confidential physician/patient information; (iii) believed or had reason to believe that the information sought could only be obtained as the result of a breach of the physician/patient relationship; and (iv) the physician wrongfully divulged confidential physician/patient information in violation of the fiduciary relationship.
Linda L. Powroznik, Administratrix and Personal Representative of the Estate of Dennis F. Powroznik v. C&W Coal Company, a corporation, No. 22014 (W. Va. May 27, 1994) (Miller, J.): 191 W.Va. 293, 445 S.E.2d 234:
In a case involving whether a contingency fee on the full amount of a settlement in a Mandolidis case can be collected, the Court held (1) in determining the excess recovery in a deliberate intent suit against an employer under W. Va. Code § 23-4-2(b), the amount of workers' compensation benefits must be deducted from the total award or settlement; (2) where a workers' compensation claim is made under W. Va. Code § 23-4-2(b), the attorney fee for any workers' compensation award is controlled by the fee schedule set forth in W. Va. Code § 23-5-5; and (3) the attorney fee for damages obtained in excess of workers' compensation benefits is not controlled by the fee schedule set forth in W. Va. Code § 23-5-5.
Robert James Stamper, an infant who sues by his next friend and natural guardian, Cynthia Stamper, and Cynthia Stamper, individually v. Kanawha County Board of Education, a public corporation, No. 21934 (W. Va. May 27, 1994) (Miller, J.): 191 W.Va. 297, 445 S.E.2d 238:
Where plaintiff was allegedly injured on an elementary school's outdoor basketball court, the Court held that the public recreation on private lands statute, W. Va. Code § 19-25-1, et seq., does not apply to property owned by a county board of education.
Andrew P. Dzinglski v. Weirton Steel Corporation, No. 21888 (W. Va. May 26, 1994) (Neely, J.): 191 W.Va. 278, 445 S.E.2d 219:
Reversing a $500,000 verdict in a tort of outrage and intentional infliction of emotional distress case where the plaintiff complained of the manner in which his employer conducted an internal investigation into allegations of his misconduct, the Court held (1) when an employee's emotional distress arises from his or her discharge, rather than the manner of the discharge, there may be a claim for wrongful discharge, but no cause of action attaches for intentional infliction of emotional distress; (2) qualified privileges are based upon the public policy that true information be given whenever it is reasonably necessary for the protection of one's own interests, the interests of third persons, or certain interests of the public; (3) a qualified privilege exits when a person communicates a statement in good faith about a subject in which he or she has an interest or duty and limits communication of such statement to those persons who have a legitimate interest in the subject matter; (4) a qualified privilege is not defeated, even if its exercise results in emotional distress and would otherwise be extreme and outrageous, unless it is exercised with a bad motive; and (5) damages for the tort of outrage or for the intentional infliction of emotional distress are essentially punitive damages, serving the same purposes and subject to the same limitations.
William E. Wehner, Jr., Administrator of the Estate of Jennifer Wehner; Nicole Fisher; and Jessica Landau v. Brett Barry Weinstein; Mark Weinstein; Associated Hearing Instruments of King of Prussia, Inc.; Bossio Enterprises, Inc., dba Mario's Pizza; Matthew Kiser; Sigma Phi Epsilon, a national fraternal organization and association; Sigma Phi Epsilon Building Association, Inc., a corporation; and the West Virginia University Board of Trustees, Nos. 21911, 21912, 21913, and 21914 (W. Va. April 20, 1994) (Miller, J.): 191 W.Va. 149, 444 S.E.2d 27:
Overturning a jury's assessment of 5 percent fault to a college fraternity and 5 percent fault to the fraternity's building association where one plaintiff was killed and two plaintiffs were injured when a member of the fraternity, found to be 75 percent at fault, and a pledge, found to be 5 percent at fault, attempted to move a pizza delivery vehicle blocking the fraternity member's vehicle, causing the pizza delivery vehicle to roll down a steep hill striking the plaintiffs, the Court reaffirmed its holding in Syl. pt. 4 of Webb v. Sessler, 135 W. Va. 341, 63 S.E.2d 65 (1950), that, "In this jurisdiction there is a clear distinction between the proximate cause of an injury and the condition or occasion of the injury," and Syl. pt. 3 of Teter v. Old Colony Co., 190 W. Va. 711, 441 S.E.2d 728 (1994), that, "One of the essential elements of an agency relationship is the existence of some degree of control by the principal over the conduct and activities of the agent." Affirming the jury's assessment of 10 percent fault to the pizza company, the Court held that where an act or omission is negligent, e.g., failing to lock a vehicle's doors, it is not necessary to render it the proximate cause of the injury that the person committing it would or might have foreseen the particular consequence or precise form of the injury, or the particular manner in which it occurred, or that it would occur to a particular person, but where separate and distinct negligent acts of two or more persons continue unbroken to the instant of an injury, contributing directly and immediately thereto and constituting the efficient cause thereof, such acts constitute the proximate cause of the injury.
James Timothy Henderson, et al. v. Meredith Lumber Company, Inc., and Lawson Hamilton, Jr., No. 21532 (W. Va. November 23, 1993) (Neely, J.): 190 W.Va. 292, 438 S.E.2d 324:
Affirming the award of summary judgment to the owner of property on which logging operations were being conducted at the time the plaintiff was injured, the Court held that (1) unless a property owner continues to exercise control over a place of employment, the owner's duty is limited to providing a reasonably safe workplace; (2) when a property owner provides a reasonably safe workplace and thereafter exercises no control, the owner has complied with W. Va. Code § 21-3-1; and (3) the workers' compensation statute, specifically W. Va. Code § 23-2-6a, extends the employer's immunity to his or her officers, managers, agents, representatives, or employees when they act in furtherance of the employer's business and do not inflict injury with deliberate intention.
Richard Garrison, M.D. v. Herbert J. Thomas Memorial Hospital Association, a West Virginia corporation, No. 21359 (W. Va. November 23, 1993) (McHugh, J.): 190 W.Va. 214, 438 S.E.2d 6:
Reversing the dismissal of a physician's action against the hospital with which the physician was formerly associated arising from negative comments made by hospital to another hospital with which the physician was seeking staff privileges, the Court held (1) the civil immunity provisions of the medical peer review statute, specifically W. Va. Code § 30-3C-2(a), do not apply where (a) the information communicated is unrelated to the performance of the functions of a peer review organization, (b) the information is false, and (c) the person providing the information knew, or had reason to believe, the information was false; (2) although an agreement not to disclose truthful and pertinent information about a physician to a peer review organization would violate public policy, when the information is false, there is no violation of public policy; and (3) the two-year statute of limitation applies to an action for tortious interference with a business relationship.
Sarah E. Goines and Curtis E. Goines v. Officer Jeffrey Goff James, et al., individually, and as members of the Parkersburg City Police Department; and the City of Parkersburg, a municipal corporation, No. 21363 (W. Va. July 22, 1993) (Workman, C.J.): 189 W.Va. 634, 433 S.E.2d 572:
Where police officer allegedly injured a homeowner during the pursuit of a misdemeanant into the homeowner's residence over the homeowner's protests, the Court affirmed a defense verdict, holding that "so long as such entry violates no clearly established statutory or constitutional rights," a police officer is "absolved from civil liability" for the hot pursuit of a misdemeanant into the residence of a third party with neither a warrant nor the third party's consent.
Gilbert Taylor v. Sears, Roebuck and Co., a New York corporation qualified to do business in the State of West Virginia, No. 21135 (W. Va. April 26, 1993) (Brotherton, J.): 190 W.Va. 160, 437 S.E.2d 733:
Reversing a judgment in favor of a construction worker who fell from a ladder during the construction of the defendant's garage, the Court held that the "reasonably safe place to work" theory of recovery may not be used against the owner of a place of employment when the owner exercises no control over the equipment provided by the contractor for use by the contractor's employees.
Dennis Dwight Smith, in his capacity as Administrator, DBN of the Estate of John Q. Hutchinson v. Monongahela Power Company v. Dico Company, Inc., etc., et al., No. 21345 (W. Va. April 8, 1993) (Neely, J.): 189 W.Va. 237, 429 S.E.2d 643:
Where crane manufacturer settled with electrocuted decedent's estate prior to trial for $15,000, but where power company refused to settled and suffered verdict of $2.3 million, the Court affirmed, holding that (1) when a plaintiff settles with a nonparty, the settlement relieves the nonparty of any obligation for contribution, if the settlement is made in good faith and the amount is disclosed to the trial court for purposes of reducing the verdict; (2) settlements are presumptively made in good faith and a party attacking a settlement must establish by clear and convincing evidence that the settlement involved collusion, dishonesty, fraud, or other tortious conduct; (3) factors to be considered in determining whether a settlement has been reached in good faith are (a) the potential for liability; (b) the expense of litigation, (c) the probability of an adverse verdict, (d) the insurance limits and solvency of the joint tortfeasors, (e) the presence or absence of consideration, (f) whether a motivation was to unfairly cast most of the liability on one or a few of the joint tortfeasors for wrongful tactical gain, and (g) whether a relationship exists between the parties to the settlement which would be conducive to collusion; and (4) the determination of whether a settlement was made in good faith rests in the sound discretion of the trial court.
Homer A. Eggleston, Jr. v. West Virginia Department of Highways and Greiner Engineering Sciences, Inc., No. 21268 (W. Va. February 24, 1993) (Miller, J.): 189 W.Va. 230, 429 S.E.2d 636:
Where plaintiff was injured in an accident on the "Sandstone Grade" of Interstate 64 prior to the erection of warning signs which were part of the original construction plans, the Court determined that the claim was covered by a Division of Highways' insurance policy, holding that language in the policy which provides coverage for bodily injury arising from and occurring during the performance of construction covers a bodily injury occurring prior to the completion of a highway construction project.
Danny G. Beckley v. Bernie L. Crabtree, Sheriff of Wayne County, and the Wayne County Commission, No. 21353 (W. Va. February 24, 1993) (Brotherton, J.): 189 W.Va. 94, 428 S.E.2d 317:
Where sheriff's firearm accidently discharged injuring state trooper, the Court held (1) a sheriff is an employee of the county and is therefore immune from personal tort liability for a negligent act committed during the performance of his or her official duties unless, pursuant to W. Va. Code § 29-12A-5(b), such act is (a) manifestly outside the scope of official duties, (b) the product of a malicious purposes, in bad faith, or in a wanton or reckless manner, or (c) expressly covered by a specific statutory provisions and (2) the phrase "method of providing police . . . protection" for purposes of determining local governmental immunity pursuant to W. Va. Code § 29-12A-5(a)(5) means the formulation and implementation of policy regarding the manner of providing law enforcement protection.
Caroline Ricottilli, individually and as the Personal Representative of Tara Ricottilli v. Summersville Memorial Hospital, a corporation; Dr. Mark Tomsho, individually; Carla Dorsey, individually; Marshall Wickline, individually; Unknown John Doe Defendant; and Charleston Area Medical Center, a corporation, No. 20903 (W. Va. December 18, 1992) (Workman, J.): 188 W.Va. 674, 425 S.E.2d 629:
Where decedent's family brought an action based upon a hospital's alleged mishandling of the results of an autopsy, the Court held (1) a deceased individual is not a "patient" under the Medical Professional Liability Act, W. Va. Code §§ 55-7B-1, et seq., and (2) there can be a recovery for negligent infliction of emotional distress, even in the absence of accompanying physical injury, if the facts are sufficient to guarantee that the claim is genuine.
Hazel Heldreth and William Heldreth v. Anthony R. Marrs and Mary J. Clark, No. 21124 (W. Va. December 14, 1992) (McHugh, C.J.): 188 W.V.a 481, 425 S.E.2d 157:
In an action for negligent infliction of emotional distress brought by a bystander, the Court overruled its decision in Monteleone v. Co-Operative Transit Co., 128 W. Va. 340, 36 S.E.2d 475 (1945), and held that a defendant may be liable for negligent infliction of emotional distress for a witness to an accident causing critical injury or death to the victim, where the witness was (1) closely related to the victim; (2) located at the scene of the accident; (3) aware that the victim was being injured; and (4) seriously traumatized by observing the accident. In addition to these factors, the Court further held that the plaintiff must prove (1) that the emotional distress was reasonably foreseeable; (2) that the defendant's negligence was the proximate cause of the victim's injury or death; and (3) that the serious emotional distress suffered was proximately caused as the result of witnessing the accident.
Eddie Bowling, et al. v. Ansted Chrysler-Plymouth-Dodge, Inc., and David Akers, No. 20994 (W. Va. December 11, 1992) (Miller, J.): 188 W.Va. 468, 425 S.E.2d 144:
Overturning a directed verdict in favor of a car dealership's president, whom the plaintiffs charged with fraudulently misrepresenting rental cars as "factory cars," the Court held that (1) an officer of a corporation may be personally liable for the tortious acts of the corporation, including fraud, if the officer participated in, approved of, sanctioned, or ratified such acts and (2) where it can be shown, by clear and convincing evidence, that a defendant has engaged in fraudulent conduct which has injured the plaintiff, reasonable attorney fees may be awarded in addition to compensatory and punitive damages.
Cecil W. Cart v. Ked Marcum, Avery Hager, and David Scott Jefferson, No. 21172 (W. Va. November 12, 1992) (Neely, J.): 188 W.Va. 241, 423 S.E.2d 644:
Abandoning its former case-by-case approach to the issue, the Court held that the "discovery rule" applies to all torts unless there is a clear statutory prohibition of its application and, accordingly, that a cause of action accrues when a tort occurs or when a claimant knows or by reasonable diligence should have known of the claim. Applying the discovery rule to a situation where the plaintiff filed an action more than two years after he knew his timber had been removed without his authorization, the Court upheld the dismissal of suit, holding that mere ignorance of the existence of a cause of action or the identity of the wrongdoer does not preventing the running of the statute of limitations and that the discovery rule only applies when there is a strong showing by the plaintiff that some action by the wrongdoer prevented the plaintiff from knowing of the wrong at the time of injury.
Gretchen Dascoli Raines and Joney W. Russell v. Gina Kay Lindsey and Karen Sue Lindsey v. Carson L. Stidom and Carson L. Stidom v. Gina Kay Lindsey and Karen Sue Lindsey, No. 20844 (W. Va. October 22, 1992) (Neely, J.): 188 W.Va. 137, 423 S.E.2d 376:
Where the trial court failed to give a comparative contributory negligence instruction despite evidence that the plaintiff/bar-hoppers voluntarily accepted transportation by their fellow bar-hopper, who was in an advanced intoxicated state, the Court reversed, reiterating that in a comparative negligence case, the issues of apportionment or causation are for the trier of fact.
Marthella Andrick, et al. v. The Town of Buckhannon, etc., et al., No. 20450 (W. Va. July 20, 1992) (Miller, J.): 187 W.Va. 706, 421 S.E.2d 247:
Reversing an order which absolved from liability the owners of a business whose customers used an adjoining parking lot owned by another, the Court held that where the operator of a business obtains the right for its customers to park in an adjoining lot owned by another and invites them to do so, the operator has a duty of reasonable care to protect its invitees from defective or dangerous conditions of which the operator knows or reasonably should know exist.
Larry D. Belcher, Sr., etc., et al. v. Charleston Area Medical Center, a corporation; Charleston Pediatric Group, a West Virginia corporation; and M.B. Ayoubi, M.D., No. 20481 (W. Va. July 15, 1992) (McHugh, C.J.): 188 W.Va. 105, 422 S.E.2d 827:
Where a 17-year, 8-month old muscular dystrophy patient who died after being removed from life support after his parents consented, the Court reversed a defense verdict, holding that (1) except in extreme cases, a physician has no legal right to give or withhold medical treatment for a child without the consent of the child's parents or guardian and, if the child is a "mature minor," without the child's consent; (2) whether a child is a "mature minor" depends upon the age, ability, experience, education, training, and degree of maturity or judgment of the child, as well as upon the conduct and demeanor of the child at the time of the treatment; (3) whether a child is a "mature minor" also depends on whether the child has the capacity to appreciate the nature, risks, and consequences of the treatment to be given or withheld; and (4) where there is a conflict between the parents' wishes and the child's wishes, a physician's good faith judgment of the minor's maturity level relieves the physician from liability for failure to obtain the parent's consent.
Sara W. Slack v. Kanawha County Housing and Redevelopment Authority, etc., et al., No. 20725 (W. Va. July 9, 1992) (Miller, J.): 188 W.Va. 144, 423 S.E.2d 547:
Where employee contended resignation was precipitated by actions taken following electronic surveillance of her office by her supervisor, the Court reinstated a jury verdict for invasion of privacy and remanded for a new trial on her retaliatory discharge and civil conspiracy causes of action, holding that (1) invasion of privacy is governed by the one-year statute of limitations; (2) the discovery rule applies to actions for invasion of privacy, with the statute commencing when the plaintiff knew or by the exercise of reasonable diligence should have known of the invasion and the identity of the perpetrator; (3) an action for constructive discharge may be maintained where an employer creates a hostile working environment based on age, race, gender, or other unlawful discrimination, which becomes so intolerable that a reasonable person would have been compelled to quit, even if the employee cannot prove that the action was taken with the specific intent to cause the employee to quit.
Fred Pennington and Colette Elaine Pennington, individually, and as the parents and natural guardians of Lisa Denise Pennington, an infant v. Bluefield Orthopedics, P.C., a corporation, and Yogesh Chand, M.D., and individual, No. 20463 (W. Va. June 11, 1992) (Brotherton, J.): 187 W.Va. 344, 419 S.E.2d 8:
Holding that the trial court should have offset a medical malpractice verdict against a settlement with the tortfeasor, the Court held that a setoff or verdict credit is appropriate where tortfeasors are "jointly responsible" for a single, indivisible injury.
Michael Rine, an infant and incompetent, by and through his mother, natural guardian and next of friend, Traci L. Rine, and Traci L. Rine, individually v. Oscar S. Irisari, M.D., No. 20459 (W. Va. June 11, 1992) (McHugh, C.J.): 187 W.Va. 550, 420 S.E.2d 541:
Reversing a defense verdict in a case against an obstetrician whose alleged negligence was compounded by a subsequent physician who supervised the improper intubation of a premature infant, the Court held a negligent physician is liable for the aggravation of injuries resulting from subsequent negligent medical treatment, if foreseeable, where that subsequent medical treatment is undertaken to mitigate the harm caused by the physician's own negligence.
Daphne Colleen Pasquale, Personal Representative of the Estate of Michael David Pasquale v. Ohio Power Company, an Ohio corporation, Central Operating Company, a West Virginia corporation; and Gallia Refrigeration, Inc., a/k/a Pasquale Electric Company, an Ohio corporation, No. 20264 (W. Va. May 15, 1992) (Miller, J.): 187 W.Va. 292, 418 S.E.2d 738:
Affirming a $6.2 million verdict in a wrongful death case against a power plant and a general contractor arising from the electrocution of the employee of a subcontractor, the Court held that an employer is liable for an injury to an employee caused by the negligence of the employer.
Stephen R. Willis v. Major General Joseph Skaff, as the Adjutant General of the State of West Virginia, et al., No. 20265 (W. Va. February 6, 1992) (Neely, J.): 186 W.Va. 689, 414 S.E.2d 450:
Affirming the dismissal of an action by a Guardsman against the National Guard after he was struck by a Guard vehicle operated by another Guardsman while both were on active duty, the Court held that the remedy provided by federal law against the United States for personal injury arising or resulting from the negligent or wrongful act or omission of any employee of the federal government while acting within the scope of his or her office or employment is exclusive of any other civil action.
Joyce A. Rand v. Susan W. Miller, M.D., No. 19795 (W. Va. July 25, 1991) (Miller, C.J.): 185 W.Va. 705, 408 S.E.2d 655:
Where physician, to whom applicant was referred for medical screening, reported to the prospective employer that, "after reviewing [the applicant's] medical history, a personality order is detected," which was allegedly precipitated solely by a series of telephone conversations during which the applicant complained about the delay in completion of the screening process, the Court reversed a malpractice award of $665,000, holding that a physician who evaluates an applicant's medical records for a prospective employer lacks a sufficient professional relationship with the applicant to support a malpractice action, but that the report of false information may support an action for defamation.
Lilirose Sias, Administratrix of the Estate of Gerry Sias, deceased; Hollie Smith and Merry Smith; and John Starr and Brenda Starr v. W-P Coal Company, No. 19672 (W. Va. July 19, 1991) (McHugh, J.): 185 W.Va. 569, 408 S.E.2d 321:
Reinstating a jury verdict against a mine where a coal outburst killed one and injured four miners following a similar incident three weeks earlier in which two miners were injured, the Court held that W. Va. Code § 23-4-2(c) (2) (iii) (B), which authorizes the "prompt judicial resolution" of "deliberate intention" actions by employees against employers, relates only to the five-element test of W. Va. Code § 23-4-2(c) (2) (ii) (A)-(E), and does not apply to traditional standards for resolving motions for summary judgment, directed verdict, or judgment notwithstanding the verdict.
Mary E. Torrence v. Robert E. Kusminsky, Charleston Area Medical Center, David Maxwell Gray, Jean A. Bjorling, and Unknown Physician Consultant, Nos. 19864 and 19865 (W. Va. July 29, 1991) (Miller, C.J.): 185 W.Va. 734, 408 S.E.2d 684:
Where hospital asserted an independent contractor defense in a suit charging that a surgeon with staff privileges improperly diagnosed the plaintiff's endometriosis during an emergency surgery performed at the hospital's facilities, the Court affirmed a verdict against the hospital, holding that where a hospital makes emergency room treatment available to the public as an integral part of its facilities, the hospital is estopped to deny that physicians and other medical personnel on duty providing treatment are its agents and is liable for acts of malpractice committed in its emergency room regardless of any contractual agreements with such physicians or medical personnel.
Jerry Ray Blevins v. Beckley Magnetite, Inc., No. 19654 (W. Va. July 29, 1991) (Workman, J.): 185 W.Va. 633, 408 S.E.2d 385:
Where trial court granted a judgment notwithstanding a verdict for $150,000 in favor of a worker whose arm was crushed in a conveyor after the worker was allegedly instructed not to stop conveyor when he was removing debris, the Court affirmed, holding the statutory requirement, under W. Va. Code § 23-4-2(c) (2) (ii), that an employer have a subjective realization of a specific unsafe working condition which could cause serious injury or death, in order to be liable for the injury to a worker, is not satisfied merely by evidence that the employer "should have known," but evidence must demonstrate that the employer "actually possessed such knowledge."
Daniel Lewis and Sonja Lewis v. Canaan Valley Resorts, Inc., a corporation, No. 19780 (W. Va. July 19, 1991) (McHugh, J.): 185 W.Va. 684, 408 S.E.2d 634:
Where novice skier sued operator after skier fractured hip while falling on ice as he exited lift chair, the Court held that the West Virginia Ski Responsibility Act, W. Va. Code § 20-3A-1, et seq., which immunizes ski operators from tort liability for the inherent risks in the sport of skiing does not violate constitutional equal protection, special legislation, or "certain remedy" provisions.
Mary Catherine Lusk, guardian of Stephen Lusk, a juvenile under the age of eighteen v. Ira Watson, d/b/a Watson's Backroom, a Delaware corporation authorized to do business in West Virginia, No. 19894 (W. Va. July 18, 1991) (Workman, J.): 185 W.Va. 680, 408 S.E.2d 630:
Where suspected shoplifter sued store after police officers who were summoned to the scene conducted a strip search, the Court held that absent evidence that police officers acted at his or her direction, a merchant cannot be deemed liable for any actions taken by the officers.
Brenda Pino, as Mother and Next Friend of Patrick S. Pino, an Infant under the age of 18 Years v. Steve Szuch, No. 19775 (W. Va. July 17, 1991) (Miller, C.J.): 185 W.Va. 476, 408 S.E.2d 55:
Where riding lawn mower collided with 8-year-old bicyclist, who was warned of the danger, the Court held (1) there is a conclusive presumption that a child under 7 is incapable of negligence; (2) there is a rebuttable presumption that a child between 7 and 14 is incapable of negligence, with the defendant bearing the burden of overcoming the presumption; (3) there is a presumption that a child 14 or older is capable of negligence, with the child bearing the burden of overcoming the presumption; (4) in order to rebut the 7-14 presumption, it is improper to focus on only one or two factors, e.g., that the child was warned of the danger or that the child understood the danger; and (5) instead, evidence of the child's intelligence, maturity, experience, and judgmental capacity, as well as evidence of warning, are necessary for the jury to consider, along with the entire chain of events leading up to the accident, in order to determine whether the 7-14 presumption has been rebutted.
Betty Kosegi, Administratrix of the Estate of Kathryn Katic, Deceased v. Charles M. Pugliese and Thelma M. Pugliese d/b/a The Rogers Hotel, No. 19554 (W. Va. July 9, 1991) (Workman, J.): 185 W.Va. 384, 407 S.E.2d 388:
In a suit arising from the murder of a hotel's night desk clerk, where her employer had not paid its workers' compensation premiums for the quarters prior to and during the time of her death, the Court held, under W. Va. Code § 23-2-5, employers who fail to timely remit workers' compensation premiums lose their immunity, rejecting a plea by the employer to apply the notice provisions added to W. Va. Code § 23-2-5 after the decedent's death.
Anna Louise Farley and Arliss Farley v. Owen C. Meadows, M.D., No. 19706 (W. Va. April 22, 1991) (Neely, J.): 185 W.Va. 48, 404 S.E.2d 537
Affirming the award of summary judgment to a physician charged with malpractice by a woman whose tubal ligation failed to prevent a subsequent pregnancy, but who could not find an expert willing to testify that the absence of a silastic band on one of her fallopian tubes was the result of medical negligence, the Court held that because the absence of the band could be explained by causes other than medical negligence, the doctrine of res ipsa loquitur did not apply.
Emogene Sisson v. Seneca Mental Health/Mental Retardation Council, Inc., a corporation; and Max Malcomb, individually and as servant, agent and employee of Seneca Mental Health/Mental Retardation Council, Inc., No. 19667 (W. Va. April 17, 1991) (Miller, C.J.): 185 W.Va. 33, 404 S.E.2d 425:
Affirming an award of summary judgment against a woman who sued after terminating a sexual relationship with a counselor employed by a mental health center at which she had sought treatment, the Court, noting that the plaintiff had met with the counselor only once in his professional capacity and, after this meeting, continued her therapy with another counselor employed at the center, held that whether a trust relationship exists to support a claim for therapist malpractice depends on two factors: (1) the therapy was conducted over a sufficient period of time to establish a trust relationship, and (2) there must be some reasonable semblance of actual therapy sessions.
Thomas Bronz v. St. Jude's Hospital Clinic, a corporation; Dover Elevator Company, a corporation; and Sheppard Warner Elevator Company, Inc., a corporation, No. 19545 (W. Va. February 25, 1991) (Brotherton, J.): 184 W.Va. 594, 402 S.E.2d 263:
Affirming an award of summary judgment to an elevator maintenance company against whom the plaintiff, who was injured when he fell down a shaft when the elevator did not arrive at its appointed floor, asserted the doctrine of res ipsa loquitur, the Court held that res ipsa loquitur is unavailable when the control or management of the premises or operations where the injury occurred is divided, except when it can be established that the control of one party was the proximate cause of the injury or that the control of the other parties was not the proximate cause. Moreover, the Court held that a party cannot successfully defend a motion for summary judgment by invocation of the doctrine of res ipsa loquitur alone, but must establish the existence of a genuine issue of material fact, which the Court held the plaintiff in the instant case failed to do.
Charles R. Miller v. Monongahela Power Company, No. 19640 (W. Va. February 7, 1991) (Neely, J.): 184 W.Va. 663, 403 S.E.2d 406:
Affirming a $1.9 million judgment against a utility company obtained by a worker who received a severe electrical shock, that eventually required amputation of his right arm, when he mistakenly believed its unmarked substation was that of his employer, the Court reaffirmed the distinctions for liability purposes among trespassers, licensees, and invitees, but held that those who maintain and operate wires charged with dangerous voltage of electricity must exercise the "highest possible care." In addition, the Court rejected the company's argument that the trial court should have allowed the jury to consider the employer's negligence in allocating fault, reaffirming its position that a plaintiff may elect to sue any or all of those responsible for his or her injuries and collect damages from whoever is able to pay, regardless of their percentage of fault. Finally, the Court rejected a constitutional challenge to our system of comparative contributory negligence, our rules on joint and several liability, and our workers' compensation immunity.
Mark A. Robinson, individually and Julia A. Robinson, individually and as parent and natural guardian of Mark A. Robinson, II, an infant v. Charleston Area Medical Center, Inc., a West Virginia corporation, and Kanoj K. Biswas, M.D., No. 20109 (W. Va. December 20, 1991) (McHugh, J.): 189 W.Va. 720, 414 S.E.2d 877:
Reducing a $15.25 million verdict to $11.75 million for the family of an infant who suffered permanent brain damage as the result of an obstetrician's alleged malpractice, the Court upheld the constitutionality of W. Va. Code § 55-7B-8, which imposes a $1 million cap on noneconomic damages in medical malpractice actions, which it further held applies as the maximum amount that can be awarded for the aggregate claims of all plaintiffs against a health care provider as defined in the statute.
Frances Courtney, individually, and Patsy Jo Compaleo, an infant, who sues by and through Frances Courtney, his mother v. Denzil Courtney and Maud Courtney, No. 20122 (W. Va. December 19, 1991) (Miller, C.J.): 186 W.Va. 597, 413 S.E.2d 418:
Where wife and son sued ex-husband and his mother for the physical abuse of the wife and emotional abuse of the son which occurred during their marriage, (1) with respect to the viability of the son's cause of action as an observer of his mother's physical abuse at the hands of her husband, the Court held that a third person may recover damages for emotional distress if the direct victim of the tortfeasor's outrageous conduct is a member of the third person's immediate family and the third person witnessed the outrageous conduct; (2) with respect to the viability of the cause of action against the husband's mother, who allegedly supplied him with drugs and alcohol that triggered his abusive behavior, the Court held that a person is subject to liability for the harm resulting to a third person from the tortious conduct of another if the person knows the other's conduct constitutes a breach of duty and nevertheless gives substantial assistance or encouragement to the other to engage in the tortious conduct; and (3) with respect to the viability of the parental immunity doctrine, the Court held that parental immunity is abrogated where a parent causes injury or death to his or her child from intentional or wilful conduct, except for reasonable corporal punishment for disciplinary purposes.
Paul Huffman v. Appalachian Power Company, No. 20118 (W. Va. December 19, 1991) (Miller, C.J.): 187 W.Va. 1, 415 S.E.2d 145:
Reversing a $1.17 million verdict against an electric utility company after an 18-year-old male climbed a 40-foot high-voltage electrical tower where he was electrified and fell crashing to the earth, the Court held (1) a trespasser is one who goes upon the property or premises of another without invitation, express or implied, and does so out of curiosity or for his or her own purposes or convenience, and not in the performance of any duty to the owner; (2) the owner or possessor of property does not owe trespassers a duty of ordinary care, but must only refrain from wilful or wanton injury; and (3) for a trespasser to establish liability against the possessor or owner of property who has created or maintains a highly dangerous condition or instrumentality on the property, the trespasser must show (i) that the possessor or owner knew or reasonably should have known that trespassers constantly intrude in the area where the dangerous condition is present; (ii) that the possessor or owner was aware that the condition is likely to cause serious bodily injury or death to such trespassers; (iii) that the possessor or owner knew or reasonably should have known that trespassers would not discover the dangerous condition; and (iv) that the possessor or owner failed to exercise reasonable care to adequately warn trespassers of the dangerous condition.
Jay W. Waugh and Roxanne Waugh v. Marva Traxler, No. 19947 (W. Va. December 13, 1991) (Workman, J.): 186 W.Va. 355, 412 S.E.2d 756:
Affirming a defense verdict in favor of a motorist whose vehicle crossed the center line after sliding on an icy roadway, the Court held that the prima facie presumption of negligence which arises upon violation of a traffic statute or regulation may be rebutted by evidence tending to demonstrate that the person violating the statute or regulation did what might reasonably have been expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.
Debra Pritchard, Individually, and Joyce Ann Pritchard, an Infant under the age of eighteen years, by Debra Pritchard, her mother and next friend v. Manuel Arvon, Superintendent of Schools for the Boone County Board of Education, and the Board of Education of the County of Boone, No. 20202 (W. Va. December 12, 1991) (McHugh, J.): 186 W.Va. 445, 413 S.E.2d 100:
Rejecting a constitutional challenge to the Governmental Tort Claims and Insurance Reform Act, W. Va. Code § 29-12A-1, et seq., the Court held that the immunity provisions of the Act bear a rational relationship to the legitimate state purpose of reducing the cost of liability insurance for political subdivisions and that its provisions directing that the purchase of liability insurance by political subdivisions does not constitute a waiver of such immunity are not violative of equal protection principles.
Ann Randall, Adminstratrix of the Estate of Sandra C. Johnson, et al. v. Fairmont City Police Department, et al., No. 20089 (W. Va. December 12, 1991) (McHugh, J.): 186 W.Va. 336, 412 S.E.2d 737:
Rejecting constitutional challenge to the Governmental Tort Claims and Insurance Reform Act, W. Va. Code § 29-12A-1, et seq., the Court held that the immunity provisions of the Act bear a rational relationship to the legitimate state purpose of reducing the cost of liability insurance for political subdivisions. On the other hand, where decedent was murdered outside the city police station after pleading with authorities for protection from her eventual assailant, the Court held that although W. Va. Code § 29-12A-5(a) (5) grants immunity to political subdivisions for "the failure to provide, or method of providing, police, law enforcement or fire protection[,]" it does not immunize the breach of a "special duty" to provide such protection to a particular individual, which presents an issue of fact.
Kathleen Murphy v. North American River Runners, Inc., No. 20072 (W. Va. December 12, 1991) (McHugh, J.): 186 W.Va. 310, 412 S.E.2d 504:
Reversing an award of summary judgment to a whitewater outfitter on the basis of a release signed by the plaintiff prior to departure, who was injured when her guide sought to free another raft by striking it with the raft in which the plaintiff was riding, the Court held (1) anticipatory releases are unenforceable which purport to absolve a party from liability for violation of a statutory standard of care and (2) in the absence of clear evidence of plaintiff's contrary intent, anticipatory releases are unenforceable which purport to absolve a party from liability for intentional, reckless, or grossly negligent conduct.
Ruth M. Kodym (now Stark) v. Carole Frazier, Elaine Frazier, Maxine Russell, and Paula Russell Mullen, No. 19922 (W. Va. December 6, 1991) (Miller, C.J.): 186 W.Va. 221, 412 S.E.2d 219:
Reversing on the basis of an instruction that the jury could consider the negligence of nonparties, the Court held that joint or concurrent tortfeasors who contribute to a plaintiff's injuries are jointly and severally liable for the entire injury and they are not entitled to have a jury weigh the fault of nonparties whose negligence contributed to the plaintiff's injuries.
Desco Corporation, dba Colliers Industries v. Harry W. Trushel Construction Company and Fire Foe Corporation v. Industrial Risk Insurers, No. 19993 (W. Va. December 6, 1991) (Miller, C.J.): 186 W.Va. 430, 413 S.E.2d 85:
Rejecting an attempt by an insured to recover damages from sprinkler system installer for loss of inventory in a fire, the Court held that the doctrine of assumed or incurred risk is based upon the existence of a factual situation in which the defendant alone creates the danger and causes the injury and the plaintiff voluntarily exposes himself to the danger with full knowledge and appreciation of its existence.
Funeral Services by Gregory, Inc., etc., et al. v. Bluefield Community Hospital, etc., et al., No. 19778 (W. Va. December 5, 1991) (Brotherton, J.): 186 W.Va. 424, 413 S.E.2d 79:
Where an embalmer brought an emotional distress action against a hospital over one year after learning that it had failed to warn him that the decedent was infected with the AIDS virus, the Court affirmed the circuit court's dismissal under the one-year statute of limitations, holding that (1) in order to be liable for battery, an actor must act with the intention of causing a harmful or offensive contact, and (2) there is no cause of action for fear of contracting AIDS where there is no evidence of direct exposure to the AIDS virus and the fear is unreasonable.
Lofton Johnson v. West Virginia University Hospitals, Inc., No. 19678 (W. Va. November 21, 1991) (McHugh, J.): 186 W.Va. 648, 413 S.E.2d 889:
Affirming a $1.9 million verdict for a hospital security guard who was summoned to restrain a hysterical patient whom the hospital failed to inform the guard was infected with the AIDS virus, and who bit the guard after the patient had bitten himself causing his own blood to be in his mouth, the Court held that damages can be recovered against a health care provider for the emotional distress caused by the fear of contracting AIDS from a patient when (1) the plaintiff's fear is reasonable; (2) the patient physically injures and exposes the plaintiff to the AIDS virus; and (3) the health care provider failed to follow regulations which required it to warn the plaintiff that the patient had AIDS despite sufficient time to issue such warning.
Brenda Michelle Cook and Linda D. Pill v. Don Stansell and Martinsburg Partners, limited partnership, etc., et al. v. Joann Gall, No. 20139 (W. Va. October 31, 1991) (Brotherton, J.): 186 W.Va. 189, 411 S.E.2d 844:
Rejecting an attempt by defendants to implead a tortfeasor who settled prior to the institution of suit, the Court held that when a settlement is reached between an injured party and a tortfeasor prior to the institution of suit, a defendant in the suit cannot implead the tortfeasor as long as the settlement was made in good faith and the amount disclosed to the trial court for setoff.
Timothy Mayles v. Shoney's Inc., a corporation, d/b/a Captain D's; Fred Hunt; Edward and Hotchkiss, Inc.; and Wayne Phillips, No. 19530 (W. Va. December 20, 1990) (Workman, J.): 185 W.Va. 88, 405 S.E.2d 15:
Affirming a verdict of $220,000 against an employer for a restaurant employee who suffered severe grease burns when he fell down a grassy slope while carrying a container to a disposal unit, the Court held that a plaintiff may establish "deliberate intention" in a civil action against an employer for a work-related injury by offering evidence to prove the five specific elements of W. Va. Code § 23-4-2(c) (2) (ii).
Phyllis Belcher and Stephanie L. Belcher v. Sherry L. Goins, No. 19566 (W. Va. December 19, 1990) (McHugh, J.): 184 W.Va. 395, 400 S.E.2d 830:
Overruling Wallace v. Wallace, 155 W. Va. 569, 184 S.E.2d 327 (1971), the Court held that a minor or handicapped child physically, emotionally, and financially dependent upon his or her parent, may maintain a cause of action for loss of parental consortium, which is the intangible, nonpecuniary benefits arising from the relationship between a child and a parent, including society, companionship, comfort, guidance, kindly offices, advice, protection, care, and assistance, but not including the value of nursing, domestic or household services provided by the child to the injured parent. On related issues, the Court further held (1) because of the derivative nature of a parental consortium claim, any recovery will be reduced by the amount of comparative contributory negligence of the injured parent; (2) with respect to the issue of retroactivity, that parental consortium actions must be brought no later than thirty days after the filing of the opinion where the parent's action has been brought for injuries inflicted no more than two years prior to the opinion.
Jeffrey W. Stemple and Judith E. Stemple v. Lewis M. Dobson, Carol Y. Dobson, and Ace Exterminators, Inc., a West Virginia corporation, No. 19559 (W. Va. December 12, 1990) (Miller, J.): 184 W.Va. 317, 400 S.E.2d 561:
Where former homeowners alleged concealed termite damage by staining repaired timbers to match undamaged timbers, the Court held that where a cause of action is based on tort or fraud, the statute of limitations does not begin to run until the plaintiff knew, or by the exercise of reasonable diligence should have known, of the nature of his or her injury, which is a question of fact for the jury.
Franklin D. Overbaugh, Administrator of the Estate of Elizabeth Ann Overbaugh; Franklin Overbaugh, Tony Overbaugh, Stacey Overbaugh and Keven Overbaugh, infants who sue by and through their father and next friend, Franklin D. Overbaugh; and Franklin D. Overbaugh, individually v. Priscilla McCutcheon, Executrix of the Estate of Donald J. McCutcheon; Brady Cline Coal Company, a corporation; Margaret Peerless Coal Company; Gauley Sales Company; Holly Coal Company; and Jack Cline; No. 19195 (W. Va. July 11, 1990) (Workman, J.): 183 W.Va. 386, 396 S.E.2d 153:
In a wrongful death action against the employer of a drunk driver who became intoxicated at the company's Christmas party, the Court held that there is generally no liability on the part of a social host who gratuitously furnishes alcohol to a guest when an injury to an innocent third party occurs as a result of the guest's intoxication.
Earl F. Shrewsbery v. National Grange Mutual Insurance Company, No. 19191 (W. Va. June 7, 1990) (Neely, C.J.): 183 W.Va. 322, 395 S.E.2d 745:
Where an agent whose contract was terminated by his principal on the basis of the loss record of his policies brought an action for tortious interference after the company notified its policyholders that they could renew their policies without an agent or contact the agent about insurance with another company, the Court held it is impossible for one party to a contract to maintain an action for tortious interference against another party to the contract. Where the insurance company, in so notifying its policyholders, was complying with regulations promulgated by the insurance commissioner, the Court further held that a tort action may not be maintained against a party for complying with state law under threat of penalty.
David S. Anderson, Administrator of the Estate of Sean David Anderson, Deceased v. David Scott Moulder, Mercer Wholesale Company, a West Virginia corporation, and William R. Keesee, III and David S. Anderson, Administrator of the Estate of Sean David Anderson, Deceased v. David Scott Moulder v. Mercer Wholesale Company, a West Virginia corporation, No. 19246 (W. Va. May 18, 1990) (Miller, J.): 183 W.Va. 77, 394 S.E.2d 61.
Where a beer distributor sold a keg of beer to a seventeen-year-old boy, who later died in an automobile driven by his eighteen-year-old friend, with whom he had consumed beer, the Court held that the sale of beer to a person under twenty-one in violation of W. Va. Code § 11-16-18(a) (3) gives rise to a cause of action against the licensee in favor of the purchaser or a third party injured as a proximate result of the unlawful sale. Whether a licensee can successfully rebut the prima facie showing of negligence arising from such unlawful sale, by demonstrating that the purchaser appeared of age and that reasonable means of identification were used, the Court held, is a question of fact that ordinarily must be resolved by a jury. Although the Court rejected adoption of the complicity doctrine, which would bar recovery by a third person actively engaged in bringing about the intoxication of the person causing his or her injuries, it held that comparative contributory negligence principles are applicable. On the issue of proximate cause, the Court held that it is reasonably foreseeable that an underage purchaser of intoxicating beverages will share such beverages with other minors, who will, in turn, become intoxicated and cause injury to themselves or others. Finally, the Court set forth several factors, including quantity and character of beverages purchased, time of day of purchase, etc., with to be considered in determining whether consumption by minors other than the purchaser was reasonably foreseeable.
Where patron of a private liquor club became intoxicated and, after leaving club, negligently operated her motor vehicle causing the death of an innocent driver approximately one mile from such club, the Court reversed an award of summary judgment to the proprietors, holding that, in light of W. Va. Code § 55-7-9, which renders actionable a violation of statute proximately causing injury to any person, and W. Va. Code § 60-7-2, which designates a misdemeanor the sale of alcohol to a person "who is physically incapacitated due to consumption of alcoholic liquor or the use of drugs," a tort action may be maintained against the licensee of a private liquor club for personal injuries caused by the licensee's selling alcohol to anyone who is "physically incapacitated" from drinking.
George W. Keyes, Jr., individually and as Administrator of the Estate of George W. Keyes, Deceased v. Robert J. Keyes, Annalaura Keyes, and Maude Keyes, No. 19126 (W. Va. April 16, 1990) (Neely, C.J.): 182 W.Va. 802, 392 S.E.2d 693:
In reversing a trial court award of damages for intentional infliction of emotional distress arising from the ostracism of the plaintiff by his family at his father's funeral, as well as their rejection of a monument he had chosen for placement on his father's gravesite, the Court, citing that eminent American authority, Judith Martin, known to her many cultured readers as "Miss Manners," held that when a breach of etiquette is committed within a family, and resort to legal process would do more to aggravate the original slight than to redress it, no action will lie for the tort of outrage.
Board of Education of McDowell County v. Zando, Martin & Milstead, Inc., No. 18773 (W. Va. February 22, 1990) (Miller, J.): 182 W.Va. 597, 390 S.E.2d 796:
Where a defendant's cross-claims against settling joint tortfeasors was dismissed, the Court held: (1) a defendant has an "inchoate right to contribution" which gives rise to a right in advance of judgment to join joint tortfeasors in the action; (2) the defendant's "inchoate right to contribution" may be asserted on any theory of recovery that could have been asserted by the plaintiff, but the amount of recovery is limited to that recovered by the plaintiff in the primary action; (3) joint tortfeasors, who reach good faith settlements with the plaintiff prior to verdict, are relieved from liability for contribution, but the nonsettling defendants are entitled to have the verdict reduced by the amount of such settlements; (4) where the relative fault of nonsettling defendants is determined, they are entitled to seek contribution from other nonsettling defendants if they were forced to pay more than their allocated share of the verdict; and, (5) although different theories of recovery may be asserted against joint tortfeasors for a single, indivisible loss, this does not defeat their right to credit for settlements made or foreclose their right of contribution.
David L. Miller, Linda D. Grapes, and Joshua Grapes, an infant v. Barbara J. Warren, Individually and Doing Business As Flagg Motel, No. 19021 (W. Va. February 21, 1990) (Neely, C.J.): 182 W.Va. 560, 390 S.E.2d 207:
Where plaintiffs were severely burned in a motel fire allegedly aggravated by the absence of smoke detectors, which were mandated by local fire code, the Court held that noncompliance with fire codes or other similar regulations constitutes prima facie negligence for injuries suffered that: (1) were proximately caused by such noncompliance, and (2) were of the type the regulations were designed to prevent, but that compliance with such regulations, although competent evidence of due care, does not create a presumption of due care. On another issue, the Court held that the trial court erred by failing to instruct the jury that the negligence of the adult plaintiffs could not be imputed to an infant plaintiff, who was also severely burned in a fire alleged by the motel owner to have been caused by a cigarette dropped by his mother or her adult companion, and not by location of a bed too close to a baseboard heater. On a related point, the Court held reversible the failure to instruct the jury that they were to assess contributory negligence by the adults independently, holding that, unless otherwise established by law, the negligence of one adult cannot be imputed to another.
Dennis L. Wright v. Karen S. Hanley, D.L. Peterson Trust, and Aetna Casualty & Surety Company, No. 18609 (W. Va. December 5, 1989) (Workman, J.): 182 W.Va. 334, 387 S.E.2d 801:
The Court held that evidence of failure to wear a seat belt is inadmissible in a negligence action either to assess comparative fault or to demonstrate failure to mitigate damages.
Randolph L. Wolfe and Rose Marie Wolfe v. City of Wheeling, No. CC997 (W. Va. November 20, 1989) (McHugh, J.): 182 W.Va. 253, 387 S.E.2d 307:
Where the plaintiffs' home, located 200 yards outside city limits, burnt to the ground after the municipal fire department, to which plaintiffs had paid fee, failed to respond to emergency call, the Court held that, in order to establish a "special duty" owed by a local governmental entity to an individual, the following elements must be demonstrated: (1) assumption by the entity, through promises or actions, of an affirmative duty to act on behalf of the individual injured; (2) knowledge by the entity that inaction could cause injury; (3) direct contact between the entity and the individual injured; and, (4) justifiable reliance by the individual injured on the entity's assumption of an ffirmative duty. Whether a "special duty" exists, held the Court, is a question of fact.
Nettie Miller v. Montgomery Investments, Inc.; Woodland Realty Company; J.W. Riccardi, d/b/a Riccardi & Ramsey; and Walter Ramsey, d/b/a Riccardi & Ramsey, No. 18956 (W. Va. November 16, 1989) (Brotherton, C.J.): 182 W.Va. 242, 387 S.E.2d 296:
Where plaintiff whose house was destroyed by a landslide challenged an award of summary judgment in favor of the property owner on which the landslide originated, the Court reversed and remanded, holding that where the possessor of land: (1) knows or should know of an existing structure or artificial condition on such land which is unreasonably dangerous to persons or property outside of the land; (2) knows or should know that such condition exists without the consent of those potentially affected by it; and (3) fails, after a reasonable opportunity, to correct such condition or otherwise protect such persons or property against it, such possessor is subject to liability for the physical harm caused by such condition.
Clifford King v. Kayak Manufacturing Corporation, No. 18910 (W. Va. November 9, 1989) (Miller, J.): 182 W.Va. 276, 387 S.E.2d 511:
In a product liability case brought by a quadriplegic against the manufacturer of an above-ground swimming pool into which he dove resulting in his injuries, the Court held: (1) the doctrine of assumption of risk is not a subset of comparative contributory negligence; (2) the essence of contributory negligence is carelessness, whereas the essence of assumption of risk is venturesomeness; (3) knowledge and appreciation of danger are essential elements of assumption of risk; (4) a plaintiff is not barred from recovery by the doctrine of assumption of risk unless his or her degree of fault equals or exceeds the combined fault of the other parties to the accident; (5) where the plaintiff had actual knowledge of a defective or dangerous condition, fully appreciated the risks involved, and continued to use the product, to a degree equaling or exceeding the combined fault of the other parties to the accident, the plaintiff may be barred from recovery by the doctrine of assumption of risk; (6) this doctrine of "comparative assumption of risk" should be made fully retroactive to all cases tried after the date of this opinion, those on retrial, and those on appeal if the point was preserved; (7) a physician may testify as to the causal connection between the accident and the manner in which the plaintiff was injured; and, (8) advertising or promotional material concerning the use of a product may be admitted in a product liability case even though the plaintiff was not exposed to the material.