David S. Skeen, Esq. David
A. Mohler, Esq.
South Charleston, West Virginia Atkinson,
Mohler & Polak, PLLC
Attorney for Appellants
Charleston,
West Virginia
Attorney
for Appellees
The Opinion of the Court was delivered PER CURIAM.
JUSTICE STARCHER dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1. “'The
appellate standard of review for the granting of a motion for a [judgment as
a matter of law] pursuant to Rule 50 of the West Virginia Rules of Civil Procedure
is de novo. On appeal, this court, after considering the evidence in the light
most favorable to the nonmovant party, will sustain the granting of a [judgment
as a matter of law] when only one reasonable conclusion as to the verdict can
be reached. But if reasonable minds could differ as to the importance and sufficiency
of the evidence, a circuit court's ruling granting a directed verdict will be
reversed.' Syllabus Point 3,
Brannon v. Riffle, 197 W.Va. 97, 475 S.E.2d
97 (1996).” Syllabus Point 5,
Smith v. First Community Bancshares, Inc.,
212 W.Va. 809, 575 S.E.2d 419 (2002).
2. “The
burden is on the plaintiff to prove by a preponderance of the evidence that the
defendant was negligent and that such negligence was the proximate cause of the
injury.” Syllabus Point 2, Walton v. Given, 158 W.Va. 897, 215 S.E.2d
647 (1975).
3. “'The
proximate cause of an injury is the last negligent act contributing to the injury
and without which the injury would not have occurred.' Syllabus Point 5, Hartley
v. Crede, 140 W.Va. 133, 82 S.E.2d 672 (1954), overruled on other grounds, State
v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983).” Syllabus Point 1, Mays
v. Chang, 213 W.Va. 220, 579 S.E.2d 561 (2003).
4. “'Proximate
cause' must be understood to be that cause which in actual sequence, unbroken
by any independent cause, produced the wrong complained of, without
which the wrong would not have occurred.” Syllabus Point 3, Webb v.
Sessler, 135 W.Va. 341, 63 S.E.2d 65 (1950).
5. “'A
party in a tort action is not required to prove that the negligence of one sought
to be charged with an injury was the sole proximate cause of an injury. Divita
v. Atlantic Trucking Co., 129 W.Va. 267, 40 S.E.2d 324 (1946), is overruled
to the extent it states a contrary rule.' Syllabus Point 2, Everly v. Columbia
Gas of West Virginia, Inc., 171 W.Va. 534, 301 S.E.2d 165 (1982).” Syllabus
Point 2, Mays v. Chang, 213 W.Va. 220, 579 S.E.2d 561 (2003).
6. “'Proximate
cause is a vital and an essential element of actionable negligence and must be
proved to warrant a recovery in an action based on negligence.' Syllabus Point
3, McCoy v. Cohen, 149 W.Va. 197, 140 S.E.2d 427 (1965).” Syllabus
Point 7, Judy v. Grant County Health Dept., 210 W.Va. 286, 557 S.E.2d
340 (2001).
Per Curiam:
This
case is before this Court upon appeal of a final order of the Circuit Court of
Kanawha County entered on December 15, 2003. Pursuant to that order, the circuit
court granted the appellees and defendants below, Sarah M. Harpold and Roger
F. Rabalais, judgment as a matter of law in this personal injury action filed
by the appellants and plaintiffs below, Martha and Edward Spencer, following
an automobile accident. In this appeal, the Spencers contend that they presented
sufficient evidence at trial from which the jury could have determined that the
negligence of Ms. Harpold was a proximate cause of their damages, and therefore,
the circuit court erred by granting judgment as a matter of law in favor of Ms.
Harpold and Mr. Rabalais.
This
Court has before it the petition for appeal, the entire record, and the briefs
and argument of counsel. For the reasons set forth below, the final order is
affirmed.
I.
FACTS
On September
13, 1999, at approximately 4:30 p.m., Martha and Edward Spencer were traveling
north on Route 21 near Sissonville, Kanawha County, West Virginia, in a Chevrolet
S-10 truck owned and operated by Mr. Spencer. It was raining, and as traffic
proceeded, a vehicle suddenly stopped in front of Mr. Spencer. Mr. Spencer
was able to safely stop as was the vehicle behind him, a Toyota 4Runner operated
by Bruce L. Flowers. However, the vehicle behind Mr. Flowers, another Chevrolet
S-10 truck which was operated by Timothy R. McClure but owned by Philip E.
Davis, was unable to stop, and as a result, Mr. Flowers was rear-ended. The
impact caused Mr. Flowers' vehicle to move forward and strike Mr. Spencer's
truck in the rear. Immediately thereafter, a fourth vehicle, a Jeep Cherokee,
operated by Sarah Harpold but owned by her stepfather, Roger Rabalais, approached
the accident site and was also unable to stop. Consequently, another chain
reaction occurred whereby the Spencers were struck from the rear again.
(See
footnote 1)
Following
the accident, the Spencers filed suit against Mr. McClure, Mr. Davis, Ms. Harpold,
and Mr. Rabalais alleging that Mrs. Spencer was injured during the collisions
(See
footnote 2) and that their truck was damaged. Prior to trial, the
Spencers settled their claims against Mr. McClure and Mr. Davis. The trial commenced
on May 27, 2003. The Spencers testified that they felt three separate and distinct
impacts during the accident and that they thought the first
two impacts were caused by Mr. McClure and the third by Ms. Harpold. The Spencers
acknowledged that they were only able to observe Mr. Flowers' vehicle because
they were hauling a one-piece shower and tub unit in the back of their truck.
Mrs. Spencer testified that she thought the second impact was the most severe.
(See
footnote 3) Mr. Spencer testified that the frame and transmission
of his truck were damaged.
(See
footnote 4)
Stephen
Thaxton, a chiropractor who had treated Mrs. Spencer, testified regarding his
diagnosis and treatment. Dr. Thaxton stated that Mrs. Spencer's injuries were
consistent with injuries that might be received in a rear-end collision and that
the third impact could have exacerbated injuries she received during the first
two impacts. However, on cross-examination, Dr. Thaxton acknowledged that he
could not say what portion of Mrs. Spencer's symptoms was caused by the third
impact as opposed to the first and second collisions.
The deposition
of Dr. George S. Zakaib, M.D., was also read to the jury.
(See
footnote 5) Dr. Zakaib examined Mrs. Spencer on one occasion and
recommended surgery for her left
shoulder. When asked whether Mrs. Spencer's shoulder injury was related to
the accident, Dr. Zakaib at first stated that he would be “hard pressed” to
make the connection. However, he later said that he believed Mrs. Spencer's
shoulder was injured in the accident because that was what she told him. Dr.
Zakaib did not testify about the nature of the accident, nor did he attribute
any of Mrs. Spencer's injuries to the collision involving Ms. Harpold.
After
the Spencers rested their case,
(See
footnote 6) Ms. Harpold and Mr. Rabalais moved for judgment as a
matter of law contending that the Spencers had failed to present any evidence
that the negligence of Ms. Harpold caused or contributed to their alleged damages.
The court took the motion under advisement and then allowed Ms. Harpold and Mr.
Rabalais to begin presenting their case. The next day, the court granted the
motion for judgment as a matter of law finding that the Spencers had in fact
failed to establish that the negligence of Ms. Harpold caused or contributed
to the damages they claimed. The final order was entered on December 15, 2003,
and this appeal followed.
II.
STANDARD OF REVIEW
As set
forth above, the circuit court granted judgment as a matter of law in favor of
Ms. Harpold and Mr. Rabalais pursuant to Rule 50(a) of the West Virginia Rules
of Civil Procedure.
(See
footnote 7) In Syllabus Point 5 of
Smith v. First Community Bancshares,
Inc., 212 W.Va. 809, 575 S.E.2d 419 (2002) this Court stated that,
“The
appellate standard of review for the granting of a motion for a [judgment as
a matter of law] pursuant to Rule 50 of the West Virginia Rules of Civil Procedure
is de novo. On appeal, this court, after considering the evidence in the light
most favorable to the nonmovant party, will sustain the granting of a [judgment
as a matter of law] when only one reasonable conclusion as to the verdict can
be reached. But if reasonable minds could differ as to the importance and sufficiency
of the evidence, a circuit court's ruling granting a directed verdict will be
reversed.” Syllabus Point 3, Brannon v. Riffle, 197 W.Va. 97, 475
S.E.2d 97 (1996).
With this standard in mind, we now consider the parties' arguments.
III.
DISCUSSION
In this
appeal, the Spencers contend that they presented sufficient evidence to establish
that the negligence of Ms. Harpold proximately caused the injuries suffered by
Mrs. Spencer during the accident and, thus, maintain that the circuit court erred
by granting judgment as a matter of law in favor of Ms. Harpold and Mr. Rabalais.
The Spencers point out that the evidence consisted of their own testimony regarding
the accident. In particular, they testified that they felt three separate and
distinct impacts; that the second and third impacts were the most severe; that
one of the impacts was so severe as to throw Mrs. Spencer's head back against
the rear window causing her to become dazed; and that Mrs. Spencer suffered neck,
back, and shoulder injuries which were primarily treated by chiropractic intervention.
In addition, the Spencers note that they presented the testimony of chiropractor
Stephen Thaxton who testified that he had treated Mrs. Spencer; that her injuries
were consistent with those that might be received during a rear-end collision;
and that the third impact could have exacerbated the injuries Mrs. Spencer received
during the first two impacts. The Spencers reason that this evidence was sufficient
to defeat the motion for judgment as a matter of law made by Ms. Harpold and
Mr. Rabalais.
By contrast,
Ms. Harpold and Mr. Rabalais contend that the Spencers did not present any evidence
to establish that Ms. Harpold's failure to bring her vehicle to a stop proximately
caused any of the injuries suffered by Mrs. Spencer. Specifically, they contend
that the expert testimony presented by the Spencers did not establish that any
of Mrs. Spencer's injuries resulted from the collision involving Ms. Harpold.
They further assert that
except for the Spencers own testimony, there was no evidence to support the
Spencers' claims about how the accident occurred and which impact caused Mrs.
Spencer's injuries. Ms. Harpold and Mr. Rabalais note that the investigating
police officer was not called as a witness, nor was an accident reconstruction
expert. They also point out that none of the other drivers involved in the
accident testified either. Ms. Harpold and Mr. Rabalais contend that Mr. Spencer's
testimony that Mr. McClure caused two impacts and that Ms. Harpold caused the
third impact was simply conjecture as he acknowledged that he could only see
Mr. Flowers' vehicle which was directly behind him. Ms. Harpold and Mr. Rabalais
also note that Mrs. Spencer did not say which impact caused her to strike her
head on the rear window of the truck and that she did testify that the second
impact which was caused by Mr. McClure was the most severe. Thus, Ms. Harpold
and Mr. Rabalais conclude that the evidence presented by the Spencers was not
sufficient to establish that Ms. Harpold's alleged negligence caused or contributed
to Mrs. Spencer's injuries, and therefore, the circuit court properly granted
their motion for judgment as a matter of law.
This
Court has declared that “[t]he burden is on the plaintiff to prove by a
preponderance of the evidence that the defendant was negligent and that such
negligence was the proximate cause of the injury.” Syllabus Point 2,
Walton
v. Given, 158 W.Va. 897, 215 S.E.2d 647 (1975). “'The
proximate cause of an injury is the last negligent act contributing to the injury
and without which the injury would not have occurred.' Syllabus Point 5,
Hartley
v. Crede, 140 W.Va. 133, 82 S.E.2d 672 (1954),
overruled on other grounds,
State
v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983).” Syllabus Point 1,
Mays
v. Chang, 213 W.Va. 220, 579 S.E.2d 561 (2003). In other words, “'Proximate
cause' must be understood to be that cause which in actual sequence, unbroken
by any independent cause, produced the wrong complained of, without which the
wrong would not have occurred.” Syllabus Point 3,
Webb v. Sessler,
135 W.Va. 341, 63 S.E.2d 65 (1950).
In
Mays,
this Court explained that while a plaintiff has the burden of proving that a
defendant's breach of a particular duty of care was a proximate cause of his
or her injuries, the plaintiff does not have to show that such breach was the
sole proximate
cause of the injury.
Mays, 213 W.Va. at 224, 579 S.E.2d at 565. Accordingly,
this Court held in Syllabus Point 2 of
Mays that, “'A party in a
tort action is not required to prove that the negligence of one sought to be
charged with an injury was the sole proximate cause of an injury.
Divita v.
Atlantic Trucking Co., 129 W.Va. 267, 40 S.E.2d 324 (1946), is overruled
to the extent it states a contrary rule.' Syllabus Point 2,
Everly v. Columbia
Gas of West Virginia, Inc., 171 W.Va. 534, 301 S.E.2d 165 (1982).”
In the
case
sub judice, the circuit court found that the Spencers had not offered
sufficient evidence to establish that Ms. Harpold had caused or even contributed
to Mrs. Spencer's injuries. We agree. As set forth above, the Spencers offered
expert medical testimony from Dr. Thaxton and Dr. Zakaib. However, neither doctor
was able to testify that the negligence of Ms. Harpold caused or contributed
to Mrs. Spencer's injuries. In
particular, Dr. Thaxton was only able to say that the third collision which
involved Ms. Harpold
could have exacerbated the injuries suffered by
Mrs. Spencer as a result of the first and second collisions. When questioned
further, Dr. Thaxton stated that he could not say what portion of Mrs. Spencer's
injuries resulted from the third collision. Likewise, Dr. Zakaib did not attribute
any of Mrs. Spencer's injuries to the actions of Ms. Harpold. Dr. Zakaib only
testified that he believed that Mrs. Spencer's left shoulder was injured in
the accident because that was what she told him.
In
Tolley
v. ACF Industries, Inc., 212 W.Va. 548, 558, 575 S.E.2d 158, 168 (2002),
this Court explained that “the law is clear that a mere possibility of causation
is not sufficient to allow a reasonable jury to find causation.”
Tolley was
a deliberate intention action filed by an employee alleging that his preexisting
asthma was aggravated by chemicals in his employer's paint department. However,
the employee's medical expert could not identify the actual cause of his respiratory
condition. The expert was only able to opine that there were three potential
causes for the employee's alleged aggravation of his pre-existing asthma. This
Court concluded that the employee's reliance on “indeterminate expert testimony
on causation that [was] based solely on possibility” was insufficient.
Id.
Like
the employee in
Tolley, the Spencers offered expert medical testimony
regarding proximate causation on the part of Ms. Harpold that was speculative
in nature. Dr. Thaxton only testified that it was
possible that Mrs. Spencer's
injuries were aggravated by
the collision involving Ms. Harpold. Such testimony does not provide a sufficient
evidentiary basis from which a reasonable jury could find that Ms. Harpold
proximately caused Mrs. Spencer's injuries.
The only
other evidence offered by the Spencers concerning proximate causation on the
part of Ms. Harpold was their own testimony. While expert testimony is not always
necessary to prove causation,
(See
footnote 8) the Spencers' testimony does not establish that Ms. Harpold
caused or contributed to Mrs. Spencer's injuries. As discussed above, the Spencers
never observed Ms. Harpold hitting the vehicles behind them as their view was
blocked by the tub and shower unit they were hauling in the back of their truck.
Moreover, at trial, Mrs. Spencer admitted that she had previously testified that
the second collision which was caused by Mr. McClure, not Ms. Harpold, was the
most severe. Furthermore, Mrs. Spencer never indicated which collision caused
her to hit her head on the rear window of the truck. In sum, the Spencers offered
no evidence from which a jury could conclude that Ms. Harpold proximately caused
or contributed to Mrs. Spencer's injuries.
In Syllabus
Point 7 of
Judy v. Grant County Health Dept., 210 W.Va. 286, 557 S.E.2d
340 (2001), this Court held that, “'Proximate cause is a vital and an essential
element
of actionable negligence and must be proved to warrant a recovery in an action
based on negligence.' Syllabus Point 3,
McCoy v. Cohen, 149 W.Va. 197,
140 S.E.2d 427 (1965).” In the case at bar, the Spencers failed to present
sufficient evidence to prove that Ms. Harpold proximately caused Mrs. Spencer's
injuries. Therefore, the circuit court properly granted judgment as a matter
of law in favor of Ms. Harpold and Mr. Rabalais.
IV.
CONCLUSION
Accordingly,
for the reasons set forth above, the final order of the Circuit Court of Kanawha
County entered on December 15, 2003, is affirmed.
Affirmed.
Footnote: 1