IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2013 Term
_______________
FILED
No. 12-0106 November 12, 2013
_______________ released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
WALTER E. HERSH
and MARY L. HERSH
Plaintiffs Below, Petitioners
v.
E-T ENTERPRISES, LIMITED PARTNERSHIP;
RALPH L. ECKENRODE;
P&H INVESTMENTS, INC., a Virginia Corporation;
and TROLLERS ASSOCIATES, LLC, a Virginia limited liability company
Defendants Below, Respondents
____________________________________________________________
Appeal from the Circuit Court of Berkeley County
The Honorable Gina M. Groh, Judge
Civil Action No. 10-C-149
REVERSED AND REMANDED
____________________________________________________________
Submitted: September 11, 2013
Filed: November 12, 2013
Harry P. Waddell, Esq. Joseph L. Caltrider, Esq.
Martinsburg, West Virginia Bowles Rice McDavid Graff & Love LLP
Counsel for the Petitioners Martinsburg, West Virginia
Counsel for Respondents E-T Enterprises,
Christopher J. Regan, Esq. Limited Partnership, and Ralph L.
Bordas & Bordas, PLLC Eckenrode
Wheeling, West Virginia
Counsel for Amicus Curiae West Virginia Johnnie E. Brown, Esq.
Association for Justice Jeffrey W. Molenda, Esq.
Kameron T. Miller, Esq.
Pullin, Fowler, Flanagan, Brown & Poe,
PLLC
Charleston, West Virginia
Counsel for Respondents P&H
Investments, Inc., and Trollers Associates,
LLC
Jeffrey A. Holmstrand, Esq.
Flaherty Sensabaugh Bonasso PLLC
Wheeling, West Virginia
Counsel for Amicus Curiae Defense Trial
Counsel of West Virginia
Jill Cranston Bentz, Esq.
Mychal Sommer Schulz, Esq.
Jacob A. Manning, Esq.
Dinsmore & Shohl, LLP
Counsel for Amicus Curiae West Virginia
Insurance Federation
JUSTICE KETCHUM delivered the Opinion of the Court.
CHIEF JUSTICE BENJAMIN dissents and reserves the right to file a separate opinion.
JUSTICE LOUGHRY dissents and reserves the right to file a separate opinion.
SYLLABUS BY THE COURT
1. “When a statute imposes a duty on a person for the protection of
others, it is a public safety statute and a violation of such a statute is prima facie evidence
of negligence unless the statute says otherwise. A member of a class protected by a
public safety statute has a claim against anyone who violates such a statute when the
violation is a proximate cause of injury to the claimant.” Syllabus Point 7, Shaffer v.
Acme Limestone Co., Inc., 206 W.Va. 333, 524 S.E.2d 688 (1999).
2. “A party is not barred from recovering damages in a tort action so
long as his negligence or fault does not equal or exceed the combined negligence or fault
of the other parties involved in the accident.” Syllabus Point 3, Bradley v. Appalachian
Power Co., 163 W.Va. 332, 256 S.E.2d 879, 880 (1979).
3. “The ultimate test of the existence of a duty to use care is found in
the foreseeability that harm may result if it is not exercised. The test is, would the
ordinary man in the defendant’s position, knowing what he knew or should have known,
anticipate that harm of the general nature of that suffered was likely to result?” Syllabus
Point 3, Sewell v. Gregory, 179 W.Va. 585, 371 S.E.2d 82 (1988).
4. “In determining whether a defendant in a premises liability case met
his or her burden of reasonable care under the circumstances to all non-trespassing
entrants, the trier of fact must consider (1) the foreseeability that an injury might occur;
(2) the severity of injury; (3) the time, manner and circumstances under which the injured
party entered the premises; (4) the normal or expected use made of the premises; and (5)
i
the magnitude of the burden placed upon the defendant to guard against injury.” Syllabus
Point 6, Mallet v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (1999).
5. In the ordinary premises liability case against the owner or possessor
of the premises, if it is foreseeable that an open and obvious hazard may cause harm to
others despite the fact it is open and obvious, then there is a duty of care upon the owner
or possessor to remedy the risk posed by the hazard. Whether the actions employed by
the owner or possessor to remedy the hazard were reasonable is a question for the jury.
6. The open and obvious doctrine in premises liability negligence
actions is abolished. To the extent Sesler v. Rolfe Coal & Coke Co., 51 W.Va. 318, 41
S.E. 216 (1902) and Burdette v. Burdette, 147 W.Va. 313, 127 S.E.2d 249 (1962) hold
otherwise, they are overruled.
7. In the ordinary premises liability case against the owner or possessor
of the premises, the finder of fact may consider whether a plaintiff failed to exercise
reasonable self-protective care when encountering an open and obvious hazard on the
premises. The plaintiff’s confrontation of an open and obvious hazard is merely an
element to be considered by the jury in apportioning the relative fault of the parties.
8. The owner or the possessor of premises is not an insurer of the safety
of every person present on the premises. If the owner or possessor is not guilty of
negligence or willful or wanton misconduct and no nuisance exists, then he or she is not
liable for injuries sustained by a person on the premises.
ii
Justice Ketchum:
In this appeal from the Circuit Court of Berkeley County, we are asked to
examine the “open and obvious” doctrine as it applies in premises liability actions.
Under this common-law doctrine, if a plaintiff is injured by a hazard on another’s land
that was “open and obvious” such that it was or could have been known to the reasonable
plaintiff, then the plaintiff is barred as a matter of law from recovering any damages from
the premises owner or possessor. Under the doctrine, the premises owner or possessor
owes no duty of care to eliminate open and obvious hazards; instead, he or she only has a
duty to correct hidden dangers.
The plaintiff below fell down a staircase in a commercial parking lot that
lacked handrails. He asserts that the defendant property owners were prima facie
negligent because a local ordinance legally required the installation of at least one
handrail. The defendants claimed that the missing handrail was an open and obvious
danger, and that the plaintiff knew there was no handrail. In two orders dated December
15, 2011, the circuit court granted summary judgment to the defendants, finding no
actionable negligence because the defendants had no duty of care toward the plaintiff.
We reverse the circuit court’s orders. As set forth below, we abolish the
“open and obvious” doctrine. If a hazard is open and obvious on premises, it does not
preclude a cause of action by a plaintiff for injuries caused by that hazard. Instead, a jury
may consider the obviousness of the hazard in determining the comparative negligence of
the plaintiff against that of the owner or possessor of the premises.
1
I.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of October 9, 2009, plaintiff Walter E. Hersh drove to a
shopping plaza in Martinsburg, West Virginia. The plaza has two parking lots separated
by an embankment. The lower parking lot is owned by third-party defendants P&H
Investments, Inc. and Trollers Associates, LLC. The upper parking lot is owned by
defendants Ralph Eckenrode and E-T Enterprises Limited Partnership.
On the embankment between the two parking lots is a set of wooden stairs,
and the stairs rest on the real property owned by both sets of defendants. However, the
stairs were constructed and maintained solely by Mr. Eckenrode and E-T Enterprises
Limited Partnership.
The parties agree that the building code ordinance for the City of
Martinsburg required at least one handrail on the wooden stairs.1 The parties also agree
there were no handrails on the stairs. Mr. Eckenrode testified in a deposition that he had
removed the handrails.2
1
The City of Martinsburg adopted the International Property Maintenance
Code [2006], which states in Section 306 that, “Every exterior and interior flight of stairs
having more than four risers shall have a handrail on one side of the stair[.]” See also,
W.Va. Code § 21-3-6 [1923] (“In all . . . mercantile establishments, . . . proper and
substantial handrails shall be provided on all stairways, and the treads thereon shall be so
constructed as to furnish a firm and safe foothold. . . .”).
2
As Mr. Eckenrode testified in his deposition:
[W]e had skateboarders that knocked the handrails so that
they were leaning in a dangerous way and they were using the
handrails to jump up on and slide down to the bottom of the
(continued . . .)
2
Mr. Hersh parked in the lower parking lot and climbed up the stairs to visit
a store on the upper lot. After about 25 minutes, he left the store to return to his car. As
he was descending the wooden stairs, he fell to the parking lot below and sustained a
severe head injury.
Mr. Hersh and his wife (plaintiff Mary L. Hersh) brought the instant case
against the defendants seeking damages for Mr. Hersh’s fall down the stairs. Mr. Hersh
asserted that the missing handrails, which were required by law, caused or contributed to
his injuries. The defendants filed motions for summary judgment because it was
undisputed that the missing handrails were an “open and obvious” condition, and
undisputed that Mr. Hersh knew there were no handrails on the stairs before he fell.
In two orders dated December 15, 2011, the circuit court granted summary
judgment to all of the defendants. The circuit court stated that it is a fundamental
principle of West Virginia premises liability law that “a property owner is not liable for
injuries sustained as a result of dangers that are ‘obvious, reasonably apparent, or as well
known to the person injured as they are to the owner.’”3 The circuit court found no
“disputed material facts regarding the open and obvious missing handrails along the stairs
thing, which I was afraid they were going to wind up getting
hurt severely . . . when they jumped up on them they caused
the handrails to lean out so that they became very loose and I
took – I took the handrails down thinking that it would deter
them from, you know, jumping this – jumping the handrails.
3
For this legal principle, the circuit court quoted Burdette v. Burdette, 147
W.Va. 313, 318, 127 S.E.2d 249, 252 (1962), which was in turn quoting from American
Jurisprudence.
3
in question or [Mr. Hersh’s] admitted knowledge of those missing handrails before he
fell.” Stating it another way, the circuit court found that the missing handrail was a
condition that “was open, obvious, reasonably apparent, and as well known to Mr. Hersh
as it was to the Defendants on October 9, 2009[.]”
The circuit court concluded that Mr. Hersh had failed to state an actionable
case of negligence by the defendants. Under West Virginia law, the circuit court was of
the belief that an open, obvious and known condition – “like the missing handrails along
the subject stairs in the case sub judice” – could not, as a matter of law, establish a case
of negligence by a defendant that could be submitted to a jury. The circuit court
determined that “open, obvious, and known conditions cannot create actionable
negligence in West Virginia premises liability cases, even if those conditions are a
violation of a regulation or ordinance.” Accordingly, the circuit court granted summary
judgment to all of the defendants and dismissed the plaintiffs’ case.
The plaintiffs now appeal the circuit court’s December 15, 2011, summary
judgment orders.
II.
STANDARD OF REVIEW
When we review a circuit court’s order granting summary judgment under
Rule 56 of the Rules of Civil Procedure, we consider the order de novo.4 We apply the
4
Syllabus Point 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755
(1994) (“A circuit court’s entry of summary judgment is reviewed de novo.”).
4
same guidelines as the circuit court, and examine the record to assess whether there is a
genuine issue of fact to be tried or whether an inquiry concerning the facts is desirable to
clarify the application of the law.5
III.
ANALYSIS
In a negligence suit, a plaintiff is required to show four basic elements:
duty, breach, causation, and damages.6 The plaintiff must prove that the defendant owed
the plaintiff some duty of care; that by some act or omission the defendant breached that
duty; and that the act or omission proximately caused some injury to the plaintiff that is
5
Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co.
of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963) (“A motion for summary judgment
should be granted only when it is clear that there is no genuine issue of fact to be tried
and inquiry concerning the facts is not desirable to clarify the application of the law.”).
6
“[B]efore one can recover under a tort theory of liability, he or she must
prove each of the four elements of a tort: duty, breach, causation, and damages.” Carter
v. Monsanto Co., 212 W. Va. 732, 737, 575 S.E.2d 342, 347 (2002). See also, Syllabus
Point 3, Alexander v. Jennings, 150 W. Va. 629, 149 S.E.2d 213 (1966) (“To recover in
an action based on negligence the plaintiff must prove that the defendant was guilty of
primary negligence and that such negligence was the proximate cause of the injury of
which the plaintiff complains.”); Webb v. Brown & Williamson Tobacco Co., 121 W. Va.
115, 118, 2 S.E.2d 898, 899 (1939) (“In every action for damages resulting from injuries
to the plaintiff, alleged to have been inflicted by the negligence of the defendant, it is
incumbent upon the plaintiff to establish, by a preponderance of the testimony, three
propositions: (1) A duty which the defendant owes to him; (2) A negligent breach of that
duty; (3) Injuries received thereby, resulting proximately from the breach of that duty.”).
5
compensable by damages. When we say that a defendant is “negligent,” we are merely
saying the defendant owed some duty of care to another yet failed to abide by that duty.7
This appeal centers on the first element: duty. The parties offer two
competing arguments. First, the plaintiff, Mr. Hersh, asserts that the defendant
landowners owed the plaintiff (and others like him) a duty of care to install a handrail on
their stairs. The plaintiff further asserts this duty was imposed by a city ordinance, and
contends that the defendants’ failure to follow the ordinance establishes a prima facie
case of negligence. The plaintiff therefore argues that the circuit court erred in finding
that the defendants owed no duty of care to the plaintiff.
Second, the arguments of the parties require us to consider the continued
viability of the “open and obvious” doctrine in premises liability cases. The defendants
argue that under the “open and obvious” doctrine they did not owe the plaintiff any duty
of care. They contend that the circuit court correctly found that the missing handrail on
the defendants’ staircase was an “open and obvious” hazard. Under the precedents of this
Court, the defendants claim that if a danger is open and obvious, then the owner or
possessor has no duty to warn or duty to protect others against the danger. The owner or
7
“Negligence is the failure of a reasonably prudent person to exercise due
care in his conduct toward others from which injury may occur.” Walker v. Robertson,
141 W.Va. 563, 570, 91 S.E.2d 468, 473 (1956). See also, Syllabus Point 1, Washington
v. Baltimore & O.R. Co., 17 W.Va. 190 (1880) (“Negligence is the doing of something,
which under the circumstances a reasonable person would not do, or the omission to do
something in discharge of a legal duty, which under the circumstances a reasonable
person would do, and which act of commission or omission as a natural consequence
directly following produces damages to another.”).
6
possessor is absolved of all liability for that danger, and the doctrine acts as a complete
bar to a plaintiff’s negligence claim.
The defendants take the position that, even if their actions violated a city
ordinance, their actions created a condition that was open and obvious to the public, and
therefore the defendants’ actions could never form the basis of a negligence cause of
action. The plaintiff counters that the open and obvious doctrine should be abolished.
We examine both parts of the parties’ arguments. First, as we discuss
below, we find that the circuit court erred in finding that the defendants owed no duty of
care to the plaintiff. Our law is clear that an ordinance designed for the safety of the
public – such as one requiring handrails on stairways – imposes a duty of care. The
violation of that ordinance constitutes prima facie evidence of negligence by a defendant,
and the circuit court erred in finding otherwise.
Second, we expressly abolish the open and obvious doctrine in premises
liability actions. The obviousness of a danger does not relieve an owner or possessor’s
duty of care towards others, and does not preclude recovery by a plaintiff as a matter of
law. Whether a plaintiff’s conduct under the circumstances was reasonable will be
determined under the principles of comparative negligence. A plaintiff’s knowledge of a
hazard bears upon the plaintiff’s negligence; it does not affect the defendant’s duty. Put
simply, the obviousness of a dangerous condition should inform a fact finder’s
assessment of the parties’ comparative negligence, rather than dictate dismissal by the
court as a matter of law.
A.
7
Violation of an ordinance is prima facie negligence.
The plaintiff’s first argument is that the circuit court failed to give any legal
effect to the undisputed fact that the defendants deliberately removed handrails from the
staircase, in direct violation of a municipal safety statute requiring a handrail. The
plaintiff argues that the violation of a statute or ordinance intended for the protection of
public safety constitutes a prima facie case of negligence.
It is a firmly established rule in West Virginia that a defendant’s disregard
of a statute is prima facie negligence.8 More specific to this case, it is just as firmly
8
See, e.g., Syllabus Point 1, Norman v. Virginia-Pocahontas Coal Co., 68
W.Va. 405, 69 S.E. 857 (1910) (“A violation of the statute inhibiting the employment of
boys under fourteen years of age in coal mines constitutes actionable negligence
whenever that violation is the natural and proximate cause of an injury.”); Syllabus Point
5, Tarr v. Keller Lumber & Const. Co., 106 W.Va. 99, 144 S.E. 881 (1928) (“Disregard
of a statutory requirement is prima facie negligence when it is the natural and proximate
cause of an injury.”); Syllabus Point 3, Oldfield v. Woodall, 113 W.Va. 35, 166 S.E. 691
(1932) (“Disregard of a requirement of a statute or an ordinance is prima facie negligence
when it is the natural and proximate cause of an injury.”); Syllabus Point 3, Meyn v.
Dulaney-Miller Auto Co., 118 W.Va. 545, 191 S.E. 558 (1937) (“A pedestrian crossing a
street between street crossings in violation of an ordinance is not necessarily precluded
from recovery. His violation of the ordinance is prima facie negligence, but to preclude
recovery it must naturally and proximately result in his injury. This latter question is
clearly within the province of the jury to solve.”); Somerville v. Dellosa, 133 W.Va. 435,
439, 56 S.E.2d 756, 759 (1949) (“It is an established principle in this jurisdiction that the
violation of a statute alone is sufficient to make the violator prima facie guilty of
negligence.”); Syllabus Point 1, Spurlin v. Nardo, 145 W.Va. 408, 114 S.E.2d 913 (1960)
(“A violation of the statute dealing with adequate brakes on a motor vehicle constitutes
prima facie negligence.”); Syllabus Point 1, Anderson v. Moulder, 183 W.Va. 77, 394
S.E.2d 61 (1990) (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.”).
8
established that a defendant’s violation of a municipal ordinance9 or a safety regulation10
is prima facie negligence.
In Syllabus Point 7 of Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333,
524 S.E.2d 688 (1999), Justice Davis established the following guideline for weighing
whether the violation of a statute, ordinance or regulation is prima facie negligence:
When a statute imposes a duty on a person for the
protection of others, it is a public safety statute and a
violation of such a statute is prima facie evidence of
negligence unless the statute says otherwise. A member of a
class protected by a public safety statute has a claim against
9
Syllabus Point 3, Skaff v. Dodd, 130 W.Va. 540, 44 S.E.2d 621 (1947)
(“Disregard of the requirements of a traffic statute or ordinance is prima facie actionable
negligence, when it is the natural and proximate cause of the injury, and where in an
action for personal injuries the evidence conflicts on the question of proximate cause,
such question is one of fact for the jury.”); Syllabus Point 4, Rich v. Rosenshine, 131
W.Va. 30, 45 S.E.2d 499 (1947) (“The violation of a valid municipal ordinance is prima
facie actionable negligence when it is the proximate cause of an injury.”); Syllabus Point
1, Moore, Adm’r v. Skyline Cab, Inc., 134 W.Va. 121, 59 S.E.2d 437 (1950) (“The
violation of an ordinance is not negligence as a matter of law, but is prima facie
actionable negligence when it is the proximate cause of an injury.”); Syllabus Point 3,
Simmons v. City of Bluefield, 159 W. Va. 451, 225 S.E.2d 202 (1975) (“The violation of a
municipal ordinance creates a prima facie case of negligence and 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.”).
10
See, e.g., Syllabus Point 1, in part, Johnson v. Monongahela Power Co.,
146 W. Va. 900, 123 S.E.2d 81, 83 (1961) (“Valid rules and regulations of the Public
Service Commission of West Virginia, which incorporate and adopt certain minimum
requirements of the National Safety Code with regard to the external installation of
electrical equipment, have the force of statutory law and the failure to comply therewith
would constitute prima facie negligence. . . .”); Syllabus Point 1, in part, Miller v.
Warren, 182 W. Va. 560, 390 S.E.2d 207 (1990) (“Failure to comply with a fire code or
similar set of regulations constitutes prima facie negligence, if an injury proximately
flows from the non-compliance and the injury is of the sort the regulation was intended to
prevent; . . .”).
9
anyone who violates such a statute when the violation is a
proximate cause of injury to the claimant.
In the instant case, the building code of the City of Martinsburg (as adopted
by ordinance) required the defendants to have a handrail attached to their staircase. The
building code imposes a duty on business owners such as the defendants for the
protection of others. Accordingly, we can easily say that the handrail requirement is a
public safety law.
Further, one of the defendants, Mr. Eckenrode, intentionally removed the
handrails from the staircase at issue.11 On these facts, the plaintiff asserts that he has
established a prima facie case of negligence, and that the circuit court should have
permitted a jury to consider whether the defendants’ violation of the ordinance was a
proximate cause of the plaintiff’s injuries.
After examination of the record, we agree with the plaintiff that the circuit
court erred. The plaintiff established genuine issues of fact regarding whether the
defendants violated the Martinsburg building code ordinance requiring handrails, thereby
creating a prima facie case of negligence. The determination as to whether there was in
11
The defendants are not conceding that the missing handrails were an
actual violation of the Martinsburg building code. The defendants note that the building
code requires a property owner to repair required structures like handrails, and permits a
property owner to remove such structures for necessary maintenance and repair. The
defendants assert that Mr. Eckenrode removed the handrails because they had been
damaged by skateboarders, and that he had contracted to re-install the handrails two
weeks before Mr. Hersh’s fall.
10
fact a violation by the defendants and whether the violation was the proximate cause of
the plaintiff’s injury are questions within the province of the jury.
B.
The Duty of Care and the Open and Obvious Doctrine
The defendants argue that the circuit court was still correct in its overall
finding that they owed no duty of care to the plaintiff, because of the “open and obvious”
doctrine. The defendants concede that while the violation of a statute, ordinance or
building code may be negligence, they nevertheless assert that the violation does not
create “actionable” negligence when that violation is as well known to the person injured
as it is to the owner or occupant of the premises. The defendants bluntly argue that the
owner or occupier of the premises owes no duty of care to others when a danger is
known, open and obvious.
The defendants argue that the “open and obvious” doctrine is rooted in two
West Virginia cases: Sesler v. Rolfe Coal & Coke Co.,12 issued in 1902, and Burdette v.
Burdette,13 issued sixty years later. In both cases, this Court required the owner or
occupier of premises to exercise reasonable care to keep premises in a safe condition.
For example, we said in Syllabus Point 2 of Burdette,
12
Sesler v. Rolfe Coal & Coke Co., 51 W.Va. 318, 41 S.E. 216 (1902).
13
Burdette v. Burdette, 147 W.Va. 313, 127 S.E.2d 249 (1962).
11
The owner or the occupant of premises owes to an invited
person14 the duty to exercise ordinary care to keep and
maintain the premises in a reasonably safe condition.15
However, despite the general duty to keep premises in a safe condition, the
Sesler Court created an exception and held that a premises owner has no duty of care to
fix a dangerous condition that was known to a person injured on the premises. “[T]he
owner [of premises] owes the duty of ordinary, reasonable care to have and keep his
premises in safe condition . . . unless defects be known to such person [going upon
another’s premises].”16 A premises owner only has “the duty to warn them of any danger
14
The rules espoused in Burdette and Sesler were couched in terms of
“invitees” who entered onto a defendant’s land. The common law contained three
categories of entrants onto land: invitees, licensees, and trespassers. “A licensee is a
person who enters onto property with permission; an invitee enters onto property with
permission for some pecuniary or business benefit to the landowner; and a trespasser
enters on land without any permission whatsoever.” Self v. Queen, 199 W. Va. 637, 642,
487 S.E.2d 295, 300 (1997) (Starcher, J., concurring). In Mallet v. Pickens, 206 W.Va.
145, 522 S.E.2d 436 (1999), we abolished any distinction between invitees and licensees
and expanded the duty of care to licensees, stating in Syllabus Point 4:
The common law distinction between licensees and
invitees is hereby abolished; landowners or possessors now
owe any non-trespassing entrant a duty of reasonable care
under the circumstances. We retain our traditional rule with
regard to a trespasser, that being that a landowner or
possessor need only refrain from willful or wanton injury.
15
Syllabus Point 2, Burdette, supra (footnotes added).
16
Syllabus Point 1, Sesler, supra (stating in full, “To one going upon
another’s premises, not as a trespasser or mere licensee, but by invitation in legal sense,
as for instance, an independent contractor going upon such premises to do a work under
contract with the owner, the owner owes the duty of ordinary, reasonable care to have
and keep his premises in safe condition for such person’s work, unless defects be known
to such person.”)
12
. . . which he knows of . . . and of which [the entrants] are not aware.”17 The Court
found it was “well established that if one knows, or by fair care could know of danger
threatening him, he cannot encounter that danger, and charge his injury upon the owner
of the premises even though that owner be in fault.”18
In Burdette, the Court – without ever citing to Sesler – expanded the open
and obvious doctrine. In dicta, the Court inserted two quotes from Corpus Juris
Secundum and American Jurisprudence. The defendants contend these quotes establish
that a premise owner only has a duty of care to protect others against “hidden dangers,
traps, snares, pitfalls, and the like” that “are not known” to people entering onto the
premises. The section of Burdette relied upon by the defendants (and by the circuit court
in its summary judgment orders) states:
In 65 C.J.S., Negligence, Section 50, the text contains
this language: “The duty to keep premises safe for invitees
applies only to defects or conditions which are in the nature
of hidden dangers, traps, snares, pitfalls, and the like, in that
they are not known to the invitee, and would not be observed
by him in the exercise of ordinary care. The invitee assumes
all normal, obvious, or ordinary risks attendant on the use of
the premises, and the owner or occupant is under no duty to
reconstruct or alter the premises so as to obviate known and
obvious dangers.” In 38 Am. Jur., Negligence, Section 97,
the principle is expressed in these terms: “There is no
liability for injuries from dangers that are obvious, reasonably
17
Sesler, 51 W.Va. at 322, 41 S.E. at 217.
18
Id., 51 W.Va. at 322, 41 S.E. at 218.
13
apparent, or as well known to the person injured as they are to
the owner or occupant.”19
The defendants assert that these two quotes firmly establish the principle in our
jurisprudence that the owner or occupier of premises is under “no duty to reconstruct or
alter the premises so as to obviate known and obvious dangers.”20 Put simply, the
defendants contend that they were under no obligation to re-install a railing on the
staircase, and they cannot be held liable for injuries to the plaintiff because the dangers
presented by the missing railing were obvious, reasonably apparent, or as well known to
the plaintiff as they were to the defendants.
The plaintiff argues the open and obvious doctrine should be rejected, and
urges this Court to adopt Section 343A of the Restatement (Second) of Torts (1965).
Under Section 343A(1), the fact that a danger is open, known, or obvious to others does
not eliminate “liability” as a matter of law. Instead, Section 343A(1) states that a
possessor of land has a duty of care towards others when the possessor should anticipate
harm to them from a danger on the land, even if the danger is known or obvious. Section
343A(1), which is titled “Known or Obvious Dangers,” states:
A possessor of land is not liable to his invitees for
physical harm caused to them by any activity or condition on
19
Burdette v. Burdette, 147 W. Va. at 318, 127 S.E.2d at 252.
20
The defendants’ assertion ignores our constitutionally-based rule that,
“This Court will use signed opinions when new points of law are announced and those
points will be articulated through syllabus points as required by our state constitution.”
Syllabus Point 2, Walker v. Doe, 210 W.Va. 490, 558 S.E.2d 290 (2001). See also, W.Va.
Const., Art. VIII, section 4.
14
the land whose danger is known or obvious to them, unless
the possessor should anticipate the harm despite such
knowledge or obviousness.
Section 343A(1) recognizes that if a hazard is open and obvious, then a
warning by the possessor ordinarily will not provide additional protection against harm.
“Risks that are known, open, or obvious already provide notice to those who might be
exposed to the risk, making a warning superfluous.”21 Nevertheless, despite the
opportunity for an entrant to avoid an open and obvious hazard, a possessor is still
required to take reasonable precautions when the possessor “should anticipate the harm
despite such knowledge or obviousness.” “Even if a danger is open and obvious, the duty
of reasonable care may require precautions other than a warning, including employing
durable precautions that eliminate or reduce the risk posed by the condition or activity.”22
“Thus, the fact that a dangerous condition is open and obvious bears on the assessment of
whether reasonable care was employed, but it does not pretermit the land possessor’s
liability. This treatment of land possessors is consistent with that of other actors who
create risks.”23
21
Restatement (Third) of Torts, Phys. & Emot. Harm § 51, cmt. k (2010).
“If a danger is open and obvious, a warning would provide no additional safety, because
a warning is for the purpose of informing about a danger. Thus, a failure to warn of an
obvious danger cannot be a cause of the harm because, even if a warning had been
provided, it would have made no difference—the obvious nature of the danger provides
the same notice as a warning would have.” Id.
22
Id.
23
Id.
15
Since the adoption of Section 343A(1) in 1965, many jurisdictions
throughout the country have abolished the open and obvious doctrine. “The manifest
trend of the courts in this country is away from the traditional rule absolving, ipso facto,
owners and occupiers of land from liability for injuries resulting from known or obvious
conditions, and toward the standard expressed in section 343A(1) of the Restatement
(Second) of Torts (1965).”24 This trend is because courts have recognized that the open
24
Ward v. K Mart Corp., 136 Ill.2d 132, 150, 554 N.E.2d 223, 231 (Ill.
1990). Courts that have abandoned the open and obvious doctrine for various reasons in
the wake of Section 343A(1) include Foster v. Costco Wholesale Corporation, 291 P.3d
150, 156 (Nev. 2012); Steigman v. Outrigger Enterprises, Inc., 126 Hawai’i 133, 138,
267 P.3d 1238, 1243 (2011); Kentucky River Medical Center v. McIntosh, 319 S.W.3d
385, 390 (Ky.2010); Hale v. Beckstead, 116 P.3d 263, 267 (Utah 2005) (adopting the
Restatement (Second) approach); Martinez v. Chippewa Enters., Inc., 18 Cal. Rptr. 3d
152, 155 (Ct. App. 2004); Vigil v. Franklin, 103 P.3d 322 (Colo. 2004) (concluding that
legislation that reinstated traditional status-based duties did not incorporate an “open and
obvious condition” defense); Coln v. City of Savannah, 966 S.W.2d 34, 43 (Tenn.1998);
Wieseler v. Sisters of Mercy Health Corp., 540 N.W.2d 445 (Iowa 1995); Bertrand v.
Alan Ford, Inc., 449 Mich. 606, 610-11, 537 N.W.2d 185, 187 (1995); Tharp v. Bunge
Corp., 641 So.2d 20, 25 (Miss.1994) (same); Harris v. Niehaus, 857 S.W.2d 222, 226
(Mo.1993); Klopp v. Wackenhut Corp., 113 N.M. 153, 824 P.2d 293, 295 (1992); Ward v.
K Mart Corp., 136 Ill.2d 132, 554 N.E.2d 223, 228 (1990); Harrison v. Taylor, 115 Idaho
588, 768 P.2d 1321 (1989); Cox v. J.C. Penney Co., Inc., 741 S.W.2d 28 (Mo. 1987);
Ashcroft v. Calder Race Course, Inc., 492 So.2d 1309 (Fla.1986); Mitchell v. Ankney,
396 N.W.2d 312 (S.D. 1986); Williams v. Boise Cascade Corp., 507 A.2d 576
(Me.1986); O’Donnell v. City of Casper, 696 P.2d 1278 (Wyo. 1985); Woolston v. Wells,
297 Or. 548, 687 P.2d 144, 149–50 (1984); Kronen v. Richter, 211 Mont. 208, 683 P.2d
1315 (1984); Maci v. State Farm Fire & Cas. Co., 105 Wis.2d 710, 314 N.W.2d 914
(1981); Adee v. Evanson, 281 N.W.2d 177 (Minn. 1979); Jones v. Three Rivers
Management Corp., 483 Pa. 75, 394 A.2d 546 (1978); Parker v. Highland Park, Inc., 565
S.W.2d 512 (Tex. 1978); Kuykendall v. Newgent, 255 Ark. 945, 504 S.W.2d 344 (1974);
Kremer v. Carr’s Food Center, 462 P.2d 747 (Alaska 1969); Rogers v. Tore, Ltd., 85
Nev. 548, 550, 459 P.2d 214, 215 (1969); Dawson v. Payless for Drugs, 248 Or. 334, 433
P.2d 1019 (1967); Hanson v. Town & Country Shopping Center, Inc., 259 Iowa 542, 144
N.W.2d 870 (1966). See generally Ernest H. Schopler, “Modern status of the rule
absolving a possessor of land of liability to those coming thereon for harm caused by
(continued . . .)
16
and obvious doctrine is akin to contributory negligence and “is harsh when applied . . .
for once the claimant’s knowledge of the dangerous condition is established the case is at
an end regardless of other attendant circumstances.”25 Under the open and obvious
doctrine, the “land possessor’s duty is controlled solely by the plaintiff’s awareness of the
danger.”26
In light of the Restatement (Second)’s position, courts in other jurisdictions
have concluded that “[t]he invitee’s knowledge of the danger does not inevitably bar
recovery.”27 These courts have dispensed with the harsh open and obvious rule and now
allow the jury to evaluate the comparative fault of the parties, typical in modern
negligence cases.
This Court abolished the doctrine of contributory negligence and adopted
the doctrine of comparative fault in Bradley v. Appalachian Power in 1979. We noted in
Bradley that the judicially created concept of contributory negligence was harsh, strict,
and violated “concepts of justice and fair play” because “the slightest negligence of a
plaintiff precludes any recovery and thereby excuses the defendant from the
dangerous physical conditions of which the injured party knew and realized the risk,” 35
A.L.R.3d 230 (1971).
25
Rogers v. Tore, Ltd., 85 Nev. 548, 549, 459 P.2d 214, 215 (1969).
26
Id.
27
Id., 85 Nev. at 550, 459 P.2d at 215.
17
consequences of all of his negligence, however great it may be.”28 We therefore adopted
the doctrine of comparative fault or comparative negligence, stating:
A party is not barred from recovering damages in a tort
action so long as his negligence or fault does not equal or
exceed the combined negligence or fault of the other parties
involved in the accident.29
The open and obvious doctrine was born in the era of contributory
negligence, and its continued operation in our law “resurrect[s] contributory negligence
as an absolute bar to recovery in cases involving a land possessor’s liability”30 to invitees
and licensees. As the reporters’ comments to the current draft of the Restatement (Third)
of Torts state:
The rule that a land possessor was not subject to liability for
any open and obvious danger is much easier to justify in an
era when contributory negligence constituted a complete bar
to recovery. An entrant who fails to take self-protective
measures may be contributorily negligent and, if so, that
would avoid any liability by the possessor. However, such a
rule cannot be justified after contributory negligence becomes
a comparative defense.31
28
Bradley v. Appalachian Power Co., 163 W.Va. 332, 335, 256 S.E.2d 879,
882 (1979).
29
Id., Syllabus Point 3.
30
Harrison v. Taylor, 115 Idaho 588, 592, 768 P.2d 1321, 1325 (1989)
(quoting Keller v. Holiday Inns, Inc., 105 Idaho 649, 656-57, 671 P.2d 1112, 1118-19
(Ct.App.1983)).
31
Restatement (Third) of Torts, Phys. & Emot. Harm § 51, cmt. k (2010).
18
In light of our comparative negligence doctrine, we believe that the fact
that a hazard was open and obvious should not relieve the possessor of the premises of all
possible duty with respect to the hazard. “The modern and controlling law on this subject
is that ‘although the obviousness of a danger may obviate the duty to warn of its
existence, if it is foreseeable that the danger may cause injury despite the fact that it is
obvious (e.g., when necessity requires persons to encounter it), there may be a duty to
remedy the danger, and the breach of that duty may in turn form the basis for
liability[.]’”32 We therefore believe that the open and obvious doctrine should be
abolished.
We decline, however, the plaintiffs’ invitation that we adopt Section
343A(1) of the Restatement (Second) of Torts, as it is written, into our jurisprudence. As
Section 343A(1) is written, it is unwieldy and does not clearly state when a premises
owner or possessor may be held liable. Instead, it confusingly says that a possessor of
land “is not liable” unless the possessor anticipates harm, despite someone else’s
knowledge or the obviousness of the danger. Furthermore, Section 343A(1) speaks in
terms of one being “liable,” without clarifying if this involves considerations of duty,
breach of a duty, or causation. And finally, Section 343A(1) is directed solely toward
32
Martinez v. Chippewa Enterprises, Inc., 121 Cal. App. 4th 1179, 1184,
18 Cal. Rptr. 3d 152, 155 (2004) (quoting Osborn v. Mission Ready Mix, 224 Cal.App.3d
104, 122, 273 Cal.Rptr. 457, 468 (1990)).
19
protecting “invitees,” while in this jurisdiction owners and possessors of land owe a duty
of care to both invitees and licensees.33
However, while we decline to adopt Section 343A(1) in toto, we find the
rule and its accompanying notes and comments to be instructive.34
In determining whether or not an owner or possessor of land has a duty of
care to alter their conduct when faced with a hazard on the land, the focus is on
foreseeability.35 The risk of harm to others from an open and obvious danger can
sometimes be foreseeable to an owner or possessor, thereby creating a duty to exercise
care to alleviate the danger:
The principles stated in the Restatement (Second) of Torts §
343A relate directly to foreseeability and facilitate
consideration of the duty issue. Whether the danger was
known and appreciated by the plaintiff, whether the risk was
obvious to a person exercising reasonable perception,
intelligence, and judgment, and whether there was some other
reason for the defendant to foresee the harm, are all relevant
considerations that provide more balance and insight to the
33
Additionally, adoption of Section 343A(1) would also require us to
consider and adopt Section 343. Comment A to Section 343 of the Restatement (Second)
of Torts says that Section 343 “should be read together with § 343A . . . That Section
limits the liability here stated.”
34
We also find instructive the reporter’s notes and comments to the
American Law Institute’s successor to Section 343A, Restatement (Third) of Torts, Phys.
& Emot. Harm § 51 [2010].
35
“The determination of whether a defendant in a particular case owes a
duty to the plaintiff is not a factual question for the jury; rather the determination of
whether a plaintiff is owed a duty of care by a defendant must be rendered by the court as
a matter of law.” Syllabus Point 5, Aikens v. Debow, 208 W. Va. 486, 488, 541 S.E.2d
576, 578 (2000).
20
analysis than merely labeling a particular risk “open and
obvious.” In sum, the analysis recognizes that a risk of harm
may be foreseeable and unreasonable, thereby imposing a
duty on the defendant, despite its potentially open and
obvious nature.36
“The ultimate test of the existence of a duty to use care is found in the
foreseeability that harm may result if it is not exercised. The test is, would the ordinary
man in the defendant’s position, knowing what he knew or should have known, anticipate
that harm of the general nature of that suffered was likely to result?”37 We have adopted
the following guidelines for assessing whether an owner or possessor of land has
exercised reasonable care:
In determining whether a defendant in a premises
liability case met his or her burden of reasonable care under
the circumstances to all non-trespassing entrants, the trier of
fact must consider (1) the foreseeability that an injury might
occur; (2) the severity of injury; (3) the time, manner and
circumstances under which the injured party entered the
premises; (4) the normal or expected use made of the
premises; and (5) the magnitude of the burden placed upon
the defendant to guard against injury.38
Because of the doctrine of comparative fault, the issue of the land
possessor’s duty and breach must be kept distinct from the question of the entrant’s
negligence. The finder of fact must assess whether a non-trespassing entrant failed to
36
Coln v. City of Savannah, 966 S.W.2d 34, 42 (Tenn.1998).
37
Syllabus Point 3, Sewell v. Gregory, 179 W.Va. 585, 371 S.E.2d 82
(1988).
38
Syllabus Point 6, Mallet v. Pickens, 206 W.Va. 145, 146, 522 S.E.2d 436,
437 (1999).
21
exercise reasonable self-protection in encountering a hazard, that is, whether the entrant
would “proceed to encounter the known or obvious danger because to a reasonable man
in his position the advantages of doing so would outweigh the apparent risk.”39
But an entrant’s decision to encounter an open and obvious danger does not
necessarily mean that the land possessor was not also negligent for failing to fix an
unreasonable danger in the first place. Under our rule of comparative fault, the defendant
should be held responsible for his own negligence, if any. This makes good policy sense.
As the Supreme Court of Mississippi aptly stated:
This Court should discourage unreasonably dangerous
conditions rather than fostering them in their obvious forms.
It is anomalous to find that a defendant has a duty to provide
reasonably safe premises and at the same time deny a plaintiff
recovery from a breach of that same duty. The party in the
best position to eliminate a dangerous condition should be
burdened with that responsibility. If a dangerous condition is
obvious to the plaintiff, then surely it is obvious to the
defendant as well. The defendant, accordingly, should
alleviate the danger.40
We have repeatedly said that the owner or possessor of premises is not an
insurer of the safety of people entering onto the premises. The “mere occurrence of an
accident does not give rise to the presumption of negligence,”41 and “an owner of
39
Restatement (Second) of Torts § 343A, cmt. f (1965).
40
Tharp v. Bunge Corp., 641 So.2d at 25.
41
Syllabus Point 1, Griffith v. Wood, 150 W.Va. 678, 149 S.E.2d 205
(1966).
22
business premises is not legally responsible for every fall which occurs on his
premises.”42 We said in 1954 that,
The owner or the occupant of premises used for
business purposes is not an insurer of the safety of an invited
person present on such premises and, if such owner or
occupant is not guilty of negligence or willful or wanton
misconduct and no nuisance exists, he is not liable for injuries
there sustained by such invited person.43
We continue to hold that possessors of property – particularly private homeowners – are
not insurers of the safety of every person legitimately entering the property. Possessors
of property do not have a duty to eliminate every potential hazard; they only have a duty
to take reasonable steps to ameliorate the risk posed by the hazard where it is foreseeable
that harm is likely to result from the hazard.
To read negligence into every instance in which an
obvious danger is allowed to remain on one’s own property
would impose upon private homeowners and property owners
a cumbersome burden, indeed, to ensure that their homes and
yards are perfectly clear from all obvious and potentially
injury-producing circumstances. Regardless of which
standard of care is most judicious to impose upon possessors
of land, however, the fact remains that the law does not
impose this burden.
Instead, the law simply requires owners to take
reasonable steps to protect invitees.44
42
McDonald v. Univ. of W. Virginia Bd. of Trustees, 191 W.Va. 179, 182,
444 S.E.2d 57, 60 (1994) (per curiam).
43
Syllabus Point 3, Puffer v. Hub Cigar Store, 140 W.Va. 327, 84 S.E.2d
145, 148 (1954) (overruled on other grounds by Mallet v. Pickens, 206 W. Va. 145, 522
S.E.2d 436 (1999)).
44
Hale v. Beckstead, 116 P.3d at 269.
23
In summary, we conclude that in the ordinary premises liability case against
the owner or possessor of the premises, if it is foreseeable that an open and obvious
hazard may cause harm to others despite the fact it is open and obvious, then there is a
duty of care upon the owner or possessor to remedy the risk posed by the hazard.
Whether the actions employed by the owner or possessor to remedy the hazard were
reasonable is a question for the jury. Of course, our cases make it clear this duty applies
toward licensees and invitees, and not to trespassers.45
Furthermore, we now hold that the open and obvious doctrine in premises
liability negligence actions is abolished. To the extent Sesler v. Rolfe Coal & Coke Co.,
51 W.Va. 318, 41 S.E. 216 (1902) and Burdette v. Burdette, 147 W.Va. 313, 127 S.E.2d
249 (1962) hold otherwise, they are overruled.
Additionally, in the ordinary premises liability case against the owner or
possessor of the premises, the finder of fact may consider whether a plaintiff failed to
exercise reasonable self-protective care when encountering an open and obvious hazard
on the premises. The plaintiff’s confrontation of an open and obvious hazard is merely
an element to be considered by the jury in apportioning the relative fault of the parties.
45
See Syllabus Point 4, Mallet v. Pickens, 206 W.Va. 145, 522 S.E.2d 436
(1999) (“The common law distinction between licensees and invitees is hereby abolished;
landowners or possessors now owe any non-trespassing entrant a duty of reasonable care
under the circumstances. We retain our traditional rule with regard to a trespasser, that
being that a landowner or possessor need only refrain from willful or wanton injury.”).
24
Finally, we reiterate that the owner or the possessor of premises is not an
insurer of the safety of every person present on the premises. If the owner or possessor is
not guilty of negligence or willful or wanton misconduct and no nuisance exists, then he
or she is not liable for injuries sustained by a person on the premises.
Applying these principles to the instant case, we find that the circuit court
erred in granting summary judgment to the defendants. Because the lack of handrails
violated a City of Martinsburg ordinance and building code, the plaintiffs have alleged a
prima facie case of negligence by the defendants. Furthermore, because of (1) the
foreseeability that harm to others could occur despite the obvious lack of handrails, (2) as
well as the likelihood of severe injuries from falling down the stairs, (3) the fact that the
plaintiff entered the defendants’ business premises during business hours for a business
purpose and (4) used the staircase in a normal way, like a typical customer, weighed
against evidence in the record that (5) the defendants could have fixed the stairs and
handrails for a reasonable cost, then the circuit court should have found that the
defendants had a duty of care to install handrails on the staircase. The defendants were in
the best position to remedy the legally-required handrails, and the law requires nothing
more than reasonable efforts to protect individuals like the plaintiff.
Of course, the defendants are not entirely off the mark in stressing that the
missing handrails were an open and obvious hazard. The finder of fact may consider
whether the plaintiff failed to exercise reasonable care for his own safety when he used
the staircase that obviously lacked handrails. However, the open and obvious nature of
the missing handrails does not completely bar the plaintiff’s recovery. It is merely an
25
element to be considered by the jury in apportioning the comparative negligence of the
parties.
IV.
CONCLUSION
The circuit court’s December 15, 2011, orders granting summary judgment
to the defendants is reversed, and the case is remanded for further proceedings.
Reversed and Remanded.
26