No. 14-0258 – David Ragonese v. Racing Corporation of West Virginia, d/b/a Mardi
Gras Casino and Resort
FILED
February 12, 2015
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Benjamin, Justice, concurring:
I agree with the majority’s conclusion that factual questions exist as to whether the
petitioner, David Ragonese, was a trespasser at the time he was injured. These factual
uncertainties preclude summary judgment on the issue of trespass.
Upon remand, should the fact-finder determine that Mr. Ragonese was not a
trespasser, this Court’s recent opinion, Hersh v. E-T Enterprises, Limited Partnership,
232 W. Va. 305, 752 S.E.2d 336 (2013), will control in determining the liability of the
respondent, Racing Corporation of West Virginia, d/b/a Mardi Gras Casino and Resort
(“Mardi Gras Casino”). In syllabus point 6 of Hersh, the Court abolished the open and
obvious doctrine in premises liability negligence actions. Justice Loughry and I dissented
in Hersh because we believe the open and obvious doctrine embodied in the law
traditional concepts of personal responsibility and because application of the open and
obvious doctrine acted to prevent frivolous law suits proceeding past the summary
judgment phase. I write separately in the present case to reaffirm the position of Justice
Loughry and myself in Hersh: By eliminating the open and obvious doctrine, this Court
has fundamentally damaged the means by which premises liability cases proceed through
our judicial system.