IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2020 Term
_______________ FILED
November 18, 2020
No. 19-0666 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
WAL-MART STORES EAST, L.P.,
Petitioner
v.
JOHNA DIANE ANKROM,
Respondent
____________________________________________________________
Appeal from the Circuit Court of Wood County, West Virginia
The Honorable Judge John D. Beane
Civil Action No. 15-C-319
AFFIRMED
____________________________________________________________
Submitted: October 13, 2020
Filed: November 18, 2020
Jeffrey M. Wakefield, Esq. James G. Bordas, III, Esq.
Erica M. Baumgras, Esq. Scott S. Blass, Esq.
Mitchell B. Tuggle, Esq. James B. Stoneking, Esq.
Flaherty Sensabaugh Bonasso PLLC BORDAS & BORDAS, PLLC
Charleston, West Virginia Wheeling, West Virginia
Elbert Lin, Esq. Todd S. Wiseman, Esq.
Hunton Andrews Kurth LLP Wiseman Law Firm, PLLC
Richmond, Virginia Vienna, West Virginia
Counsel for the Petitioner Counsel for the Respondent
Ancil G. Ramey, Esq.
Steptoe & Johnson, PLLC
Huntington, West Virginia
Counsel for Amicus West Virginia
Retailers Association
JUSTICE WALKER delivered the Opinion of the Court.
CHIEF JUSTICE ARMSTEAD and JUSTICE JENKINS concur in part and dissent in part
and reserve the right to file separate opinions.
SYLLABUS BY THE COURT
1. “The appellate standard of review for an order granting or denying a
renewed motion for a judgment as a matter of law after trial pursuant to Rule 50(b) of the
West Virginia Rules of Civil Procedure [1998] is de novo.” Syllabus Point 1, Fredeking v.
Tyler, 224 W. Va. 1, 680 S.E.2d 16 (2009).
2. “When this Court reviews a trial court’s order granting or denying a
renewed motion for judgment as a matter of law after trial under Rule 50(b) of the West
Virginia Rules of Civil Procedure [1998], it is not the task of this Court to review the facts
to determine how it would have ruled on the evidence presented. Instead, its task is to
determine whether the evidence was such that a reasonable trier of fact might have reached
the decision below. Thus, when considering a ruling on a renewed motion for judgment as
a matter of law after trial, the evidence must be viewed in the light most favorable to the
nonmoving party.” Syllabus Point 2, Fredeking v. Tyler, 224 W. Va. 1, 680 S.E.2d 16
(2009).
3. “Negligence is the violation of the duty of taking care under the given
circumstances. It is not absolute, but is always relative to some circumstance of time, place,
manner, or person.” Syllabus Point 1, Dicken v. Liverpool Salt & Coal Co., 41 W. Va.
511, 23 S.E. 582 (1895).
i
4. “In order to establish a prima facie case of negligence in West
Virginia, it must be shown that the defendant has been guilty of some act or omission in
violation of a duty owed to the plaintiff. No action for negligence will lie without a duty
broken.” Syllabus Point 1, Parsley v. General Motors Acceptance Corp., 167 W. Va. 866,
280 S.E.2d 703 (1981).
5. “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).
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).
7. “ ‘ “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).” Syllabus Point 4, Spencer v. McClure, 217 W. Va. 442,
618 S.E.2d 451 (2005).
ii
8. “ ‘ “ ‘An intervening cause, in order to relieve a person charged with
negligence in connection with an injury, must be a negligent act, or omission, which
constitutes a new effective cause and operates independently of any other act, making it
and it only, the proximate cause of the injury.’ Syllabus Point 16, Lester v. Rose, 147 W.Va.
575, 130 S.E.2d 80 (1963) [modified on other grounds, State ex rel. Sutton v. Spillers, 181
W.Va. 376, 382 S.E.2d 570 (1989) ].” Syllabus Point 1, Perry v. Melton, 171 W.Va. 397,
299 S.E.2d 8 (1982).’ Syl. Pt. 3, Wehner v. Weinstein, 191 W.Va. 149, 444 S.E.2d 27
(1994).” Syllabus Point 8, Harbaugh v. Coffinbarger, 209 W. Va. 57, 543 S.E.2d 338
(2000).
9. “ ‘A tortfeasor whose negligence is a substantial factor in bringing
about injuries is not relieved from liability by the intervening acts of third persons if those
acts were reasonably foreseeable by the original tortfeasor at the time of his negligent
conduct.’ Syl. Pt. 13, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990).”
Syllabus Point 9, Harbaugh v. Coffinbarger, 209 W. Va. 57, 543 S.E.2d 338 (2000).
10. “ ‘ “ ‘ “If there be evidence tending in some appreciable degree to
support the theory of proposed instructions, it is not error to give such instructions to the
jury, though the evidence be slight, or even insufficient to support a verdict based entirely
on such theory.” Syllabus Point 2, Snedeker v. Rulong, 69 W.Va. 223, 71 S.E. 180 (1911).’
Syllabus Point 4, Catlett v. MacQueen, 180 W.Va. 6, 375 S.E.2d 184 (1988).” Syllabus
point 6, Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert. denied, 511 U.S.
iii
1129, 114 S.Ct. 2137, 128 L.Ed.2d 867 (1994).’ Syllabus point 3, Craighead v. Norfolk &
Western Railway Company, 197 W.Va. 271, 475 S.E.2d 363, (1996).” Syllabus Point 4,
Coleman v. Sopher, 201 W. Va. 588, 499 S.E.2d 592 (1997).
11. “A trial court’s refusal to give a requested instruction is reversible
error only if: (1) the instruction is a correct statement of the law; (2) it is not substantially
covered in the charge actually given to the jury; and (3) it concerns an important point in
the trial so that the failure to give it seriously impairs a defendant’s ability to effectively
present a given defense.” Syllabus Point 11, State v. Derr, 192 W. Va. 165, 451 S.E.2d
731 (1994).
12. “Injured plaintiffs should not have to forego the collateral source rule
merely to recover prejudgment interest.” Syllabus Point 13, Ilosky v. Michelin Tire Corp.,
172 W. Va. 435, 307 S.E.2d 603 (1983).
13. “The primary object in construing a statute is to ascertain and give
effect to the intent of the Legislature.” Syllabus Point 1, Smith v. State Workmen’s Comp.
Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975).
14. “In ascertaining legislative intent, effect must be given to each part of
the statute and to the statute as a whole so as to accomplish the general purpose of the
iv
legislation.” Syllabus Point 2, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108,
219 S.E.2d 361 (1975).
15. “When a statute is clear and unambiguous and the legislative intent is
plain, the statute should not be interpreted by the courts, and in such case it is the duty of
the courts not to construe but to apply the statute.” Syllabus Point 5, State v. Gen. Daniel
Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959).
v
WALKER, Justice:
A shoplifter collided with Johna Diane Ankrom in the “action alley” of a
Wal-Mart in Parkersburg, West Virginia, in February 2015. Ms. Ankrom was severely
injured, sued Wal-Mart Stores East, L.P. (Wal-Mart), and, after a jury trial, was awarded
approximately $16.9 million in damages. The jury apportioned thirty percent of the fault
for Ms. Ankrom’s injuries to Wal-Mart and the remainder to Robert Leist, the shoplifter
and third-party defendant. Post-trial, Wal-Mart challenged the jury’s findings that it had
breached a duty owed to Ms. Ankrom and that Mr. Leist’s actions were not the sole
proximate cause of her injuries. Wal-Mart also claimed that evidentiary and instructional
errors necessitated a new trial. The circuit court denied Wal-Mart’s motions. Over Ms.
Ankrom’s objection, the court entered judgment against each defendant according to its
apportioned fault. And, over Wal-Mart’s objection, the court granted Ms. Ankrom
prejudgment interest on medical expenses.
On appeal, Wal-Mart reprises its arguments in support of its motion for
judgment as a matter of law and motion for a new trial. Those arguments are no more
persuasive on appeal than they were below. As for the judgment order, we see no error in
either the circuit court’s entry of judgment against Wal-Mart for only thirty percent of the
jury verdict or award of prejudgment interest on medical expenses to Ms. Ankrom. So, we
1
affirm the circuit court’s order denying Wal-Mart’s posttrial motions and the judgment
order. 1
I. FACTUAL AND PROCEDURAL HISTORY
Ms. Ankrom sued Wal-Mart in May 2015 after she sustained serious injuries
in a collision with a fleeing shoplifter, Mr. Leist, in the Parkersburg Wal-Mart. She alleged,
generally, the pursuit of Mr. Leist and attempt to apprehend him by Wal-Mart employees
directly and proximately caused her serious injuries. 2 Wal-Mart pleaded, among other
defenses, that Ms. Ankrom’s injuries were “the result of independent and/or superseding
causes over which [it had] no control or in any way participated.” And, in November 2015,
Wal-Mart filed a third-party complaint against Mr. Leist for contribution.
The parties tried Ms. Ankrom’s claim against Wal-Mart in February and
March 2019, approximately three years after she filed her complaint. Wal-Mart
surveillance cameras captured the majority of events preceding Ms. Ankrom’s injury, so
the actual occurrence and sequence of those events was not contested. Instead, the dispute
at trial concerned whether Wal-Mart employees’ stop of Mr. Leist had complied with
Wal-Mart’s internal policy on apprehending shoplifters, “Investigation and Detention of
We gratefully acknowledge the brief amicus curiae filed by the West Virginia
1
Retailers Association.
Wal-Mart does not dispute that it is vicariously liable for the acts of its employees
2
within the scope of their employment under the doctrine of respondeat superior.
2
Shoplifters Policy (AP-09),” (AP-09 Policy), and whether Mr. Leist’s flight inside the store
was foreseeable to those same employees. 3
Relative to those disputes, the jury heard testimony from four Wal-Mart
employees: Nate Newbanks, asset protection associate; Joe Daniel, asset protection
manager; 4 Amy Edgar, customer service manager and eyewitness; and Kevin Ohse, store
manager. Ms. Ankrom; 5 her daughter, Sierra Thomas; and her son, George Ankrom, also
testified. 6 The jury also heard portions of deposition testimony from Wal-Mart’s corporate
representative, Melissa Wacha, regarding Wal-Mart’s shoplifting policies. And, the parties
offered “dueling” experts, James Murphy for Ms. Ankrom, and William Birks for
Wal-Mart. Two exhibits were entered into evidence: a DVD containing Wal-Mart
surveillance video of the events of February 23, 2015, and the AP-09 Policy.
Trial testimony and surveillance footage established the following: On
February 23, 2015, Mr. Newbanks observed Mr. Leist pocket a pair of auto mechanic
Wal-Mart did not contest Ms. Ankrom’s past or future medical expenses or her
3
economic damages.
4
By trial, Mr. Daniel’s title had become “asset protection assistant manager.”
5
Ms. Ankrom did not appear at trial. Portions of her sworn deposition testimony
were played for the jury.
Ms. Ankrom also offered testimony from several expert witnesses regarding
6
damages.
3
gloves. 7 Mr. Leist walked to the front of the store, and Mr. Newbanks followed. As
captured by Wal-Mart surveillance cameras, Mr. Newbanks stopped Mr. Leist in the
vestibule that separated the interior of the store from the parking lot. Mr. Newbanks
positioned himself in front of Mr. Leist, between him and the door leading from the
vestibule to the parking lot. Mr. Daniel, along with at least two other Wal-Mart employees,
surrounded Mr. Leist. As shown by the surveillance cameras and confirmed by witness
testimony, Mr. Daniel grabbed Mr. Leist’s arm. At some point, Mr. Leist returned the
gloves to Mr. Newbanks. Again, as shown by the surveillance cameras and confirmed by
witness testimony, Mr. Leist then tried to get around Mr. Newbanks and Mr. Daniel,
leading to a physical altercation, struggle, or scuffle—as characterized by various
witnesses—in which the two men grabbed Mr. Leist’s jacket, restrained him, and then spun
him around to face the store’s interior. According to Ms. Edgar, it appeared as if
Mr. Newbanks and Mr. Daniel were wrestling Mr. Leist back toward the store’s entry. 8
After Mr. Leist “finally . . . calmed down,” the two men released their hold
on him. He then complied with the request of Mr. Newbanks and Mr. Daniel to go back
inside the store. As the three men reentered the store’s interior through the vestibule doors,
surveillance footage shows that Mr. Newbanks walked behind Mr. Leist and Mr. Daniel
7
Mr. Leist did not testify at trial.
Ms. Edgar gave this testimony at her deposition. Counsel for Ms. Ankrom
8
impeached Ms. Edgar with this statement during trial.
4
walked to his left. Seconds after reentering the store, Mr. Leist ran from Mr. Newbanks
and Mr. Daniel. Ms. Ankrom’s expert, Mr. Murphy, opined that Mr. Leist’s flight was the
“culmination of everything else that took place beforehand. The way it was stopped, the
number of people, the struggle, and then they take a very relaxed atmosphere with it. That’s
why he was able to run.” On the other hand, Wal-Mart’s expert, Mr. Birks, opined that
when a shoplifter like Mr. Leist decides to bolt and run, it is the shoplifter’s own decision.
He further testified that it was Mr. Leist’s own “decision to bolt into the store. It wasn’t a
loss prevention management’s efforts [sic.]. It was his and his alone effort to bolt back
into the store.”
Surveillance videos show that after Mr. Leist fled from Mr. Newbanks and
Mr. Daniel, he turned into “action alley,” a lane that runs perpendicular to the front of the
store, delineated at the back by a wall of merchandise and to the front by the checkout lanes
that funnel shoppers towards the vestibule. Store surveillance cameras captured that
immediately upon turning into action alley, Mr. Leist collided with Ms. Ankrom’s
shopping cart. Ms. Ankrom tried to control the cart, but her knee gave out. She fell to the
floor, and the cart came down on top of her. Ms. Ankrom’s young granddaughter—who
had been riding in the shopping cart—was also thrown to the floor, although she was not
injured.
Immediately after the collision, Ms. Ankrom was transported to Camden
Clark Memorial Hospital in Parkersburg and treated there for a severe attack of angina.
5
After experiencing increasing pain over the next two weeks, she was life-flighted to the
Cleveland Clinic for surgery to treat bruising, necrosis, and microperforations in her small
intestine. Since 2015, Ms. Ankrom has experienced over twenty inpatient hospitalizations,
six surgeries, and other emergency room visits. As of the date of trial, her physicians were
considering her for an intestinal transplant.
At the conclusion of evidence, the circuit court held a final instruction
conference on March 1, 2019. 9 While Wal-Mart and Ms. Ankrom agreed on the majority
of instructions to be delivered, they disagreed on the inclusion of an
intervening/superseding cause instruction in the charge. The circuit court denied
Wal-Mart’s request to give the instruction. On March 4, 2019, the jury returned a verdict
finding that Wal-Mart’s negligence was a proximate cause of the injuries Ms. Ankrom
sustained on February 23, 2015. The jury also found that Mr. Leist had been negligent,
and that his negligence also proximately caused Ms. Ankrom’s injuries. The jury found
that Wal-Mart was thirty percent at fault for Ms. Ankrom’s injuries and that Mr. Leist bore
9
At the close of Ms. Ankrom’s case-in-chief, Wal-Mart moved for judgment as a
matter of law, arguing that Ms. Ankrom had not established that the actions of Wal-Mart’s
employees were the proximate cause of her injuries. The circuit court denied that motion
because, in its view, Ms. Ankrom had produced sufficient evidence to permit the case to
proceed. Wal-Mart renewed its motion for judgment as a matter of law at the close of
evidence, which the circuit court denied as well.
6
the remaining seventy percent of fault. The jury awarded damages to Ms. Ankrom totaling
$16,922,000.
On March 28, 2019, Ms. Ankrom filed a motion for entry of judgment order
seeking judgment against Wal-Mart for the entire damages award, but with a right of
contribution against Mr. Leist in the amount of seventy percent of the jury verdict,
$11,845,400. Wal-Mart responded that under West Virginia Code § 55-7-24 (2005), it was
responsible only for that portion of the verdict that corresponded to its comparative fault
as determined by the jury. The circuit court agreed with Wal-Mart, reasoning that by
enacting § 55-7-24 in 2005, the Legislature created a hybrid system of liability that
mandated (1) that Mr. Leist, although a third-party defendant, count as a defendant for
purposes of the statute; and (2) entry of judgment severally against Wal-Mart and Mr. Leist.
On April 12, 2019, the circuit court entered a lengthy order memorializing that reasoning.
That same day, the court entered judgment against Mr. Leist and Wal-Mart severally, in
the amounts of $5,076,600 against Wal-Mart and $11,845,400 against Mr. Leist. The court
also awarded Ms. Ankrom four percent, simple interest on her past medical expenses
($2,500,000) apportioned between Wal-Mart and Mr. Leist.
On April 26, 2019, Wal-Mart filed a Renewed Motion for Judgment as a
Matter of Law or, in the Alternative, Motion for New Trial and Motion to Amend
Judgment. Wal-Mart argued that the evidence offered at trial showed that Mr. Leist’s
flight—and not the actions of its employees in intercepting Mr. Leist or returning him
7
inside the store—proximately caused Ms. Ankrom’s injuries. Wal-Mart argued that the
circuit court further erred, and in a similar vein, when it refused to instruct the jury on
intervening cause. And, Wal-Mart argued that the circuit court erred when it precluded
Wal-Mart from using allegations from Ms. Ankrom’s complaint at trial to impeach her
credibility along with her daughter’s. Finally, Wal-Mart argued that the circuit court erred
by awarding Ms. Ankrom prejudgment interest on her medical expenses. 10
The circuit court conducted a hearing on Wal-Mart’s post-trial motions on
June 24, 2019, and then denied them by order four days later. On July 2, 2019, the court
entered an amended order elaborating on its rulings. The circuit court explained that,
taking the evidence in the light most favorable to Ms. Ankrom, a reasonable factfinder
could have found that Mr. Leist’s flight was not the sole, proximate cause of Ms. Ankrom’s
injuries. With regard to the allegations from Ms. Ankrom’s complaint, the court found that
their probative value was slight and the likelihood that they would confuse the jury and
prejudice Ms. Ankrom was substantial. The court found that the evidence offered at trial
did not support an instruction on intervening cause, and that “conduct of [Mr.] Leist and of
Wal-Mart security personnel while in the vestibule area where [Mr.] Leist was confronted
and subsequently escorted back into the main body of the store was sufficient to refuse an
10
Even though the jury did not award Ms. Ankrom punitive damages, Wal-Mart
still challenged the circuit court’s instruction on punitive damages, arguing that it gave
“unwarranted credibility” to Ms. Ankrom’s claims. The circuit court rejected that
argument, and Wal-Mart does not renew it on appeal.
8
instruction on independent, intervening cause.” Finally, the court found that it had not
abused the discretion granted to it by West Virginia Code § 56-6-31(b) (2006) by awarding
Ms. Ankrom prejudgment interest on her past medical expenses.
Wal-Mart now appeals the circuit court’s July 2, 2019 amended order
denying its renewed motion for judgment as a matter of law, or in the alternative, motion
for new trial. It also renews its objection to the award of prejudgment interest on medical
expenses to Ms. Ankrom. Ms. Ankrom cross-assigns error to the April 12, 2019 order in
which the circuit court denied her motion for entry of judgment. We consider first
Wal-Mart’s assignments of error and then shift to Ms. Ankrom’s cross-assignment of error.
II. STANDARDS OF REVIEW
Wal-Mart appeals the circuit court’s denial of its post-trial motion for
judgment as a matter of law, made pursuant to Rule 50(b) of the West Virginia Rules of
Civil Procedure. We review de novo the circuit court’s decision to grant or deny a renewed
motion for a judgment as a matter of law, which, in turn means that we review the parties’
arguments just as the circuit court did. So, we take the evidence in the light most favorable
to the non-moving party—here, Ms. Ankrom—to determine whether a reasonable trier of
fact might have concluded that Wal-Mart was thirty percent at fault for Ms. Ankrom’s
injuries. Syllabus Points 1 and 2 of Fredeking v. Tyler encapsulate this standard:
1. The appellate standard of review for an order granting
or denying a renewed motion for a judgment as a matter of law
9
after trial pursuant to Rule 50(b) of the West Virginia Rules of
Civil Procedure [1998] is de novo.
2. When this Court reviews a trial court’s order granting
or denying a renewed motion for judgment as a matter of law
after trial under Rule 50(b) of the West Virginia Rules of Civil
Procedure [1998], it is not the task of this Court to review the
facts to determine how it would have ruled on the evidence
presented. Instead, its task is to determine whether the evidence
was such that a reasonable trier of fact might have reached the
decision below. Thus, when considering a ruling on a renewed
motion for judgment as a matter of law after trial, the evidence
must be viewed in the light most favorable to the nonmoving
party.[11]
Wal-Mart also appeals from the circuit court’s denial of its motion for a new
trial. We review that ruling, “and its conclusion as to the existence of reversible error under
an abuse of discretion standard, and we review the circuit court’s underlying factual
findings under a clearly erroneous standard. Questions of law are subject to a de
novo review.” 12 A trial court’s ruling on a motion for new trial will be reversed, however,
“ ‘when it is clear that the trial court has acted under some misapprehension of the law or
the evidence.’ Syllabus point 4, Sanders v. Georgia–Pacific Corp., 159 W.Va. 621, 225
S.E.2d 218 (1976).” 13
11
Syl. Pt.s 1 and 2, Fredeking v. Tyler, 224 W. Va. 1, 680 S.E.2d 16 (2009).
12
Tennant v. Marion Health Care Found., Inc., 194 W. Va. 97, 104, 459 S.E.2d
374, 381 (1995).
13
Syl. Pt. 3, in part, Carpenter v. Luke, 225 W. Va. 35, 689 S.E.2d 247 (2009).
10
III. ANALYSIS
Wal-Mart’s first and second assignments of error turn upon its overarching
theory of this case: that it did not owe a duty to Ms. Ankrom and that, even if it did, Mr.
Leist’s decision to flee from Mr. Newbanks and Mr. Daniel once they reentered the store
was the proximate cause of Ms. Ankrom’s injuries. In its third and fourth assignments of
error, Wal-Mart challenges two relatively discrete issues: use of the allegations in Ms.
Ankrom’s complaint at trial and prejudgment interest on medical damages. We address
these assignments of error in turn.
A. Duty and Proximate Cause
Wal-Mart argues that the circuit court erroneously denied its post-trial
motion for judgment as a matter of law because, in its view, the undisputed testimony at
trial established that it did not owe Ms. Ankrom a duty and that Mr. Leist’s actions were
the proximate cause of Ms. Ankrom’s injuries—not those of Wal-Mart’s employees. We
disagree.
Fundamentally, “[n]egligence is the violation of the duty of taking care under
the given circumstances. It is not absolute, but is always relative to some circumstance of
time, place, manner, or person.” 14 “[T]o prevail in a negligence suit, ‘it is incumbent upon
14
Syl. Pt. 1, Dicken v. Liverpool Salt & Coal Co., 41 W. Va. 511, 23 S.E. 582
(1895).
11
the plaintiff to establish, by a preponderance of the testimony, three propositions: (1) A
duty which the defendant owes him; (2) A negligent breach of that duty; (3) injuries
received thereby, resulting proximately from the breach of that duty.’” 15 We next consider
the first and then the third elements.
1) Wal-Mart’s Duty to Ms. Ankrom
As to the first element, duty, “[i]n order to establish a prima facie case of
negligence in West Virginia, it must be shown that the defendant has been guilty of some
act or omission in violation of a duty owed to the plaintiff. No action for negligence will
lie without a duty broken.” 16 As we have explained, foreseeability is key when determining
whether a particular actor operates under a duty of care:
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?[17]
15
Wheeling Park Comm’n v. Dattoli, 237 W. Va. 275, 280, 787 S.E.2d 546, 551
(2016) (quoting Webb v. Brown & Williamson Tobacco Co., 121 W.Va. 115, 118, 2 S.E.2d
898, 899 (1939) (citations omitted)).
Syl. Pt. 1, Parsley v. Gen. Motors Acceptance Corp., 167 W. Va. 866, 280 S.E.2d
16
703 (1981).
17
Syl. Pt. 3, Sewell v. Gregory, 179 W. Va. 585, 371 S.E.2d 82 (1988).
12
Wal-Mart raises two arguments as to why it did not owe a duty to Ms.
Ankrom as a matter of law. We dispose of the first, quickly, and then examine the second
in more depth. First, Wal-Mart points to the shopkeeper’s privilege found in West Virginia
Code § 61-3A-4 (1981) and intimates that the immunities bestowed upon merchants by the
Legislature in that statute somehow extend to claims from bystanders like Ms. Ankrom.
Section 61-3A-4 states:
An act of shoplifting as defined herein, is hereby
declared to constitute a breach of peace and any owner of
merchandise, his agent or employee, or any law-enforcement
officer who has reasonable ground to believe that a person has
committed shoplifting, may detain such person in a reasonable
manner and for a reasonable length of time not to exceed thirty
minutes, for the purpose of investigating whether or not such
person has committed or attempted to commit shoplifting.
Such reasonable detention shall not constitute an arrest nor
shall it render the owner of merchandise, his agent or
employee, liable to the person detained.
Plainly, this statute does not say what Wal-Mart wants it to say. 18 The statute
immunizes merchants and their agents from liability to suspected shoplifters so long as the
merchant has “reasonable ground to believe” that the suspect has shoplifted and detains
that suspect “in a reasonable manner and for a reasonable length of time . . . .” On its face,
the statute does not extend that immunity to claims by a third party like Ms. Ankrom. And,
the statute is permissive; it does not require a merchant like Wal-Mart to investigate and
18
Obviously, the Legislature can amend § 61-3A-4 at any time.
13
detain suspected shoplifters. Rather, it protects the merchants from liability to the suspect
should the merchant choose to take on the responsibility of investigating and detaining
suspected shoplifters in a reasonable manner.
Second, Wal-Mart argues that, as a matter of law, it did not owe Ms. Ankrom
a duty because its employees were authorized to investigate and detain Mr. Leist under the
Wal-Mart shoplifting policy, Policy AP-09. That may be, but the policy’s mere existence
does not end the duty inquiry. While “a person does not [generally] have a duty to protect
others from the deliberate criminal conduct of third parties,” that duty of protection may
arise “when the person’s affirmative actions or omissions have exposed another to a
foreseeable high risk of harm from the intentional misconduct.” 19 So, on the facts of this
case, the existence of a duty depends on whether Wal-Mart’s employees’ actions or
omissions exposed Ms. Ankrom to a foreseeable high risk of harm from Mr. Leist’s
intentional misconduct, shoplifting.
Wal-Mart argues the apprehension of Mr. Leist by its associates did not
expose Ms. Ankrom to a foreseeable high risk of harm because its associates complied with
the policy, which, according to Wal-Mart, means that their employees exercised due care.
Generally, the policy directed Wal-Mart’s associates who were authorized to surveil,
Miller v. Wentworth, 193 W. Va. 262, 266, 455 S.E.2d 821, 825 (1995) (citing
19
RESTATEMENT (SECOND) OF TORTS §§ 302B cmt. e and 315 (Am. Law Inst. 1965)).
14
investigate and/or detain suspected shoplifters to “PUT PEOPLE FIRST,” when
investigating, detaining, or pursuing suspects. The policy also notified the authorized
associates that “[p]rotecting the physical well-being of . . . customers, [among others] is
your first priority.” The policy included specific direction to those authorized associates
as to how they could investigate, detain, and pursue suspected shoplifters safely. When
approaching or investigating a suspect, the policy required authorized associates to
disengage and withdraw from a violent suspect. If faced with physical resistance from a
suspect, the policy directed the authorized associate to “determine whether [his or her] next
reasonable step is to disengage from the confrontation or move to an authorized detention
method.” The policy also provided that an authorized associate could use “reasonable force
to physically limit or control the movements of a Suspect,” but that, “[i]f restraint is
attempted and the [s]uspect cannot be controlled with a reasonable level of force, disengage
from the situation, withdraw to a safe position, and contact law enforcement.”
The jury heard conflicting testimony as to whether the apprehension of Mr.
Leist complied with the policy. Mr. Newbanks initially testified that after he stopped Mr.
Leist in the vestibule, Mr. Leist did not use any violence towards him or Mr. Daniel, and
that Mr. Leist was just trying to get around them. Mr. Daniel testified similarly, stating
that they detained Mr. Leist when he tried “to go through us,” i.e., Mr. Newbanks and Mr.
Daniel. However, Mr. Newbanks later conceded that Mr. Leist “struggled” to escape them.
Likewise, Wal-Mart’s expert witness, Mr. Birks, initially described Mr. Leist’s interaction
with Mr. Newbanks and Mr. Daniel in the store’s vestibule as “resistance,” but on
15
cross-examination, agreed that it was a “scuffle.” According to a Wal-Mart employee who
witnessed the apprehension, it appeared as if Mr. Newbanks and Mr. Daniel were wrestling
Mr. Leist back toward the store’s entry. Additionally, the jury viewed the surveillance
video depicting the interaction among Mr. Leist, Mr. Newbanks, and Mr. Daniel numerous
times. Contrary to Wal-Mart’s assertion in its reply brief, that video clearly shows some
sort of physical confrontation between the Wal-Mart employees and Mr. Leist. Taking that
testimony and video footage in the light most favorable to Ms. Ankrom, we cannot say that
a reasonable juror could not have concluded that Mr. Leist was violent at the most or
physically resistant at the least. In the case of the former, the policy required the employees
to disengage from the confrontation, which Mr. Newbanks and Mr. Daniel clearly did not
do. In the case of the latter, the policy instructed Mr. Newbanks and Mr. Daniel to pick
the more reasonable of two options: disengagement or detention. Given the totality of the
testimony and surveillance video, a reasonable juror could have concluded that they picked
the wrong one.
Moreover, the jury also heard deposition testimony from Wal-Mart’s
corporate representative, Ms. Wacha, that regardless of whether a shoplifter returns store
merchandise, Wal-Mart’s loss prevention associates may use verbal commands to stop a
fleeing shoplifter, but they may not go further. In Ms. Wacha’s words, “[r]egardless of
whether we get the merchandise back or not, if the suspect attempts to flee or leave the
facility, we act the same way. . . . Again, we attempt to verbally—with a few feet—try to
get that person to back into the facility with us. And if they do not comply— . . . we let
16
them go.” It was disputed at trial at exactly what point in the stop Mr. Leist returned the
gloves to Mr. Newbanks. Regardless, taking Ms. Wacha’s testimony at face value, 20 a
reasonable juror might have concluded that once Mr. Leist tried to “go through them” or
“struggled” to escape Mr. Newbanks and Mr. Daniel, Wal-Mart policy required them to let
him go.
In sum, Wal-Mart incorrectly asserts that the evidence offered at trial
indisputably showed that its employees complied with the policy. Taking the conflicting
testimony as well as the surveillance footage described above in the light most favorable
to Ms. Ankrom, we find that a reasonable juror could have concluded that in this case
Wal-Mart employees exposed Ms. Ankrom to a foreseeable high risk of harm in the course
of apprehending Mr. Leist and, therefore, that Wal-Mart owed a duty to Ms. Ankrom to
protect her from his criminal conduct.
2) The Proximate Cause of Ms. Ankrom’s Injuries
Wal-Mart next argues that, even if its employees did expose Ms. Ankrom to
a foreseeable high risk of harm, Mr. Leist’s decision to flee inside the store was the
proximate cause of her injuries. According to Wal-Mart, Mr. Leist’s flight superseded any
20
Wal-Mart downplays Ms. Wacha’s testimony, asserting that it conflicted with the
language of the policy. That assertion, however, merely highlights the conflicting nature
of the evidence submitted to the jury.
17
breach of its own duty, so he—and not Wal-Mart—was the sole proximate cause of Ms.
Ankrom’s injures.
“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.” 21 It is “ ‘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).” 22 An intervening cause, however, may
jump in, break that chain of causation, and so constitute the new, effective cause of the
injury. We have held that “ ‘ “ ‘[a]n intervening cause, in order to relieve a person charged
with negligence in connection with an injury, must be a negligent act, or omission, which
constitutes a new effective cause and operates independently of any other act, making it
and it only, the proximate cause of the injury.’ Syllabus Point 16, Lester v. Rose, 147 W.Va.
575, 130 S.E.2d 80 (1963) [modified on other grounds, State ex rel. Sutton v. Spillers, 181
W.Va. 376, 382 S.E.2d 570 (1989)].” Syllabus Point 1, Perry v. Melton, 171 W.Va. 397,
299 S.E.2d 8 (1982).’ Syl. Pt. 3, Wehner v. Weinstein, 191 W.Va. 149, 444 S.E.2d 27
(1994).” 23 But not every intervening event wipes out another’s preceding negligence. In
fact, “ ‘[a] tortfeasor whose negligence is a substantial factor in bringing about injuries is
21
Syl. Pt. 3, McCoy v. Cohen, 149 W. Va. 197, 140 S.E.2d 427 (1965).
22
Syl. Pt. 4, Spencer v. McClure, 217 W. Va. 442, 618 S.E.2d 451 (2005).
23
Syl. Pt. 8, Harbaugh v. Coffinbarger, 209 W. Va. 57, 543 S.E.2d 338 (2000).
18
not relieved from liability by the intervening acts of third persons if those acts were
reasonably foreseeable by the original tortfeasor at the time of his negligent conduct.’ Syl.
Pt. 13, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990).” 24
Initially, Wal-Mart asserts that the undisputed evidence at trial showed its
employees could not have foreseen that Mr. Leist would run once back inside the store,
meaning his negligence would supersede Wal-Mart’s. Wal-Mart points to the following
evidence to support that assertion: (1) Mr. Newbanks and Mr. Daniel testified that Mr.
Leist agreed to go back inside the store with them; (2) The surveillance video shows that
Mr. Daniel and Mr. Newbanks escorted Mr. Leist back into the store without force and in
a calm and non-combative manner; (3) The surveillance video shows that Wal-Mart
employees did not chase Mr. Leist after he returned to the store; (4) Mr. Daniel also testified
that he had never been in a situation where a shoplifter fled toward the inside of the store;
and (5) Ms. Ankrom’s own expert acknowledged that Mr. Leist’s decision to run was his
alone.
Wal-Mart then suggests a comparison between the facts of this case and those
in Ward v. West. 25 There, a suspected shoplifter ran from Sears employees and collided
24
Syl. Pt. 9, id.
25
Ward v. West, 191 W. Va. 366, 445 S.E.2d 753 (1994).
19
with a shopper. 26 While store employees maintained they had been “politely escorting”
the shoplifter to the store’s security office before he ran, 27 an eyewitness later testified that
the employees were chasing the shoplifter when he ran into the shopper. 28 Citing that
material, factual discrepancy, this Court reversed the grant of summary judgment to Sears
and remanded the case for further proceedings. 29
Wal-Mart extrapolates from our analysis in Ward a near-bright line rule that
it asserts should have resulted in judgment as a matter of law: “liability may be imposed
only if there is an active pursuit or chase of a shoplifter who otherwise appears peaceful.”
We disagree, based in large part on the numerous cases cited in Wal-Mart’s own briefing. 30
26
Id. at 367, 445 S.E.2d at 754.
27
Id.
28
Id. at 369, 445 S.E.2d at 756.
29
Id. at 370, 445 S.E.2d at 757.
30
See Mills v. Jack Eckerd Corp., 482 S.E.2d 449, 449–50 (Ga. App. 1997)
(affirming summary judgment to store on shopper’s negligence claim where shoplifter had
“voluntarily accompanied” store employees to office before fleeing, “suddenly and without
warning”); Butler v. K-Mart Corp., 432 So. 2d 968, 968–69 (La. Ct. App. 1983) (affirming
summary judgment to merchant where cause of injury suffered by plaintiff was not
foreseeable; depositions did not show that store manager chased shoplifter out of the store
before he collided with plaintiff in parking lot); Graham v. Great Atl. & Pac. Tea Co., 240
So. 2d 157, 157–59 (Fla. Dist. Ct. App. 1970) (holding that “a storeowner is not negligent,
absent special circumstances, in attempting to detain suspected shoplifters, and does not
create any foreseeable risk of harm to business invitees by doing so” where burly shoplifter
acquiesced to slight-statured manager’s request to follow him back inside the store, then
ran and injured a bystander). But see Kilpatrick v. Dollar Tree Stores, Inc., No. 2:13-CV-
20
While those cases arose in the context of fleeing shoplifters, their outcomes
did not depend, solely, on whether the merchant gave chase. So, they do not support Wal-
Mart’s requested, bright-line rule. Instead, they turned on whether, under the particular
facts and circumstances of each case, the shoplifter’s flight was foreseeable. For example,
in Martin v. Piggly Wiggly Corp., a Louisiana appellate court affirmed the trial court’s
finding that a store had “no duty to protect patrons from unforeseeable or unanticipated
intentional acts perpetrated by a third party” where, before colliding with a patron, the
shoplifter “went quietly” in response to a store employee’s request to follow her to a
security area. 31 In Knight v. Powers Dry Goods Co., the Supreme Court of Minnesota
reversed a jury verdict for a plaintiff where the storeowner’s employees did not have “any
reasonable ground to anticipate that the act of taking [a shoplifter] over to the [store]
elevator would or might result in any injury to anybody” because the shoplifter had agreed
to come inside when asked to do so and walked along quietly even after a store detective
took hold of his arm. 32 In K-Mart Corp. v. Lentini, the appellate court reversed a jury
verdict for the plaintiff because “Kmart’s conduct [had not] foreseeably created a broader
2659-SHL-TMP, 2014 WL 12531118, at *3 (W.D. Tenn. Sept. 19, 2014) (granting store’s
motion for summary judgment where risk that fleeing shoplifter would run into bystander
was not foreseeable; shoplifting was rare in the store and illogical to foresee that shoplifter
would run into a bystander and so impede his flight).
31
469 So. 2d 1057, 1059 (La. Ct. App. 1985).
32
30 N.W.2d 536, 537, 539 (Minn. 1948).
21
zone of risk that posed a general threat of harm to others” 33 where the shoplifter, “who until
then had been calm and cooperative, suddenly left his chair and ran out of the conference
room and through the store, [before] colliding with the plaintiff.” 34
In Radloff v. National Food Stores, Inc., the Supreme Court of Wisconsin
reversed a jury verdict in favor a bystander who was injured by a fleeing shoplifter. 35 The
shoplifter had hesitated to follow store personnel, at first, but then acquiesced once they
“asked [him] to please come back into the store” and assured him that they would not “gang
up” on him. 36 The court rejected the trial court’s conclusion that the store employees
carelessly escorted the shoplifter to the rear of the store because “they had no reason to
believe that he was about to act as he did,” 37 that is, based on the shoplifter’s earlier
behavior, the employees could not have foreseen his flight. Notably, there is no indication
in Radloff that the shoplifter physically resisted apprehension by store employees before
agreeing to reenter the store. Instead, when employees confronted the shoplifter in the
store’s vestibule, they
asked the shoplifter if he would please come back into the store
and come to the rear of the store. The shoplifter replied: [“]No,
33
650 So. 2d 1031, 1032 (Fla. Dist. Ct. App. 1995) (internal quotation omitted).
34
Id.
35
121 N.W.2d 865, 866 (Wis. 1963).
36
Id.
37
Id at 871.
22
you’re going to gang up on me.[”] The employees assured him
that they were not going to gang up on him and asked him again
to please come back into the store. He agreed. The two
employees and the shoplifter reentered the store.[38]
None of these cases establish the per se rule that Wal-Mart wants. And, none
of them dictates that Wal-Mart was entitled to judgment as matter of law on Ms. Ankrom’s
negligence claim. In Martin, Knight, Lentini, and Radloff, the shoplifters submitted to store
employees’ initial requests to follow them to a security office or other location inside the
store. Based on the evidence offered at trial, that was not the case, here. Mr. Newbanks
and Mr. Daniel described their encounter with Mr. Leist in the store’s vestibule as a
“struggle” and a “scuffle,” respectively. Mr. Daniel testified that he had never been in a
situation where a shoplifter fled toward the inside of the store, but Mr. Newbanks testified
at his deposition that it was foreseeable that Mr. Leist would run because he had already
tried once. 39 And, while Mr. Murphy acknowledged that Mr. Leist’s decision to run was
his own, he also opined that Mr. Leist’s flight was the “culmination of everything else that
took place beforehand. The way it was stopped, the number of people, the struggle, and
then they take a very relaxed atmosphere with it. That’s why he was able to run.” In sum,
while Mr. Newbanks and Mr. Daniel testified that Mr. Leist agreed to go back inside the
38
Id. at 866.
39
Ms. Ankrom’s counsel impeached Mr. Newbanks with his deposition testimony
at trial. In the course of that impeachment, Mr. Newbanks acknowledged that at his
deposition, he had answered “Yeah,” when asked whether he “knew that there was a danger
that [Mr. Leist] was going to flee, because he had already tried once, correct?”
23
store with them, that acquiescence does not necessarily undo the foreseeable high risk of
harm created by Wal-Mart employees in the course of apprehending Mr. Leist moments
before he fled.
We have held that even where a third person’s acts intervene in the causal
chain leading to injury, those intervening acts do not relieve the first link in that chain from
liability “ ‘if those acts were reasonably foreseeable by the original tortfeasor at the time
of his negligent conduct.’ Syl. Pt. 13, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61
(1990).” 40 Taking the evidence offered at trial in the light most favorable to Ms. Ankrom,
a reasonable juror could certainly have concluded that Mr. Leist’s flight was foreseeable—
or should have been foreseeable—to Wal-Mart employees, chase or no chase. 41 A
reasonable juror could have also concluded that Mr. Leist’s decision to flee inside the store
did not operate independently of his apprehension by Wal-Mart employees in the store’s
vestibule, so that his flight was not the sole proximate cause of Ms. Anrkom’s injury. For
those reasons, the circuit court did not err when it denied Wal-Mart’s renewed motion for
judgment as a matter of law.
40
Syl. Pt. 9, in part, Harbaugh, 209 W. Va. at 57, 543 S.E.2d at 338.
41
See Colombo v. Wal-Mart Stores, Inc., 709 N.E.2d 301, 302–03 (Ill. App. Ct.
1999) (where security personnel detained and gained control of shoplifter outside of store,
then brought the shoplifter back inside where he fled and injured a bystander, holding that
“once security personnel undertook the duty of detaining the suspect and escorting him
back into the store, they were under a duty to use reasonable care in carrying out that
process.”).
24
B. Intervening Cause Jury Instruction
Wal-Mart argues that it is entitled to a new trial because the circuit court
erred when it refused to instruct the jury on intervening cause. The proposed instruction
correctly stated the law of intervening cause and that concept was not covered elsewhere
in the jury instructions, according to Wal-Mart. It also argues that the evidence shows that
any negligence in its employees’ stop of Mr. Leist ended when he willingly returned to the
store, so the circuit court’s refusal to deliver the intervening cause instruction seriously
hampered its ability to present one of its defenses.
In response, Ms. Ankrom emphasizes the circuit court’s broad discretion
when drafting jury instructions and the deference afforded to a court’s refusal to give a
particular instruction. 42 Ms. Ankrom asserts that evidence offered at trial conclusively
showed that Mr. Leist’s flight upon reentry to the store was foreseeable to Wal-Mart’s
employees and the circuit court did not abuse its discretion when it found that the facts
adduced at trial did not support delivery of the intervening cause instruction requested by
Wal-Mart. She also argues that because Wal-Mart requested an instruction on joint
42
Ms. Ankrom does not contend that Wal-Mart’s proposed instruction on
intervening cause misstated the applicable law.
25
negligence, the circuit court could not also give the intervening cause instruction because
the two conflicted. 43
We review a circuit court’s refusal to deliver a requested jury instruction for
an abuse of discretion. 44 That standard also applies to our determination of “[w]hether
facts are sufficient to justify the delivery of a particular instruction.” 45 As to “the degree
of evidence necessary to support the giving of a particular instruction,” 46 we have held that:
“ ‘ “ ‘If there be evidence tending in some appreciable
degree to support the theory of proposed instructions, it is not
error to give such instructions to the jury, though the evidence
be slight, or even insufficient to support a verdict based entirely
on such theory.’ Syllabus Point 2, Snedeker v. Rulong, 69
W.Va. 223, 71 S.E. 180 (1911).” Syllabus Point 4, Catlett v.
MacQueen, 180 W.Va. 6, 375 S.E.2d 184 (1988).’ Syllabus
point 6, Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196
(1993), cert. denied, 511 U.S. 1129, 114 S.Ct. 2137, 128
43
In reply, Wal-Mart asserts that jury instructions that present alternative theories
are not in conflict, as Ms. Ankrom argues, and so the circuit court could not have properly
refused to give the proposed intervening cause instruction for that reason. Wal-Mart
attempts to distinguish the cases cited by Ms. Ankrom, concluding that they prohibit a
circuit court from delivering instructions that are contradictory on the same point of law.
Wal-Mart reiterates its arguments that the evidence at trial supported delivery of its jury
instruction on intervening cause and that the circuit court’s refusal of the instruction
seriously hampered the presentation of its defense.
44
Kessel v. Leavitt, 204 W. Va. 95, 144, 511 S.E.2d 720, 769 (1998) (“ ‘As a general
rule, the refusal to give a requested jury instruction is reviewed for an abuse of
discretion.’ ”) (quoting Syl. Pt. 1, in part, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257
(1996)).
45
Syl. Pt. 12, in part, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994).
46
Coleman v. Sopher, 201 W. Va. 588, 602, 499 S.E.2d 592, 606 (1997).
26
L.Ed.2d 867 (1994).” Syllabus point 3, Craighead v. Norfolk
& Western Railway Company, 197 W.Va. 271, 475 S.E.2d
363, (1996).[47]
In total, and to afford appropriate deference to the circuit court’s decision to refuse to
deliver a particular instruction, “we will presume that the trial court acted correctly unless
it appears from the record in the case that the instructions refused were correct and should
have been given.” 48
The circuit clearly expressed its rationale for refusing to instruct the jury on
intervening cause in the amended order denying Wal-Mart’s motion for a new trial:
The premise of Wal-Mart’s position is that the act of
Robert Leist in running from security upon returning to the
main part of its store was an intervening, superseding cause of
plaintiff’s injuries. The premise is unfounded. The [c]ourt
properly determined that the evidence failed to establish that
Leist’s conduct was an intervening cause and did not support
instruction on intervening cause. The evidence presented as to
the conduct of Leist and of Wal-Mart security personnel while
in the vestibule area where Leist was confronted and
subsequently escorted back into the main body of the store was
sufficient to refuse an instruction on independent, intervening
cause.
47
Syl. Pt. 4, id.
48
Kessel, 204 W. Va. at 144, 511 S.E.2d at 769 (cleaned up).
27
The circuit court also acknowledged in the amended order Wal-Mart’s theory that Ward v.
West controlled the outcome of this case. It discounted the import of Ward, however,
because it found that the evidence presented at trial distinguished this case.
Given the deferential standard of review, we cannot say that the circuit
court’s rationale and resultant ruling are an abuse of its discretion. “In general, an abuse
of discretion occurs when a material factor deserving significant weight is ignored, when
an improper factor is relied upon, or when all proper and no improper factors are assessed
but the circuit court makes a serious mistake in weighing them.” 49 The court considered
the evidence offered at trial to determine whether it justified delivery of the instruction. It
also considered Wal-Mart’s argument that Ward v. West mandated the instruction. It then
exercised its discretion and concluded that they did not. Simply stated, the circuit court
did not ignore a factor or rely on an improper one. Rather, it did not afford Wal-Mart’s
intervening cause theory the weight Wal-Mart believed it was due.
Even if the circuit court had abused its discretion by refusing to instruct the
jury on intervening cause, Wal-Mart must still demonstrate that the circuit court’s abuse of
discretion “constitutes reversible harmful error.” 50 As we have held, we consider three
factors in this analysis:
49
Gentry v. Mangum, 195 W. Va. 512, 520 n.6, 466 S.E.2d 171, 179 n.6 (1995).
50
Kessel, 204 W. Va. at 145, 511 S.E.2d at 770.
28
A trial court’s refusal to give a requested instruction is
reversible error only if: (1) the instruction is a correct statement
of the law; (2) it is not substantially covered in the charge
actually given to the jury; and (3) it concerns an important
point in the trial so that the failure to give it seriously impairs
a defendant’s ability to effectively present a given defense.[51]
Regardless of the first two factors, Wal-Mart cannot demonstrate that the
circuit court’s refusal to deliver the intervening cause instruction “seriously impaired [its]
ability to effectively present [that] defense.” Wal-Mart emphasized the evidence that it
contends supports its intervening cause theory during closing argument. For example,
Wal-Mart highlighted for the jury Mr. Leist’s agreement to go back inside the store, as well
as Mr. Daniel’s testimony that he had never seen a suspected shoplifter run into a store.
And, Wal-Mart emphasized to the jury its theory that Mr. Leist’s decision to
run was the sole cause of Ms. Ankrom’s injuries and explained how the jury could adopt
that theory in the verdict form:
[Ms. Ankrom] is trying to blame everything on WalMart.
And you can see that in the verdict form. The first
question that you’re going to be asked to answer – and [Ms.
Ankrom’s counsel] gave you a preview of it already – is “Do
51
Syl. Pt. 11, Derr, 192 W. Va. at 165, 451 S.E.2d at 731. See W. Va. R. Civ. P.
61, in part (“The court at every stage of the proceeding must disregard any error or defect
in the proceeding which does not affect the substantial rights of the parties.”). Cf. Danco,
Inc. v. Donahue, 176 W. Va. 57, 60, 341 S.E.2d 676, 679 (1985) (“On the other hand,
refusing to instruct the jury on a litigant’s theory of the case when it is supported by
competent evidence prevents consideration of that theory by the jury, and thus invites
reversal.”).
29
you find that Walmart was negligent?” I’d submit to you that
based upon the evidence that’s in front of you and the law that
the Judge described to you, the answer to that is “No.”
WalMart was apprehending a shoplifter in accordance
with policy. They were walking him back in, and the shoplifter
made a decision of his own, and that decision was to take off
running.
We’re here today because of a shoplifter. That is why
we’re here. And I’d ask that you remember that when you go
back to the jury room to deliberate.
Now, getting back here, if you answer “No” to this
question, you’re done. They’re looking to hold WalMart
responsible for this entire thing. They have – they don’t care
about Mr. Leist, even though Mr. Leist is the one who knocked
her to the ground running by [sic.] when he was running in a
haphazard way. They only want us.
***
And if you do select “Yes, [that Mr. Leist was
negligent],” you are required to figure out the percentage of
fault between the two parties. And that’s something that you
all would have to do, based on the evidence.
Again, we’re here because of Mr. Leist. We’re not here
for any other reason.
To sum up, Wal-Mart argued to the jury that Mr. Leist’s decision to run was
completely independent of its employees’ actions in the vestibule. It also argued that Mr.
Leist’s decision to run—and not the actions of its employees—was the sole cause of Ms.
Ankrom’s injuries. Finally, Wal-Mart actually told the jury that if it concluded that Mr.
Leist’s decision to run was his own, then the jury should answer “No” to the first question
on the verdict form: “Do you find that Wal-Mart was negligent and such negligence was
30
a proximate cause of the injuries sustained by Diane Ankrom on February 23rd, 2015?” In
view of Wal-Mart’s statements during closing arguments as well as its directions to the
jury on how to fill out the verdict form if it accepted Wal-Mart’s theory that Mr. Leist was
the sole cause of Ms. Ankrom’s injuries, the circuit court’s refusal to instruct the jury on
intervening cause did not seriously impair Wal-Mart’s ability to effectively present its
intervening cause defense. So, any error by the circuit court in refusing that instruction is
not harmful, reversible error. 52
C. Impeachment by Allegations in Plaintiff’s Complaint
As noted above, Ms. Ankrom initially sued Wal-Mart and its employee, Ryan
Clinton. She alleged in the complaint that Mr. Clinton pursued Mr. Leist after he ran from
security personnel. Ms. Ankrom dismissed Mr. Clinton before trial, then moved to
preclude Wal-Mart from referring to him or to the chase allegations in Ms. Ankrom’s
complaint. The circuit court granted Ms. Ankrom’s motion. We review that ruling for an
abuse of discretion. 53
52
Because the circuit court’s refusal to instruct the jury on intervening cause did not
seriously impair Wal-Mart’s ability to present its intervening cause defense, we do not
address Ms. Ankrom’s argument that the intervening cause instruction conflicted with the
joint negligence instruction, which Wal-Mart also requested.
53
Syl. Pt. 4, State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998) (“A trial
court’s evidentiary rulings, as well as its application of the Rules of Evidence, are subject
to review under an abuse of discretion standard.”)
31
Wal-Mart argues that the circuit court’s ruling is erroneous because the chase
allegations in Ms. Ankrom’s complaint show that her theory of liability was a “moving
target.” 54 Wal-Mart further argues that cross-examination of Ms. Ankrom with those
allegations was necessary for it to make a “full and complete presentation of the case to the
jury.”
After reviewing the parties’ arguments as well as the evidence at trial, we
conclude that even if the circuit court abused its discretion when it precluded Wal-Mart
from impeaching Ms. Ankrom with the “chase” allegations in her complaint, any error was
harmless. Under Rule 61 of the West Virginia Rules of Civil Procedure, we are to
“disregard any error or defect in the [trial] which does not affect the substantial rights of
the parties.” Moreover, “[a] party is entitled to a new trial only if there is a reasonable
probability that the jury’s verdict was affected or influenced by trial error.” 55
54
Wal-Mart repeatedly complains that Ms. Ankrom seemingly abandoned her
original theory of the case—that Wal-Mart employees chased Mr. Leist before he collided
with her—on the eve of trial. West Virginia Rule of Civil Procedure 15(b) belies Wal-
Mart’s complaint. Under Rule 15(b), “[w]hen issues not raised by the pleadings are tried
by express or implied consent of the parties, they shall be treated in all respects as if they
had been raised in the pleadings.” Wal-Mart was certainly prepared at trial to address Ms.
Ankrom’s theory that Wal-Mart employees’ initial stop of Mr. Leist in the store vestibule
did not comply with Wal-Mart policy and was a proximate cause of Ms. Ankrom’s injury.
And, Wal-Mart in fact took advantage of Ms. Ankrom’s shifting theory of liability, using
it for impeachment as described above.
55
Tennant, 194 W. Va. at 111, 459 S.E.2d at 388.
32
Here, we find that it is not reasonably probable that Wal-Mart’s inability to
impeach Ms. Ankrom with the “chase” allegations affected or influenced the jury’s verdict
because Wal-Mart effectively impeached Ms. Ankrom on this issue in other ways.
Wal-Mart elicited testimony from Ms. Ankrom that she observed Mr. Newbanks jogging
at the front of the store, like “he was on a mission,” before Mr. Leist ran into her. She then
testified that “within seconds” of observing Mr. Newbanks, Mr. Leist “blasted into [her]
shopping cart” while running “[f]ast, like he was running away from something.”
Inference: Mr. Newbanks chased Mr. Leist into Ms. Ankrom.
However, Ms. Ankrom also testified that she “didn’t know why” Mr. Leist
was running. Later, on cross-examination, Ms. Ankrom admitted that she had not seen any
Wal-Mart employees running towards her while she stood in the action aisle, before the
collision with Mr. Leist. Ms. Ankrom also admitted that she did not observe Mr. Leist
coming back into the store because she couldn’t see the vestibule from where she stood.
Inference: No Wal-Mart employee chased Mr. Leist as he ran toward Ms. Ankrom and,
even if one had, Ms. Ankrom couldn’t have seen it. Impeachment accomplished.
Finally, Wal-Mart tied a bow on that discrepancy during closing argument:
One of the other things that has been alleged in this case
– and I’ll say that it has been getting quieter and quieter through
the week – is that one of the five things, the five points that
were pointed out to you by [Ms. Ankrom’s counsel] at the start
of this case is the word “chase.”
33
Well, that seems to have gone away. There was no
chase of the suspect once he broke free and when he was
walking into the store. So that seems to have gone away.
***
You’re going to recall that Ms. Ankrom’s testimony
was that she was standing in the candy aisle when she was
observing someone from loss prevention running . . . .
And the reason I’m pointing that out is just to point out
an inconsistency between what is being said on the witness
stand . . . here she is, here’s everybody already in the vestibule.
Her testimony, people running. That’s an impossibility.
Considering Wal-Mart’s examination of Ms. Ankrom and coverage of the
chase theory during closing arguments, it is improbable that the circuit court’s exclusion
of certain allegations in Ms. Ankrom’s complaint affected the jury verdict. Consequently,
any error by the circuit court was harmless. 56
D. Prejudgment Interest on Past Medical Expenses
Ms. Ankrom received disability benefits due to a condition that preceded her
injury in February 2015. So, she did not pay for medical expenses incurred after her injury
and before judgment was entered against Wal-Mart and Mr. Leist in April 2019. After the
56
Wal-Mart also argues that the circuit court abused its discretion by prohibiting
impeachment of Ms. Ankrom’s daughter, Sierra Thomas, with the chase allegations in Ms.
Ankrom’s complaint. We fail to see how the allegations in Ms. Ankrom’s complaint are
relevant to Ms. Thomas’s veracity. The complaint contains Ms. Ankrom’s allegations, not
Ms. Thomas’s. Moreover, Ms. Thomas did not witness her mother’s injury.
34
jury rendered its verdict, Ms. Ankrom requested that the circuit court award her
prejudgment interest on her past medical expenses. Wal-Mart objected, but the court
awarded Ms. Ankrom four percent prejudgment interest on the $2,500,000 jury award for
past medical expenses. Wal-Mart now asks this Court to reverse the April 12, 2019
judgment order.
Wal-Mart argues that the circuit court abused its discretion under West
Virginia Code § 56-6-31(b) (2006) by imposing that interest because Ms. Ankrom was not
obligated to pay medical expenses at trial. 57 Wal-Mart relies upon a portion of Syllabus
Point 3 of our decision in Grove By and Through Grove v. Myers, in which we stated:
Under W.Va.Code, 56–6–31, as amended, prejudgment
interest is to be recovered on special or liquidated damages
incurred by the time of the trial, whether or not the injured
party has by then paid for the same. If there is sufficient
evidence to demonstrate that the injured party is obligated to
pay for medical or other expenses incurred by the time of the
trial, and if the amount of such expenses is certain or
reasonably ascertainable, prejudgment interest on those
expenses is to be recovered from the date the cause of action
accrued.[58]
57
West Virginia Code § 56-6-31(b) states that a court “may award prejudgment
interest on all or some of the amount of the special . . . damages [which] include . . . medical
expenses . . . .”
58
Syl. Pt. 3, Grove By & Through Grove v. Myers, 181 W. Va. 342, 382 S.E.2d 536
(1989) (emphasis added).
35
According to Wal-Mart, because a third party paid for Ms. Ankrom’s medical expenses
incurred by the time of trial, she wasn’t obligated to pay any medical bills then, so she
wasn’t entitled to prejudgment interest under § 56-6-31(b).
We disagree, and find no abuse of discretion in the circuit court’s award of
prejudgment interest to Ms. Ankrom on her past medical expenses. Wal-Mart is making a
collateral source argument, and it is one that this Court has already addressed in Ilosky v.
Michelin Tire Corp. 59 There, a jury awarded Ms. Ilosky $500,000 in compensatory
damages for horrible injuries she suffered in a car accident caused by the defendant-tire
company’s negligence. 60 At trial, the tire company “attempted to cross-examine [Ms.
Ilosky’s] economist on what expenses [she] had actually paid for between the time of injury
and trial, and what expenses had been paid for by other sources, such as insurance.” 61 The
tire company’s theory was essentially the same as Wal-Mart’s: that “it should not be held
liable for prejudgment interest on expenses which the appellee did not actually incur
because she then did not actually lose the use of funds.” 62
59
Ilosky v. Michelin Tire Corp., 172 W. Va. 435, 307 S.E.2d 603 (1983).
60
Id. at 445–46, 307 S.E.2d at 613–14.
61
Id. at 446, 307 S.E.2d at 614–15.
62
Id. at 447, 307 S.E.2d at 615.
36
This Court rejected that theory because it ran counter to the premise behind
the collateral source rule, that “it is better for injured plaintiffs to receive the benefit of
collateral sources in addition to actual damages than for defendants to be able to limit their
liability for damages merely by the fortuitous presence of these sources.” 63 Consequently,
even though interest on special damages “serves to compensate for the loss of the use of
funds that have been expended,” 64 this Court found that the collateral source rule demanded
payment of prejudgment interest to Ms. Ilosky, even if a collateral source had actually paid
her medical expenses. We concluded that, “[r]egardless of who pays the bill for expenses
prior to trial, someone is losing the use of that money. Injured plaintiffs should not have to
forego the collateral source rule merely to recover prejudgment interest.” 65
We reach the same conclusion here. While Ms. Ankrom was not obligated
to pay for her past medical expenses due to disability benefits predating her February 2015
injury, someone was, which, as in Ilosky, means that someone lost the use of those funds.
Prejudgment interest on medical expenses is intended to compensate for that loss. If this
Court would accept Wal-Mart’s argument—that it doesn’t have to pay prejudgment interest
63
Id. at 446, 307 S.E.2d at 615.
64
Id. at 447, 307 S.E.2d at 615 (quotation omitted).
65
Id. Cf. Syl. Pt. 1, Buckhannon-Upshur Cty. Airport Auth. v. R & R Coal
Contracting, Inc., 186 W. Va. 583, 584, 413 S.E.2d 404, 405 (1991) (“Prejudgment
interest, according to West Virginia Code § 56–6–31 (1981) and the decisions of this Court
interpreting that statute, is not a cost, but is a form of compensatory damages intended to
make an injured plaintiff whole as far as loss of use of funds is concerned.”).
37
on medical expenses to Ms. Ankrom because her disability benefits covered those
expenses—then we would advantage Wal-Mart, disadvantage Ms. Ankrom, and frustrate
the purpose of the collateral source doctrine. “Injured plaintiffs should not have to forego
the collateral source rule merely to recover prejudgment interest.” 66
Wal-Mart cherry-picks language from our decision in Grove By & Through
Grove v. Myers to support its position that the circuit court abused its discretion by
awarding Ms. Ankrom prejudgment interest on her medical expenses. That argument is
not well-taken because Grove restates the rule from Ilosky. And, the additional cases cited
by Wal-Mart are distinguishable. 67 For those reasons, we find that the circuit court did not
abuse its discretion by awarding Ms. Ankrom prejudgment interest on her past medical
expenses.
E. Ms. Ankrom’s Cross-Assignment of Error
Ms. Ankrom cross-assigns as error the circuit court’s refusal to enter her
proposed judgment order. Under that proposed order, the circuit court would have entered
66
Syl. Pt. 13, id.
67
See Doe v. Pak, 237 W. Va. 1, 7, 784 S.E.2d 328, 334 (2016) (prejudgment interest
on loss of household services—an out-of-pocket expenditure under W. Va. Code § 56-6-
31—available only where “the claimant has incurred an obligation to pay some sort of
compensation for household services”); Miller v. Fluharty, 201 W. Va. 685, 701, 500
S.E.2d 310, 326 (1997) (no prejudgment interest on policyholder’s attorney’s reasonable
litigation expenses because they were not “out-of-pocket expenditures” under W. Va. Code
§ 56-6-31).
38
judgment against Wal-Mart for the full amount of the jury verdict with a right to
contribution from Mr. Leist, rather than thirty percent of the total ($5,076,600), only. Ms.
Ankrom insists that because Mr. Leist is a third-party defendant, he is not a “defendant”
for purposes of West Virginia Code § 55-7-24 (2005). 68 According to Ms. Ankrom’s
theory that means, in turn, that the statute simply doesn’t apply to this situation and
Wal-Mart is jointly and severally liable to Ms. Ankrom. We disagree.
Ms. Ankrom’s cross-assignment of error requires us to interpret § 55-7-24.
The interpretation of a statute is a question of law that we review de novo. When we
conduct that review, our “primary object in construing [the] statute is to ascertain and give
effect to the intent of the Legislature.” 69 To ascertain the Legislature’s intent for a
particular statute, we cannot view a subsection of that statute in a vacuum. Instead, “[i]n
ascertaining legislative intent, effect must be given to each part of the statute and to the
statute as a whole so as to accomplish the general purpose of the legislation.” 70 Once we
do that, a statute will appear either plain or ambiguous. If the “statute is clear and
unambiguous and the legislative intent is plain, the statute should not be interpreted by the
68
The Legislature repealed § 55-7-24 effective May 25, 2015. Ms. Ankrom was
injured in February 2015, so § 55-7-24 (2005) still applies to her case.
Syl. Pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d
69
361 (1975).
70
Syl. Pt. 2, id.
39
courts, and in such case it is the duty of the courts not to construe but to apply the statute.” 71
Conversely, if “the statute’s language connotes doubtfulness, doubleness of meaning or
indistinctness or uncertainty of an expression,” then it must be construed. 72 Applying those
rules to § 55-7-24, we see no ambiguity in the statutory language and find, contrary to Ms.
Ankrom’s argument, that for purposes of § 55-7-24, a “third-party defendant” like Mr.
Leist is a “defendant.”
The operative language of § 55-7-24 states that,
(a) In any cause of action involving the tortious conduct of
more than one defendant, the trial court shall:
(1) Instruct the jury to determine, or, if there is no jury, find,
the total amount of damages sustained by the claimant and the
proportionate fault of each of the parties in the litigation at the
time the verdict is rendered; and
(2) Enter judgment against each defendant found to be liable
on the basis of the rules of joint and several liability, except
that if any defendant is thirty percent or less at fault, then that
defendant’s liability shall be several and not joint and he or she
shall be liable only for the damages attributable to him or her,
except as otherwise provided in this section.[73]
Syl. Pt. 5, State v. Gen. Daniel Morgan Post No. 548, Veterans of Foreign Wars,
71
144 W. Va. 137, 107 S.E.2d 353 (1959).
72
State ex rel. Morrisey v. Copper Beech Townhome Communities Twenty-Six, LLC,
239 W. Va. 741, 747, 806 S.E.2d 172, 178 (2017) (quotations and alterations omitted).
73
Emphasis added.
40
By its plain language, the statute kicks in when “a cause of action involve[es]
the tortious conduct of more than one defendant . . . .” This expansive language is telling,
and it strongly contradicts Ms. Ankrom’s position that, in the context of this statute,
“defendant” does not include a third-party defendant, such as Mr. Leist. Notice that the
Legislature did not say that the statute applies when a plaintiff sues more than one
tortfeasor, but not when a plaintiff sues only one tortfeasor, even though there may be other
individuals or entities whose conduct contributed to the plaintiff’s injury. Had the
Legislature intended § 55-7-24 to put the plaintiff in the driver’s seat, it would have said
so. It did not. Instead, it directed that the statute should apply to a broader scope of tortious
conduct than that of the party the plaintiff chooses to sue. 74
Next, the statute specifies that “when a cause of action involve[es] the
tortious conduct of more than one defendant,” the circuit court must instruct the jury to
find the total amount of the damages sustained by the claimant. The court must also instruct
the jury to apportion the fault for that injury among “each of the parties in the litigation at
74
Ms. Ankrom also argues that because Wal-Mart sought contribution from Mr.
Leist in its third-party complaint, that is the only role that Mr. Leist could ever play in the
litigation. That argument ignores West Virginia Rule of Civil Procedure 54(c), which
states in pertinent part that, “every final judgment shall grant the relief to which the party
in whose favor it is rendered is entitled, even if the party has not demanded such relief in
the party’s pleadings.” Citing that rule and Rule 15(b), relating to amendment of pleadings
to conform to evidence at trial, we have observed that “[c]hallenges based on such
technicalities cannot prevail under our Rules of Civil Procedure.” Elsey Ford Sales, Inc.
v. Solomon, 167 W. Va. 891, 895, 280 S.E.2d 718, 721 (1981) (cleaned up). For those
reasons, we reject Ms. Ankrom’s argument that a pleading technicality precludes
application of § 55-7-24 in this case.
41
the time the verdict is rendered.” This language deeply undermines Ms. Ankrom’s theory:
why would a third-party defendant, who is still in the case when a verdict is rendered, not
be a “part[y] in the litigation”? “[W]hen we interpret a statutory provision, this Court is
bound to apply, and not construe, the enactment’s plain language,” and we see no reason
to do anything but that in this case. 75 The Legislature’s choice to use “party” in
§ 55-7-24(a)(1) further demonstrates its intent that the statute apply to the tortious conduct
of more than one defendant—including those in the litigation in a third-party capacity.
Finally, § 55-7-24(a)(2) directs the circuit court to “[e]nter judgment against
each defendant found to be liable on the basis of the rules of joint and several liability . . .
.” The statute then tempers that rule for “any defendant [that] is thirty percent or less at
fault”—not just those whom the plaintiff has choosen to sue—by mandating that such a
“defendant’s liability shall be several and not joint and he or she shall be liable only for the
damages attributable to him or her, except as otherwise provided in this section.”
Viewing § 55-7-24 in total, we cannot accept Ms. Ankrom’s theory that
third-party defendants don’t count for the purpose of determining whether that statute
applies because, as the circuit court found, the statute
effected a fundamental change in tort law by, for the first time,
explicitly creating an exception to the principle of joint and
75
Rose ex rel. Rose v. St. Paul Fire & Marine Ins. Co., 215 W. Va. 250, 255, 599
S.E.2d 673, 678 (2004).
42
several liability by its adoption of what may be called “the
thirty percent rule.” This fundamental change would have
been rendered meaningless if plaintiff’s interpretation of the
term “defendant” as used in [§] 55-7-24(a) were accepted for
in that case, plaintiffs and only plaintiffs would control
whether and which, tortfeasors would be subject to joint and
several liability and which would not be.
It is an easy retort that § 55-7-24 says “defendant,” and not “third-party
defendant.” But, “[i]t is always presumed, in regard to a statute, that no . . . unreasonable
result was intended by the Legislature.” 76 Taken to its outer limits, Ms. Ankrom’s theory
would undo § 55-7-24, because the statute’s application would always depend on whether
a plaintiff chooses to sue one tortfeasor, but not more. At that outer limit, the Legislature
might as well not have enacted the statute, at all. For that reason, we must reject Ms.
Ankrom’s proposed interpretation of § 55-7-24 and affirm the circuit court’s judgment
order entered April 12, 2019.
IV. CONCLUSION
For the reasons discussed above, we affirm the circuit court’s July 2, 2019
amended order denying Wal-Mart’s renewed motion for judgment as a matter of law, or in
the alternative, motion for new trial and the court’s April 12, 2019 judgment order.
AFFIRMED
76
Click v. Click, 98 W. Va. 419, 127 S.E. 194, 198 (1925) (quoting Rice and Others
v. Ashland Co., 108 Wis. 189 84 N.W. 189 (1900)).
43