Gable v. Gable

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2021 Term FILED
_______________ June 1, 2021
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
No. 19-1077 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
_______________

RONALD A. GABLE,
Petitioner

v.

DEBORAH GABLE, and
JOHN DOE(S),
Respondents

________________________________________________________

Appeal from the Circuit Court of Ohio County
The Honorable David J. Sims, Judge
Civil Action No. 19-C-167

REVERSED AND REMANDED

________________________________________________________

Submitted: March 17, 2021
Filed: June 1, 2021

James A. Villanova, Esq. Perry W. Oxley, Esq.
Michael E. Metro, Esq. David E. Rich, Esq.
Villanova Law Offices, P.C. Oxley Rich Sammons
Pittsburgh, Pennsylvania Huntington, West Virginia
Counsel for the Petitioner Counsel for the Respondents

JUSTICE HUTCHISON delivered the Opinion of the Court.

CHIEF JUSTICE JENKINS and JUSTICE ARMSTEAD dissent and reserve the
right to file a separate opinion.
 SYLLABUS BY THE COURT

1. “Appellate review of a circuit court’s order granting a motion to

dismiss a complaint is de novo.” Syl. pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-

Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).

2. “An interpretation of the West Virginia Rules of Civil Procedure

presents a question of law subject to a de novo review.” Syl. pt. 4, Keesecker v. Bird, 200

W. Va. 667, 490 S.E.2d 754 (1997).

3. “The trial court, in appraising the sufficiency of a complaint on a Rule

12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).” Syl. pt. 3,

Chapman v. Kane Transfer Co., 160 W. Va. 530, 236 S.E.2d 207 (1977).

4. “The general rule is that matters of defense should not be anticipated

by the plaintiff, but that all such matters should be shown by the opposite party in his

pleadings.” Syl. pt. 7, in part, Rhodes v. J.B.B. Coal Co., 79 W. Va. 71, 90 S.E. 796 (1916).

5. Under Rule 8(a) of the West Virginia Rules of Civil Procedure, a

plaintiff’s complaint need not anticipate or attempt to plead around potential defenses that

may be raised by the defendant. A complaint is not required to contain any information

about defenses and may not be dismissed, under the guise of Rule 12(b)(6), for that

omission.
i
 6. “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.” Syl. pt. 4, Mallet v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (1999).

7. “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?” Syl. pt. 3, Sewell v.

Gregory, 179 W. Va. 585, 371 S.E.2d 82 (1988).

8. “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.” Syl. pt. 6,

Mallet v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (1999).

9. “A trespasser is one who goes upon the property or premises of

another without invitation, express or implied, and does so out of curiosity, or for his own

ii
purpose or convenience, and not in the performance of any duty to the owner.” Syl. pt. 1,

Huffman v. Appalachian Power Co., 187 W. Va. 1, 415 S.E.2d 145 (1991).

10. Whether an entrant to property is a trespasser is a question of fact.

11. “Where there is any doubt about the meaning or intent of a statute in

derogation of the common law, the statute is to be interpreted in the manner that makes the

least rather than the most change in the common law.” Syl. pt. 5, Phillips v. Larry’s Drive-

In Pharmacy, Inc., 220 W. Va. 484, 647 S.E.2d 920 (2007).

12. “Statutes in derogation of the common law are strictly construed.”

Syl. pt. 1, Kellar v. James, 63 W. Va. 139, 59 S.E. 939 (1907).

13. Under West Virginia Code § 55-7-28(a) (2015), whether a danger was

open, obvious, reasonably apparent or as well known to the person injured as it was to the

owner or occupant is a question of fact.

iii
HUTCHISON, Justice:

In this appeal from the Circuit Court of Ohio County, we examine an order

dismissing a complaint in a premises liability case. The complaint alleged that the

defendant owed the plaintiff a duty to keep the porch and stairs of her home safe but

breached that duty by allowing “golf balls and other objects and debris” to accumulate on

the porch and adjacent steps. The plaintiff contends that during a visit to the defendant’s

house, as he exited the front porch, an object on defendant’s front stairs caused him to slip,

fall, and be seriously injured.

The defendant moved to dismiss the complaint pursuant to Rule 12(b)(6) of

the West Virginia Rules of Civil Procedure, arguing that it failed to state a claim upon

which relief could be granted. The circuit court granted the defendant’s motion and

dismissed the complaint. The circuit court concluded that, because the complaint did not

allege facts demonstrating that the plaintiff was not a trespasser on the defendant’s porch,

then the plaintiff effectively was a trespasser who was owed no duty of care. Alternatively,

after weighing the facts contained in the defendant’s motion to dismiss and the plaintiff’s

response, the circuit court decided that any hazard on the defendant’s steps, such as a golf

ball, could easily be seen; because the complaint did not allege that the hazard was not

open and obvious, it could not be the basis for imposing liability on the defendant.

We find the circuit court plainly erred in making factual determinations based

upon assertions in the defendant’s motion to dismiss. Moreover, we take this opportunity

1
to reaffirm our century-old rule that a plaintiff’s complaint need only plead a cause of

action; a plaintiff is under no duty to anticipate or attempt to defuse the defenses that might

be raised in the defendant’s answer. The plaintiff’s complaint asserted that the defendant

owed him a duty of care, alleged that the defendant breached that duty, and claimed that

the plaintiff was injured as a proximate result of the breach. The plaintiff was under no

obligation to anticipate and plead around any and all possible claims that might be asserted

by the defendant – including a claim that the plaintiff might have been a trespasser or that

a hazard was “open and obvious.”

As set forth below, we reverse the circuit court’s dismissal order, reinstate

the plaintiff’s complaint, and remand the case for further proceedings.

I. Factual and Procedural Background

In this appeal, we consider whether a plaintiff’s complaint sufficiently asserts

a claim upon which relief can be granted. Because the preference is to decide cases on

their merits, we must construe the complaint in the light most favorable to the plaintiff and

take all allegations in the complaint as true. Mountaineer Fire & Rescue Equip., LLC v.

City Nat’l Bank of W. Va., ___ W. Va. ___, ___, 854 S.E.2d 870, 877 (2020).

The complaint alleges that on September 18, 2017, plaintiff Ronald A. Gable

visited a residence in Wheeling, West Virginia. The residence has a front porch and front

steps, and the plaintiff went on to the porch. The complaint maintains that there were “golf

balls and other objects and debris . . . [on] the surface of the aforesaid steps and front

2
porch[.]” The plaintiff asserts that, because of this debris, he slipped and fell to the ground,

“severely and permanently injuring himself.” 1

The complaint further alleges that the property is owned and controlled by

the defendant, Deborah Gable. 2 The complaint avers that the defendant “had a duty to

maintain the aforesaid front steps in a reasonably safe condition,” and that “[a]s a direct

and proximate result of the [d]efendant’s breach of said duty, the [p]laintiff has incurred

damages . . . for which the [d]efendant is liable.”

The defendant moved to dismiss the complaint on the ground that it failed to

state a claim upon which relief could be granted. See W. Va. R. Civ. Pro. Rule 12(b)(6).

Specifically, the defendant asked the circuit court to dismiss the complaint because (1) the

plaintiff was a trespasser on the defendant’s property and, contrary to the allegation in the

complaint, the defendant owed him no duty under the law; and (2) the defendant owed the

The complaint alleges the plaintiff has damages that include past and future
1

physical pain and suffering; past and future mental pain and suffering; past and future
medical expenses; and the loss of capacity to enjoy life.
2
The plaintiff’s complaint also lodges allegations against an unknown “John
Doe,” anticipating that “unknown persons, associates, corporations or . . . other entities . .
. may be the correctly named Defendant[.]” Because this case is at the pleading stage, no
discovery has been conducted, and the parties appear to agree that the property at issue is
owned and controlled solely by defendant Deborah Gable, we couch our opinion as though
Ms. Gable is the sole defendant. We leave to the circuit court the future resolution of any
remaining issues regarding the proper parties in this action.

3
plaintiff no duty of care because the items that the plaintiff “allege[d] he slipped on were

open and obvious to anyone paying attention.”

To support her arguments, the defendant’s motion to dismiss asserted various

new facts not raised in the complaint. These factual allegations are not supported by

affidavits or any other substantive evidence in the record.

First, the defendant’s motion averred that the plaintiff was “a trespasser on

her property.” The motion pointed out that the plaintiff is the father of the defendant. The

defendant claimed that the “relationship between the two has been acrimonious for some

time,” culminating in an earlier lawsuit over the ownership of the defendant’s residence.

The defendant’s motion also claimed that the “parties have not communicated civilly for

years,” that the plaintiff “had been told previously he was not welcome on the property,”

and that the plaintiff “knows he is not welcome on the [d]efendant’s property[.]” The

motion went on to assert that the plaintiff “showed up unannounced and was not invited

onto the premises by [the d]efendant,” and therefore was a trespasser who was owed no

duty of care by the defendant. In summary, the motion contended that “[t]he instant suit is

nothing more than another attempt to harass the [d]efendant by advancing a claim which

is clearly unsupported by the law.”

Second, the defendant argued that even if she did owe the plaintiff a general

duty of ordinary care, she owed “no duty of care to protect others against dangers that are

open, obvious, reasonably apparent or as well known to the person injured as they are to

4
the owner or occupant[.]” W. Va. Code § 55-7-28(a) (2015). The defendant suggested

that, factually, the plaintiff might say in his case that “repair work was being performed on

the porch” and say that the porch was “covered in paint” and “paint flakes” so as to have

“made the debris on the steps unnoticeable.” Still, the defendant contended that a

reasonably careful person would have seen the open, obvious, and reasonably apparent

dangers like “golf balls and other objects and debris” on the porch or, because of all the

paint and paint flakes, would have recognized that the front porch and steps were not a safe

point to access the house. Either way, on these facts, the defendant contended that the

plaintiff’s complaint failed to state a claim upon which relief could be granted.

In his response to the defendant’s motion to dismiss, the plaintiff also alleged

new facts and/or interpretations of the facts; however, he attached several affidavits in

support of these new allegations. First, the plaintiff’s response alleged facts to show he

was not a trespasser, and he argued that if there was any dispute on the question, it was one

of fact. The plaintiff noted that when he fell, he was a 78-year-old retired steelworker and

that his defendant-daughter was aged 55. The plaintiff admitted that his relationship with

the defendant began to deteriorate in 2011, yet around the same time he purchased the

residence at issue for the defendant’s use. The defendant paid rent to the plaintiff until

2015 when the plaintiff says he “signed paperwork giving her control of the property.” The

plaintiff contends that, several times thereafter, he visited his daughter at the residence.

The plaintiff also said that the defendant never “informed me that she no longer wished to

communicate or that my presence at her home was unwelcome. I was never asked to leave

5
the property by her or anyone else. My daughter [the defendant] never indicated that I was

not welcome at the property.”

Moreover, the plaintiff asserted that he visited his daughter’s home on

September 18, 2017, to inform her of the death of Richard Dyer, who was the father-in-

law of one of his sons. At oral argument, plaintiff’s counsel expanded upon this allegation

and pointed out that the defendant is a pastor. Apparently, the plaintiff was visiting the

residence to ask the defendant if she would, on behalf of her brother, say a few words at

Mr. Dyer’s funeral. Accordingly, the plaintiff argued that any allegation he was a

“trespasser,” and therefore was not owed a duty of care, was a question of material fact to

be developed in discovery and, eventually, to be resolved by a factfinder. The plaintiff

argued these factual disputes cannot be resolved through a motion to dismiss the complaint.

Second, the plaintiff’s response addressed the defendant’s argument that the

fall-causing hazard was “open and obvious.” The plaintiff described his fall and explained

that, from his viewpoint, the object he slipped on was not “open and obvious” as claimed

by the defendant. The plaintiff stated that he knocked on the front door located on the front

porch of the residence and, receiving no answer, turned to leave and started back down the

stairs when he fell. The plaintiff alleges that his fall was caused by “a small plastic ball

located in the crease of the steps between the riser and tread,” that the “ball was hidden by

the angle of the steps, paint chips, and other debris,” and therefore was “neither open, nor

obvious.” The plaintiff said the toy ball, “a little smaller than a golf ball,” was hidden from

view as he descended the stairs. As the plaintiff began to fall, he claims he “felt the ball

6
roll under my foot” and “saw the ball rolling down when and after I fell.” The plaintiff

asserted that from his personal perspective, the hazard was not open, obvious, or reasonably

apparent, and therefore that dismissal of his complaint was improper. Again, the plaintiff

contended that the factfinder should be permitted to consider whether he could, or could

not, see and avoid the hazard.

In an order dated October 30, 2019, the circuit court adopted the defendant’s

arguments and dismissed the complaint under Rule 12(b)(6). First, the circuit court

concluded that the plaintiff’s complaint effectively admitted that he was on the defendant’s

“property without her invitation, express or implied” and that he entered the property “for

his own purpose or convenience.” Hence, the circuit court ruled that the plaintiff was a

trespasser on the defendant’s porch when he slipped and fell and, therefore, was owed no

duty of ordinary care. Second, the circuit court found that the plaintiff’s brief in response

to the defendant’s motion to dismiss “only creates more confusion as to the facts he is

alleging,” and that his “shifting version of events renders his claim that the danger was not

open and obvious dubious at best.” The circuit court declared that “[a] golf ball, given the

very nature of its design, is typically easily seen,” and that “[a] reasonably prudent person

would have seen a golf ball on the steps . . . and exercised reasonable care in avoiding such

an item.” Hence, the circuit court concluded the plaintiff’s complaint failed to state a claim

upon which the court could grant relief.

The plaintiff now appeals the circuit court’s October 30, 2019, order

dismissing his complaint against the defendant.

7
 II. Standard of Review

A circuit court’s decision that a complaint fails to state a claim on which

relief can be granted is a ruling of law, and we review such a decision de novo. See Syl.

pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461

S.E.2d 516 (1995) (“Appellate review of a circuit court’s order granting a motion to dismiss

a complaint is de novo.”). The parties’ arguments in this appeal also challenge the circuit

court’s interpretation and application of Rule 12(b)(6) of the West Virginia Rules of Civil

Procedure. As we have often stated, “[a]n interpretation of the West Virginia Rules of

Civil Procedure presents a question of law subject to a de novo review.” Syl. pt. 4,

Keesecker v. Bird, 200 W. Va. 667, 490 S.E.2d 754 (1997).

III. Discussion

The plaintiff argues the circuit court erred in its application of Rule 12(b)(6)

to his case, and he asserts that the circuit court effectively required him to anticipate and

plead facts in his complaint to rebut defenses that might be pleaded by the defendant.

Hence, our decision begins with the well-trod guidelines for reviewing motions to dismiss

under Rule 12(b)(6), and we consider the circuit court’s determination that the plaintiff was

required to anticipatorily plead that he was not a trespasser, and to anticipatorily plead that

the hazard he slipped on was not open and obvious. We then turn to the circuit court’s

application of the law regarding trespassing and the law of open and obvious hazards.

8
 A. Anticipating Defenses in a Complaint

Rule 8(a)(1) of the West Virginia Rules of Civil Procedure requires that a

plaintiff’s complaint contain “a short and plain statement of the claim showing that the

pleader is entitled to relief[.]” Rule 12(b)(6) of those same Rules permits a defendant to

ask the circuit court to dismiss all or part of the plaintiff’s complaint for “failure to state a

claim upon which relief can be granted.” “A motion under Rule 12(b)(6) tests the adequacy

of the claims and the notice provided by the allegations in the pleading.” Mountaineer Fire

& Rescue Equip., ___ W. Va. at ___, 854 S.E.2d at 882. Thus, for a complaint to survive

a motion to dismiss under Rule 12(b)(6), the circuit court must do nothing more than ensure

that the complaint contains a short and plain statement of a claim showing that the plaintiff

is entitled to relief.

“When a Rule 12(b)(6) motion is made, the pleading party has no burden of

proof. Rather, the burden is upon the moving party to prove that no legally cognizable

claim for relief exists.” Id. “A trial court considering a motion to dismiss under Rule

12(b)(6) must liberally construe the complaint so as to do substantial justice.” Cantley v.

Lincoln Cty. Comm’n, 221 W. Va. 468, 470, 655 S.E.2d 490, 492 (2007). Accordingly,

“[t]he trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion,

should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove

no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson,

355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).” Syl. pt. 3, Chapman v. Kane

Transfer Co., 160 W. Va. 530, 236 S.E.2d 207 (1977). A circuit court weighing the

9
sufficiency of a complaint should view the motion to dismiss with disfavor, should presume

that all of the plaintiff’s factual allegations are true, and should construe those facts and the

inferences arising from those facts in the light most favorable to the plaintiff. Chapman,

160 W. Va. at 538, 236 S.E.2d at 212. “The task of a court in ruling on a Rule 12(b)(6)

motion is merely to assess the legal feasibility of the complaint, not to assay the weight of

the evidence which might be offered in support thereof.” Mountaineer Fire & Rescue

Equip., ___ W. Va. at ___, 854 S.E.2d at 882 (citation omitted).

“Taken as a whole, the West Virginia Rules of Civil Procedure establish the

principle that a plaintiff pleading a claim for relief need only give general notice as to the

nature of his or her claim.” Id, ___ W.Va. at ___, 854 S.E.2d at 883. Stated simply, the

West Virginia Rules of Civil Procedure reject the approach that pleading is a game of skill

in which one misstep by counsel may be decisive to the outcome and manifest a preference

for the resolution of disputes on the merits, not on technicalities of pleading.3

A motion to dismiss tests the legal sufficiency of a complaint. Therefore, the

issue for the circuit court is not whether the plaintiff can later prove the case as pleaded,

3
See, e.g., Jaswant Sawhney Irrevocable Tr., Inc. v. D.C., 236 A.3d 401, 405-
06 (D.C. 2020) (The Federal Rules of Civil Procedure “reject the approach that pleading is
a game of skill in which one misstep . . . may be decisive to the outcome and manifest a
preference for resolution of disputes on the merits, not on technicalities of pleading[.]”
(Cleaned up)); Sticklen v. Kittle, 168 W. Va. 147, 163, 287 S.E.2d 148, 157 (1981) (The
Rules of Civil Procedure “reject the approach that pleading is a game of skill in which one
misstep by counsel may be decisive to the outcome and accept the principle that the purpose
of pleading is to facilitate a proper decision on the merits.”).

10
but whether the complaint is legally sufficient to state a claim upon which relief can be

granted. 4 A corollary to this statement is just as obvious: a complaint, standing alone, states

a claim on which relief may be granted whether or not some defense is potentially available

to an opposing party. Rule 8(a) of the West Virginia Rules of Civil Procedure only requires

a complaint to “contain (1) a short and plain statement of the claim showing that the pleader

is entitled to relief, and (2) a demand for judgment for the relief the pleader seeks.” Rule

8(c) places the burden exclusively upon the defendant to “set forth affirmatively” in the

4
See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (“The issue is not
whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims. Indeed it may appear on the face of the pleadings that a
recovery is very remote and unlikely but that is not the test.”); Sanchez v. Hartley, 810 F.3d
750, 756 (10th Cir. 2016) (“[A] well-pleaded complaint may proceed even if it strikes a
savvy judge that actual proof of the alleged facts is improbable, and that a recovery is very
remote and unlikely.”) (Cleaned up); Grayson v. AT & T Corp., 15 A.3d 219, 228–29 (D.C.
2011) (“The only issue on review of a dismissal made pursuant to Rule 12(b)(6) is the legal
sufficiency of the complaint; and a complaint should not be dismissed because a court does
not believe that a plaintiff will prevail on his claim. Indeed it may appear on the face of
the pleadings that a recovery is very remote and unlikely but that is not the test.”) (Cleaned
up); Gustavson v. Wrigley Sales Co., 961 F. Supp. 2d 1100, 1131 (N.D. Cal. 2013) (The
plaintiff “may or may not be able to prove that a reasonable consumer would have been
misled by Defendants’ alleged mislabeling practices if and when this case ever makes it to
trial, but neither Rule 8(a), nor the Supreme Court’s decisions . . . require a plaintiff to
prove her case the moment she files her complaint.”); Acevedo-Torres v. Municipality of
Arecibo, 857 F. Supp. 2d 231, 236 (D.P.R. 2012) (“Although Plaintiff’s claim might not
be successful on the merits, it does survive the motion to dismiss stage.”); Sisemore v.
Master Fin., Inc., 60 Cal. Rptr. 3d 719, 727 (Cal. App. 2007) (“It is not the ordinary
function of a [motion to dismiss] to test the truth of the plaintiff’s allegations or the
accuracy with which he describes the defendant’s conduct. A [motion to dismiss] tests
only the legal sufficiency of the pleading. Thus, as noted, in considering the merits of a
[motion to dismiss] the facts alleged in the pleading are deemed to be true, however
improbable they may be.”); Vogel v. Liberty Mut. Ins. Co., 571 N.W.2d 704, 706 (Wis. Ct.
App. 1997) (“The issue is not whether the plaintiff can prove the case as pled, but whether
the complaint is legally sufficient to state a claim upon which relief can be granted.”).

11
answer any matter “constituting an avoidance or affirmative defense” to the plaintiff’s

complaint. The basic aim of the Rules of Civil Procedure, as expressed in Rule 1, is to

“secure the just, speedy, and inexpensive determination” of every lawsuit, and that goal is

given emphasis by the requirement in Rule 8(f) that complaints, answers, and other

pleadings are to be construed liberally. 5

This Court has long said that a complaint need not anticipate or attempt to

plead around the defenses that might be raised by the defendant, and we did so before the

1938 adoption of the Federal Rules of Civil Procedure and the 1960 adoption of the West

Virginia Rules of Civil Procedure. In 1916, we held that under common-law rules of

pleading, “[t]he general rule is that matters of defense should not be anticipated by the

plaintiff, but that all such matters should be shown by the opposite party in his pleadings.”

Syl. pt. 7, in part, Rhodes v. J.B.B. Coal Co., 79 W. Va. 71, 90 S.E. 796 (1916). The Court

said the same thing in 1875, albeit in a considerably less-elegant manner. See Syl. pt. 1,

Simmons v. W. Va. Insurance Co., 8 W. Va. 474 (1875) (“Matter in defeasance of the

The United States Supreme Court once reflected that the Rules of Civil
5

Procedure were adopted to eliminate “procedural booby traps”:

These rules were designed in large part to get away from some
of the old procedural booby traps which common-law pleaders
could set to prevent unsophisticated litigants from ever having
their day in court. If rules of procedure work as they should in
an honest and fair judicial system, they not only permit, but
should as nearly as possible guarantee that bona fide
complaints be carried to an adjudication on the merits.

Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 373 (1966).

12
plaintiff’s action need not be stated in the declaration; wherever there is a circumstance,

the omission of which is to defeat the plaintiff’s right of action, prima facie well founded,

whether called by the name of a proviso, or a condition subsequent, it must, in its nature,

be a matter of defence, and ought to be shown in the pleading, by the opposite party.”).

Other courts, applying the modern Rules of Civil Procedure, have likewise

universally ruled that “[c]omplaints need not anticipate or attempt to defuse potential

defenses.” U.S. Gypsum Co. v. Indiana Gas Co., 350 F.3d 623, 626 (7th Cir. 2003). “A

complaint states a claim on which relief may be granted whether or not some defense is

potentially available. This is why complaints need not anticipate and attempt to plead

around defenses.” United States v. Northern Trust Co., 372 F.3d 886, 888 (7th Cir. 2004).

See also, Gomez v. Toledo, 446 U.S. 635, 639-40 (1980) (finding “no basis for imposing

on the plaintiff an obligation to anticipate” an affirmative defense like qualified immunity

in a complaint); 6 Nobre on behalf of K.M.C. v. Louisiana Dep’t of Pub. Safety, 935 F.3d

6
Admittedly, without citing Gomez or its progeny, this Court recently
deviated from the general rule and held that when a “complaint fails to adequately plead
specific facts that . . . defeat a qualified immunity defense,” and the circuit court defers
ruling on a motion to dismiss the complaint under Rule 12(b)(6), that order is immediately
appealable. See Syl. pt. 3, W. Va. State Police v. J.H., ___ W. Va. ___, 856 S.E.2d 679
(2021). The Court went on to conclude, based on the limited record presented, that the
plaintiff’s complaint failed to plead specific facts sufficient to show his claim against the
State Police was not precluded by the doctrine of qualified immunity. We take this
opportunity to emphasize that our holding in W. Va. State Police v. J.H. is limited to cases
involving qualified immunity, because in those cases we have insisted upon a “heightened
pleading standard.” See generally, Hutchison v. City of Huntington, 198 W. Va. 139, 149,
479 S.E.2d 649, 659 (1996) (“We believe that in civil actions where immunities are
implicated, the trial court must insist on heightened pleading by the plaintiff.”).

Continued . . .
13
437, 442 (5th Cir. 2019) (“A plaintiff is not required to anticipate or overcome affirmative

defenses, such as expiration of the statute of limitations, in the complaint.”); U.S.

Commodity Futures Trading Comm’n v. Monex Credit Co., 931 F.3d 966, 972 (9th Cir.

2019) (“Rule 8 does not require plaintiffs to plead around affirmative defenses.”); Bd. of

Trustees, Sheet Metal Workers’ Nat’l Pension Fund v. Four-C-Aire, Inc., 929 F.3d 135,

152 (4th Cir. 2019) (“Plaintiffs are not ordinarily required to plead allegations relevant to

potential affirmative defenses to an asserted claim.”); Drippe v. Tobelinski, 604 F.3d 778,

782 (3d Cir. 2010) (“Exhaustion of administrative remedies is an affirmative defense that

need not be specially pleaded by the inmate or demonstrated in the complaint.”); La Grasta

v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004) (“A statute of limitations bar

is an affirmative defense, and plaintiffs are not required to negate an affirmative defense in

Hutchison makes clear that there is a panoply of procedural tools available
to trial courts and practitioners to ensure that the claims in a plaintiff’s complaint are clear
to all, tools far gentler than the punitive act of dismissal. Justice Cleckley, writing for the
Court in Hutchison, identified these varied tools. For instance, if a complaint is “so vague
or ambiguous that a party cannot reasonably be required to frame a responsive pleading,”
then the defendant may ask for, and a trial court may order, a more definite statement under
Rule 12(e). Rule 12(e) permits the plaintiff to respond with “a short and plain statement
of his complaint, a statement that rests on more than conclusions alone.” Hutchison, 198
W. Va. at 150, 479 S.E.2d at 660 (quoting Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir.
1995)). Moreover, Rule 7(a) permits a court to “order a reply to an answer,” thereby
enhancing the plaintiff’s ability to clarify the claims in the complaint. Additionally, the
trial court may compel the plaintiff to file an amended complaint. “Of course, if the
individual circumstances of the case indicate that the plaintiff has pleaded his or her best
case, there is no need to order more detailed pleadings. If the information contained in the
pleadings is sufficient to justify the case proceeding further, the early motion to dismiss
should be denied.” Id. When weighing a proper course, the goal of the trial court should
be the same as that espoused by the Rules of Civil Procedure: to have the case heard on the
merits and not on the pleadings of the parties’ lawyers.

14
[their] complaint. Not surprisingly, our cases say that a Rule 12(b)(6) dismissal on statute

of limitations grounds is appropriate only if it is apparent from the face of the complaint

that the claim is time-barred.”) (Cleaned up).

Put simply, “[c]omplaints need not contain any information about defenses

and may not be dismissed for that omission.” Elizabeth M. Bosek, et al., 4 Cyclopedia of

Federal Procedure § 14:187 (3d ed. 2021). As one federal court said, “[o]rders under Rule

12(b)(6) are not appropriate responses to the invocation of defenses, for plaintiffs need not

anticipate and attempt to plead around all potential defenses. Complaints need not contain

any information about defenses and may not be dismissed for that omission.” Xechem, Inc.

v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004). See also, Isaiah v.

JPMorgan Chase Bank, 960 F.3d 1296, 1304 (11th Cir. 2020) (“A complaint need not

anticipate and negate affirmative defenses and should not ordinarily be dismissed based on

an affirmative defense unless the defense is apparent on the face of the complaint.”); Abbas

v. Dixon, 480 F.3d 636, 640 (2d Cir. 2007) (“The pleading requirements in the Federal

Rules of Civil Procedure . . . do not compel a litigant to anticipate potential affirmative

defenses, such as the statute of limitations, and to affirmatively plead facts in avoidance of

such defenses.”); 71 C.J.S. Pleading § 140 (2021) (“A complaint should not state and

attempt to controvert matters that the defendant might raise in the answer. It is a general

principle, both under the common-law practice and under procedural statutes and rules of

practice, that a plaintiff’s initial pleading need not, and should not, by its averments,

anticipate a defense thereto and negative or avoid it, or negative the existence of defensive

15
matters, or anticipate and negative matters that should come more properly from the other

side.”). 7

The focus of our liberal notice pleading system is to ensure that claims are

determined on their merits, not on the tidiness or artfulness of the plaintiff’s pleadings.

Requiring a plaintiff to plead detailed facts of their claims at the outset, or to reflect on the

defenses that might be interposed in response to those claims, interferes with that goal in

numerous ways.

First, and most importantly, the number of factual details
potentially relevant to any case is astronomical, and requiring
a plaintiff to plead facts that are not obviously important and
easy to catalogue would result in “needless controversies”
about what is required that could serve only to delay or prevent
trial. Most details are more efficiently learned through the
flexible discovery process. “Instead of lavishing attention on
the complaint until the plaintiff gets it just right, a district court
should keep the case moving.” Bennett v. Schmidt, 153 F.3d
516, 518 (7th Cir. 1998); see also Dioguardi v. Durning, 139
F.2d 774, 775 (2d Cir. 1944) (describing attempts to force all
facts into the complaint as “judicial haste which in the long run
makes waste”). Second, a plaintiff might sometimes have a
right to relief without knowing every factual detail supporting
its right; requiring the plaintiff to plead those unknown details

7
Rule 12(f) of both the Federal and the West Virginia Rules of Civil
Procedure permits a court to “strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” One treatise suggests that Rule
12(f) motions to strike “are not favored” and are often “considered purely cosmetic or ‘time
wasters.’” Arthur R. Miller, et al., 5C Federal Practice & Procedure § 1382 (2020).
However, the treatise notes that under Rule 12(f), “[a]llegations in a complaint that
anticipate defenses . . . may be stricken.” Id. See McNeil Const. Co. v. Livingston State
Bank, 265 F.2d 308, 312 n.8 (9th Cir. 1959) (Striking allegations in a complaint under Rule
12(f) because “[t]he obvious purpose of these allegations was to anticipate and avoid
defenses— something a complaint is not required to do.”).

16
 before discovery would improperly deny the plaintiff the
opportunity to prove its claim.

E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 779–80 (7th Cir. 2007) (cleaned

up). See also Richard L. Marcus, The Revival of Fact Pleading Under the Federal Rules

of Civil Procedure, 86 Colum. L. Rev. 433, 468 (1986) (“Where the court requires detailed

support for a legal conclusion [in a complaint], analysis of the details may permit the court

to conclude confidently that the plaintiff has no case. But where the plaintiff is unable to

provide details because only the defendant possesses such information, no such confidence

is possible. To the contrary, it may be that the defendant has so effectively concealed his

wrongdoing that the plaintiff can unearth it only with discovery. To insist on details as a

prerequisite to discovery is putting the cart before the horse.”). One commentator

suggested that, if courts abandon the “long-proscribed form of anticipatory pleading” and

require a plaintiff to “plead self-protectively,” then complaints might soon resemble

“‘phone book’ pleading.” Arthur R. Miller, From Conley to Twombly to Iqbal: A Double

Play on the Federal Rules of Civil Procedure, 60 Duke L.J. 1, 29 (2010).

Further, Rule 8(b) requires a defendant’s answer to “admit or deny the

averments” upon which the plaintiff relies. When a plaintiff incorporates an allegation into

a complaint regarding an anticipated defense, “the defendant is put in somewhat of a

quandary as to how to respond” in the answer: if the defendant admits or denies the

allegation regarding the defense, an improperly crafted response may constitute an

“unintended waiver” of the defense. 5 Fed. Prac. & Proc. Civ. § 1276 (3d ed. 2020).

Hence, “the defendant is well advised to plead the matter affirmatively under Rule 8(c)[.]”

17
Id. See, e.g., Wilbert Funeral Servs., Inc. v. Custom Servs. Unlimited, LLC, No. 10 C 3272,

2010 WL 4627663, at *2 (N.D. Ill. Nov. 5, 2010) (“Just as a plaintiff can plead itself out

of court by making factual allegations that defeat its claim, . . . a defendant’s allegations

can fatally undermine an affirmative defense.”). In other words, requiring a plaintiff to

actively plead allegations anticipating defenses that may be mounted by the defendant not

only unnecessarily complicates the defendant’s ability to answer the complaint, but it also

may unintentionally cause the defendant to imperil its available defenses.

Accordingly, we hold that under Rule 8(a) of the West Virginia Rules of

Civil Procedure, a plaintiff’s complaint need not anticipate or attempt to plead around

potential defenses that may be raised by the defendant. A complaint is not required to

contain any information about defenses and may not be dismissed, under the guise of Rule

12(b)(6), for that omission.

In the instant case, the circuit court violated this cardinal rule of pleading,

and it dismissed the complaint because the plaintiff failed to anticipate and plead facts to

rebut potential defenses available to the defendant. The circuit court concluded that

because the complaint did not allege that the plaintiff was invited onto the defendant’s

property, then the complaint is an “admission [that the plaintiff] meets the definition of a

trespasser[.]” Similarly, because the complaint did not allege that the “golf balls and other

objects and debris” were not open and obvious to the plaintiff, then the circuit court seems

to have presumed that the hazards were open, obvious, and should have been avoided by

the plaintiff. As a matter of law, the plaintiff’s only obligation was to plead a claim. The

18
plaintiff was under no obligation to plead facts in anticipation of the defendant’s theory of

the case.

We now turn to the legal theories that the circuit court ruled that the plaintiff

was required to anticipate in his complaint.

B. Duty of Care Owed to the Plaintiff

The parties dispute the duty of care owed by the defendant to the plaintiff.

The plaintiff contends, as he alleged in his complaint, that the defendant owed him a duty

of due care. The defendant’s argument is confusing but seems to allege either that the

plaintiff’s complaint failed to allege that the plaintiff was not a trespasser, or that the

evidence asserted in the defendant’s motion to dismiss sufficiently showed the plaintiff

was a trespasser. Either way, the defendant argues that the circuit court correctly found the

plaintiff was a trespasser and that the defendant owed the plaintiff no duty of care.

In any negligence or tort case, a plaintiff is required to show four basic

elements: duty, breach, causation, and damages. See Carter v. Monsanto Co., 212 W.Va.

732, 737, 575 S.E.2d 342, 347 (2002) (“[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.”). Attached to the West Virginia Rules of Civil Procedure is an “Appendix

of Forms,” and these forms demonstrate “the simplicity and brevity of statement which the

19
rules contemplate” for a plaintiff who is drafting a complaint. Form 9 of the Appendix

outlines that a negligence complaint must only allege those four basic elements. 8

We established the standard of care for a premises liability action in Mallet

v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (1999). This Court stated in Syllabus Point 4

of that case that “landowners or possessors . . . 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.” Under this formula, a typical visitor (who, prior to Mallet, would have

been classified as either an invitee or a licensee) should be accorded some measure of due

care; a trespasser, whose presence on a property is never anticipated, expected or

foreseeable, is afforded no duty of care whatsoever.

The West Virginia Rules of Civil Procedure, Form 9, provides the following
8

example of a complaint for negligence encompassing duty, breach, causation, and
damages:

1. On June 1, 1955, in a public highway called Washington
Street in Charleston, West Virginia, defendant negligently
drove a motor vehicle against plaintiff who was then crossing
said highway.

2. As a result plaintiff was thrown down and had his leg broken
and was otherwise injured, was prevented from transacting his
business, suffered great pain of body and mind, and incurred
expenses for medical attention and hospitalization in the sum
of one thousand dollars.

Wherefore plaintiff demands judgment against defendant in the
sum of ten thousand dollars and costs.

20
 In Mallet, we found that in any premises liability case the duty of care is

guided by Justice Cardozo’s celebrated maxim that “[t]he risk reasonably to be perceived

defines the duty to be obeyed[.]” Palsgraf v. Long Island R. Co., 162 N.E. 99, 100 (N.Y.

1928). See Mallet, 206 W. Va. at 155, 522 S.E.2d at 446. Hence, the foreseeability of an

injury is dispositive of the duty owed:

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?

Syl. pt. 3, Sewell v. Gregory, 179 W.Va. 585, 371 S.E.2d 82 (1988). See also, Aikens v.

Debow, 208 W. Va. 486, 490-91, 541 S.E.2d 576, 580-81 (2000) (discussing the theoretical

underpinnings of the duty owed by any tortfeasor). We then offered the following

guidelines for a trier of fact to measure a defendant’s duty of care toward a typical visitor:

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.

Syl. pt. 6, Mallet, 206 W. Va. at 146, 522 S.E.2d at 437.

In Mallet, we repeatedly emphasized that a landowner or possessor owed no

duty of care to a trespasser, and only had a duty to refrain from causing willful or wanton

injury. We have defined a trespasser as “one who goes upon the property or premises of

21
another without invitation, express or implied, and does so out of curiosity, or for his own

purpose or convenience, and not in the performance of any duty to the owner.” Syl. pt. 1,

Huffman v. Appalachian Power Co., 187 W.Va. 1, 415 S.E.2d 145 (1991). As Justice

Starcher once noted, “a landowner doesn’t owe a trespasser the time of day.” Self v. Queen,

199 W. Va. 637, 642, 487 S.E.2d 295, 300 (1997) (Starcher, J., concurring). “Reasonable

care does not require actions to protect or warn visitors whose coming is not known or

reasonably foreseeable. Since trespassers . . . are often unforeseeable visitors, the standard

of reasonable care under the circumstances will not often result in any new liability.” Dan

B. Dobbs, et al., The Law of Torts § 278 (2nd ed. 2015).

As we noted above in Syllabus Point 6 of Mallet, a defendant’s duty of care

is, in part, governed by “the time, manner and circumstances under which the injured party

entered the premises.” The general rule in society is that people have an implicit invitation

during typical waking hours to enter another’s land to knock on a front door – unless the

circumstances (like fencing and no-trespassing signs) justify a contrary finding. “[T]he

knocker on the front door is treated as an invitation or license to attempt an entry, justifying

ingress to the home by solicitors, hawkers and peddlers[.]” Breard v. City of Alexandria,

La., 341 U.S. 622, 626 (1951). 9 As one court found,

9
The Breard Court ruled that a city ordinance forbidding “solicitors,
peddlers, hawkers, itinerant merchants or transient vendors of merchandise” from entering
private property did not violate the First Amendment. The decision was abrogated by
Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980), where
the Supreme Court found a city ordinance prohibiting door-to-door solicitations of
charitable contributions violated the First Amendment.

22
 the construction of a driveway or a walkway leading to the
entrance of a residence may, in the absence of notice to the
contrary, be reasonably construed . . . as an expression of the
landowner’s consent to . . . entry thereon for the purpose of
approaching and entering the house on any lawful mission.

Smith v. VonCannon, 197 S.E.2d 524, 529 (N.C. 1973).

The Restatement of the Law of Torts (Second) explains the basis for this

implicit invitation: “‘The well-established usages of a civilized and Christian community’

entitle everyone to assume that a possessor of land is willing to permit [a person] to enter

for certain purposes until a particular possessor expresses unwillingness to admit him.”

Restatement (Second) of Torts, § 330, cmt. e (1965). As a society, landowners should

usually anticipate and offer due care in anticipation of daylight visits by people such as a

traveler overtaken by a violent storm, a canvasser at the door of a private house, a social

guest, or those in search of children, servants, or other persons. Id. Hence, “a private

salesperson—absent no-solicitation signs, no-trespass signs, etc.—has implicit permission

to approach the house to conduct business with the inhabitants” but “the salesperson must

actually engage or attempt to engage the house [owner], or else be seen as a trespasser,

snoop, or peeping tom[.]” Commonwealth v. Ousley, 393 S.W.3d 15, 29 (Ky. 2013).

More specifically, the United States Supreme Court has described the

implied license as permission for a visitor “to approach the home by the front path, knock

promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.”

23
Florida v. Jardines, 569 U.S. 1, 8 (2013). 10 The Supreme Court noted it does not take

“fine-grained legal knowledge” to understand this permission: “it is generally managed

without incident by the Nation’s Girl Scouts and trick-or-treaters.” Id. The principal

limitation on this implied license is the time of day. “Courts have emphasized that the

implied license to visit is generally understood to extend during daylight hours.” United

States v. Lundin, 47 F.Supp.3d 1003, 1013 (N.D.Cal. 2014); see also Jardines, 569 U.S. at

20 (Alito, J., dissenting) (“Nor, as a general matter may a visitor come to the front door in

the middle of the night without an express invitation.”). This nighttime dissolution of the

implied license arises from the general disapproval by a civilized community of late-night

intrusions. As the Supreme Court of Kentucky has noted, “Girl Scouts, pollsters, mail

carriers, [and] door-to-door salesmen just do not knock on one’s door at midnight; and if

10
Jardines is one of many Fourth Amendment cases extending the civil,
implied license discussed above into the criminal context. Called the “knock and talk”
rule, courts hold that any individual, including a law enforcement officer without a warrant,
has an implicit license to approach the front door of a residence to knock and make
inquiries. See, e.g., State v. Dorsey, 234 W. Va. 15, 19, 762 S.E.2d 584, 588 (2014).
However, regardless of whether the person knocking is a private citizen or a police officer,
the homeowner has no obligation to open the door or speak to the person knocking. See
Kentucky v. King, 563 U.S. 452, 469-70 (2011) (“When law enforcement officers who are
not armed with a warrant knock on a door, they do no more than any private citizen might
do. And whether the person who knocks on the door and requests the opportunity to speak
is a police officer or a private citizen, the occupant has no obligation to open the door or to
speak.”).

24
they do, they are more likely to be met by an enraged (and possibly armed) resident than

one with a welcoming smile.” Ousley, 393 S.W.3d at 30. 11

The question of a person’s status on property, that is, whether the person is

there with some explicit or implicit right or, having none, is a trespasser, is generally a

question of fact governed by the circumstances of the case. In Ragonese v. Racing Corp.

of W. Va., 234 W. Va. 706, 769 S.E.2d 495 (2015), we examined a situation where a

plaintiff was on a property with permission, but the plaintiff allegedly deviated from that

permission and took on the status of a trespasser. In Ragonese, rather than cross a casino’s

property by way of a sidewalk, skyway bridge, or roadway, the plaintiff took a shortcut

through a line of shrubbery and down a steep, grassy hillside, whereupon he stepped off a

tall retaining wall and was seriously injured. While the defendant insisted that the

11
One treatise recites cases holding that property owners owed a duty of care
to entrants who

entered premises to seek a favor, to use a telephone, to ask
directions, to do volunteer work, to use recreational facilities
without asking specific permission, to recover an item of
personal property left on the premises, to recover an item of
personal property left elsewhere but retrieved by the landowner
as a favor to the entrant, to obtain some article of value given
to the . . . [entrant] by the occupant, or while retrieving a dog
or other animal.

Louis A. Lehr, Jr., 2 Premises Liability 3d § 37:11 (2020) (footnotes omitted). The treatise
also notes that “[a] stranded motorist who approaches a nearby residence to ask to use a
telephone or to borrow a gasoline can,” a “motorist who drives onto another’s driveway,
and the motorist’s passengers,” and “[d]oor-to-door solicitors” are entitled to a duty of care
because they all have “an implied privilege to approach the house.” Id.

25
plaintiff’s deviation from the walkways, as a matter of law, converted the plaintiff to a

trespasser, we concluded that under modern premises liability law the plaintiff’s status was

a question of fact for a jury. We said that, “[w]here factual issues exist as to whether an

invitee has forfeited his or her status by going to a portion of the premises to which the

invitation of usage may not extend, those issues should be resolved by a jury.” Syl. pt. 3,

Id. Our holding in Ragonese is, however, bound to the unique facts of that case. To clarify

our law, we now hold as a general proposition that whether an entrant to property is a

trespasser is a question of fact.

In the instant case, the plaintiff’s complaint alleged the defendant owned or

controlled the porch and steps at issue; alleged the defendant “had a duty to maintain the

steps in a reasonably safe condition”; alleged the defendant “breached said duty by failing

to remove golf balls and other objects and debris” from the porch and steps; and alleged

that as a direct and proximate cause of the defendant’s breach of her duty, the plaintiff was

injured and has incurred damages. Reading all the allegations and reasonable inferences

in the complaint in favor of the plaintiff, we see nothing in the complaint to support the

defendant’s assertion the plaintiff was a trespasser. Nothing in the complaint suggests that

the plaintiff approached the defendant’s front door outside of typical waking hours, or

deviated from approaching the front door, knocking and then leaving, or bypassed gates

and no-trespassing signs. The defendant’s allegations that the plaintiff was told to never

26
visit the defendant’s house are factual matters outside of the complaint and should not have

been considered by the circuit court at this stage in the proceedings. 12

The complaint satisfies the requirements of Rule 8(a) because it gives firm

and fair notice of the basis for the plaintiff’s suit. The plaintiff clearly asserted that the

defendant owed him a duty of care, he alleged a breach of that duty, and he claimed to have

been injured as a result of the breach. The plaintiff has, therefore, stated a claim. The

plaintiff had no burden to assert any additional facts or claims to anticipate the defendant’s

potential theory that the plaintiff was a trespasser. If the defendant wants to test the ability

of the plaintiff to prove what he has alleged, she must present a motion for summary

judgment or proceed to trial.

12
Because the factual assertions in the defendant’s motion to dismiss were
not buttressed by any proof (such as affidavits or documentation) they should have been
disregarded by the circuit court. However, if the defendant’s counsel had presented
evidence, and the circuit court had not rejected that evidence, then the circuit court’s course
would have been dictated by Rule 12(b)(7), which mandates that the motion be treated as
one for summary judgment:

If, on a motion asserting the defense numbered (6) to dismiss
for failure of the pleading to state a claim upon which relief can
be granted, matters outside the pleading are presented to and
not excluded by the court, the motion shall be treated as one
for summary judgment and disposed of as provided in Rule 56,
and all parties shall be given reasonable opportunity to present
all material made pertinent to such a motion by Rule 56.

W. Va. R. Civ. Pro. Rule 12(b)(7). See also U. S. Fid. & Guar. Co. v. Eades, 150 W. Va.
238, 144 S.E.2d 703 (1965); Forshey v. Jackson, 222 W.Va. 743, 671 S.E.2d 748 (2008).

27
 Accordingly, we conclude that the circuit court erred in dismissing the

complaint under Rule 12(b)(6) because the plaintiff clearly stated a claim in his complaint

that the defendant owed him a duty of due care.

C. Was the Hazard Open and Obvious?

In Hersh v. E-T Enterprises, Ltd. P’ship, 232 W. Va. 305, 752 S.E.2d 336

(2013), this Court abolished the common-law “open and obvious” doctrine. However, in

2015, the Legislature abrogated the common law expressed in Hersh and expressly

reinstated the doctrine by enacting West Virginia Code § 55-7-28(a). The statute provides:

A possessor of real property, including an owner, lessee
or other lawful occupant, owes no duty of care to protect others
against dangers that are open, obvious, reasonably apparent or
as well known to the person injured as they are to the owner or
occupant, and shall not be held liable for civil damages for any
injuries sustained as a result of such dangers.

We have noted that, “[w]here there is any doubt about the meaning or intent of a statute in

derogation of the common law, the statute is to be interpreted in the manner that makes the

least rather than the most change in the common law.” Syl. pt. 5, Phillips v. Larry’s Drive-

In Pharmacy, Inc., 220 W. Va. 484, 647 S.E.2d 920 (2007). This is because “[s]tatutes in

derogation of the common law are strictly construed.” Syl. pt. 1, Kellar v. James, 63 W.

Va. 139, 59 S.E. 939 (1907). See also Syl. pt. 3, Bank of Weston v. Thomas, 75 W. Va.

321, 83 S.E. 985 (1914) (“Statutes in derogation of the common law are allowed effect

only to the extent clearly indicated by the terms used. Nothing can be added otherwise

than by necessary implication arising from such terms.”),

28
 The defendant alleged in her motion to dismiss that the object which caused

the plaintiff’s fall was “open and obvious” and should have been seen and avoided by the

plaintiff. The defendant argued, under West Virginia Code § 55-7-28(a), that because the

plaintiff did not avoid the “open, obvious, [and] reasonably apparent” danger, she owed

him no duty of care and his complaint must be dismissed. The circuit court agreed and, in

its dismissal order, rejected the plaintiff’s complaint and declared that “[a] golf ball, given

the very nature of its design, is typically easily seen,” and that “[a] reasonably prudent

person would have seen a golf ball on the steps . . . and exercised reasonable care in

avoiding such an item.”

The plaintiff argues that the circuit court erred because, as the plaintiff’s

complaint is drafted, the question of whether or not the hazard was open and obvious was

a question of fact and not of law. We agree. We hold that under West Virginia Code § 55-

7-28(a), whether a danger was open, obvious, reasonably apparent or as well known to the

person injured as it was to the owner or occupant is a question of fact. Furthermore, the

question of whether the danger or hazard is one contemplated by the statute is a defense

that must be raised by the defendant, and not by the plaintiff in his or her complaint. It was

error for the circuit court to have dismissed the complaint merely because the plaintiff

omitted any allegation that the object that caused his fall was not open, obvious, reasonably

apparent, or as well known to him as it was to the defendant.

More importantly, it was error for the circuit court to make factual

determinations in its dismissal order. An order ruling on a Rule 12(b)(6) motion is no place

29
to make factual findings, or to dismiss a complaint because the court believes that the odds

of the plaintiff recovering damages is very remote. The complaint gives the defendant fair

notice that the plaintiff alleges he fell and was injured because the defendant “fail[ed] to

remove golf balls and other objects and debris from the surface” of her steps and porch.

Whether those hazards were seen or seeable from the perspective of the plaintiff are

questions of fact for future resolution, and not resolution by way of a motion to dismiss the

complaint.

We therefore conclude that the circuit court erred in ruling that, under West

Virginia Code § 55-7-28(a), the complaint failed to state a claim upon which relief could

be granted.

IV. Conclusion

The circuit court erred in dismissing the plaintiff’s complaint in its October

30, 2019, order. The complaint states a claim as required by Rule 8(a) and dismissal under

Rule 12(b)(6) was improper. The order is reversed, the plaintiff’s complaint is reinstated,

and the case is remanded to the circuit court for further proceedings.

Reversed and remanded.

30