Joey J. Butner v. Highlawn Memorial Park Company, A West Virginia Corporation, and Highlawn Funeral Chapel, Inc., A West Virginia Corporation

FILED
No. 21-0387, Butner v. High Lawn Memorial Park Company, et al. November 17, 2022
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
Armstead, Justice, concurring: OF WEST VIRGINIA

I concur in the majority’s ultimate decision to affirm the circuit court’s grant

of summary judgment to Respondents on all claims asserted by Petitioner. I further concur

with the majority’s holding that summary judgment was appropriate as to whether the

landowner breached a duty to the petitioner because the only evidence proffered by the

petitioner to establish such a duty consisted of unsworn and unverified documents and

alleged oral statements which are insufficient to meet the Petitioner’s burden pursuant to

Rule 56 of the Rules of Civil Procedure.

I write separately simply to clarify what I believe is the appropriate

application of the open and obvious doctrine outlined in West Virginia Code § 55-7-28(a)

in light of the circuit court’s findings regarding the doctrine. The open and obvious statute

makes clear that “a possessor of real property, including an owner, lessee or other lawful

occupant,” owes “no duty of care” to parties injured on the premises in four (4) separate

instances:

(1) if the danger is open;

(2) if the danger is obvious;

(3) if the danger is reasonably apparent; or

(4) if the danger was as well known to the person injured as it was to the owner or

occupant.

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W. Va. Code § 55-7-28(a) (emphasis added).

If the danger is open, obvious, or reasonably apparent, the owner or

occupant’s knowledge of the danger is irrelevant to the question of whether the landowner

or occupant owes a duty of care to a plaintiff. Moreover, under the fourth circumstance,

where a danger is “as well known” to the person injured as it is to the owner or occupant,

such provision does not establish any duty on the owner to know or investigate any dangers.

It merely provides that an injured party cannot assert a duty on the part of an owner or

occupant of the premises for a danger that was as “well known” to the injured party as it

was to such owner or occupant. I write separately to clarify that no such duty is established

by the open and obvious statute.

In 2013, this Court judicially abolished the open and obvious doctrine. See

Hersh v. E-T Enterprises, Ltd. Partnership, 232 W. Va. 305, 752 S.E.2d 336 (2013). In

response, in 2015, the Legislature “expressly reinstated the doctrine by enacting West

Virginia Code § 55-7-28(a).” Gable v. Gable, 245 W. Va. 213, 228, 858 S.E.2d 838, 853

(2021). Subsection (c) of West Virginia Code § 55-7-28 provides:

(c) It is the intent and policy of the Legislature that this section
reinstates and codifies the open and obvious hazard doctrine in
actions seeking to assert liability against an owner, lessee or
other lawful occupant of real property to its status prior to the
decision of the West Virginia Supreme Court of Appeals in the
matter of Hersh v. E-T Enterprises, Limited Partnership, 232
W. Va. 305 [752 S.E.2d 336] (2013). In its application of the
doctrine, the court as a matter of law shall appropriately apply
the doctrine considering the nature and severity, or lack
thereof, of violations of any statute relating to a cause of action.

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West Virginia Code § 55-7-28(c).

While this majority acknowledges the Legislature’s express desire to

reinstate the open and obvious hazard doctrine, I am concerned by the majority’s

interpretation of portions of the circuit court’s holding. Specifically, the majority states:

We disagree with the court’s analysis, which turns the open and
obvious danger doctrine inside out and creates a lose-lose
proposition for any plaintiff: if the plaintiff can see or
otherwise perceive the danger, he or she loses because the
danger is open and obvious; and if the plaintiff cannot see or
otherwise perceive the danger, he or she still loses because a
priori the defendant can’t see or perceive it either and therefore
has no duty of care to the plaintiff.

The majority further concludes: “We therefore reject the circuit court’s

construction of the statute; evidence that a plaintiff did not see or otherwise perceive the

danger does not mean, as a matter of law, that the defendant could not have been aware of

it either.”

I respectfully differ from the majority in my interpretation of the circuit

court’s opinion. I do not believe the circuit court based its finding that the owner of the

premises had no knowledge of any alleged dangerous conditions on the property solely on

whether the plaintiff knew of such dangers. In fact, the circuit court found that, “[i]n the

present case, the evidence reveals that at the time of the incident, the danger of the hidden

hole was not visible to Plaintiff, or to anyone else, including Defendants.” (Emphasis

added). The circuit court further held that “[s]ince the Defendants had no knowledge of

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the defect or dangerous condition on their property, the Court finds it would be impossible

for Defendants to have prevented the Plaintiff from discovering the defect or condition.”

Clearly, the circuit court’s finding that the landowner was not aware of the

holes on the property was based on the evidence presented before the circuit court. This is

contrary to the majority’s characterization that the circuit court created a lose-lose scenario

by merely assuming that because the plaintiff below could not see the holes, neither could

the landowner. Here, the circuit court found, having fully considered the evidence

presented by the parties at the summary judgment stage, that there was no evidence that

the landowner was aware of any dangerous condition.

I agree that the circuit court was correct to grant summary judgment to

Respondents on all claims asserted by Petitioner because Petitioner did not produce

evidence in compliance with the provisions of Rule 56 in opposition to Respondents’

motion for summary judgment sufficient to establish that there is a genuine issue for trial

on the issue of negligence. I further concur with the majority’s holding that unsworn and

unverified documents provided by Petitioner were not of sufficient evidentiary reliability

to be given weight in the circuit court’s determination of whether to grant a motion for

summary judgment.

Because the majority has touched on the respective knowledge of an alleged

hazard by the property owner or occupant and the party alleging injury as such knowledge

relates to the open and obvious doctrine, I simply wish to clarify what I believe is the proper

meaning of the statute. Again, I write separately merely to caution and reiterate that West

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Virginia Code § 55-7-28(a) does not require a court to consider the knowledge of the owner

or occupant when considering whether a danger is open, obvious, or reasonably apparent.

Moreover, even where the fourth scenario outlined by § 55-7-28(a) is implicated, and “a

danger is as well known to the person injured as it is to the owner or occupant,” such

provision does not, in and of itself, establish any duty on the part of the owner or occupant

to know or investigate any such alleged dangers. Such provisions only provides that where

the facts show that the danger was as “well known” to the injured party as to the owner or

occupant, such owner or occupant owes no duty to the injured party.

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