David Ragonese v. Racing Corporation of West Virginia, etc. ( 2015 )

No. 14-0258 – David Ragonese v. Racing Corporation of West Virginia, d/b/a Mardi
Gras Casino and Resort
FILED
February 12, 2015
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Justice Ketchum, concurring:
I agree that the defendant was not entitled to summary judgment. As the
parties presented their case, there was a jury issue presented as to whether the plaintiff
was a trespasser.
Before the summary judgment hearing the defendant withdrew its
contention that no duty of care was owed to the plaintiff because the steep hill and wall
he traversed were “open and obvious” defects. The defendant withdrew these grounds
for summary judgment due to this Court’s opinion in Hersh v. E-T Enterprises, 232
W.Va. 305, 752 S.E.2d 336 (2013).
If the open and obvious issue had been presented to the circuit court, I
believe the defendants would have been entitled to summary judgment.
Hersh makes clear that the owner of the premises is not an insurer of an
invitee’s safety; the owner is not responsible for every slip and fall; whether a premises
owner owes someone a duty of care is usually a question of law for the trial court;1 and a
landowner has no duty to eliminate every potential hazard, but rather only has a duty to
1
See also Syllabus Point 5, Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d
576 (2000) (“The determination of whether a defendant in a particular case owes a duty
to the plaintiff is not a factual question for the jury; rather the determination of whether a
plaintiff is owed a duty of care by a defendant must be rendered by the court as a matter
of law.”).
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ameliorate the risk posed by a hazard where it is reasonably foreseeable that harm is
likely to result from the hazard. Hersh v. E-T Enterprises, Ltd. P'ship, 232 W.Va. at 317,
752 S.E.2d at 348.
Here, it is undisputed that the steep bank with a six-foot high retaining wall
at the bottom of the bank was a hazard that the plaintiff knew existed. To ameliorate the
risk posed by the hazard, the defendant built two walkways around the steep bank and
six-foot high wall. These walkways eliminated the need for anyone to pass through a row
of bushes, walk down the open-for-all-to-see and obviously steep bank and fall off the
six-foot high wall.
The defendant met its duty of care toward the plaintiff, taking indisputably
reasonable steps to ameliorate the risk posed by the hazard. The defendant met its duty
of care, as set out in Hersh. The plaintiff blithely failed to exercise self-protective care
(and by-passed the defendant’s reasonable steps to ameliorate the hazard) when he
stepped off the sidewalk, walked through a row of bushes, descended the steep slope and
fell over the wall.
I believe that the defendant would have been entitled to summary judgment
if they had not withdrawn their open and obvious contention after Hersh was issued.
Although the defendant would have been entitled to summary judgment,
this Court should consider adopting a new point of law to clarify that landowners who
build sidewalks around open and obvious hazards have breached no duty of care to a
plaintiff who leaves the sidewalk and is injured by the hazard. Other courts have
concluded that if a landowner
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provides a clear means of ingress and egress and an invitee
strays off the normal pathway onto an area that is obviously
not reserved for that purpose, the landowner has not breached
its duty of “reasonable care.” When a pathway for normal
access is made available to an invitee and the dangers of
straying off the clear path are, as here, open and obvious, the
premise possessor owes no duty to warn or protect such an
invitee.
Buhalis v. Trinity Continuing Care Servs., 296 Mich. App. 685, 689, 822 N.W.2d 254,
256 (2012)
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