Roof Service of Bridgeport, Inc. v. Robert Joseph Trent and Charlotte Trent ( 2020 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2020 Term
FILED
November 20, 2020
released at 3:00 p.m.
No. 19-0200 EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
ROOF SERVICE OF BRIDGEPORT, INC.,
Defendant Below/Petitioner
v.
ROBERT JOSEPH TRENT and CHARLOTTE TRENT,
Plaintiffs Below/Respondents
Appeal from the Circuit Court of Harrison County
The Honorable Christopher McCarthy, Judge
Civil Action No. 16-C-333-3
AFFIRMED
Submitted: October 6, 2020
Filed: November 20, 2020
Ancil G. Ramey, Esq. Scot S. Dieringer, Esq.
Steptoe & Johnson PLLC Clarksburg, WV
Huntington, WV Counsel for Respondents
Counsel for Petitioner
JUSTICE WORKMAN delivered the Opinion of the Court.
CHIEF JUSTICE ARMSTEAD AND JUSTICE JENKINS dissent and reserve the right
to file separate opinions.
SYLLABUS BY THE COURT
1. “In reviewing challenges to findings and rulings made by a circuit
court, we apply a two-pronged deferential standard of review. We review the rulings of
the circuit court concerning a new trial 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.” Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).
2. “Although the ruling of a trial court in granting or denying a motion
for a new trial is entitled to great respect and weight, the trial court’s ruling will be reversed
on appeal when it is clear that the trial court has acted under some misapprehension of the
law or the evidence.” Syl. Pt. 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225
S.E.2d 218 (1976).
3. “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.” Syl. Pt.
4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).
4. “The appellate standard for review for an order granting or denying a
renewed motion for 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.” Syl. Pt. 1, Fredeking v. Tyler,
224 W. Va. 1, 680 S.E.2d 16 (2009).
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5. “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.” Syl. Pt. 2, Fredeking v. Tyler, 224 W.Va. 1, 680 S.E.2d 16 (2009).
6. “In determining whether there is sufficient evidence to support a
verdict the court should: (1) consider the evidence most favorable to the prevailing party;
(2) assume that all conflicts in the evidence were resolved by the jury in favor of the
prevailing party; (3) assume as proved all facts which the prevailing party’s evidence tends
to prove; and (4) give to the prevailing party the benefit of all favorable inferences which
reasonably may be drawn from the facts proved.” Syl. Pt. 5, Orr v. Crowder, 173 W.Va.
335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981 (1984).
7. “An agent or employee can be held personally liable for his own torts
against third parties and this personal liability is independent of his agency or employee
relationship. Of course, if he is acting within the scope of his employment, then his
principal or employer may also be held liable.” Syl. Pt. 3, Musgrove v. Hickory Inn, Inc.,
168 W.Va. 65, 281 S.E.2d 499 (1981).
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8. “Whether an act by a servant is within the scope of employment is
determined by the relation which the act bears to the employment.” Syl. Pt. 1, Cochran v.
Michaels, 110 W.Va. 127, 157 S.E. 173 (1931).
9. “An act specifically or impliedly directed by the master, or any
conduct which is an ordinary and natural incident or result of that act is within the scope
of employment.” Syl. Pt. 2, Cochran v. Michaels, 110 W.Va. 127, 157 S.E. 173 (1931).
10. “There are four general factors which bear upon whether a master-
servant relationship exists for purposes of the doctrine of respondeat superior: (1)
Selection and engagement of the servant; (2) Payment of compensation; (3) Power of
dismissal; and (4) Power of control. The first three factors are not essential to the existence
of the relationship; the fourth, the power of control, is determinative.” Syl. Pt. 5 Paxton v.
Crabtree, 184 W.Va. 237, 400 S.E.2d 245 (1990).
11. “An injury incurred by a workman in the course of his travel to his
place of work, and not on the premises of the employer, does not give right to participation
in such [Workers Compensation] fund, unless the place of injury was brought within the
scope of employment by an express or implied requirement in the contract of employment
of its use by the servant in going to and returning from work.” Syl. Pt. 2, De Constantin v.
Pub. Serv. Comm’n, 75 W.Va. 32, 83 S.E. 88 (1914).
iii
12. “Where an injury is of such character as to be obvious, the effects of
which are reasonably common knowledge, it is competent to prove future damages either
by lay testimony from the injured party or others who have viewed his injuries, or by expert
testimony, or from both lay and expert testimony, so long as the proof adduced thereby is
to a degree of reasonable certainty. But where the injury is obscure, that is, the effects of
which are not readily ascertainable, demonstrable or subject of common knowledge, mere
subjective testimony of the injured party or other lay witnesses does not provide sufficient
proof; medical or other expert testimony is required to establish the future effects of an
obscure injury to a degree of reasonable certainty.” Syl. Pt. 11, Jordan v. Bero, 158 W.Va.
28, 210 S.E.2d 618 (1974).
13. “Courts must not set aside jury verdicts as excessive unless they are
monstrous, enormous, at first blush beyond all measure, unreasonable, outrageous, and
manifestly show jury passion, partiality, prejudice or corruption.” Syl. Pt., Addair v.
Majestic Petroleum Co., Inc., 160 W.Va. 105, 232 S.E.2d 821 (1977).
iv
WORKMAN, Justice:
The Petitioner, Roof Service of Bridgeport, Inc. (hereinafter “Roof Service”),
appeals from an order denying its motion for judgment as a matter of law or, in the
alternative, for a new trial entered on February 15, 2019, by the Circuit Court of Harrison
County, West Virginia, following a jury trial in a personal injury action brought by the
Respondents, Robert Joseph Trent and Charlotte Trent (hereinafter “Mr. and/or Mrs.
Trent”). The action arose from an incident on June 9, 2015, when Mr. Trent, while at the
sidewalk by the street in front of his home, was severely injured when he was struck and
run over by a truck owned and operated by Bruce Wilfong, a foreman and employee of
Roof Service. Mr. Wilfong was backing his truck down the sidewalk for the purpose of
retrieving scrap metal debris from the roof project that Roof Service had contracted with
Mr. and Mrs. Trent to perform on their home. Following deliberation, the jury returned a
verdict finding that Mr. Wilfong was acting within the scope of his employment and
apportioning one hundred percent of the fault for the incident to Mr. Wilfong. The jury
awarded $181,000 in largely stipulated medical expenses; $250,000 for Mr. Trent’s past,
present, and future physical pain, mental anguish, and emotional distress; $250,000 for Mr.
Trent’s present and future loss of enjoyment of life; and $250,000 for Mrs. Trent’s loss of
spousal consortium.
Roof Service timely filed its post-trial motion and it is from the order denying
the motion that Roof Service appeals raising five assignments of error that we address in
turn. First, Roof Service seeks remand for entry of judgment as a matter of law in its favor.
1
Second, in the alternative, it seeks to have the verdict set aside and the matter remanded
for a new trial. Finally, in the alternative, it seeks a remand for remittitur of damages.
Having considered the record, the various briefs submitted, the relevant law,
and the oral arguments presented, we find no error in the circuit court’s denial of Roof
Service’s motion for judgment as a matter of law or, in the alternative, for a new trial, or
for remittitur.
I. FACTS AND PROCEDURAL HISTORY
On September 9, 2016, Mr. and Mrs. Trent filed suit grounded in claims of
negligence against Roof Service, Mr. Wilfong, as an agent and employee of Roof Service,
and John Cole, individually and as owner, operator, employer, and supervisor of Mr.
Wilfong. The action arose from an incident on June 9, 2015, when Mr. Wilfong struck and
backed over Mr. Trent with his vehicle thereby allegedly resulting in painful, serious, and
permanent bodily injury to Mr. Trent for which Mr. Trent sought compensatory and general
damages. Mrs. Trent sought damages for the loss of comfort, care, and consortium of her
husband. Mr. Cole filed a motion to dismiss for failure to state a cause of action against
him on the grounds that as President of Roof Service no action or omission was claimed
against him. Roof Service filed an answer generally denying the claims, admitting that Mr.
Wilfong was an employee, but denying that he was an employee at the time of the incident,
and specifically asserting that Mr. Wilfong was not acting within the scope of his
2
employment at the time of the incident. Roof Service also filed a cross-claim against Mr.
Wilfong. Subsequently, Mr. Wilfong filed answers generally denying the claims.
On December 18, 2017, the parties, by joint stipulation, agreed to dismiss
Mr. Cole from the action. Mr. and Mrs. Trent settled their claims with Mr. Wilfong and
he was dismissed from the action on January 23, 2018. Subsequently, the circuit court
denied Roof Service’s motion for summary judgment on September 11, 2018, finding that
material questions of fact existed regarding the argument that Mr. Wilfong was not acting
within the scope of his employment or was an independent contractor at the time of the
injury to Mr. Trent. The matter then proceeded to trial by jury.
Inasmuch as the assignments of error and the jury verdict require evaluation
of the evidence adduced at trial and consideration of the inferences to be drawn from the
evidence, we briefly summarize the trial proceedings.
Officer Gregory Todd Collins, a police officer with the City of Bridgeport,
West Virginia, testified that he was dispatched to the scene and upon arrival, he saw the
truck and observed Mr. Trent on the ground with his legs partially on the sidewalk and his
upper body in the street. He made an accident report diagram of the scene depicting the
placement of the truck and the position of Mr. Trent on the ground. Officer Collins took a
statement from Mr. Wilfong and attached it to his accident report. Mr. Wilfong stated that
he was backing up on the sidewalk and Mr. Trent came through his yard and onto the
3
sidewalk behind the truck such that he did not see Mr. Trent and hit him. Officer Collins
discussed the narrative section of his accident report which indicated that Mr. Wilfong was
attempting to back his truck onto the yard to load scrap metal from the construction at the
residence of Mr. and Mrs. Trent. Mr. Wilfong drove past the residence and started to back
the truck up onto the sidewalk when he heard yelling, stopped, and found Mr. Trent on the
ground. Mr. Trent reported that he had been across the street moving the neighbor’s trash
cans from the road because they were out-of-town. He saw a truck coming down the street
and, after it passed by, he crossed to return to his home. Mr. Trent described having stepped
up onto the sidewalk when he was struck and knocked to the ground. On cross-
examination, Officer Collins agreed that a pedestrian has a duty to use due care and look
both ways when crossing a street. Officer Collins also agreed that as he stepped up to the
sidewalk, Mr. Trent should have been able to see the truck and therefore agreed Mr. Trent
“had to have been violating basic due care.” However, on re-direct, Officer Collins also
agreed that a person is not normally supposed to look for a truck driving backwards down
a sidewalk. He also agreed that Mr. Trent did nothing wrong. Officer Collins testified that
he found Mr. Wilfong at fault for improper backing of the truck and gave him a warning
for the conduct.
Mr. Wilfong testified that he and Mr. Cole had been good friends for some
thirty-five years. He is a foreman for Roof Service and worked on the job at Mr. and Mrs.
Trent’s residence the day of the incident. At the conclusion of the workday, Mr. Wilfong
returned the Roof Service vehicle and got his 2003 pick-up truck with a camper cab on the
4
bed of the truck which he conceded can impair vision when driving backwards. He returned
to the jobsite to pick up scrap aluminum. He stated that he squared his truck up, kept his
eyes on the street and the sidewalk and slowly backed up. He did not see Mr. Trent. He
heard Mr. Trent yelling and found him on the ground with his head on the sidewalk. Mr.
Wilfong called 911 and then called Mr. Cole. Mr. Wilfong believes he was not at fault for
the accident. Although he did not see Mr. Trent anywhere at the time of the incident, he
blamed Mr. Trent for “walking behind a moving vehicle.”
Mr. Wilfong testified that part of the job of roofing requires the removal of
all debris. However, he stated that he does not retrieve and remove the scrap metal for
Roof Service. He retrieves the scrap metal to take it to the junk yard where he is paid for
it. He keeps the money and does not give any portion of it to Roof Service. He does it on
his own time, for his own benefit, and Roof Services has nothing to do with his picking up
scrap metal. If he did not want the scrap metal, it would be thrown in the jobsite dump
truck with other waste material.
John Cole, the President of Roof Service, testified that part of the agreement
with Mr. and Mrs. Trent was to remove old roofing, clean up, and haul away debris. Mr.
and Mrs. Trent paid to have the whole job completed including the removal of trash and
debris. He remarked that it is a typical part of any roofing contract and job that before you
leave the jobsite, the yard and property is all cleaned up. As foreman, Mr. Wilfong’s
responsibilities include making sure the job is done in accordance with the customer
5
contract including removing debris. He testified that Mr. Wilfong asked him some twenty
years ago if he could have the scrap metal from the roofing jobs. According to Mr. Cole,
he told Mr. Wilfong he could have the scrap, but he had to do it on his own time and with
his own vehicle. Over the years, it had become the custom for Mr. Wilfong to gather the
scrap metal from the jobsites. Mr. Wilfong makes the decision on every job as to whether
debris goes to the dump or he takes it. Mr. Cole testified: “I allowed him to do it—as
long—as long as the yard got cleaned up. And that was our contract—cleaned up and
hauled away.” Mr. Wilfong is not paid by Roof Service for time spent retrieving the scrap
metal.
According to Mr. Cole, one “could say” that Mr. Wilfong was an independent
contractor in terms of the activities of scrap metal retrieval. He acknowledged that nobody
informed Mr. and Mrs. Trent that the foreman on the Roof Service job was an independent
contractor for purposes of removing debris. Mr. Cole agreed that during his deposition he
acknowledged that the customary arrangement with Mr. Wilfong increased the amount of
money Mr. Wilfong made and that he referred to it as a bonus or a reward for working as
an employee of Roof Service some thirty-five years. He remarked: “[a]nd if someone
works for you for thirty-five years you ought to reward them.”
On the day Mr. Wilfong backed his truck into Mr. Trent, he called Mr. Cole
who went to the scene and saw Mr. Trent laying in the street behind the truck. Mr. Cole
6
agreed that the diagram made by Officer Collins was “fairly accurate” in its depiction of
the placement of Mr. Trent’s body.
Mrs. Trent testified that on the day Mr. Trent was struck by the truck she was
recuperating from knee replacement surgery at a rehabilitation hospital and she was
wondering why her husband had not been to see her because he came every day. Her
nephew came to the hospital and informed her what happened, got a wheelchair and took
her to the emergency room where she saw her husband as he was being prepared for
transfer. She was upset upon seeing Mr. Trent on a back board with a neck brace and
receiving oxygen. She relied heavily on her brother to check on Mr. Trent and to take care
of things for her during her thirty-three-day hospitalization. 1 She testified that after Mr.
Trent was returned to Clarksburg for rehabilitation, he suffered in excruciating pain, was
disillusioned, did not know where he was, could barely move his leg, and his arm was
immobilized.
According to Mrs. Trent, her husband has greatly deteriorated, lost a lot of
weight, has no energy, and is unable to do many of the things he used to do in the home
and the yard. He is unable to go to the cemetery to decorate family graves for the holidays.
1
Mrs. Trent’s brother, Ed Tomes, testified and generally supported the testimony
of Mrs. Trent. Mr. Tomes testified regarding the hospitalization and rehabilitation services
Mr. Trent received. He also testified that Mr. Trent never fully recovered and never
returned to his prior activity level. Mr. Tomes explained that Mr. Trent has walking
difficulties and cannot fully lift his injured elbow.
7
He must use a quad cane for walking. He has been deprived of his primary daily activity
of walking with friends at the mall for an hour and a half. Now, he can only walk a few
feet before he needs to stop and rest. Due to walking limitations, he received a handicap
parking tag. Mr. Trent can no longer take the garbage can to the street for trash pick-up.
Due to his mobility limitations, she has stopped going to Sunday school before church in
order to drive her husband, drop him off at the front door, and then go park so that they can
attend the later church service together. She said that Mr. Trent is very unsteady and not
the same person since the incident. They gave up their almost three decades of attendance
at WVU football games due to his inability to climb the stadium stairs. She testified that
Mr. Trent continues to have trouble with basic things such as buttoning his shirts due to
the elbow and arm limitations. The elbow and arm limitations have caused him to be
unable to sketch and draw as he used to enjoy. His ability to continue doing crossword
puzzles has been affected because he has to brace the arm and elbow to work the puzzles
and sign his name. She now does the bill paying and check writing because it is difficult
for him to write. Although he had shoulder arthritis before the injury, he never complained
and had no limitations.
Mrs. Trent testified that her husband never fully recovered. She talked about
his inability to sleep many nights a week since the injury. At night, she will find him out
of bed sitting in the family room because the wreck is on his mind. He told her that “every
night when he goes to bed, he closes his eyes, he can see that truck over him, because the
truck backed over him. He could see the underneath of the truck.” She explained that the
8
worry and stress over the wreck is on his mind all the time and she believes it has
contributed to his fifty-pound weight loss. She stated that even at his age of eighty-one at
the time of the injury, her husband was not an old man and could probably outwalk sixty-
year-old people.
On cross-examination, Mrs. Trent took issue with some of the entries in
medical records regarding her husband’s progress. For instance, Mrs. Trent disputed
entries in physical therapy notes indicating that Mr. Trent could walk 500 to 1,000 feet
several months after the accident based upon her own observations. She agreed that he had
issues walking, lifting and carrying heavy items several years before the incident but
testified that those problems were resolved well before the incident with the placement of
stents. Mrs. Trent acknowledged that her husband had pre-existing arthritis.
Mr. Trent testified regarding critical facts as to where he was located, what
he was doing, and what happened at the time he was struck as follows:
Well, I was waiting on a delivery of medicine for my wife,
who was in HealthSouth, it was a medicine to prevent
osteoporosis and it had to be refrigerated.
So I was waiting for FedEx to deliver it, so I could rush it
over to the hospital, and have them put it on ice, so it would be
ready when she needed it.
In the meantime, I saw across the street that our neighbors,
the Bonassos, who I knew went out of town, had left their green
garbage can out. I thought, well, that’s not a good idea for
them to be out of town, and that can sitting there. It indicates
9
that they’re out of town. And people will maybe take
advantage of it.
So I went over and took the can, wheeled it around the
house to where they always keep it. Put it in a little nook that
they had there.
Came back around the house, two cars passed me. I went
across the street, was standing on the sidewalk, looking for the
FedEx truck, when all of a sudden I had this terrible impact to
my back.
When I started to go backwards, I started to fall, I could see
under the vehicle. When I went down I was screaming, or
yelling, and the car stopped.
It turned out to be a truck. The pickup truck stopped. And,
when it did, it kind of thrust me out, it spit me out.
And so I—when I landed, I could see that my arm was in
really bad shape. It was almost like a Z, and I knew it was in
bad shape.
When the driver of the vehicle came around and said, I
didn’t see you there. And that’s the only thing that I remember
him saying.
Mr. Trent testified regarding his broken thumb, fractured pelvis, broken
elbow, and injuries to his back. Surgery was performed on the elbow. He required blood
and spent eight days in the hospital before being transferred to the rehabilitation facility
where, upon an examination by a physician, Mr. Trent was found to be in atrial fibrillation.
He was transferred to the cardiac unit of the local hospital so that he could be stabilized
before returning for rehabilitation services.
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During rehabilitation, the hip and pelvis were extremely painful. Mr. Trent
could not get out of bed without screaming from pain. Nevertheless, he stated that he
continued to do all the therapy he could tolerate. The elbow and arm were immobilized.
Once the immobilization was removed, he had therapy for the elbow, but he did not see
significant improvement. Mr. Trent demonstrated the difference of movement between his
two arms.
Once he returned home, Mr. Trent testified that he received home nursing,
therapy, bathing and hygiene assistance, and participated in outpatient physical therapy.
Like Mrs. Trent, he testified that therapy records that indicate he can walk 500 to 1,000
feet are in error. He could easily do that before the accident, but not since his injury. Before
the injury, he walked four miles a day at a brisk pace with friends at the mall. He is no
longer able to do that, stating that now he can only walk about half a mile, and has to stop
and rest.
According to Mr. Trent’s testimony, he has not been able to draw cartoons
because of his arm injury. He continues to have pain in his elbow. He wakes at night three
to four times a week “seeing” the accident. He sees “what happened all the time.”
On cross-examination, Mr. Trent testified that he saw two vehicles pass by,
one of which was the truck, before he crossed the street to wait for the FedEx truck. He
was adamant that he looked both ways before crossing the street. After crossing the street,
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standing on the sidewalk, he turned away from the travel of the truck, to watch for the
FedEx truck. Mr. Trent stated: “[l]et me tell you something. In three — three years, three
months, and nine days that, that happened, I’ve been awake a thousand times reliving that
scene. I know exactly what happened.” Mr. Trent also acknowledged prior health issues
including cardiac problems, a prior fracture of the arm years before, arthritis, hip pain,
weakness, degenerative shoulder arthritis, hip, low back, and lumbar spine changes.
Dr. Richard L. Smith, II, is a board-certified cardiologist who saw Mr. Trent
as a patient before and after the injury. It appears his testimony was offered because Roof
Service disputed that the atrial fibrillation experienced by Mr. Trent as he was commencing
his rehabilitation was related to the incident and injury. Dr. Smith testified that he began
seeing Mr. Trent in 2011 and typically saw him about every six months. Mr. Trent had a
post-operative atrial fibrillation following a surgery in 2011 which is a common event.
According to Dr. Smith, Mr. Trent had not had a recurrence and had not been on medication
for atrial fibrillation. However, after the injury at issue, surgery, and transfer to the
rehabilitation facility, he required cardiac care and it appeared that he had a recurrence of
his atrial fibrillation and had elevated cardiac enzymes which can be a marker of a heart
muscle injury. Dr. Smith testified to a reasonable degree of probability that the incident of
June 9, 2015, triggered Mr. Trent’s June 17, 2015 arrhythmia. He testified that “it’s very
common to see atrial fibrillation, especially, you know, post traumatic injuries and post
hospital injuries.” He agreed that it was more likely than not that it was induced by the
incident of June 9, 2015. Dr. Smith also stated that “it’s well documented in the literature
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that, you know, traumas, as well as other injuries or illnesses or significant sickness, is a
very common trigger for atrial fibrillation.” 2
Dr. John C. France, an orthopedic surgeon, testified to the post-injury care,
surgery, and treatment provided to Mr. Trent. He stated that Mr. Trent presented with a
pelvic ring fracture which was treated non-operatively. Mr. Trent also presented with an
open distal humerus fracture, meaning that the bone came through the skin, requiring
surgical fixation with plates and screws. The surgery was complicated by the fact that Mr.
Trent had years earlier broken his arm and had internal fixation that required bone to be
cut away to access the elbow. He agreed that it was a very painful and a horrific injury for
an eighty-one-year-old man to endure. Dr. France also testified that Mr. Trent had reached
his maximum improvement.
Dr. France agreed that a man who could walk four miles a day prior to injury
and who subsequently cannot walk more than 100 to 200 feet “potentially” may have
walking problems related to the injury. He testified as follows:
2
Dr. John Angotti, a board-certified internal medicine physician called as a witness
for Roof Service, testified that he had been Mr. Trent’s general physician for some twenty
years. As to Mr. Trent’s general physical condition, Dr. Angotti testified that he had high
blood pressure, coronary heart disease, heart blockages, aortic stenosis, type II diabetes,
kidney disease, rheumatoid arthritis, and osteoarthritis. At some point in the past, Mr.
Trent had been on a low dose, non-narcotic arthritis medicine. He had some aches and
pains, but nothing that limited his lifestyle. Dr. Angotti, in contrast to the cardiologist,
testified that he did not believe the injury caused the atrial fibrillation due to the timing of
the event and Mr. Trent’s other health problems.
13
With a pelvic fracture, I would not expect to create any
additional problems for him. It should—he should return to
normal. You know, there are some 81-year-olds who once
they’re injured go through a recuperation for three to six
months, and there are patients that never quite get back to their
original status, that’s possible. We see that with hip fracture
certainly.
So it is possible that he never feels like he got his energy back,
that whatever reserve he had was limited that he—it is possible
that he doesn’t feel like he’s back to his normal self.
As to the continued limitations Mr. Trent has with walking, Dr. France stated on cross-
examination that they were “probably not” related to the pelvic fracture. In further
explanation, Dr. France testified:
The only—the only way you could tie it to the incident would
be to say you’ve taken an 81-year-old guy who was functioning
beyond the average 81. And then when he became sick, and
rehabbed and just recovery, he’s never quite gained his robust
nature. So from that standpoint, there could be kind of an
indirect tie, but it’s not directly related to the pelvic fracture
which is well healed.”
In response to questioning whether the injury precipitated the limitations
with the arm and shoulder, Dr. France testified as follows:
It’s hard to know, because, you know, his shoulder is really
arthritic like bone on bone. So it’s hard to know. So, I can’t
assume his motion, you know, you know if he says he didn’t
have a shoulder problem, it is possible that with his elbow
injury, rehabbing, using his shoulder, holding it immobile for
a little while, that his arthritic shoulder would stiffen up and it
would bother him more.
Not necessarily a direct relation to the injury but as a result
from rehabbing his arm, maybe he’s aggravated his shoulder.
That’s very possible.
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Dr. France also testified that while the shoulder arthritis was not caused by
the injury, “an aggravation can occur at the time of an accident or in the course of his rehab
from that accident.” Dr. France explained that the issues are those of patient history which
he did not get into with Mr. Trent at the time of treating the acute injury. Dr. France stated
he did not have a pre-existing history. He explicitly testified that he would defer to the
history. “[I]f he was sitting in here, I would have to ask him, you know, how much did
your shoulder bother you? And he said it didn’t bother me and then after that it bothered
me since, then I would say that there was probably an aggravation of an underlying
condition is—is what I would say.”
Following the jury verdict in favor of Mr. and Mrs. Trent, Roof Service filed
a motion seeking entry of judgment as a matter of law or, in the alternative, for a new trial,
or, alternatively, for a remittitur of the damages award. Roof Service’s motion was denied
by order of the circuit court on February 15, 2019. It is from that order of the circuit court
that Roof Service appeals to this Court.
II. STANDARD OF REVIEW
Multiple standards of review are implicated in this appeal. With respect to
the circuit court’s ruling on the motion for a new trial this Court has found that “[a] trial
judge’s decision to award a new trial is not subject to appellate review unless the trial judge
15
abuses his or her discretion.” Syl. Pt. 3, in part, In re. State Pub. Bldg. Asbestos Litig., 193
W.Va. 119, 122, 454 S.E.2d 413, 416 (1994), cert. denied sub nom. W.R. Grace & Co. v.
West Virginia, 515 U.S. 1160 (1995). In further explanation, this Court has held:
In reviewing challenges to findings and rulings made
by a circuit court, we apply a two-pronged deferential standard
of review. We review the rulings of the circuit court
concerning a new trial 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.
State v. Vance, 207 W.Va. 640, 641, 535 S.E.2d 484, 485, Syl. Pt. 3 (2000). “Although the
ruling of a trial court in granting or denying a motion for a new trial is entitled to great
respect and weight, the trial court’s ruling will be reversed on appeal when it is clear that
the trial court has acted under some misapprehension of the law or the evidence.” Syl. Pt.
4, Sanders v. Georgia-Pacific Corp., 159 W. Va. 621, 225 S.E.2d 218, 219 (1976).
However, a new trial should not be granted “unless it is reasonably clear that prejudicial
error has crept into the record or that substantial justice has not been done.” In re State
Pub. Bldg. Asbestos Litig., 193 W.Va. at 124, 454 S.E.2d at 418. With respect to the
specific trial errors alleged, “[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.” Syl.
Pt. 4, State v. Rodoussakis, 204 W.Va. 58, 61, 511 S.E.2d 469, 472 (1998).
As to renewed motions for judgment as a matter of law, “[t]he appellate
standard of review for an order granting or denying a renewed motion for judgment as a
16
matter of law after trial pursuant to Rule 50(b) of the West Virginia Rules of Civil
Procedure [1998] is de novo.” Syl. Pt. 1, Fredeking v. Tyler, 224 W.Va. 1, 680 S.E.2d 16,
17 (2009). The Court explained as follows:
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.
224 W. Va. at 1, 680 S.E.2d at 17, Syl. Pt. 2 (emphasis added). We have also held:
In determining whether there is sufficient evidence to
support a verdict the court should: (1) consider the evidence
most favorable to the prevailing party; (2) assume that all
conflicts in the evidence were resolved by the jury in favor of
the prevailing party; (3) assume as proved all facts which the
prevailing party’s evidence tends to prove; and (4) give to the
prevailing party the benefit of all favorable inferences which
reasonably may be drawn from the facts proved.
Syl. Pt. 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S.
981 (1984).
With these standards guiding our review, we proceed to address the
assignments of error.
17
III. DISCUSSION
A. Respondeat Superior Doctrine
In its first assignment of error, Roof Service contends that the circuit court
erred in failing to award judgment as a matter of law to it because there was no master-
servant relationship between Roof Service and Mr. Wilfong with respect to Mr. Wilfong’s
activities collecting scrap metal at the jobsite of the Trent residence and, even if there was
a master-servant relationship, Mr. Wilfong was acting outside the scope of his employment.
Roof Service argues that the facts establish that at the time of the incident, Mr. Wilfong
was in his own vehicle, his workday had concluded, he was not being compensated by
Roof Service at the time of the incident, he was engaged in a personal effort at gathering
scrap metal to later sell for his personal benefit, Roof Service did not financially benefit
from the salvage activities, and Mr. Wilfong was beyond the supervision, direction, or
control of Roof Service.
In opposition, Mr. and Mrs. Trent contend that there was a master-servant
relationship existing for the purpose of imposing liability on Roof Service for the
negligence of Mr. Wilfong and that Mr. Wilfong was acting within the scope of his
employment. Mr. and Mrs. Trent point to the two decade long practice that Roof Service
and Mr. Wilfong engaged in whereby he was able to select and retrieve scrap metal debris
for his financial benefit from jobsites including that of the Trent residence. Roof Service
had the contracts for work performed at jobsites, controlled the jobsites and knew and
approved of Mr. Wilfong’s activities at the jobsites so long as the debris was picked up,
18
the yards cleaned, and the trash removed. The argument is that the approval of the practice
of collecting scrap metal was a bonus or reward for Mr. Wilfong’s long and good tenure
with Roof Service. Primarily, Mr. and Mrs. Trent point to the existence of the contract for
services regarding the roofing construction performed at the home of Mr. and Mrs. Trent.
The contract provided, in part, for “Reroofing residence Including: Removing old roofing
clean-up and haul away.” Cleaning-up and hauling away the debris was part and parcel of
the job and what Mr. and Mrs. Trent were paying to have performed and completed by
Roof Service.
This Court is required to consider the long-standing doctrine of respondeat
superior which imposes liability on an employer for the acts of its employees within the
scope of employment, not because the employer is at fault, but rather as a matter of natural
justice and public policy. Cochran v. Michaels, 110 W. Va. 127, 131, 157 S.E. 173, 174
(1931). We have held as follows:
An agent or employee can be held personally liable for
his own torts against third parties and this personal liability is
independent of his agency or employee relationship. Of
course, if he is acting within the scope of his employment, then
his principal or employer may also be held liable.
Syl. Pt. 3, Musgrove v. Hickory Inn, Inc., 168 W.Va. 65, 281 S.E.2d 499 (1981).
Likewise, this Court has observed as follows:
The universally recognized rule is that an employer is liable to
a third person for any injury to his person or his property which
results proximately from tortious conduct of an employee
19
acting within the scope of his employment. The negligent or
tortious act may be imputed to the employer if the act of the
employee was done in accordance with the expressed or
implied authority of the employer.
Griffith v. George Transfer & Rigging, Inc., 157 W. Va. 316, 324-25, 201 S.E.2d 281, 287
(1973).
We have previously held that “[w]hether an act by a servant is within the
scope of his employment is determined by the relation which the act bears to the
employment.” Cochran, 110 W Va. 127, 157 S.E. 173, Syl. Pt. 1. Additionally, “[a]n act
specifically or impliedly directed by the master, or any conduct which is an ordinary and
natural incident or result of that act is within the scope of employment.” Id., Syl. Pt. 2.
Analysis of the question of scope of employment mandates consideration of the
circumstances including the character of the employment, the nature and character of the
tortious conduct, and the time, place and purpose of the conduct. Griffith, 157 W.Va. at
326, 201 S.E.2d at 288. Furthermore, this Court has concluded that “respondeat superior
should be liberally applied in favor of those who invoke it.” Zirkle v. Winkler, 214 W.Va.
19, 22, 585 S.E.2d 19, 22 (2008) (per curiam) (citing Cochran, 110 W.Va. at 131, 157
S.E.2d at 174).
Roof Service argues that at the time of the injury, there was no master-servant
relationship between Roof Service and Mr. Wilfong. Roof Service relies on the following
test:
20
There are four general factors which bear upon whether
a master-servant relationship exists for purposes of the doctrine
of respondeat superior: (1) Selection and engagement of the
servant; (2) Payment of compensation; (3) Power of dismissal;
and (4) Power of control. The first three factors are not
essential to the existence of the relationship; the fourth, the
power of control, is determinative.
Syl. Pt. 5, Paxton v. Crabtree, 184 W.Va. 237, 400 S.E.2d 245 (1990).
Applying the four factors from Paxton, Roof Service contends that it did not
select or engage Mr. Wilfong for the purpose of salvaging scrap metal; did not pay him any
compensation for his time spent collecting scrap metal; did not have the power to dismiss
him for his personal conduct on his own time for his own benefit; and did not have the
power to control him while he was operating his personal truck for his personal activities
and benefit.
We observe that Roof Service acknowledged below that Mr. Wilfong was an
employee and worked on the roofing project for the Trent residence. Indeed, Mr. Wilfong
was a long-term employee and the project foreman. Nevertheless, Roof Services contends
that there was no employment relationship in place at the moment of the injury to Mr.
Trent. In considering the four general factors set forth in Paxton, we find that the evidence
demonstrates that the job requirements for Mr. and Mrs. Trent’s residence included the
cleaning up and hauling away of all debris. Roof Service knew and allowed Mr. Wilfong
to return to jobsites, including the Trent’s home, for twenty-plus years for the purpose of
21
collecting debris that was required by job contract to be removed. The evidence also
demonstrated that while Mr. Wilfong may have been “off the clock” and uncompensated
with his normal hourly rate of pay at the time of the incident, Roof Service permitted the
activity as a financial reward or bonus for having been a good employee of some thirty-
five years. Regarding power of dismissal, part of Mr. Wilfong’s job responsibilities were
to clean up and haul away debris, such that Roof Service certainly would have the ability
to discharge him for failure to complete the requirements of the job.
As to the determinative issue of power of control, the focus on Mr. Wilfong
operating his own vehicle is misplaced in that it fails to allow for the fact that the jobsite
was controlled by Roof Service and, at any time, it could have exercised control by
rescinding the permission to access it and collect the debris. Moreover, Roof Service had
the power or right to exercise control of the job and the jobsite by requiring all debris be
placed in the Roof Service waste truck, rather than thrown on the ground for later removal.
In addition to control being the definitive factor, it is also the right of control that matters,
and not the exercise or use of the right of control. Spencer v. Travelers Ins. Co., 148 W.Va.
111, 117, 133 S.E.2d 735, 739 (1963). The issue is driven by the facts and circumstances.
In those instances where the evidence is conflicting, or where more than one inference can
be drawn therefrom, the question is one of fact for jury determination. Id. at 118, 133
S.E.2d at 740. Our review of the evidence in the light most favorable to Mr. and Mrs. Trent
as the nonmoving party, instructs this Court that the evidence is capable of more than one
22
interpretation and does not indisputably show that there was no master-servant relationship
between Roof Service and Mr. Wilfong at the time he returned to the jobsite.
Turning to the question whether the tortious acts of Mr. Wilfong were
committed within the scope of employment requires a similar analysis. Roof Service
argues that Mr. Wilfong was in his own vehicle after the conclusion of the work day, his
activities had nothing to do with his roofing work for Roof Service, he conducted no
business for Roof Service after retrieving his personal vehicle, and he received no
compensation for his personal activities. Rather, it is contended that Mr. Wilfong was on
his own adventure for his own financial purposes.
Roof Service relies heavily on Pratt v. Freedom Bancshare, Inc., No. 18-
0180, 2018 WL 6016075 (W. Va. Nov. 16, 2018) (memorandum decision) wherein we
concluded that an at-fault driver on his way to a board meeting was not in the scope of his
duties as a board member of a bank on the day of the accident such that there was no
vicarious liability to an injured third party under the doctrine of respondeat superior. The
evidence in Pratt was that the driver was in his own vehicle, was on a routine commute on
his way to the meeting, did not conduct or intend to conduct any bank business during the
commute, was paid a flat fee for board-related activities whether he attended monthly board
meetings or not, and was not provided mileage or travel expenses in connection with
commuting to board meetings. We find Pratt distinguishable because Mr. Wilfong
returned to the jobsite to gather scrap metal as permitted by Roof Service who controlled
23
the jobsite and because removing debris from the jobsite was part of Roof Service’s
contract with Mr. and Mrs. Trent such that the character of Mr. Wilfong’s employment is
necessarily linked with removing debris. He returned to the jobsite under the long-standing
custom, practice, authority and permission of his employer, Roof Service. The
circumstances are entirely different than a routine commute to a meeting.
Moreover, when we consider what the “relation of the act” of Mr. Wilfong
in removing the debris “bears” to his employment, we are convinced that there is a nexus
between the two. See Cochran, 110 W.Va. 127, 157 S.E.2d 173, Syl. Pt. 2. Indeed, at the
time he spoke with Officer Collins, Mr. Trent stated that “I was having a new roof put on
my house and I believe he was one of the workers.” (emphasis added). The nexus was
apparent at the scene. And, Mr. and Mrs. Trent were not advised by Roof Service of any
use of unlicensed independent contractors and had not granted any third parties permission
to come on their property and engage in any activities. We observe some similarities
between the instant matter and the facts in Cochran where the injured party was struck
from behind while walking along the edge of a public road. The driver was a salesman
authorized to use an employer-owned vehicle and, at the time of the accident, had
passengers in the vehicle under circumstances that had nothing to do with the employer’s
business. The defendant employer contended that the relation of master-servant did not
exist at the time of the accident and he was therefore not liable. The Court concluded, “it
is apparent that at the time of the accident the driver was not engaged directly in defendant’s
business, in a narrow and restricted sense; but, . . . the rule of respondeat superior is not
24
limited by such restriction.” Id. at 132, 157 S.E. 173 at 175. The driver’s mental attitude
in not intending to further his employer’s business was also not controlling. Id. The Court
noted that scope of employment is not capable of precise definition and is largely a question
of fact such that its determination may vary in light of all the circumstances. Id.As in Cochran, Roof Service should have anticipated that allowing its
employee, Mr. Wilfong, to return to Roof Service jobsites for the purpose of taking actions
that Roof Service had contracted to undertake had risk attendant to it that could be suffered
by third parties at the jobsite. See also Zirkle v. Winkler, 214 W.Va. 19, 585 S.E.2d 19(2003) (per curiam) (reversing a holding of a circuit court that a newspaper company could
not have any liability to pay compensation for injuries caused by a newspaper delivery
driver, because the driver, who delivered some 200 newspapers each day on a motor carrier
route and whose compensation was set by a document that indicated the driver was an
independent contractor, was an independent contractor and holding that the issue of the
newspaper’s liability was a jury matter). We also consider that both the independent
contractor defense and scope of employment arguments were perhaps undermined by the
fact that Mr. Wilfong has no separate business or business license for the purpose of
salvaging scrap. He also does not engage in the activity for or with anybody in the
community other than Roof Service. See also Levine v. Peoples Broad. Corp. 149 W.Va.
256, 261, 140 S.E.2d 438, 442 (1965) (approving an instruction that “a mere deviation or
departure from the usual and ordinary course and activities of their employment, even to
accomplish some private purpose of his own in connection with the business of his
25
employer, does not of itself, as a matter of law relieve the employer of liability” and finding
that scope of employment is a relative term and question of fact to be determined by the
jury). 3
Again, relying, in part, on Pratt, Roof Service also argues that the “going and
coming rule” applies such that respondeat superior is not applicable. The “going and
coming” rule originated in the workers’ compensation jurisprudence and is set forth as
follows:
An injury incurred by a workman in the course of his
travel to his place of work, and not on the premises of the
employer, does not give right to participation in such [Workers
Compensation] fund, unless the place of injury was brought
within the scope of employment by an express or implied
requirement in the contract of employment of its use by the
servant in going to and returning from work.
De Constantin v. Pub. Serv. Comm’n, 75 W.Va. 32, 83 S.E. 88, Syl. Pt. 2 (1914).
This Court has found that “[t]he doctrine of respondeat superior is not
typically applicable while [an] employee is coming or going to work.” Courtless v. Jolliffe,
We reject Roof Service’s argument that Falls v. Union Drilling, Inc. 223 W.Va.
368, 72 S.E.2d 204 (2008) (per curiam) best demonstrates the circuit court’s error in failing
to grant it judgment as a matter of law. In Falls, the Court considered a matter where a
motor vehicle accident resulting in a fatality occurred after the completion of the workday
while the supervisor and subordinate employee were traveling from work to home. The
plaintiff’s theory of liability was grounded in allegations regarding excessive overtime
requirements and involved mixing various tort concepts in a unique, but ultimately
unsuccessful, effort to avoid having a wrongful death claim barred by the workers’
compensation immunity statute. The facts and creative pleading attempts in Falls are not
relevant to the instant analysis.
26
203 W.Va. 258, 263, 507 S.E.2d 136, 141 (1998) (per curiam). The reason for this is that
in traveling to and from work, an employee “is being exposed to a risk that is identical to
that of the general public.” Brown v. City of Wheeling, 212 W.Va. 121, 126, 569 S.E.2d
197, 202 (2002) (per curiam). Notably, while the “going and coming rule” applies in those
instances “where the only evidence linking the employer to the accident was the fact that
the employee was coming or going to work, various nuances of the rule may serve to alter
its application where additional evidence exists linking the employer to the accident.”
Courtless, 203 W.Va. at 263, 507 S.E.2d at 141. Significantly, the application of the “going
and coming rule” may be altered by the facts such as “when the employee is rendering an
express or implied service to the employer, or when there is an incidental benefit to the
employer that is not common to ordinary commuting trips.” Id. at 263, 507 S.E.2d at 141-
42.
At the time of the motor vehicle accident in Pratt, the bank board member
was found to be on a public highway, on a route of his own choosing, and not managing or
administering any bank affairs in his commute to a board meeting. There was also no
evidence showing that the bank “received some incidental benefit from [the] commute that
was not common to ordinary commuting trips. Pratt, 2018 WL 6016075, at *4. We reject
the notion that Mr. Wilfong is similarly situated to the driver in Pratt because the evidence
showed that Roof Service received incidental benefit in the completion of removal of debris
from the yard and that the return to their jobsites for debris removal was a common practice
known to and authorized by Roof Service. Moreover, it cannot be said that Mr. Wilfong
27
was commuting on a public roadway at the time of the incident. Rather, he was backing
the truck down the sidewalk at the Trent residence jobsite for the purpose of positioning
the vehicle in the yard so as to load the debris. The accident scene diagram shows the truck
on the sidewalk. These same facts apply to distinguish authority from other jurisdictions
relied upon by Roof Service for the proposition that an employer is traditionally not liable
for the automobile accidents of their employees while traveling to or from a worksite. 4
Given the evidence, it cannot fairly be said that Mr. Wilfong was traveling to the jobsite at
the time he struck Mr. Trent. Rather, he was backing up a vehicle at the jobsite.
4
Roof Service points to cases from other jurisdictions supporting the proposition
that employees are not generally liable for automobile accidents involving an employee
unless the employer’s business was being furthered, the employee was directed by the
employer, and the employee was within the scope of employment. We do not disagree
with the proposition, but simply stating it does not negate consideration of the facts and
circumstances. While it is not necessary to engage in an analysis of all the authorities cited,
a few points suffice to demonstrate the relevance of facts. For instance, in J & C Drilling
Co. v. Salaiz, 866 S.W.2d 632, 639 (Tx. App. 1993) the employee was found not to be in
the course and scope of employment while returning from a lunch break. Similarly, in
Roberts v. H-40 Drilling Inc., 501 Fed. Appx. 759, 760 (10th Cir. 2012) the employee had
left work and was on the way to a personal physician appointment. In Freeman v. Hutson,
738 So.2d 148 (La. Ct. App. 1999) the employee was on his way to the bank solely for
personal purposes. In Baptist v. Robinson, 49 Cal. Rptr.3d 153 (Cal. Ct. App. 2006) the
employee was in his vehicle for his own purposes when his employer’s agricultural bin,
which he was not authorized to have in his possession, fell from the vehicle and was stuck
by a motorcyclist. The same may also be said of the citations to sections 233, 235, 237 of
the Restatement (Second) of the Law of Agency (Am. Law. Inst. 2005) regarding
reasonable connection between employee conduct and authorized period, employee’s
intent, and employee’s temporary departure in space or time from the scope of
employment. The facts and circumstances and the inferences to be drawn therefrom are
determinative. See Syl. Pt. 3, Cremeans v. Maynard, 162 W.Va. 74, 246 S.E.2d 253 (1978)
(“When the evidence is conflicting the question of whether the relation of principal and
agent existed, and, if so whether the agent acted within the scope of his authority and in
behalf of his principal are questions of fact for the jury.”).
28
Accordingly, based upon the foregoing discussion, this Court concludes that
the evidence was such that a reasonable trier of fact could have reached the decision below
and, thus, the circuit court’s ruling denying the Roof Service motion for judgment as a
matter of law must be sustained.
B. Failure to Exclude Certain Lay Evidence
In its second assignment of error, Roof Service argues that the circuit court
erred in denying its motion in limine to preclude Mr. Trent from presenting evidence or
argument concerning the permanency of his injuries and in failing to exclude evidence
alleging that Mr. Trent’s continuing physical limitations, including those of ambulating
and in the lack of full range of motion and pain of his arm and shoulder, were caused by
the injury. At the pre-trial stage the motion was grounded in the notion that the injuries
were obscure such that expert testimony was required in order to prove causation. Once
Mr. and Mrs. Trent’s case rested, Roof Service also asserted that the orthopedic surgeon,
Dr. France, could not testify to a reasonable degree of probability that Mr. Trent’s
difficulties walking were caused by the injury and, as to the arm movement problems and
shoulder pain, Dr. France testified that Mr. Trent had pre-existing severe shoulder arthritis.
Thus, it is argued that Dr. France contradicted the lay testimony and that there is no causal
relationship between the incident and the allegations of the injuries claimed such that Mr.
Trent’s testimony, and that of the other lay witnesses, is insufficient to support a jury
verdict.
29
In opposition, Mr. and Mrs. Trent point to their testimony and that of Mr.
Tomes as supporting the permanent effect of Mr. Trent’s injury. They argue that, given
the nature of the injuries, lay testimony is sufficient to prove permanency. Additionally,
they contend that when viewed in its entirety, Dr. France’s testimony is supportive of their
testimony and representations as to Mr. Trent’s physical condition.
In addressing expert medical testimony regarding injury, this Court has
explained:
In many cases the cause of injury is reasonably direct or
obvious, thereby removing the need for medical testimony
linking the negligence with the injury. Additionally, “[d]irect
testimony, expert or otherwise, is not always necessary to
prove the causal connection between the negligence or wrong
of a tortfeasor and the injury suffered by the victim.
Circumstantial evidence may be sufficient.” Smith v. Slack,
125 W.Va. 812, 818, 26 S.E.2d 387, 390 (1943). In other
instances, medical testimony is warranted to establish the
proximate cause link between the claimed negligence and
injury.
Totten v. Adongay, 175 W.Va. 634, 639-40, 337 S.E.2d 2, 8 (1985).
The leading case in this jurisdiction addressing proof of permanency or future
effect of an injury is Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974), wherein, after
an extensive summary of prior jurisprudence, this Court held:
Where an injury is of such a character as to be obvious,
the effects of which are reasonably common knowledge, it is
competent to prove future damages either by lay testimony
from the injured party or others who have viewed his injuries,
or by expert testimony, or from both lay and expert testimony,
30
so long as the proof adduced thereby is to a degree of
reasonable certainty. But where the injury is obscure, that is,
the effects of which are not readily ascertainable, demonstrable
or subject of common knowledge, mere subjective testimony
of the injured party or other lay witnesses does not provide
sufficient proof; medical or other expert testimony is required
to establish the future effects of an obscure injury to a degree
of reasonable certainty.
Id. at 30, 210 S.E.2d 623, Syl. Pt. 11.
As a result of being struck by the pick-up truck, Mr. Trent sustained
significant direct or obvious, multiple traumatic injuries including an acute comminuted or
open fracture of the elbow with displaced fracture segments, a large abrasion to his right
shoulder, acute fractures to the pelvis, wounds and bruising, and a traumatic-related cardiac
event including atrial fibrillation requiring extended hospitalization, rehabilitation, home
nursing and therapy services, and out-patient physical therapy. The testimony of Mr. and
Mrs. Trent and Mr. Tomes regarding how he was before the incident, his treatment and
rehabilitation course, and how he functioned by the time of trial was summarized supra.
Dr. France was called as a witness to explain the acute injuries suffered by
Mr. Trent, to describe the surgical and orthopedic treatment provided, and to provide
testimony that Mr. Trent had reached his maximum degree of improvement. Upon cross-
examination, Dr. France stated that Mr. Trent’s walking limitations were “probably not”
caused by the incident. However, Roof Service fails to credit the testimony of Dr. France
that the rehabilitation and recovery process can result in a previously active eighty-one-
31
year-old feeling that “he never quite gained his robust nature” such that there could be an
“indirect tie” to the incident even though the fracture had healed. Dr. France further
explained that with hip fractures in eighty-one-year-olds, health care providers “certainly”
see “patients that never quite get back to their original status.” Of course, it should go
without saying, that without being struck and run over by a truck there would be no
resulting traumatic injury, and thus, Mr. Trent would have no need for surgery or a
rehabilitation and recovery process.
With respect to the issues regarding Mr. Trent’s shoulder, Dr. France stated
that arthritis pre-existed the incident and was bone-on-bone. However, he also testified
that if there were no problems with it prior to the accident, it is possible that with the
resulting rehabilitation and period of immobilization it would stiffen and bother him more.
He testified that it is very possible that the rehabilitation aggravated Mr. Trent’s shoulder.
Significantly, Dr. France testified that these are matters of patient history that he simply
did not discuss with Mr. Trent in treating the acute injuries. Importantly, the jury heard
Dr. France testify that in order to take a history, he would simply ask Mr. Trent how much
things bothered him before the accident. According to Dr. France, if the answer was to the
effect that it did not bother him before the accident, but has bothered him since, then Dr.
France would conclude that it was probably an aggravation of an underlying condition.
What happened in the courtroom is that the jury heard the patient history.
32
Viewed in light of the totality of the testimony, we find that Dr. France did
not contradict the lay testimony regarding the state of Mr. Trent’s pre-and-post injury
physical condition and the effect of the injuries following treatment, recovery, and
rehabilitation. The cross-examination of Dr. France was a primary defense weapon to
counter the lay testimony. A properly instructed jury, as this jury was, in connection with
the direct nature of the traumatic injuries, can sort out complementary, equivocal, or
contradictory testimony. The injuries suffered by Mr. Trent are not obscure such as those
of cancers allegedly caused by a toxic exposure, cognitive challenges resulting from a
closed head injury, or other similar injuries that are not readily observable or understood.
The injuries described here are of the nature and kind that are direct and obvious and within
the knowledge and experience of jurors. The evidence was sufficient that a reasonable jury
could have considered the initial severity of the trauma suffered by Mr. Trent together with
his treatment, recovery, and rehabilitation therapies and reasonably concluded that Mr.
Trent did not regain his prior physical health and would not progress any further in
recovery.
Accordingly, we find that the circuit court did not abuse its discretion in
refusing to exclude the lay evidence of Mr. Trent’s physical condition regarding his
walking limitations and his movement and pain issues from the arm and shoulder.
33
C. The Verdict Form
Roof Service’s next assignment of error is directed at the verdict form. First,
Roof Service argues that the circuit court abused its discretion in failing to include the
independent contractor defense in the verdict form when that defense was consistent with
the law and the evidence presented. Second, Roof Services contends that the verdict form
did not correctly “set up the question of allocating fault with the question of whether there
was evidence of plaintiff’s own negligence.”
In contrast, Mr. and Mrs. Trent assert that the circuit court directed the parties
to attempt to agree and prepare a verdict form. Accordingly, Mr. and Mrs. Trent note that
“a verdict form was redacted, upon request of counsel, and presented to the jury without
objection.” Additionally, Mr. and Mrs. Trent point to a question of the circuit court asking
“[a]nybody—have you looked over the verdict form as amended? Is everybody in
agreement with the verdict form?” Counsel for Roof Service responded: “[y]es.” Mr. and
Mrs. Trent also contend that the verdict form was consistent with the law, the evidence,
and the instructions.
As this Court has concluded: “the criterion for determining whether [a circuit
court’s] discretion is abused is whether the verdict form, together with any instruction
relating to it, allows the jury to render a verdict on the issues framed consistent with the
law, with the evidence, and with the jury’s own convictions.” Adkins v. Foster, 195 W.Va.
34566, 572, 466 S.E.2d 417, 423 (1995) (per curiam). Here, the issue of the role of Mr.
Wilfong as an independent contractor was introduced into evidence through the
examination and cross-examination of several witnesses, a complete and accurate
instruction on the question of the independent contractor defense was given by the circuit
court, and Roof Service was able to, and did, argue the question to the jury. Question one
of the verdict form asked: “[d]o you find by a preponderance of the evidence that Bruce A.
Wilfong was acting as an employee of Defendant, Roof Service of Bridgeport, Inc., within
his scope of employment at the time of the accident in question?” The verdict form
instructed the jury to check either “Yes” or “No.” Plainly, the verdict form, together with
the instructions of the circuit court and the evidence required the jury to consider the role
and status of Mr. Wilfong in relationship to Roof Service. Likewise, the verdict form also
provided for the apportionment of fault as to Mr. Trent. Specifically, once the jury
answered the question regarding a finding of fault on the part of Mr. Wilfong in the
affirmative, the jury was required to consider and apportion the fault among the parties.
The jury concluded that 100 percent of the fault was apportioned to Mr. Wilfong and zero
percent was apportioned to Mr. Trent.
Significantly, we observe that the question and the answer regarding the
approval of the verdict form took place in the context of reviewing instructions and the
verdict form prior to the giving of instructions and closing arguments. The circuit court
order reflected that it did not reject the verdict form proposed by Roof Service, but, upon
the objection of counsel for Mr. and Mrs. Trent, requested the parties to “come up with a
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mutually agreeable verdict form.” The circuit court commented that the transcript reflected
agreement with the amended form as it was submitted to the jury. Our review of the record
is consistent with that of the circuit court and Mr. and Mrs. Trent. Our review of the record
does not indicate that an objection was made to what instead appears to be a mutually
agreed upon verdict form. We are concerned that despite the representations of counsel
for Roof Service at oral argument that an objection to the verdict form was properly made
and preserved, we are unable to locate the same in the record. No citation to such an
objection appears in either of the Roof Service briefs.
Accordingly, we find that the verdict form was consistent with the law and
the evidence and furthermore, as there was no objection made to the verdict form, this
Court cannot conclude that the circuit court abused its discretion in submitting the verdict
form to the jury.
D. Allocation of Fault
Next, Roof Service argues that the jury verdict should have been set aside
because no fault was allocated to Mr. Trent “even though he admitted at trial that he did
not look both ways before crossing the street and the investigating officer testified that [Mr.
Trent] violated his legal duty to look both ways before crossing the street into the path of
Mr. Wilfong’s vehicle.” In contrast, Mr. and Mrs. Trent assert that the evidence was that
Mr. Trent was not crossing the street, but rather standing on the sidewalk in front of his
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home awaiting the delivery of medicine for his hospitalized wife, when stuck by Mr.
Wilfong as he was backing his truck on the sidewalk.
The argument of Roof Service requires this Court to accept Roof Service’s
narrow view of the evidence. Our review of the evidence, as summarized supra, compels
the conclusion that Roof Service ignores evidence and reasonable inferences that may be
drawn therefrom. The investigating officer’s diagram depicted the placement of Mr.
Trent’s body partially on the sidewalk. The officer testified that Mr. Trent did nothing
wrong and that Mr. Wilfong was cited and warned for improper backing of his vehicle. A
review of the evidence shows Mr. Trent’s repeated testimony that he looked both ways
before crossing the street, standing up on the sidewalk and getting struck to the ground,
backed over, and thrust out by the truck. Mr. Trent was firm in his conviction that he was
struck after crossing the street and while standing on the sidewalk watching, in the other
direction, for the delivery of his wife’s medicine. Notably, Mr. Wilfong did not see Mr.
Trent on either side of the street, crossing the street, or on the sidewalk. The record simply
does not reflect any evidence tending to show that Mr. Trent was struck while crossing the
street. Nevertheless, the circuit court instructed the jury that a pedestrian voluntarily
attempting to cross a street in the path of a moving vehicle and who knew, or should have
known, that the vehicle was near, is negligent and conversely, a driver of a vehicle has no
duty to anticipate that a pedestrian might unexpectedly step into his vehicle’s path. This
matter is one appropriate for jury determination. See Jividen v. Legg, 161 W.Va. 769, 775,
245 S.E.2d 835, 838 (1978) (reversing grant of motion for a directed verdict for defendant
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in action where plaintiff pedestrian was struck while crossing highway and when pedestrian
testimony was that she had almost completely crossed the street and her foot was on the
berm when struck in contrast to driver who claimed pedestrian was in the middle of the
road and noting the case “begs for jury determination”); Sydenstricker v. Vannoy, 151
W.Va. 177, 150 S.E.2d 905 (1966) (upholding circuit court’s denial of a motion to set aside
a jury verdict and grant a new trial in an action for injuries sustained by a pedestrian when
struck by a defendant driver at or near an intersection and finding that evidence presented
a jury question as to whether pedestrian was guilty of contributory negligence as to look
out in not seeing the vehicle and as to whether driver was guilty of negligence as to look
out in not seeing pedestrian).
Given the facts developed through testimony, we reject the invitation to
substitute our judgment for that of the jury’s. Therefore, we find no error in the refusal of
the circuit court to set aside the jury verdict for failure to apportion fault to Mr. Trent.
E. Damages
Finally, Roof Service argues that the circuit court erred by failing to set aside
the jury’s awards of past general damages and future general damages for Mr. Trent and
the award for loss of consortium for Mrs. Trent. Roof Service contends that the awards
were redundant, excessive compared to similar awards in other cases, and against the clear
weight of the evidence such that a new trial or remittitur is warranted. In contrast, Mr. and
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Mrs. Trent generally argue that both their lives have been fundamentally altered by the
injuries suffered by Mr. Trent.
This Court has long held that “[c]ourts must not set aside jury verdicts as
excessive unless they are monstrous, enormous, at first blush beyond all measure,
unreasonable, outrageous, and manifestly show jury passion, partiality, prejudice or
corruption.” Syl. Pt., Addair v. Majestic Petroleum Co., Inc., 160 W.Va. 105, 232 S.E.2d
821 (1977). There is no dispute as to whether the jury was properly instructed on general
damages and consortium damages. The jury awarded $181,000 to Mr. Trent in past
medical expenses, some $145,170.78 were stipulated to and the remainder represented
medical expenses attributable to Mr. Trent’s hospitalization for atrial fibrillation as a result
of the traumatic injury and surgery. The jury also awarded Mr. Trent $250,000 for “[p]ast,
present and future physical pain, mental anguish, and emotional distress” and awarded
$250,000 for “present and future loss of enjoyment of life and diminishment of his whole
person.” As to Mrs. Trent, the jury found by a preponderance of the evidence that she
suffered loss of spousal consortium and awarded her $250,000 for the loss. Loss of
consortium refers to any loss of society, companionship, comfort, guidance, and advice.
See, Syl. Pt. 1, Shreve v. Faris, 144 W.Va. 819, 111 S.E.2d 169, 170 (1959).
In discussing awards in personal injury actions, this Court has commented:
There is and there can be no fixed basis, table, standard, or
mathematical rule which will serve as an accurate index and
guide to the establishment of damage awards for personal
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injuries. And it is equally plain that there is no measure by
which the amount of pain and suffering endured by a particular
human can be calculated. No market place exists at which such
malaise is bought and sold.
Crum v. Ward, 146 W.Va. 421, 429, 122 S.E.2d 18, 23-24 (1961) (quotations and citations
omitted). Accordingly,
A jury verdict in a personal injury case may not be set aside as
excessive by the trial court merely because the award of
damages is greater than the trial judge would have made if he
had been charged with the responsibility of determining the
proper amount of the award. This Court cannot set aside a
verdict as excessive in such a case merely because a majority
or all members of the Court would have made an award of a
lesser amount if initially charged with the responsibility of
determining the proper amount of the award.
Sargent v. Malcomb, 150 W.Va. 393, 401, 146 S.E.2d 561, 566 (1966).
The loss of enjoyment of life resulting from a permanent injury is part of the
general measure of damages flowing from the personal injury and is not subject to an
economic calculation. Wilt v Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993). As this
Court described:
[C]ompensation for [general damages] is never a true measure
or a true compensation for what is lost, the task of awarding
general damages is a uniquely human endeavor, not only
calling upon the trier of fact to consider the host of factors
unique to each individual case, but also requiring the trier of
fact to draw upon the virtually unlimited factors unique to all
of us as human beings. . . .
Id. at 49, 443 S.E.2d at 206 (quoting Foster v. Trafalger House Oil & Gas, 603 So.2d 284,
286 (La. Ct. App. 1992).
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While the general and consortium damages do not lend themselves to precise
calculation, the evidence at trial was abundant as to the post-injury change of life
experienced by Mr. Trent. Mr. Trent spent some thirty-nine days hospitalized and in pain
followed by the need for home health and nursing care followed by out-patient physical
therapy. The evidence shows he was an active eighty-one-year-old man who enjoyed
walking some four miles daily at the local mall. That activity has been lost to him as the
evidence demonstrated that he can walk only short distances with the assistance of a cane.
He is unable to perform activities he previously enjoyed such as taking care of his yard.
Mr. Trent is unable to perform some of his previous household tasks such as taking the
garbage to the street and assisting his wife with other activities of daily life. He is unable
to sketch and draw cartoons as he used to do as a hobby. He has lost weight and has
decreased energy. Significantly, he testified to suffering from troubling sleep problems
due to being awakened by reliving the truck backing into him. The memory also plagues
him during his waking hours.
Likewise, there was sufficient testimony of the loss of consortium suffered
by Mrs. Trent. While no economic valuation of loss of household services was offered,
none is required as consortium is more than loss of domestic services and losses of society
and companionship are not reduceable to economic calculation. She was in the hospital at
the time of Mr. Trent’s incident. She was deprived of his regular daily visits and comfort
during her recuperation from surgery. They could not offer comfort and care to one another
during their respective recovery periods. They have had to adjust activities such as
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changing church attendance practices, giving up almost thirty years of attending WVU
football games due to the inability to climb the stairs, and ceasing decorating family graves
at the holidays. She testified that Mr. Trent has been unable to help her with many of the
household chores and that she has taken up others such as household finance activities.
Upon a review of the record, we cannot find that the damages awarded by
the jury were either unsupported by the evidence, redundant, or wrongly based on passion,
partiality, or prejudice. The testimony regarding Mr. Trent’s previous health and lifestyle
as well as the testimony regarding the significant injuries suffered and the nature of lifestyle
changes together with the impact on Mrs. Trent, compel our conclusion that the verdict
awards are not monstrous, enormous, unreasonable, outrageous, and do not demonstrate
jury passion, partiality, prejudice, or corruption. In Adkins v. Foster, 187 W.Va. 730, 421
S.E.2d 271 (1992), the Court found a jury award of $222,133.00 not excessive when
medical bills were $2,768.00. Id. at 731, 736, 421 S.E.2d at 272, 277. Likewise, in
Torrence v. Kusminsky, 185 W.Va. 734, 408 S.E.2d 684 (1991), the Court concluded that
a jury award of $207,000.00 was not excessive when the medical bills totaled $8,000.00.
Id. at 747, 408 S.E.2d at 687. In Strahin v. Cleavenger, 216 W.Va. 175,190, 603 S.E.2d
197, 212 (2004) the Court found that it was unable to say that a jury verdict was excessive
or outrageous when the intangible awards exceeded the special damages by a factor of
seventeen. Id. at 190, 603 S.E.2d at 212. In the instant case, the combined figure for both
Mr. Trent’s general damages and Mrs. Trent’s loss of consortium damages amount to about
four times the medical bills; a factor that is not, on its face, excessive.
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Accordingly, we find no error in the circuit court’s conclusion that the jury’s
award of damages was not redundant, excessive, or against the clear weight of the evidence.
IV. CONCLUSION
For the reasons stated above, the February 15, 2019, order denying the
motion of the Roof Service for judgment as a matter of law or, in the alternative, for a new
trial in the above-styled matter is therefore affirmed.
Affirmed.
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