Denise Orso v. The City of Logan, West Virginia (Justice Wooton dissenting) ( 2024 )

No. 22-625, Denise Orso v. The City of Logan FILED
March 15, 2024
WOOTON, J., dissenting: released at 3:00 p.m.
C. CASEY FORBES, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Our law is clear that “[n]o action for negligence will lie without a duty
broken.” Syl. Pt. 1, in part, Parsley v. Gen. Motors Acceptance Corp., 167 W. Va. 866, 280
S.E.2d 703(1981). Also, “[n]egligence is the violation of the duty of taking care under the
given circumstances. It is not absolute, but is always relative to some circumstance of time,
place, manner, or person.” Syl. Pt. 1, Dicken v. Liverpool Salt & Coal Co., 41 W. Va. 511,
23 S.E. 582 (1895). This Court explained in Strahin v. Cleavenger, 216 W. Va. 175, 603
S.E.2d 197 (2004), that duty is not “an inflexible principle.” Id. at 184, 603 S.E.2d at 206.
In this regard, we reiterated our law enunciated in syllabus point three of Sewell v. Gregory,
179 W. Va. 585, 371 S.E.2d 82 (1988), wherein we held that
[t]he 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?
Strahin, 216 W. Va. at 184, 603 S.E.2d at 206. We then reasoned that
[t]his test obviously involves a mix of legal and factual
determinations which must be made regarding foreseeability in
relation to duty in negligence cases. As this Court said over
100 years ago,
the most the court can ordinarily do, when the
question of care or negligence depends upon a
variety of circumstances, is to define the decree
(sic) of care and caution required by the law and
1
leave to the practical judgment of the jury the
work of comparing the acts and conduct of the
parties with the duties required of them under the
circumstances.
Syl. Pt. 2, in part, Washington v. B. & O. R.R. Co., 17 W.Va.
190, 1880 WL 4038 (W.Va.1880).
Strahin, 216 W. Va. at 184-85, 603 S.E.2d at 206-07. The Court then held that “[w]hen the
facts about foreseeability as an element of duty are disputed and reasonable persons may
draw different conclusions from them, two questions arise—one of law for the judge and
one of fact for the jury.” Strahin, 216 W. Va. at 179, 603 S.E.2d at 201, Syl. Pt. 11. Thus,
[a] court’s overall purpose in its consideration of
foreseeability in conjunction with the duty owed is to discern
in general terms whether the type of conduct at issue is
sufficiently likely to result in the kind of harm experienced
based on the evidence presented. If the court determines that
disputed facts related to foreseeability, viewed in the light most
favorable to the plaintiff, are sufficient to support
foreseeability, resolution of the disputed facts is a jury
question.
Id. at 180, 603 S.E.2d at 202, Syl. Pt. 12.
In affirming the circuit court’s order granting the City’s motion for summary
judgment, the majority, like the circuit court, embarked on its own assessment of the
foreseeability component discussed supra – instead of placing this question in the capable
hands of a jury. 1 The majority then concludes that “there is no evidence demonstrating that
1
“Questions of negligence, due care, proximate cause and concurrent negligence
present issues of fact for jury determination when the evidence pertaining to such issues is
conflicting or where the facts, even though undisputed, are such that reasonable men may
2
Respondent knew or should have known that the wire was on the sidewalk causing a
potential hazard when Petitioner fell.” While the majority reached this conclusion, I believe
that a jury could have viewed these same facts and concluded the opposite – that based
upon the City’s actions it was reasonably foreseeable that the City knew or should have
known of this potential hazard.
Although the City’s street commissioner testified that he had never received
any complaints about the subject loop of cable wire, he also testified that he and other City
personnel—in the discharge of their job duties—did visual inspections of the downtown
properties several times a week, including the area of Ms. Orso’s fall, where it was
undisputed that the loop of cable wire had been present for at least ten years. 2 A jury could
have found that it was foreseeable that the City’s street commissioner, who was
affirmatively looking for potential hazards on the City’s sidewalks multiple times a week,
either knew or at least should have known that the hazard which caused Ms. Orso’s injuries
existed.
Summary judgment is appropriate only where “the record could not lead a
rational trier of fact to find for the nonmoving party, such as where the nonmoving party
draw different conclusions from them.” Syl. Pt. 4, Aikens v. Debow, 208 W. Va. 486, 541
S.E.2d 576 (2000) (citation omitted).
2
When asked how often he conducted these visual inspections, the street
commissioner testified “we’re out on the streets every day. . . . I mean Monday through
Friday, unless it’s a holiday. I mean we’re out every day.”
3
has failed to make a sufficient showing on an essential element of the case that it has the
burden to prove.” Syl. Pt. 2, in part, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459
S.E.2d 329 (1995). Because at least one triable issue exists in this case, I disagree with the
majority’s decision to uphold the circuit court’s grant of summary judgment to the City.
Jury trials are the backbone of our judicial system. This Court must assiduously ensure that
the circuit courts (and appellate courts) do not decide questions of fact and usurp authority
from the jury. Accordingly, I would reverse the circuit court’s summary judgment order
and remand this case for additional proceedings.
Based on the foregoing, I respectfully dissent.
4