The respondent in this case, Sahley, was a developer that constructed a retention pond in order to catch water runoff from a rebuilt subdivision. The property adjacent to the retention pond passed through several hands until it eventually was purchased by the petitioners in the case, David and Deborah Dickens.
Problems with the dam for the retention pond later developed, including slips in the land, and the slips allegedly allowed the pond to cross a boundary line onto the Dickens’ property. The Dickens sued Sahley, and other entities, asserting claims for fraud, constructive fraud, negligence and breach of implied contract. Their basic contention was that the slip had occurred before they purchased the lot 6-d Sahley was responsible for it. While the case appears to address the issue of res ipsa loquitur, it is really more of a civil procedure case. According to the Court’s opinion, it was only on the very eve of a comprehensive summary judgment hearing in the case that the Dickens even raised the doctrine of res ipsa. Moreover, the Court indicates that “[n]either prior to nor during this hearing did the petitioners present any depositions, expert witness reports, or any affidavits, other than their own, to resist summary judgment motions, and during the summary judgment hearing, upon direct questioning by the circuit judge, the petitioner’s counsel affirmed that they would be relying on res ipsa loquitur to sustain their claims.”
In this case, did the plaintiff produce sufficient facts regarding the elements of res ipsa loquitur to overcome summary judgment?
This was a clear-cut case for a per curiam opinion. The Supreme Court of Appeals easily disposed of the belatedly raised res ipsa contention made by the Dickens family. The Court stated: “In the case sub judice, the petitioners only offered conjecture and speculation, which left the circuit court with their phantom survey, unauthenticated and imprecise HOA meeting minutes, and unsworn rumors and speculations of certain neighbors.” Analyzing what the petitioners had presented below further, the Court cited well-established syllabus points on the issue of summary judgment, including syllabus point 2. Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995), requiring a party to make a sufficient showing when challenged by a motion for summary judgment on each and every element of the case that it has the burden to prove. The Court further clarified its analysis by referencing familiar language from Precision Coil indicating that, “more than a mere ‘scintilla of evidence’” must be forthcoming and that “The evidence illustrating the factual controversy cannot be conjectural or problematic.”
Ultimately, the Court concluded that all of the Dickens’ claims were derivative of a contention that the eastern wall of the retention pond had actually slipped and encroached upon their property, but in the summary judgment record there was essentially no proof that this had happened. Having failed step 1, the remaining conjectures of the Dickens family in regard to the ways in which they would be damaged by the slip, or the ways in which the slip must have come to be, were irrelevant.
The Court nonetheless, went on to recite and address the basics of a West Virginia res ipsa loquitur claim. According to Foster v. City of Keyser, 202 W.Va. 1, 501 S.E.2d 165 (1997), there is a three-part burden for a plaintiff alleging res ipsa loquitur. That burden includes proving that 1) the event is of a kind which ordinarily does not occur in the absence of negligence; 2) that other responsible causes, including the conduct of the plaintiff or third persons, are eliminated by the evidence; and 3) the indicated negligence is within the scope of the defendant’s duty to the plaintiff. In this case, res ipsa could not be relied upon by the Dickens in light of their failure to meet the first factor in proving that an event occurred that ordinarily would not occur in the absence of negligence.
The outcome of the case and per curiam disposition appears to be unsurprising. Particularly under the Revised Rules of Appellate Procedure, the Court as a whole is heavily emphasizing the character of the record below as essential, particularly for petitioners (and sometimes respondents too). It is becoming much more common for the Justices to demand precise citations to a coherent appellate record supporting each and every contention of a party. Here, the key facts needed for the petitioners to prevail could not be found in the record, leaving the Court to quickly rule after oral argument that the case would be affirmed.