The plaintiff was a guest at a hotel and casino complex owned by the defendant, Racing Corporation of West Virginia. On July 6, 2011, the plaintiff and his wife left the hotel and crossed the skyway bridge to the casino. Hours later, the plaintiff returned to the hotel via a roadway that ran beside a six foot retaining wall. The plaintiff ran an errand, then exited through the hotel’s front door. Spotting his wife outside the casino, the plaintiff took a shortcut, stepping through a row of shrubbery and walking down a steep hillside to the retaining wall. The plaintiff fell from the wall onto the roadway, causing injuries.
The plaintiff sued the hotel on a negligence theory and the case proceeded through discovery. The hotel moved for summary judgment, alleging that the plaintiff was no longer an invitee, but a trespasser, at the time of his injury. The trial court agreed. Because the hotel had not willfully or wantonly caused injury to the plaintiff, the trial court granted the hotel’s motion. The plaintiff then appealed.
Under what circumstances may a guest exceed the scope of his invitation, converting his status from guest to trespasser?
The Supreme Court began its analysis by citing the definition of a trespasser from Huffman v. Appalachian Power Co., 187 W.Va. 1, 415 S.E.2d 145 (1992): “A trespasser is one who goes upon the property or premises of another without invitation, expressed or implied, and does so out of curiosity, or for his own purpose or convenience, and not in the performance of any duty to the owner.”
The hotel alleged that by taking a shortcut the plaintiff had pursued his own purposes and, therefore, exceeded the scope of his invitation. The hotel relied principally on Roland v. Langlois, 945 F.2d 956 (7th Cir. 1991) where a carnival guest entered a fenced off area near a ride and was injured. The Supreme Court acknowledged that a guest’s status can change by moving from one part of a property to another. However, there is an important distinction between an area that is “both off limits and dangerous” and where, as here, the area is “not clearly demarcated as private or off limits.” The court did not establish a hard-and-fast rule but, instead, noted that where fact issues exist they should be resolved by the jury:
“Where factual issues exists as to whether an invitee has forfeited his or her status by going to a portion of the premises to which the invitation of usage may not extend, those issues should be resolved by a jury.”
In this particular case, there were factual issues presented that precluded summary judgment. First, was the plaintiff using an area where the hotel could reasonably have anticipated its usage? In this regard, the Supreme Court noted that another incident involving the retaining wall had occurred less than a year before. Second, was the shrubbery merely decorative or an indicator of prohibited usage? The trial court’s judgment was reversed and the case was remanded for trial to resolve these factual issues involving the plaintiff’s status.
Justice Benjamin concurred and wrote separately to point out that, under Hersh v. E.T. Enterprises, LP, 232 W.Va. 305, 752 S.E.2d 336 (2013), the open and obvious defense would not be available to the hotel. Reaffirming his dissent in Hersh, Justice Benjamin noted that “[b]y eliminating the open and obvious doctrine, this Court has fundamentally damaged the means by which premises liability cases proceed through our judicial system.”
Justice Ketchum also concurred, but he viewed the open and obvious issue quite differently. In fact, Justice Ketchum believed that if the issue had been properly preserved the hotel would have been entitled to summary judgment. However, the hotel withdrew this defense after Hersh was decided. Justice Ketchum invited the Court to consider writing a new syllabus making it clear 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.”
The outcome in this case is not surprising. It would be difficult to fashion a prophylactic rule to be applied in all cases where guests are alleged to have ventured into prohibited areas. Instead, the Supreme Court has adopted a common sense approach that recognizes the fact-intensive nature of a guest’s status and leaves the resolution of these factual issues to the jury. The concurring opinions highlight the ongoing debate over the open and obvious defense, which was eliminated a year ago and merged as part of our state’s comparative negligence system.