Supreme Court Posts

The Term In Review: Torts

The spring term saw an interesting mix of tort cases.  Unfortunately, the subjects addressed by two of these tort cases were also addressed by the Republican-dominated Legislature, which passed a series of tort reform measures in its 2015 session.  In this way, the limited steps taken by the Supreme Court were effectively eliminated and replaced with uncertainty for the future.

On February 12, the Supreme Court decided Ragonese v. Racing Corporation of West Virginia, No. 14-0258, a premises liability case.  The plaintiff, a hotel guest, left a sidewalk and took a short cut through an adjoining row of shrubbery.  Unbeknownst to the plaintiff, there was a retaining wall and a drop off.  Falling, the plaintiff suffered serious injuries.  The trial court held that by leaving the sidewalk, the plaintiff was no longer an invitee of the hotel but, instead, was a trespasser.  The Supreme Court reversed, finding that the area beyond the sidewalk was not “clearly demarcated as private or off limits.”  Therefore, it was for the jury to decide if the plaintiff was, or was not, an invitee at the time of his fall.

Justice Benjamin concurred, observing that the outcome of the case would have been different if the Supreme Court had not abolished the open-and-obvious defense a year and a half before.  Interestingly enough, only a week later the Legislature passed S.B. 13--a bill reinstating the open-and-obvious defense in West Virginia.  S.B. 13 provides that an owner or occupant “owes no duty of care to protect others against dangers that are open, obvious, reasonably apparent or as well known to the person injured as they are to the owner or occupant.”

But does S.B. 13 really dictate a different result in cases like this?  Probably not.  Ragonese emphasized that the hotel had knowledge of a prior fall from the retaining wall.  Furthermore, the shrubbery--unlike a fence or a wall--did not clearly give notice of any potential danger.  Even under S.B. 13, I believe the case still would have survived summary judgment because there were factual questions presented.  Nevertheless, we are left with confusion and a lot of unanswered questions.

Another tort case receiving attention this term was Tug Valley Pharmacy v. Plaintiffs Below, No. 14-0144.  In this case the Supreme Court, by a 3 to 2 vote, rejected the so-called wrongful conduct rule.  The plaintiffs alleged that they were victims of “pill mills” operated by unscrupulous physicians and pharmacists.  Most of the plaintiffs had engaged in illegal conduct in obtaining pills to satisfy their addiction.  Would this bar their recovery?  Rather than precluding the plaintiffs from recovering because of their illegal drug-seeking, the Court held that their conduct would be considered by the jury, along with all of the other facts, as part of its comparative fault analysis.

Meanwhile, the Legislature was considering the same question.  In fact, this case was argued before the Supreme Court on March 4 and the Governor signed H.B. 2002 into law the very next day, i.e., March 5.  H.B. 2002 is a large-scale tort reform bill.  It provides, among other things, that criminal conduct is a bar to recovery, but only in felony cases where a plaintiff has been convicted or where, if deceased, the jury makes a finding beyond a reasonable doubt that he did, in fact, commit the felony.

In a long line of cases over the last 30 years, the Supreme Court has been steadily moving away from absolute defenses--leaving it up to the jury to weigh and apportion the fault of all parties, including the plaintiff.  Unfortunately, the Legislature, with its recent surge of tort reform bills, has reversed this trend.  Even more troubling, H.B. 2002 is a comprehensive bill that reworks almost every aspect of West Virginia’s comparative fault system.  Even the simplest cases will be affected by these reforms.  Attorneys, judges, and litigants must now wait to see exactly how this legislative overhaul will impact future cases, and how the new laws will mesh with longstanding case law.