769 S.E.2d 495
W. Va.2015Background
- David Ragonese, a hotel guest at Mardi Gras Casino, left the hotel and, instead of using the skyway bridge or roadway, passed through shrubbery and descended a steep grassy slope beside a six-foot retaining wall; he fell and suffered a serious leg fracture.
- He sued the Casino for negligence, alleging the Casino failed to protect guests from the dangerous retaining wall.
- The Casino moved for summary judgment arguing Ragonese forfeited invitee status and was a trespasser at the time of injury; thus the Casino owed only the limited duty applicable to trespassers.
- The trial court granted summary judgment, finding Ragonese became a trespasser when he left the sidewalk and went down the hillside. Ragonese moved to alter or amend; the motion was denied.
- On appeal the West Virginia Supreme Court reversed, holding factual disputes exist as to whether Ragonese exceeded the scope of his invitation and thus whether summary judgment was appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ragonese was an invitee or trespasser at time of injury | He remained an invitee; the lawn/hillside was public-facing, not marked off, and not obviously off-limits | He exceeded the scope of invitation by leaving the walkway and using the hillside for his own convenience, becoming a trespasser | Reversed trial court: status is a mixed fact/law question with genuine factual disputes for a jury |
| Whether summary judgment was proper | Court should deny SJ because factual disputes exist about status, barriers, and foreseeability | SJ proper because plaintiff knowingly used an uninvited area and defendant owed only trespasser duty | Court: SJ improper where factual issues about whether area was open to invitees remain |
| Applicable duty of care if invitee status retained | Casino owed ordinary duty to keep premises reasonably safe for areas included in invitation | If trespasser, duty limited to refraining from willful/wanton conduct | Court: duty and breach depend on fact-finder’s resolution of status; cannot decide at SJ stage |
| Relevance of open-and-obvious hazard doctrine | Plaintiff argued area not clearly off-limits; no explicit reliance on open-and-obvious in majority | Casino contended hazard was open-and-obvious (but withdrew that ground after Hersh) | Majority did not decide open-and-obvious; concurring opinions note Hersh abolished doctrine and would have been outcome-determinative if argued |
Key Cases Cited
- Huffman v. Appalachian Power Co., 187 W. Va. 1, 415 S.E.2d 145 (W. Va. 1992) (definition of trespasser and invitation principles)
- Hersh v. E-T Enterprises, 232 W. Va. 305, 752 S.E.2d 336 (W. Va. 2013) (abolished the open-and-obvious doctrine in premises liability; duty questions often for the court)
- Roland v. Langlois, 945 F.2d 956 (7th Cir. 1991) (invitees may forfeit status by going to areas not covered by the invitation)
- Aetna Cas. & Sur. Co. v. Federal Ins. Co., 148 W. Va. 160, 133 S.E.2d 770 (W. Va. 1963) (standard for granting summary judgment)
- Byers v. Radiant Group, L.L.C., 966 So.2d 506 (Fla. Dist. Ct. App. 2007) (visitor’s status is determined at time of injury; status can change while on premises)