858 S.E.2d 838
W. Va.2021Background
- On Sept. 18, 2017 Ronald Gable visited a residence owned/controlled by his daughter, Deborah Gable, went onto the front porch, slipped on a small plastic object/golf-ball-sized item amid paint chips/debris, and suffered serious injury.
- Gable sued Deborah for negligence alleging she had a duty to keep the porch/steps reasonably safe, breached that duty by permitting golf balls and other debris, and that breach proximately caused his injuries.
- Deborah moved to dismiss under W. Va. R. Civ. P. 12(b)(6), arguing (a) Gable was a trespasser (owed no duty) and (b) the object was open and obvious (citing W. Va. Code § 55-7-28(a)). Her motion incorporated factual assertions not in the complaint and without supporting affidavits.
- The circuit court granted the motion, making factual findings that Gable was a trespasser and that a golf ball is typically open and obvious, and dismissed the complaint for failure to state a claim.
- The Supreme Court of Appeals reversed: held dismissal was improper because the complaint satisfied Rule 8(a), the court improperly relied on facts outside the complaint, a plaintiff need not plead around defenses, and both trespasser status and whether a hazard was open and obvious are factual questions for later proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Must a complaint plead facts to negate defenses (e.g., trespasser status; open-and-obvious hazard)? | Gable: No — complaint need only state the claim; defenses go in the answer. | Deborah: Complaint must negate defenses or be dismissed under Rule 12(b)(6). | Court: Held plaintiff need not anticipate or plead around defenses; dismissal for failing to plead defenses was error. |
| Whether plaintiff was a trespasser (duty issue) | Gable: Complaint alleges visit to front door and duty; status is a factual question. | Deborah: Argued facts show Gable was unwelcome and thus a trespasser owed no duty. | Court: Status as trespasser is a question of fact; complaint gives fair notice and survives 12(b)(6). |
| Whether the hazard was open and obvious under W. Va. Code § 55-7-28(a) | Gable: Alleges the object was hidden by angle, paint chips and not open/obvious from his viewpoint. | Deborah: The object (golf ball) is typically visible and thus no duty under statute. | Court: Whether a danger is open, obvious, or reasonably apparent is a question of fact; defendant must raise it as a defense later. |
Key Cases Cited
- State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (W. Va. 1995) (motions to dismiss reviewed de novo)
- Keesecker v. Bird, 200 W. Va. 667, 490 S.E.2d 754 (W. Va. 1997) (interpretation of civil rules is a question of law reviewed de novo)
- Chapman v. Kane Transfer Co., 160 W. Va. 530, 236 S.E.2d 207 (W. Va. 1977) (complaint should not be dismissed unless no set of facts would entitle plaintiff to relief)
- Rhodes v. J.B.B. Coal Co., 79 W. Va. 71, 90 S.E. 796 (W. Va. 1916) (plaintiff need not anticipate matters of defense in the complaint)
- Mallet v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (W. Va. 1999) (landowners owe non-trespassing entrants reasonable care; trespassers only protection from willful or wanton injury)
- Sewell v. Gregory, 179 W. Va. 585, 371 S.E.2d 82 (W. Va. 1988) (foreseeability defines duty)
- Ragonese v. Racing Corp. of W. Va., 234 W. Va. 706, 769 S.E.2d 495 (W. Va. 2015) (entrant status/deviation from permission is a question of fact)
- Hersh v. E-T Enterprises, Ltd. P’ship, 232 W. Va. 305, 752 S.E.2d 336 (W. Va. 2013) (abolished the common-law open-and-obvious doctrine — later addressed by statute)
- Phillips v. Larry’s Drive-In Pharmacy, Inc., 220 W. Va. 484, 647 S.E.2d 920 (W. Va. 2007) (statutes in derogation of the common law are to be interpreted narrowly)