881 S.E.2d 390
W. Va.2022Background
- On July 23, 2017, petitioner Joey Butner fell at a gravesite in Highlawn Memorial Park when the ground gave way, injuring his right shoulder; photographs taken the following day showed three holes or voids around the grave.
- Butner testified under oath that he did not see any holes or voids before his fall; he sued Highlawn for negligence and for willful, wanton, and reckless conduct.
- Respondents moved for summary judgment under West Virginia Code § 55-7-28(a) (the open-and-obvious doctrine); the circuit court granted summary judgment, finding the holes open and obvious or, alternatively, that Butner produced no evidence of respondents’ knowledge or negligence.
- Butner opposed with photos, deposition excerpts, an expert letter, unverified interrogatory answers describing anticipated testimony of two witnesses (Andrew Lambert and Brian Brooks), and an undated/unsigned transcript of a phone call with Lambert.
- The Supreme Court of Appeals ruled the circuit court erred in applying the open-and-obvious doctrine as a matter of law (Butner’s sworn testimony created a factual dispute), but affirmed summary judgment because the proffered evidence of respondents’ knowledge/negligence (Lambert/Brooks material and the phone transcript) was unsworn/unauthenticated and thus insufficient under Rule 56(e).
- The Court announced that unsworn and unverified documents generally lack sufficient evidentiary quality to defeat summary judgment unless self-authenticating, acknowledged by a person with firsthand knowledge, or unchallenged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Was the dangerous condition (holes/voids) open and obvious under §55-7-28(a)? | Butner: He did not see holes; his sworn testimony creates a factual dispute that the holes were not present/obvious at the time of the fall. | Highlawn: Post-fall photos show holes that were open and obvious, so no duty owed. | Court: Reversed circuit court — whether condition was open and obvious is a jury question given Butner's sworn testimony. |
| 2. Does plaintiff’s failure to perceive a danger mean defendant likewise could not perceive it (i.e., bar duty as a matter of law)? | Butner: No — statutory language applies where owner knew of danger; plaintiff’s lack of perception does not auto-impute invisibility to owner. | Highlawn: If Butner did not see danger, neither could owner; thus no duty. | Court: Rejected the circuit court’s inversion; statutory phrase “as well known to the person injured as they are to the owner” applies when owner actually knew. |
| 3. Could the court consider anticipated testimony in unverified interrogatory answers and an unsigned phone transcript at summary judgment? | Butner: The interrogatory answers and transcript show witnesses would testify that hidden voids were common at Highlawn and demonstrate notice/poor practices. | Highlawn: The materials are unverified/unauthenticated and therefore inadmissible to oppose summary judgment. | Court: Agreed with Highlawn — unsworn/unverified documents were not competent evidence and should not have been considered. |
| 4. Did remaining admissible evidence (photos, expert report, deposition excerpts) create a genuine issue on negligence/knowledge? | Butner: Photos and expert report (Stovall) plus testimony show negligent grave-filling and lack of inspection, supporting constructive knowledge. | Highlawn: Photos taken after incident and expert impressions are speculative; deposition excerpts do not show actual or constructive knowledge. | Court: Held admissible evidence insufficient to show actual/constructive knowledge or negligence; affirmed summary judgment. |
Key Cases Cited
- Gable v. Gable, 245 W. Va. 213 (W. Va. 2021) (whether a danger is open and obvious is a question of fact)
- Hersh v. E-T Enters., L.P., 232 W. Va. 305 (W. Va. 2013) (Court previously abolished common-law open-and-obvious doctrine before legislative reinstatement)
- Painter v. Peavy, 192 W. Va. 189 (W. Va. 1994) (standard for summary judgment; draw all inferences for nonmoving party)
- State v. Epperly, 135 W. Va. 877 (W. Va. 1951) (clear statutory language must be given full force and effect)
- Click v. Click, 98 W. Va. 419 (W. Va. 1925) (statutory construction should avoid absurd results)
- Ramey v. Contractor Enters., Inc., 225 W. Va. 424 (W. Va. 2010) (unsworn/unverified documents ordinarily lack evidentiary quality for summary judgment)
- McDonald v. Univ. of W. Va. Bd. of Trs., 191 W. Va. 179 (W. Va. 1994) (plaintiff must show owner had actual or constructive knowledge of defective condition)
- Smoot ex rel. Smoot v. Am. Elec. Power, 222 W. Va. 735 (W. Va. 2008) (standard for establishing duty and foreseeability in negligence claims)