854 S.E.2d 302
W. Va.2020Background
- On June 9, 2015 a foreman for Roof Service, Bruce Wilfong, backed his personal pickup down the sidewalk at the Trent jobsite while retrieving scrap metal and struck and ran over Robert Trent, causing severe injuries.
- Wilfong was a long‑term Roof Service employee and foreman; Roof Service contracted to remove debris from the Trent property and long tolerated Wilfong’s practice of taking scrap from jobsites as a personal perk so long as yards were cleaned.
- Wilfong settled with the Trents and was dismissed; the Trents proceeded to trial against Roof Service alleging vicarious liability (respondeat superior) and negligence.
- The jury found Wilfong was acting within the scope of employment, apportioned 100% fault to him, and awarded medical and substantial non‑economic damages to the Trents.
- Roof Service moved for judgment as a matter of law or a new trial and for remittitur; the circuit court denied relief and the West Virginia Supreme Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Respondeat superior / scope of employment | Wilfong’s conduct (collecting debris at the jobsite) was authorized by Roof Service, tied to its contractual duty to remove debris, and part of a long‑standing practice, so Roof Service is vicariously liable. | Wilfong was off the clock, in his personal vehicle, collecting scrap for his own profit; Roof Service lacked control and thus is not liable. | Court: Evidence permitted reasonable juror to find master‑servant relationship and that Wilfong acted within scope; affirmed denial of JMOL. |
| Exclusion of lay evidence on permanency/causation | Trents: injuries were direct/obvious; lay testimony about permanency was admissible and supported by treating physician. | Roof Service: some claimed limitations were obscure or attributable to preexisting conditions; expert testimony was required. | Court: Injuries were direct/obvious; lay testimony admissible; doctor’s testimony could be reconciled; exclusion not warranted. |
| Verdict form / independent‑contractor defense | Trents: verdict form and instructions allowed jury to decide employment status; parties agreed on form. | Roof Service: court should have submitted an explicit independent‑contractor question. | Court: Verdict form + instructions permitted jury to address status; no preserved objection; no abuse of discretion. |
| Allocation of fault (plaintiff negligence) | Trents: were on the sidewalk awaiting delivery; testimony supported no contributory negligence. | Roof Service: Trent admitted not looking both ways; officer testified Trent violated duty, so some fault should have been allocated to him. | Court: Evidence created factual dispute for jury; jury’s 0% apportionment to Trent upheld. |
| Damages (excessiveness / remittitur) | Trents: testimony showed substantial permanent loss of function, enjoyment of life, and consortium losses. | Roof Service: awards redundant and excessive relative to medical bills; new trial or remittitur required. | Court: Awards supported by record, not monstrous or driven by passion; remittitur/new trial denied. |
Key Cases Cited
- State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000) (standard of review for new‑trial rulings and factual findings)
- Fredeking v. Tyler, 224 W. Va. 1, 680 S.E.2d 16 (2009) (Rule 50(b) renewed JMOL reviewed de novo; view evidence for nonmoving party)
- Paxton v. Crabtree, 184 W.Va. 237, 400 S.E.2d 245 (1990) (four factors for master‑servant analysis; control is determinative)
- Cochran v. Michaels, 110 W.Va. 127, 157 S.E. 173 (1931) (scope of employment determined by relation of act to employment)
- De Constantin v. Pub. Serv. Comm’n, 75 W.Va. 32, 83 S.E. 88 (1914) (going‑and‑coming rule in workers’ compensation context)
- Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974) (when injury is obvious lay testimony may prove future damages; obscure injury requires expert proof)
- Zirkle v. Winkler, 214 W.Va. 19, 585 S.E.2d 19 (2003) (independent‑contractor status and respondeat superior are jury questions when facts are contested)
- Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983) (rules for assessing sufficiency of evidence in support of a verdict)
- Addair v. Majestic Petroleum Co., Inc., 160 W.Va. 105, 232 S.E.2d 821 (1977) (standard for setting aside a verdict as excessive)