Walter E. and Mary L. Hersh v. E-T Enterprises
752 S.E.2d 336
W. Va.2013Background
- On Oct. 9, 2009 Walter Hersh fell descending wooden exterior stairs between two parking lots and suffered severe head injuries; the stairs lacked any handrails.
- The City of Martinsburg building code required at least one handrail on exterior stair flights; defendants acknowledged there were no handrails and one defendant admitted he removed them.
- Hersh sued the property owners for negligence, alleging the ordinance violation (missing handrails) was causally connected to his injury.
- Defendants moved for summary judgment asserting the missing handrail was an open and obvious condition of which Hersh was aware, and under West Virginia precedent an owner owes no duty to remedy open and obvious hazards.
- The circuit court granted summary judgment for defendants; the Supreme Court of Appeals reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does violation of a municipal safety ordinance create a duty/basis for negligence? | Ordinance requiring handrails imposes duty; violation is prima facie negligence (Hersh). | Even if ordinance was violated, the open-and-obvious nature negates actionable negligence. | Violation of a public safety ordinance is prima facie evidence of negligence; jury decides proximate cause. |
| Is the "open and obvious" doctrine a complete bar to liability in premises cases? | Abolish the doctrine; obviousness should inform comparative negligence, not eliminate duty. | Maintain the doctrine: known, open hazards impose no duty to warn or remedy. | Court abolishes the open-and-obvious doctrine for premises liability; obviousness is for comparative-fault allocation, not automatic dismissal. |
| When does a land possessor owe a duty to remedy an obvious hazard? | Where harm is foreseeable despite obviousness (necessity to encounter, severity, etc.), a duty to take reasonable precautions exists. | If danger is obvious and known, possessor has no duty to reconstruct or alter premises. | Duty depends on foreseeability and reasonableness (considering severity, usage, burden to fix); factfinder decides whether possessor breached duty. |
| Role of plaintiff's knowledge of hazard in negligence analysis | Plaintiff's knowledge affects his comparative fault, not defendant's duty. | Plaintiff's knowledge negates defendant's duty entirely. | Plaintiff's awareness is relevant to comparative negligence; it does not, as a matter of law, eliminate defendant's duty. |
Key Cases Cited
- Shaffer v. Acme Limestone Co., Inc., 206 W. Va. 333 (1999) (violation of a public-safety statute is prima facie evidence of negligence)
- Burdette v. Burdette, 147 W. Va. 313 (1962) (historically articulated the open-and-obvious principle relieving owners of duty for obvious hazards)
- Sesler v. Rolfe Coal & Coke Co., 51 W. Va. 318 (1902) (early formulation that owners need not guard against defects known to entrants)
- Bradley v. Appalachian Power Co., 163 W. Va. 332 (1979) (adopted comparative fault in West Virginia, replacing contributory negligence)
- Mallet v. Pickens, 206 W. Va. 145 (1999) (abolished invitee/licensee distinction; owners owe reasonable care to non-trespassers)
- McDonald v. Univ. of W. Va. Bd. of Trustees, 191 W. Va. 179 (1994) (applied open-and-obvious analysis in slip-and-fall context)