Bowers v. Wurzburg

agreeing to dismiss a Rule motion seek 528 S.E.2d 475 ing mоnetary against sanctions them. BOWERS, al., Marvin T. et as Class amazing getting It after off Representatives, Plaintiffs filing spurious skin of their teeth for law- Below, Appellants, letter, writing threatening Neely suit and actually again attempt and Hunter would aspersions against cast this individual and WURZBURG, Gretchen the Southland day lawyers may care center. These Corporation, al., et Defendants never learn their lesson until the time comes Below, Appellees. imposed,

when a real sanction is either No. 26218. through proceedings in ethical or the form of they misquoted, a lawsuit. If they were Supreme Appeals Court of immediately should demand that a correction Virginia. West printed. they misquoted, But if were then conducting shame them for them- Sept. Submitted 1999. selves in bring this manner. It does not Decided Dec. 1999. respect profession. to the Dissenting Opinion of Justice I am authorized state that Justice April Davis 2000. joins concurring MAYNARD opinion. time, hours. This claim was provided, dismissed because the pertinent At that Rule 11 part: only plaintiffs produced during evidence dis- signature attorney covery Davis, party of an testimony Mary or consti- Ellen tutes a certificate him that he has read the teacher, Quinton's special education that one motion, pleading, paper; or other that to the day Quinton she found in the chair in his information, knowledge, best of his and belief up classroom when all the other children were inquiry formed after reasonable it well Finally, about the same room. grounded existing fact and is warranted punitive damages claim for was dismissed for good extension, argument law or a modification, faith for the being duplicative damages of the claim for law, existing or reversal of from intentional infliction of emotional dis- interposed any improper pur- that it is not Only Quinton’s tress. claim for intentional pose, unnecessary such as to harass or to cause permitted infliction of delay emotional distress was litiga- or needless increase the cost of go motion, pleading, ... paper forward. tion. If a or other rule, court, signed is upon Subsequently, plaintiffs requested violation of this a vol- may motion or own initiative untary remaining dismissal of the claim in it, impose upon person signed repre- who appeal order to order. both, sanction, party, appropriate sented or Defendants then filed a motion for sanctions pay which party include an order to to the other Virginia under Rule 11 of the West Rules of parties the amount of the reasonable Thereafter, parties Civil Procedure. expenses pleading, filing incurred because of the agreement whereby plaintiffs reached an motion, paper, including or other agreed appeal to dismiss the and all claims attorney's reasonable fee. prejudice in return for the defendants February Rule 11 was amended on dismissing agreeing the Rule 11 motion and correspond with Rule 11 of the Federal Rules attorney against not to seek sanctions either April of Civil Prоcedure and became effective Neely. Mr. Hunter or Mr. Taylor, Esquire, Martinsburg, Paul G. Virginia, Attorney Appellants. West Printz, Jr., Esquire, Charles G. Bowles Love, Martinsburg, MeDavid Graff & Rice Virginia, Attorney Appellee County against property Gret- the owner of West situated, upon which the 7-11 was Wurzburg. Gretchen chen Wurzburg; company leased this (Pro Vice), Sotsky, Hac Esquire Lester property operated and owned and the 7-11 Porter, DC, Attorney Washington, Arnold & store, (“South- Corporation the Southland Ltd., Yakado, al. Appellees et land”); foreign companies three who Southland, hold a financial interest MeGRAW, Justice: Ito, IYG, whom we shall refer to as below, appellants plaintiffs herein SEJ.2 Bowers, Bowers, T. Esta Marvin Bessie C. reiterating Without verbatim the facts of (hereinafter Bell, M. R. and John Bell “the appeals, the last two necessary we find it plaintiffs”), appeal a or- December provide background some information. The County of of der the Circuit Court Jefferson plaintiffs appeal first was a result оf the granting summary judgment ap- in favor of lower court’s foreign dismissal of the defen- pellee herein and defendant below Gretchen personal jurisdiction. dants for lack of We Wurzburg, appellants (along whom had sued 43, found in Wurzburg, Bowers v. 202 W.Va. parties) damages resulting with other (1998) (“Bowers /”), 501 S.E.2d 479 that the gasoline at a 7-11 from leak convenience lower court had erred when it refused to Shepherdstown, Virginia. store near West permit discovery on personal the issue of below, For reasons set forth we reverse the jurisdiction. specifically Without deciding grant summary judgment. lower court’s jurisdictional question, the we remanded this case to the Circuit County Court of Jefferson I. pursuit discovery regarding personal jurisdiction court’s foreign over the AND FACTUAL PROCEDURAL I, defendants. See Bowers 202 W.Va. at 52- HISTORY 53, 501 S.E.2d at 488-89. encounter, represents This our third appeal The next resulted from the lower date, underlying with this ease. The lawsuit court’s foreign compa- decision dismiss the gasoline stems from a at a 7-11 leak nies for process. insufficient sеrvice of Al- Shepherds- convenience store located near though agreed plaintiffs we that the had not town, Virginia. many West Like stores of its properly, served the defendants in Bowers v. kind, gasoline this 7-11 offered self-service 450, Wurzburg, 205 W.Va. 519 S.E.2d 148 sales, gasoline being in stored under- (1999) (“Bowers II”), modified, in part, we 1994, ground point tanks. At some in late decision, circuit court’s and remanded the 10,000 gallons some leaked from plaintiffs case order to allow the to effect tanks, migrating properties onto the of proper foreign service defendants. plaintiffs. On the ironic date Decem- around, it This time is the resident defen- 7, fire, leaking gasoline caught ber dant, landlord, property owner and Gretchen produced explosion in the home of Wurzburg, whom court the lower has dis- result, Mr. and Mrs. Bowers. As a the other missed from the action. On October plaintiffs were forced evacuate their granted appellee court the lower Wurz- time, lengths for various and suf- homes burg’s summary judgment, motion for which dаmages. fered other final in became an order dated December Consequently, plaintiffs filed class It plaintiffs 1998. is from this order that the action suit1 in appeal.3 the Circuit Court Jefferson now Co., ("Ito”), Appellees suggest Holdings the lower court has re- that Ito-Yokado ("IYG”), Ltd. IYG action,” Co., certify Japan fused to this lawsuit as a "class and Seven Eleven Ltd. ("SEJ”). analysis subsidiary but such a distinction is irrelevant to our is a SEJ of Ito. IYG is a SEJ, opinion. holding company jointly in this owned Ito and subsidiary and is a of Ito and SEJ. None of the original operator Company, 2. The Southland Japanese companies origi- were involved States, throughout of 7-11 stores the United Wurzburg nal deal between Ms. and Southland. Japa- bankrupt went A consortium of companies majority purchased 3.Appellees nese of South- maintain that we should affirm the bankruptcy. companies plaintiffs develop land after that Those are lower court because did not “A known: motion appeal instant reveal and well to the Facts relevant Wurzburg and late brother Wil- Ms. her granted only it is judgment should be when convenience stores developed several lard genuine is no issue of fact cleai* there Virginia panhandle of West the eastern concerning inquiry, the facts is be tried Specifically, on November the late 1970’s. clarify application of the not desirable into a Wurzburgs entered lease Casualty Syl. pt. Aetna & Sur. Co. law.” whereby the agreement with Southland York, Ins. New v. Federal Co. of land a construct their Wurzburgs would (1963). Furthermore, 133 S.E.2d op- would lease and building that Southland party who moves for “[a] as a 7-11 store. erate showing is no has the burden there lease, Wurzburgs agreed to In that genuine of fact and doubt as to the issue building on land which their construct ‍‌​​‌‌‌‌​‌‌‌​‌​‌‌‌​​‌​​​‌​​​​‌‌‌‌​​‌​‌​‌‌‌‌‌‌‌‌​‌‍against the of such issue is resolved existence operate the store. The would Southland judgment.” Syl. pt. 6. for such Id. at movant agreed to maintain the struc- Wurzburgs also motions is de novo. building, review of such but Southland Our integrity tural for all other mainte- responsible Peavy, Painter v. рay a was to upkeep. Southland nance month, per- in addition to a base each rent gross centage the store’s sales. of III. signing

Shortly of the November after the 1, 1977, lease, January parties signed the the lease, 16, 1978, Wurzburgs in which the DISCUSSION and install agreed construct to let Southland necessary for pipes, pumps, and tanks the Argument A. The Restatement agreed in gasoline. Southland also sale of that, considering note when First we liability to maintain insur- second lease the injuries liability to a landlord or tenant for Wurzburgs in harmless ance and to hold the general principle as a result of party, [is] others were harmed “the the event third gasoline. were the sale of Sales leased, is property once a is the tenant liable figures in to calculate not included the used injuries persons caused [that] for to third are by percentage agreed to gross sales the by premises.” the condition of the demised in the earlier lease. Southland Buckhannon, 187 W.Va. Andrick v. Town of in Wurzburg maintained her motion (1992). See nothing summary judgment that shе had to Valet, Inc., also, Hour Cowan One store, operation of 7-11 had do with the the (1967). 941, 157 S.E.2d day-to-day operations, over the no control gas any problems with the was unaware However, circum under certain tanks, duty plain- to storage and owes no the stances, when a landlord knows the ten agreed, granting Ms. tiffs. The lower court potentially dangerous ac engaging ant is summary judgment, Wurzburg’s motion for tivity, may be liable for the the landlord denying plaintiffs’ motion subsequently and tenant, dangerous if that actions of the even Because we find for reconsideration. remain, fact we reverse questions of material activity harmed outside of the has someone lower court. the decision the excep an premises. Courts make such leased immunity general rule of landlord tion to the

II. knowingly profit prevent a landlord from to rent) (via receipt from certain ing the REVIEW STANDARD OF passing liabili dangerous activities while the of review of motions Our standard ty buck onto the tenant. is established well plаintiffs, and did arguments adequately raised the appellate below. stantive issues their Perhaps has dispose the record in this case on the of some because of the case basis Charleston, trips not all of the to made several relevant documents part. procedural Thus our dereliction on their are contained the file. arguments appro- plaintiffs' is consideration of However, granting appears that in it priate. judgment the trial court did consider sub- the (Second) plaintiff, injured gas 379A, § In a of Torts case where Restatement explosion, operator the lessee as station sued authors write: “The rule stated this Sec- property, as well closely § lessor/owner tion is related to that stated in Appeals Ohio Court of reversed a directed liability as to for a the lessor nuisance landowner, stating: verdict favor of the land, together on and should be read “Thus, simply is there case be made § that Section. The Comments are reality why consistent with as to the law applicable pertinent.” they so far as are Re- public remedy provide should not with a (Second) 379A, § statement of Torts com- against possession out of con- landlord and (1963-1964). full, ment a Section who powder factory trol rents a to a known follows: reads as Co., pyromaniac.” Benlehr v. Shell Oil subject A lessor of land liability App.2d Ohio 402 N.E.2d activity for a nuisance caused carried This concept imposing liability on a the land while lease continues landlord for the actions tenant best owner, and the lessor continues if the explained by reference the Restatement lessor would be if he had liable carried on (Second) of Torts: himself, activity subject A lessor of land (a) at time of the lease the lessor physical persons harm to outside activity or consents knows or has land caused activities of or the lessee on, to know reason that it will be carried others on land after the lessor trans- if, if, possession only fers but (a) thе lessor at the time of the lease (b) he then knows or should know that it activity consented to such that it knew necessarily already will or is involve caus- on, would be carried ing nuisance. (b) the lessor knew or had know reason to (2) A vendor of is not land liable for a unavoidably that it would an involve such by solely activity nuisance caused an car- risk, or special precau- unreasonable that ried on the land after he has trans- necessary safety tions to not would it. ferred taken. (Second) (1977). § Restatement of Torts 837 (Second) § of Restatement Torts 379A of With the interconnectedness these three (1963-1964). mind, by to sections we turn their use discussion, pause continuing Before our we jurisdictions. other explain to the interrelated of several nature provisions, namely restatement Restatement Many adopted language have of states (Second) 837, §§ of 379A Torts and and Re- the above-referenced restatements of the (Second) (1976). Property § statement of 18.4 law, in form or some another.5 The most First, (Second) we note that of Restatement application logic common of restatement Property is almost identical to Restatement dog eases, a party, bite where third (Second) § 379A.4 Torts dog, aby bitten tenant’s vicious seeks com- See, Second, pensation from as the landlord well. that the we note authors Re- (Second) 504, 379A, quoted Laudenslayer, Cal.App.3d § 44 statement of Torts Uccello v. above, (1975) (landlord emphasize Cal.Rptr. similarity 118 741 cannot sit between idly danger); section and to another. the comment in the face of known Strunk subject (Second) liability Property (1976). § A physical landlord Restatement 18.4 persons property harm to outside the leased caused of the tenant or on the activities others See, Min., Bischofshausen, Jaquays D.W. etc. v. property pos- leased after the landlord transfers 204, (Ct.App.1985) 700 902 145 Ariz. P.2d only session if: (Second) 837); § (adopting Restatement of Torts (1) the at landlord the time of lease DeLoach, (Pa. 714 A.2d Commоnwealth v. 483 activity consented to the be carried or knew it would Cmwlth.1998) liability (comparing criminal un- on; and liability der to civil under ordinance Restatement (2) the knew or had to know landlord reason Randall, (Second) 837); § of Torts Koch v. 136 unavoidably that it would able involve an unreason- 500, (1992) (referencing N.H. 618 A.2d 283 Re- risk, special precautions necessary or that (Second) 837). § statement of Torts safety would be taken. not 34 Fairground following an at one time 62 N.Y.2d 479

v. N.Y.S.2d Zoltanski (1984) (landlords, Tingley at Coliseum. oth- like concert 13 event N.E.2d ers, care not to must exercise reasonable hold that Fair could the State We expose parties unreasonable risk third merely by escape to Bober show- harm); Hoffard, v. 315 Or. Park [the it had ing that leased the Coliseum (landlord P.2d 852 can be liable for day promoter] night and injuries party a third from an attack rock concert. premises). dog off the rental tenant’s Fair, New 111 N.M. Bober v. Mexico State (1991). P.2d

In a facts to the instant case with similar ease, grant a a court overturnеd Colorado points to the South Dakota Appellant us summary judgment to a landown- defendant Wagner, 501 ease Easson v. N.W.2d er, gas methane when a tenant allowed (1993). case, In that the defendant tenant injur- escape property explode, from the adja- injured plaintiffs blasting when ing party. court based deci- third The rocks property, sending a shower of cent § logic sion on 379A: “Under certain court plaintiffs’ onto home. lower circumstances, a lessor be held liable for motion granted had landlord’s defendant physical danger- from harm which resulted Supreme judgment, but though ous on this land even he condition reversed, applying Dakota Court of South See, e.g., retains control over it. Restate- summarizing language: the restatement (Second) § ment Torts 379A.” v. Salazar gives ques- the claim ... rise to two Thus Webb, Colo.App. 618 P.2d fact: the landlord knew tions of whether (1980)(footnote omitted). to, of, activity the tenant’s or consented [or he which caused the harm whether appellаte where re- Another case court the risks realized associated she] versed an award of for a activity. operations If under expected defendant landowner the New Mexico case reasonably anticipated result in a the lease Fair, of Bober New 111 N.M. Mexico State liabili- injury, the cannot disclaim landlord case, In that 808 P.2d 614 ty. plaintiff sued the New Mexico State Fair for Wagner, car, 501 N.W.2d injuries exiting Easson sustained she when omitted). (1993) (citations of concert, aspect Another a rock grounds state fair after plaintiffs, that emphasized by the is Easson injured alleged struck and her. She that the case, in that like Ms. Wurz- the defendants steps, such as state should have taken install- guarantees insur- burg, had also of received ing deploying police- traffic control devices or coverage and from their men, ance indemnification that thousands cars ensure of tenants: exiting grounds fair could do so in a safe Fair orderly and manner. The defend- State coverage Certainly, mandating insurance ed, part, in it had on the basis that leased recognition a indemnification evinces and

fairgrounds promoter, it to a and was the by Eggers mining that the Ballard Claim liability promoter should for the who bear liability it from with risks which carried relied, plaintiff part upon accident. The as the landowners. could result them section 379A of the restatement: appreciation Eggers’ of of The extent mining under risks associated Third, also Bober invokes rule 18.4(2),however, question § a of fact raises (Second) of the Section 379A Restatement jury must decide. responds ... Fair that Torts The State of discourage by no showing that it of Id. we means wish to Bober made knew While risks; this, course, proper obtaining from insurance of tenants unreasonable but in the or their landlords fact that burden on cover themselves overlooks the one, agree Fair, an accident like we party moving event of as the and indemnifi- judgement, it that of insurance that the existence adduce some evidence of agreements provides and indication an danger was unaware of the of accident cation large exiting perceived by the landlord. arising from a number cars the risk Peneschi, theory of reasoning of we discussed the with the concur We cases, liability dangerous in- strict for the use foregoing and thus Easson strumentalities, (Sec propounded in the seminal language of the Restatement adopt the Fletcher, (Sec English Rylands v. L.R. 3 case ond) § Torts 379A and Restatement explained: As “The H.L. 330 we ond) § A who Torts landowner principle Rylands is that where a basic know that his or her tenant knows or should abnormally danger- person chooses to use an dangerous activities conducting potentially instrumentality strictly with- ous he is liable hope to avoid premises cannot on the leased any injury showing negligence out knowledge liability by simply avoiding instrumentality.” that proximately caused conduct at issue. at at 295 S.E.2d W.Va. Peneschi Wurzburg points out a Appellee differenсe theory Rylands We first addressed the case; Eas- this ease and our instant between liability involving collapse strict a case blasting, abnormally danger involves an son tower, quoted in which the Court of water activity, recognized as such in ous and one length: Rylands at some See, e.g., Whitney Ralph this State. that of law is that We think the true rule 130, 118 Myers Contracting Corp., 146W.Va. purposes person who for his own (1961). Appellee argues that 5.E.2d keeps brings lands and on his collects quoted language we have above restatement likely if it anything to do mischief there activity unavoidably requires the tenant’s and, escapes, keep peril, it in at his if must an unreasonable risk before involve so, prima does not do answera- he facie landlord; words, pass could to the other damage which is the natural ble for all the storing gasoline argues, selling if or she consequence escape.... But for his of its blasting, abnormally dangerous, like Ms. not bringing it no mischief could act there Wurzburg cannot be liable under Restate accrued, just that and it but he have seems (Second) § of Torts 379A. ment keep that no peril should at his it there so accrue, or for the mischief answer point Appellee goes on to out that dicta consequences. anticipated natural Corp., our of Peneschi v. National Steel case authority this we think is estab- And (1982), suggests W.Va. things so to be the law whether the lished filling storing “gasoline in a station” water, beasts, filth, or brought or be abnormally not considered an dan- should stenches. is, activity; go all gerous because we Thurmond, pre- gas regular basis without Weaver Mercantile Co. stations on (quot- will, gas pose 70 S.E. paring a stations must supra).7 ing Rylands, risk.” “unreasonable (Holding dangerous gasoline. is a instrumen- the sale of 6. The instant case involves gas special recognize tality). While we stations are a neces- that one must take It is obvious society, sary integral part present safely, of our we precautions and remain to use it and one must dangers pro- aware of the inherent against are also vigilant guarding accidents. “The duction, transportation, storage, gas- and sale of gasoline judicial and oth- take notice that courts gaso- present, long and we have considered oline gunpowder, products, petroleum er inflammable instrumentality: dangerous line to be a dynamite, dangerous explosive, as a are and gasoline dangerous nature of The volatile and knowledge.” ex Oil common State rel. matter of recognized by Oil Co. v. Stark, 176, 183, is Thomas, the courts. 122 S.E. 96 W.Va. Shaffer Service ‍‌​​‌‌‌‌​‌‌‌​‌​‌‌‌​​‌​​​‌​​​​‌‌‌‌​​‌​‌​‌‌‌‌‌‌‌‌​‌‍Co. v. 41; 120 Okl. 252 P. Gibson Oil (1924) (citations omitted). 536 Sherry, 172 Ark. 291 S.W. Co. it "Gasoline becomes vola- wherein was said: arguments Interestingly, the defendant in easily exposed to the air and is tile when like that of Ms. Weaver case sound much ignited when it comes in contact with a flame. Wurzburg: is, also, highly dangerous Therefore Defendant, case, present had leased the in the substance, applies and the same rule to it as Thurmond, son, who was hotel to his J.S. regard gas." to To the same above stated injury complained possession at the time of the Steinberg, effect are Sedita v. 105 Conn. that, of, was no Rundle, as there and it is contended 49 A.L.R. and Hunt v. A. repairs, agreement by he is to make the lessor La.App. 120 So. 696. Co., not liable. Virginian Gasoline & Oil Adams 535-36, Weaver, 631, 636-37, (1930) at 70 S.E. at 68 W.Va. 156 S.E. 65-66 (a) inherently This is of items that high degree true are existence risk of see, dangerous, gunpowder, person, such as some harm to the Wilson v. land or chattels others; Co., Mfg. Phoenix Powder 40 W.Va. (1895), (b) may as it is of items that

S.E. likelihood that the harm that results initially dangerous, ordinary great; not be such as from it will be garbage city dump. (c) in a household We noted inability to eliminate the risk City care; as much in a ease where the of Hinton exercise of reasonable dump engulf (d) allowed a to the home of a activity extent to which the is not a Hinton resident: usage; matter of common (e) inappropriateness activity of the to who, profit, bring [P]ersons for their own on; place where it is earned premises, keep onto their and collect аnd (f) to which its extent value to the com- anything, escapes, if it

there which will do munity outweighed by dangerous is at- another, damage are liable for all conse- tributes. acts, quences of their and are bound at (Second) peril keep their it and it §§ confine on their Restatement of Torts 519 and premises. Wurzburg own Ms. maintains that selling storing gasoline cannot meet this Hinton, City 613, 142 Adkins v. test; met, § because the test of 520 is not (1965) (citing Mayes S.E.2d 889 v. Union However, § neither is the test of 379A. Corporation, Carbide & Carbon (c), above, comment on clause clarifies this 336, 101 (1958)).8 S.E.2d 864 issue: ease, important Peneschi is an because it probably activity, There is it unless is history application traces the this State’s perhaps energy, use atomic from Rylands. tracing history, it be- which all risks of harm could not be elimi- application clear that Ry- comes our taking pre- nated of all conceivable (at pre-Peneschi) lands doctrine least cautions, and the exercise of the utmost map, all over but the Peneschi court care, particularly place as to the where it is apply made it clear that Ry- we should carried any activity, on. Thus almost other expressed lands doctrine as it had been dangerous, no matter how in the center of (Second) §§ the Restatement of Torts continent, might expected the Antarctic (1976). Though lengthy, and 520 it we feel possible to involve no risk to ex- one important quote part the restatement and cept engage those who in it. It is not explain holding of its comment to our in this necessary, the factor stated case: (c) apply, Clause that the risk be one § precautions 519. GENERAL PRINCIPLE that no conceivable or care could eliminate. What is referred to (1) abnormally One who on an carries remaining here is the unavoidable risk dangerous activity subject liability activity, though in the even the actor person, harm to land chattels of precautions has taken all reasonable resulting activity, another from the al- advance and has exercised all reasonable though he has exercised the utmost care to operation, care in his he so that is not prevent the harm. negligent. utility of his conduct This strict limited socially justified be such that pro- he harm, possibility kind of of which ceeding activity, with his but the unavoid- activity abnormally dangerous. makes the able risk of harm that is in it inherent § 520. ABNORMALLY DANGEROUS requires peril, that it be carried on at his ACTIVITIES rather than at expense of the innocent person who suffers harm as a of result it. In determining activity whether (Second) abnormally dangerous, following 520, § fac- Restatement of Torts Com- (c) (1976) added). tors are to be considered: (emphasis ment on clause Peneschi, 8. Discussed in 170 W.Va. at S.E.2d at 10.

Thus, parties. comment dismisses tween the The contract above be written, express or implied. 379A lan oral or our conflict between the section “abnormally guage dangerous” lan Halstead, Syl. pt. Price v. necessary guage Rylands. of It is not for a (1987); Syl. pt. Sipple v. S.E.2d prove gas plaintiff to that all stations are Starr, (1999); 520 S.E.2d 884 danger leaking exploding imminent or to accord, v. Farm Johnson State Mut. Auto. find under 379A. As the comment Co., Ins. 438 S.E.2d 869 notes, to is the “[w]hat above referred here remaining activity, risk in the unavoidable Sipple, question In a we addressed similar though actor has all reason even taken regarding gasoline upon the effect of sales ” precautions.... Id. Thus hold able we case, non-gas In the sale items. that sale, storage, gaso that or distribution of plaintiff argued owner/opera- below that the subject Rylands analysis, line is to the same engaged tor of a convenience store was a (Second) expressed in Restatement joint sup- venture with distributor who (1976), §§ Torts 519 and 520 that we would plied gasoline to the store: apply activity involving to other similar Although owner/operator] [the did Starr greater danger public. to or pay directly not to PPI [the distributor] every some fractional share of sale beer gone Because this case has not groceries, PPI still could be said to have trial, precisely precau know we do not what profited possible from those sales. It tions or should Southland used have used that, jury that a could find the more cus- handling gasoline. Plaintiffs also contend tomers attracted the Rocket Mart persistent that area residents had noticed a buy non-gas products, potential the more gasoline prior odor of for some time to the gasoline, customers for PPI and the con- explosion. Consequently, viewing the facts jury as well. a verse We feel should be light plaintiffs, in the most favorable arrangement able to consider whether the considering as we must when motion produced mutual benefit for both Starr summary judgment, jury we feel that a and PPI. Wurzburg’s should of Ms. consider the issue Starr, Sipple v. 205 W.Va. at liability. potential at 892. The found in connection we There, Sipple was of a different nature. B. Joint Venture any percentage distributor did not receive argue gross Plaintiffs that Ms. Wurz sales of the store. The facts of the burg Wurzburg should be fоund liable on the basis that instant case show Ms. re- joint percent gross she is a co-adventurer or approximately venturer ceived operation “percentage Southland of the store. sales the store virtue argument, plaintiffs support of this note clause” in her lease with Southland. paid Wurzburg percentage Ms. Southland First, question of we note that the gross sales in addition to the base rent. joint whether or not a venture exists is Although sales were included jury. plaintiff “A has a answered that, figure, argue plaintiffs offer right jury to a trial the factual issues to customers, ing gasoline to Southland in joint determine whether a venture existed.” sales, increasing creased its overall thus Ms. Lederman, Lasry Cal.App.2d Wurzburg’s income. We have defined the (1957); joint P.2d 663 “Whether a relation of “joint term venture” as follows: primarily question venture exists is of fact or, joint A as it is venture sometimes re- for the trial court to determine from the facts to, adventure, joint is an to be ferred associa- the inferencеs drawn therefrom.” Co., persons carry Mining tion of two or more out a 113 Idaho Rhodes Sunshine (1987); also, single enterprise profit, business 742 P.2d 417 see Bahrs v. Wheels, Inc., purpose they proper- Neb.App. which RMBR 574 combine their effects, skill, (1998); Johnco, ty, money, knowledge. It Inc. v. Jameson N.W.2d Interests, relationship (La.App.1999). arises out of a contractual be- So.2d subject liability landlords and A of land recognize that tenants lessor is We physical commonly “percentage persons a clause” to allow harm to use outside the leases, flexibility long by in and to land some term caused activities the lessee or upon impact of future inflation others on the land the trans- distribute the after lessor (a) (ie., if, if, price produces possession only in parties a rise a fers but lessor the the sales, gross in which increases the at the time of the lease to such rise consented landlord, activity amount while the base or knew that it would be owed carried same). on, (b) rent Thus we do the lessor knew or had rеason remains suggest “per- unavoidably of a that it that the mere existence know would involve joint risk, automatically a centage special clause” creates such an unreasonable or that precautions necessary safety venture. would not be taken. However, recognize we also that a Here, Wurzburg agreed Ms. to the sale of grant percentage clause could be used to a 7-11, gasoline by prong so the fust in landlord substantial share the tenant’s Concerning prong, is test met. the second business, relationship beyond suggesting a however, activity by is no there undertaken that of landlord and tenant. Thus we find which an the lessee involves unreasonable “percentage the use of a clause” in a noted, ignored, by majority, risk. As but lease, whereby the landlord commercial re Corp., our case of Peneschi v. National Steel percentage profits ceives a of sales or (1982) S.E.2d rent, may addition to or lieu of the base states that while “thе accumulation and use joint that a venture ex viewed as evidence gas private purpose” of combustible for a question this ists. Because we feel raises abnormally dangerous undertaking, fact, summary judgment as to the issue “[conditions activities that are a ‘natu- joint inappropriate. venture was rule, ral’ use of the land are not within the gasoline ... filling such as in a station[.]” IV. Plainly, operating this has Court stated CONCLUSION gasoline abnormally station is not an dan- reasons, foregoing grant For the of gerous activity that creates an unreasonable Wurzburg law, as to Ms. Accordingly, applying risk of our harm. improper. This Wurzburg case reversed and re- Ms. is not liable as a lessor in this proceedings manded for with consistent this case.

opinion. However, opinion creates new law out

Reversed and remanded. syllabus point majority of thin air. sale, opines storage, that “the or distribution participate Justice SCOTT did not in the gasoline subject analysis, to the same decision this ease. (Second) expressed in Restatement of Torts RISOVICH, II, Judge sitting by FRED (1976), §§ apply 519 and 520 that we would temporary assignment. any activity involving other similar or greater danger public.” to the I understand MAYNARD, Justice, dissenting: mean, this to when law combined I dissent because I do not believe that Ms. syllabus point articulated that strict Wurzburg gas can be held liable leak liability applies operation every ‍‌​​‌‌‌‌​‌‌‌​‌​‌‌‌​​‌​​​‌​​​​‌‌‌‌​​‌​‌​‌‌‌‌‌‌‌‌​‌‍to the principle of her lessee under settled of gasoline Virginia, station West and that applicable law to the facts of this case. It is every premises who lessor leases his to a properly clear to me that circuit court operates lessee who station is now granted summary judgment in favor of Ms. subject liability persons for harm to Wurzburg. Hence, gasoline. caused the draft- proper ing single syllabus point, majority resolution of this ease is sim- ple. syllabus quoted by majority proportions As has increased ludicrous (Second) point operate gasoline of Torts Restatement of those who sta- § 379A states: tions and those who own land which majority This amounts to has the bar that it these stations are located. instructed is no longer necessary plaintiff a to nothing respond modifica- for more than an unwarranted the circuit court to a defendant’s expansion law. motion for tion and of our summary judgment. will I first review the addition, holding In common defies procedural my dissent, facts to relevant and gasoline sta- sense. There are thousands applicable follow with a discussion law. everywhere tions in this from State located 20, 1998, July On L. Wurzburg Gretchen roadways rural to downtown areas of our (hereinafter Wurzburg”), “Ms. a defendant hear, however, largest rarely cities. We below, summary filed a judgment. motion for gasoline-related occurring at accident one The record that her motion was indicates Also, simply not a these stations. it com- accompanied by a supporting memorandum gasoline mon belief of those who live near and a sworn affidavit. Two exhibits were regularly stations or those who use them that affidavit, copy аttached to a the sworn of the high pose degree stations these risk. Wurzburg lease and between the Southland sale, storage, Furthermore the and distribu- (hereinafter “Southland”) Corporation and a absolutely tion of essential to the copy of a notifying letter from Southland Ms. life our nation. Wurzburg plan operate to install its Finally, I fail to the reason for see gasoline equipment. self-service The evi- syllabus point opinion. inclusion of 4 in the accompanying Wurzburg’s dence Ms. motion governing applicable The law is not nuisances established, alia, that inter she was not single explosion the instant ease where any dangerous aware of or defective condi- damage surrounding property. caused property tions on the at the time she surren- apples oranges. simply This is There is dered control of it to and that Southland she way characterize occurrence here had not exercised control over the leased as a nuisance. premises during the term the lease.1 conclusion, applied In I would have our law nothing There was in the record before Wurzburg written and Ms. concluded plaintiffs’ this Court in with connection is not accident at issue. liable There- appeal they indicating responded in any fore, I circuit would have affirmed the court’s way Wurzburg’s summary to Ms. motion for grant summary on judgment her behalf. judgment, they attempted per- or that Accordingly, I dissent. apply suade circuit court the Restate- they appeal ment sections advocated their DAVIS, Justice, dissenting: to this Court. (Filed 2000) April 30, 1998, On the circuit October court en- majority opinion Wurzburg. I tered for Ms. dissent because the Thereafter, existing challenging plain- on obliterates standards November 59(e) judgment. summary By motion for ad- tiffs filed a UNDER RULE “MOTION merits, dressing ALTER AMEND appeal the instant the TO AND ORDER supporting 1. In her memorandum her motion for Wurzburg argued, judgment, gen Ms. [7.] A landlord or lessor be held liable erally, regarding existing law that the landlord parties knowledge where he has third or liability following sylla was reflectеd in the three Valet, should have known of defective condition at points bus from v. One Hour Inc.: Cowan expiration of a lease does not disclose general is that a [3.] The rule landlord or repair or before he renews such condition injury personal lessor is not liable for sustained premises to a new lease or rents the tenant. premises, on the leased reason of a defec 157 S.E.2d demise, arising tive after the condition thereof granting summary judgment, order the circuit entering premises the tenant or those on the additionally recognized court cases "[i]n under the tenant’s title. liability dealing premises Courts have Ordinarily, [4.] an invitee of a lessee or generally principle [] held that ‘the re tenant as the tenant stands the same shoes subject sults either area control[] from injuries and the lessor suffered liable ” specific wrongful (quoting from a act.’ Durm v. by an for defective invitee of the tenant condi Heck’s,Inc., premises, he tion of the unless would have (1991)). been liable to the tenant. 40 sons, arguments evidence or will not consider JUDGEMENT

GRANTING SUMMARY presented to circuit court not the The were DEFENDANT WURZBURG.” FOR ruling motion stated, on the for its consideration full: plaintiffs’ motion added)). judgment].” (emphasis summary [for pro- under the Plaintiffs move the Court 59(e), Rules of Civil Proce- visions Rule 56(e) regard, Rule of the West In this timely dure, with the accordance [sic] and specifically Virginia Rules of Civil Procedure 6(a), Rules of filing requirements of Rule directs: Procedure, and amend to alter Civil summary judgment a motion for When SO, 1998, order, granting October entered supported provided made and Wurzburg’s Motion defendant Gretchen rule, party may not an adverse rest Summary Judgment. for allegations or of the ad- the mere denials made assert that the Court 1. Plaintiffs pleading, party’s but the adverse verse thereby leading findings of fact incomplete party’s response, affidavits or as other- it to error. rule, forth provided in this must set wise completely misinterpret- 2. The Court genu- showing that is a specific facts there ed, errоneously concluded misapplied, and party trial. If adverse issue for the ine liability. governing law landlord-lessor the respond, summary judgment, if not so does con- failed or refused to 3. The Court against appropriate, shall be entered Wurzburg’s in- on defendant sider or rule party. adverse a basis dependent violations of the law as addition, explained has In this Court plaintiffs. summary judg- circumstances under which 1998, 17, circuit court de- On December appropriate and associated bur- ment is they subse- plaintiffs’ motion and nied the party resisting judg- on a den quently appealed to this Court. 3ment: Heretofore, To law has been clear. ' if, judgment appropriate Summary successfully respond to a motion for sum presented, totality of from the the evidence plaintiff required to mary judgment, a a rational trier of the record could lead establishing meet his or her burden nonmoving party, find for the such fact to genuine question of material of a existence nonmoving party has failеd as where by providing circuit court with fact showing a sufficient essential make argu presenting legal memorandum that it has the burden of the case element judgment,2 against summary ments and/or prove. affidavits, depositions the form evidence Coil, Inc., 2, Syl. pt. Williams v. Precision interrogatories. Powder or answers See (1995). 52, Fur- Proper 459 S.E.2d 329 Highland v. 194 W.Va. idge Ass’n Unit Owners 872, 692, 700, describing non-moving party’s bur- ties, Ltd., 474 ther 196 W.Va. S.E.2d den, (“[T]his Court[,] have held: for obvious rea- we 880 Co., 509, 1, Syl. pt. Kroger argument plaintiffs’ relied on Tolliver 2. The to this Court (1997). defining concept 702 498 S.E.2d adoption of certain Restatement sections fact, explained: genuine we have issue of questions of fact associated therewith. stated, "Roughly [(¡genuine pur- issue[’] Virginia poses Procedure West Rule of Civil say, 3. Needless to issue, 56(c) trialworthy simply one half of a "' summary judgment motion for “[a] genuine not arise unless there and a issue does granted only favoring non-moving when it is clear that should be evidence is sufficient genuine jury of fact to be tried a verdict party [there' is] no issue а reasonable to return concerning opposing inquiry party. the facts is not desir a trialwor- for that thy half of non-moving party present clarify application where the of tire law.” issue is able to disputed 3, point Casualty Surety [Jmaterialf] Syllabus can to one or more & Co. Point Aetna York, one that has the A material fact is New 148 v. Federal Insurance Co. facts. litigation 160, (1963).’ sway Syllabus capacity the outcome W.Va. 133 S.E.2d 770 Buckhannon, Syl. applicable Pt. Jividen law.” 187 under Point Andrick v. Town of (1995). Law, (1992).” Syl. W.Va. 461 S.E.2d 451 Pt. W.Va. S.E.2d Tolliver, Inc., Coil, Syl. pt. 498 S.E.2d Williams v. Precision added). 329(1995). (emphasis moving properly party If the makes 110 S.Ct. L.Ed.2d supported motion for can show affirmative evidence Powderidge Highland Unit Owners Ass’n v. fact, genuine no

there is issue of a material Ltd., 699, Properties, 196 474 W.Va. at production to the non- the burden shifts S.E.2d at 879. (1) moving party who must rehabili- either Powderidge, additionally In this Court moving by tate the evidence attacked commented that: (2) produce party, additional evidence impose upon 56 not Rule does the circuit showing gеnuine of a the existence issue duty to through court a sift trial, (3) the record explain- or submit an affidavit for support party’s search of evidence to why necessary ing discovery further as summary 56(f) opposition judgment. to isNor Virginia provided in Rule of the West duty appeal. it to do so on our Became Rules of Civil Procedure. plaintiff fact-specific affidavit, no 3, filed pt. Syl. id. We have also on elaborated meet designate it did not its burden to that, “in clarifying this standard relation showing specific genuine issue (1) (2) above, non-moving party to facts trial. must, minimum, at a than a offer more support ‘scintilla evidence’ to his or her 700, 196 474 at (empha- W.Va. at S.E.2d 880 Law, 705, 713, claim.” Jividen v. 194 W.Va. added). Powderidge sis The Court declined (1995) added) 451, (emphasis 459 461 S.E.2d subsequent- to an affidavit that consider was Williams, (citing 52, 459 S.E.2d ly this tendered to Court connection with 329). 192 Peavy, See also Painter v. W.Va. appeal plaintiffs summary judg- (1994) 192-93, 189, 755, 451 S.E.2d 758-59 ment that order because affidavit had not (“[T]he party summary judgment opposing presented been to thе circuit court. so In satisfy proof by offering must the burden of ruling, stated: the Court evidence,’ than a ‘scintilla of more mere Although our review of the record from produce must for a rea- evidence sufficient novo, judgment summary proceeding is de jury nonmoving party’s to sonable find Court[,] reasons, this for obvious will not (quoting Liberty Lobby, favor.” v. Anderson arguments or consider evidence that were 2512, Inc., 242, 252, 2505, 477 U.S. 106 S.Ct. presented to its not the circuit court for 202, (1986))). Indeed, 91 214 L.Ed.2d ruling on the To consideration motion. burden, meet this nonmovant must [t]o clear, be review is our limited the record identify specific facts in record and as it stood before the circuit court at the precise articulate the in which that manner ruling. time its supports evidence its claims. As mate- Powderidge, 196 W.Va. at 474 at S.E.2d facts on which will rial the nonmovant bear (second added). emphasis 880 trial, at the burden the nonmovant must though our review of a circuit Even court’s come forward with will evidence which novo,4 summary judgment it decision on is de sufficient to it a motiоn enable to survive is, nevertheless, a review. Our If task is for directed verdict at the non- trial. burden, evidence that moving party consider the was before fails to meet this circuit court to determine whether summary judgment motion for must be judgment appropriate. was As indicated granted. Wyoming, See Nebraska v. 507 584, 590, 1689, 1694, above, repeatedly 113 123 we have admonished U.S. S.Ct. (1993); nonjurisdictional not Lujan L.Ed.2d 328 Nation- issues raised before Federation, 871, 884, appeal.5 al 497 U.S. trial court will be addressed Wildlife Syl. court.”); pt. Peavy, W.Va. See Painter v. 192 been determined the lower Tieman Ctr., Inc., S.E.2d Area Med. 203 Charleston W.Va. (1998) 150 n. 506 S.E.2d 593 n. See, (" e.g., pass nonjurisdictional State ex rel. Clark v. Blue Cross Blue will not on a 'This Court Inc., 690, 699, Virginia, question Shield West has not been decided which trial " omitted)); (citation ("Typically, we have court first instance.’ in the steadfastly Marquez, held to the rule we will not Hartwell v. (1997) ("‘It nonjurisdictional address a that has not is a well issue S.E.2d established case, Assuming, deciding, that it present I believe Ms. order. without Wurz- burg demonstrating initial burden of propеr plaintiffs met her raise their question of fact to her they there was arguments stage, at late neverthe- storage regarding tanks. utterly produce failed less evidence through her She met her burden memoran- any specific argument legal estab- advance offering legal support dum for her motion justiciable lishing issue of the existence accompanying fact. Thus, sworn affidavit with attached exhibits. way plaintiffs’ meager motion in no plaintiffs to the burden then shifted to the arguments they preserved the asserted on offer than a scintilla of more evidence appeal. By considering plaintiffs’ newly the genuine a establish the existence of issue majority ignored arguments, has made the appeal material fact. The record on contains 56(e) specific of Rule as well as mandates absolutely demonstrating evidence history precedent by this long set forth fact, plaintiffs this In met burden. Court, Supreme as Court of the as well plaintiffs record indicates that the fаiled so, majority By doing United States.6 respond Wurzburg’s all to Ms. at motion necessary has the bar that it is not instructed judgment prior to the circuit in the court to a motion for respond circuit ruling. Only court’s after the circuit court Rather, summary judgment. ‍‌​​‌‌‌‌​‌‌‌​‌​‌‌‌​​‌​​​‌​​​​‌‌‌‌​​‌​‌​‌‌‌‌‌‌‌‌​‌‍party granted summary judgment for Ms. Wurz- ruling, burg silently wait the circuit court’s plaintiffs respond did the with their and, unfavorable, ruling motion to alter and the circuit court’s if the he or she amend Martin, 10, Mining principle nonjuris- Co. 165 267 that this will not decide v. W.Va. Court Buffalo 1, (1980).’’); Syl. questions pt. dictional which have not been 721 v. raised S.E.2d Shackleford " (citations omitted)); Catlett, 568, (1978) Syl. pt. below.’ W.Va. 244 S.E.2d court 161 327 2, Cook, 1, Bowens, (same); Syl. pt. Trent v. 198 W.Va. 482 Adams v. 159 W.Va. S.E.2d 218, 2, (" (same); (1996) 882, (1976) Syl. pt Supreme Ap '[T]he 224 Court of 230 S.E.2d 481 521, peals authority assign Young, Young (1975) (“In 212 310 is limited its to resolve v. 158 W.Va. S.E.2d appellate nonjurisdictional jurisdic- ments to a the exercise of its errors consider tion, upon by nonjurisdictional passed ation of those matters the court this Court cannot consider fairly arising portions by upon below raised decided trial errors not 6, (cita court.”); Syl. designated pt. part, appellate review.'" Parker record v. Knowlton 3, Co., Inc., 314, omitted)); Syl. pt. tions Voelker v. W.Va. 210 S.E.2d 918 Frederick Constr. (1975) (same); Syl. 158 Co., 246, 1, Hamm, Boury Properties pt. Bus. v. W.Va. S.E.2d 156 195 465 44, (1972) (1995) ("'"In (same); Syl. pt. appellate 246 W.Va. 190 S.E.2d 13 exercise 1, jurisdiction, Wheeling nonjuris- this Court not decide Plan Trust will Bank v. Morris Bank & Co., 245, (1971) questions not W.Va. dictional which were considered 155 692 1, Hitt, (same); by Syl. Mowery pt. appeal and decided from which v. W.Va. court 155 ’ ” 4, (citations omitted)); 103, (1971) (same); Syl. Syl. pt. pt. has S.E.2d 334 been taken.” 181 3, Motel, Inc., 357, Constr., Morgan Corp., Rover re Hotel 151 W.Va. 151 Hall's Park Inc. v. (1966) 10, 309, (1995) (same); (" Syl. pt. part, 194 676 W.Va. 460 S.E.2d 444 'In the S.E.2d appellate jurisdiction, & Sur. v. Federal Co. New exercise of its Court Aetna Cas. Co. Ins. York, 160, (1963) nonjurisdictional questions 148 W.Va. 133 S.E.2d 770 will decide not which ("[I]n appellate juris- Court’s] within [this have cases not been decided the court from which ” (citation omitted)); nonjurisdic- will not or decide appealed.’ diction it consider the case has been WV, 4, questions Syl. tional by which have not been determined pt. Sparkler ex rel. State State Line 2, court.”); Syl. Security Teach, 271, pt. trial Sands v. Ltd. v. 187 418 W.Va. S.E.2d 585 ' Co., 522, (1958) (1992) (" 102 733 Trust (sаme); W.Va. S.E.2d pass nonju- on "This Court will not 1, Bopst, Syl. pt. v. 121 W.Va. Vecellio question not risdictional which has been decided ’ ” 562, (1939) ("This 6 S.E.2d 708 Court need not (cita by the trial court in the first instance." pass questions in the trial court the Charlton, not raised omitted)); 8, Syl. pt. tions Charlton v. 3, reviewed.”); being Syl. pt. which is 670, action (1991) (same); 186 W.Va. S.E.2d Nuzum, 202, v. 77 W.Va. 87 S.E. 463 2, 765, Syl. Nuzum pt. Lightner, Crain v. (1915) ("The [S]upreme will not consider [C]ourt (1987) (same); Syl. pt. Buquesne S.E.2d 778 yet questions upon the circuit court acted Light Dep’t, Co. v. State Tax case.”); Syl. Lapham, pt. v. in the Kesler (1984) (same); Syl. Randolph pt. S.E.2d 683 (same). (1899) 33 S.E. 289 W.Va. Koury Corp., 173 W.Va. 312 S.E.2d 759 (1984) (same); Roberts, Syl. pt. Wells ("As interpreting general 280 S.E.2d 266 look to federal law our We often ‘[tjhis procedure, questions, rule Court consider civil because our rules are will not rules of nearly nature, nonjurisdictional to the Federal ‍‌​​‌‌‌‌​‌‌‌​‌​‌‌‌​​‌​​​‌​​​​‌‌‌‌​​‌​‌​‌‌‌‌‌‌‌‌​‌‍Rules of Civil in their which have not identical Syl. pt. been court.’ Procedure. acted the trial present to this may then come Court Thus, summary judgment. against

evidence action, majority’s ignoring addition law, appel- of its

existing deprives this Court role, abrogates the circuit and further

late impression. court of first

court's role

Therefore, respectfully I must dissent.

528 S.E.2d 490 Virginia, Plaintiff

STATE of West

Below, Appellee, Lynn CALLOWAY, Defendant

Ronald

Below, Appellant.

No. 26204.

Supreme Appeals Court of Virginia.

West Nov.

Submitted 16, 1999.

Decided Dec.

Concurring Opinion of Chief Justice Jan.

Starcher

Case Details

Case Name: Bowers v. Wurzburg

Court Name: West Virginia Supreme Court

Date Published: Apr 12, 2000

Citation: 528 S.E.2d 475

Docket Number: 26218

Court Abbreviation: W. Va.