Crum v. Equity Inns, Inc.

685 S.E.2d 219 CRUM,

Clifford Plaintiff Below, Appellant, EQUITY INNS, INC., Hampton d/b/a Inn; Virginia Management In n

W.VA., Inc.; Property Travelers Casual

ty Company; Doe, Insurance and John Below, Appellees.

Defendants

No. 34400. Supreme Appeals Court of Virginia. April

Submitted 2009. Decided June

248

judgment by refusing permit Appellant amend against Equity to assert claims for res loquitur liability.1 ipsa and strict Converse ly, Inns asserts circuit court properly granted summary judgment and appropriately Appellant’s denied motion to his complaint amend as to Inns. This petition has appeal, before it the all argu matters record and the briefs expressed ment of For the counsel. reasons below, 10, 2007, the December order of the Raleigh County Circuit Court of is affirmed.

I. AND FACTUAL PROCEDURAL Huber, Forman, L.C., Roger D. Forman & HISTORY

Charleston, Appellant. for July 7, Appellant, On a mediator Pullin, Mary Chapman, Beth Fowler & employed with Federal Mediation and Con Beekley, Appellee, Flanagan, Equity for Service, injuries ciliation suffered when a Inns. thirty-three pound light which had fixture White, III, & Ben B. White Henderson ceiling been fell attached to the on his head Princeton, Hart, Gary Kelly, W. Jackson mediating he while was case in a confer Charleston, VIM, Appellee, Inc. for Hampton room in ence at the Inn located Beekley, Virginia. Appellant filed the West PER CURIAM: Raleigh instant action in the Circuit Court of 31, 2005, County alleging instant action is this on that he before Court March injured negli appeal [hereinaf- of Clifford Crum was as a result John Doe’s 10, 2007, in “Appellant”] gence failing properly from a December to install the ter Raleigh County ceiling, Virginia Manage of the Circuit Court of fixture to Inn order ment, by denying negligence a motion amend filed Inc.’s2 Appel- [hereinafter “VIM”] to against Equity failing inspect in to and maintain its properly [hereinafter lants Inc. prior in “Equity refusing premises and to manner to the sale of Inns”] disturb its a safe in grant property, Equity negligence as to Inns’ prior Equi- and Herein, alleges failing inspect to and ty Appellant properly Inns. that the maintain summary premises Appellant manner.3 also by granting circuit court erred a safe Appellee Equity manager building provide been dismissed owner or of the to 1. Inns has from summary judgment. lighting instant action on completion How- and interior decor ever, currently pending this case is still before building. provided VIM contends that it ac- pertains remaining the circuit court it counting managing services the business and for attempts Although Appellant defendants. 18, 1994, Beekley until when Hotel November regarding collective in his brief all raise issues building Equity Partnership Limited sold the defendants, only will address those Equity Inns. Inns is the current owner of the pertaining issues raised Inns. subject property. Beekley Appellee Partnership Hotel Limited previously 3.VIM filed a Motion to Dismiss on VIM contracted in or around 1992 with and/or 11, 2005, May granted by the circuit which Concepts, Wright & Construction Inc. or Associ- VIM, grounds July court on on the operates building to construct the that now ates property, Drive, as a seller did not owe to a of real Hampton Harper Inn Park as Beekley, at 110 subsequent purchaser invitee of the Virginia. The architect on this Eades, inspect prior premises The cir- sale. project was W.R. It believed Jr. that the pled court the cause action subject light by cuit found that fixture was installed Construction vendor, Inc., Associates, against Concepts, ers, Wright from VIM’s other VIM arose role as & build- brought original held not from role as a builder. The court decorators its

named Property Casualty Travelers In- filed also a Motion to Amend fall.. Company Complaint surance Complaint, Judgment and for Relief assert- From ing Dismissing Virginia Management a claim for bad Order Inn faith. 12, 2006, Virginia May of West on asserting 5,2006, May On Inns filed a Motion that there were through new facts discovered Summary Judgment seeking dismissal of expert implicated Inns’ which VIM against claim filed it —a claim newly-identified parties, including other negligence properly inspect for failure to Inc., Concepts, Construction who were for- premises maintain its in a safe manner.4 merly proposed John Does. The amended Summary Judgment, Equity its Motion for complaint contained additional claims for res provided expert report of architect ipsa loquitur liability against and strict all planner, II, Mr. Guffey, Francis A. dated parties. 12, 2006, April opined subject Reply Appellant’s Inns filed a light fixture fell improperly because was Response Opposition to its Motion plastic installed with expansion wall anchors 22, 2006, Summary Judgment May alleg and # 8 wood screws mounted in the five- ing failed to meet his burden eighths gypsum inch ceiling only, board rath under Rule Virginia 56 of the West Rules of by er than with one-half inch three inch affidavits, Civil producing depo Procedure of Tapcon Anchors that would have reached sitions, discovery or demonstrating that a past ceiling, through furring space, genuine trial, issue of fact existed for above, per into the concrete deck as failed to adequate why demonstrate reasons Lighting, recommendation of Lithonia discovery continuance for further was light manufacturer of the fixture. This de Additionally, Equity needed. argued Inns light fective approxi fixture was installed that Appellant the fact that had filed a mo mately years Equity pur two before Inns tion complaint to amend his was not suffi possession chased and took in building of the deny summary judgment, cient reason to as Equity 1994. presented Inns also Mr. Guf yet the motion to grant amend had not been fey’s expert testimony opined wherein he Thereafter, 1, 2006, ed. Equity on June Inns light that once the installation of the fixture Response Appellant’s filed a to Motion to complete, was its capable defects were not Complaint Amend Judg and for Relief From being observed or by anyone chang detected Dismissing ment Order Virginia Manage Inn ing light examining bulbs otherwise .the ment Virginia asserting of West Appel that the fixture. lant legitimate could not state a claim for res Thereafter, 11, 2006, May on Appellant ipsa loquitur against Equity Inns because one-page filed a Response Opposition to Appellant could responsi not eliminate other Equity Summary Judgment, Inns’ Motion for ble causes for the required incident as our asserting Equity that pre Inns’ motion was ser, City Key law Foster v. mature, proposed complaint as the amended (1997), 501 S.E.2d 165 since the conduct of ipsa loquitur Appel raised a res claim5 and persons third implicated by the evidence sought lant discovery as to the insurance presented by Equity Equity Inns. Inns also policies and parties contracts between the Appellant asserted that could not state a the sale and building, construction of the legitimate against claim it based strict revealing (Second) who liability because the Restatement condition which light caused §§ fixture to Virginia Torts 519-20 and West case law claim, Appellant that to succeed on such a tort liability ipsa and John Doe for strict and res VIM, allege proper- must that as a vendor of real loquitur. This'motion was not addressed ty, duty Appellant. breached a owed to the For prior Equity Summary Inns’ Motion for below, thoroughly reasons more stated VIM was Judgment. subsequently brought back into instant ac- tion, currently remains a defendant in the' unknown, Appellant’s Response 5. For reasons case. Opposition Equity Summary Inns’ Motion for Judgment did not address the strict 9, 2006, January Appellant On filed a Motion Appellant sought against parties. claim also all for Leave Complaint, seeking to File Amended against add two additional counts Inns law, prevented the motion to amend demonstrate, that the whether a matter of summary judgment, not constitute an the circuit court found a hotel would operation of activity. proposed complaint amended did not abnormally dangerous that the any allegations against Equity state Inns July entered on By Memorandum among that were not the issues raised in the 28, 2006, July and Order entered Summary Judgment, Motion for because the Equity Inns’ Motion for granted court circuit allegations factual made finding Appellant’s that Summary Judgment, proposed in the amended were the for Sum- Equity Inns’ Motion response to previously same as those stated-that challenge opin- mary Judgment failed to properly failed to install the fix Inns failure of expert Inns’ ion of failing negligent ture and that it was to a construction light fixture was due properly inspect premises and maintain its by Equity Inns’ insufficient or defect and not court ruled that a safe manner. The circuit inspection inadequate maintenance present any Appellant could not evidence Thus, the circuit court found fixture. ipsa loquitur through its claim for res evidence, depositions, Appellant produced no against Equity that would raise an issue admissions, affidavits, or other materials preventing summary judgment.6 of fact of material show that there is an issue Appellant breached a owed to fact that orders, Following September those Further, court found Appellant. the circuit 2006, Appellant Appeal filed a Petition for although alleged claiming with this Court that it was error for premature because further Inns’ motion was deny motion to the circuit court to his amend conducted, he failed discovery needed to be complaint, including his new claims of res specificity identify reasonable with ipsa loqiátur liability; and strict that was discovered, explain how the facts to be deny error for the circuit court to him the genuine might that there is a facts show proceed against his right to VIM because material fact that would defeat sum- issue of by extinguished not the statute claims were why he had not mary judgment or show repose; circuit court erred in and that the discovery, already engaged in such as re- Equity to Inns. granting by Schoolcraft, 213 quired Elliott v. W.Va. However, subsequent filing to the Petition 69, 576 S.E.2d 796 Appellant’s located a Appeal, counsel subject indicating that the accident of deed Additionally, the circuit court found that 2004, 7, July few months short of occurred a Equity although Appellant alleged that Inns’ 18, 1994, years the November sale ten after proposed premature motion was because Equity Partnership, Inns L.P. of the hotel to filed, this alle- complaint had been amended denying order Because the circuit court’s prevent summary to gation was not sufficient Complaint Amend and Appellant’s Motion to judgment, possibility Appellant that as the Dismissing Judgment-Order for Relief from permitted to file an amended have been grounded Virginia Management, Inc. was Inn complaint recognized by Rule 56 of the that the sub- on the court’s mistaken belief Virginia Rules Civil Procedure as a years ject occurred more than ten summary incident judgment which should basis Furthermore, building and that assessing after VIM sold the refused. be 28, argument present any July and Additionally, by issue in its motion Memorandum dated 60(b) 2006, 2, 2006, requirements of Rule August that the criteria and dated the cir- and Order present Additional- Appellant’s apply to the circumstances. Motion to Amend cuit court denied repose, Judgment ly, W. Complaint court found that the statute Relief from Order and for 55-2-6(a), § cause of action Dismissing Virginia Management barred the Inn of West Va.Code Appellant's proposed com- Virginia. Regarding Appellant’s amended motion to stated Inns, against Equity plaint because VIM sold the build- complaint the cir- VIM amend his as to 1994, years ing Equity Inns in more than ten merely motion to to reiterated that the cuit court denied, According- subject incident issue was ad- before the occurred. amend was judg- ly, Appellant’s request relief from the Equity when it ruled on dressed the court dismissing Appellant’s request to Summary Judgment. ment VIM and As to Inns’ Motion for complaint VIM denied. judgment as to were Appellant’s request amend the for relief from the VIM, subsequently court was deter- dismissing found This belief the circuit court order adequately in error. Appellant address this mined to be that failed to repose regarding discovery statute of under Va.Code 55-2- the need W. for further 6(a) action, Appellant barred the cause of alleged Appellant which still needed to VIM filed a Joint Motion Remand the deposition Guffey, take the to hire Francis appeal Raleigh to the Circuit Coun- expert Guffey’s report, to review Mr. 6, 19, ty on December 2006. On December receipts obtain sales warranties Objection Equity Inns filed an requested previous discovery, fixture Appel- Motion for Remand as relates to it prop- and obtain contracts for the sale of the Inns, against Equity stating lant’s claim erty requested were previous which also just the fact that the incident occurred less discovery. years than ten after the of the hotel sale had 31, 2007, hearing On October was con bearing no Appellant’s on cause of action ducted the circuit before court where the Inns, against Equity oper- owned and which parties discussed the issues of whether the ated the hotel at the time incident. summary judgment granted by circuit joint Because a Motion to Remand had been filed, regarding Ap coui’t in favor of Inns January granted on this Court negligence pellant’s claim be should set and VIM’s motion remanded aside; per the matter and whether to the circuit court for further should proceedings. complaint No amend further action taken on mitted to his to state claims appeal. against legal based on the theo ipsa loquitur ries res and strict Thereafter, 26, 2007, February Appel- although the circuit previously court had lant filed a second Motion to Amend Com- such ruled that claims could main not be plaint Judgment and for Relief from Order Following hearing, tained. circuit Dismissing Virginia Management, Inn Inc. court entered an order on December court, asserting before the circuit that there held that there was no reason implicated were new which facts discovered prior ruling granted disturb its sum VIM, that pre- other which were defendants mary judgment and denied viously named as John had been identi- Does Appellant’s motion to amend fied, two-year and that the statute limita- Specifically, related Inns. yet expired tions had not at the time his original circuit court found that com “[t]he amended Appel- motion to amend filed. was plaint allege against newly allegations lant’s does new proposed complaint amended virtually [Equity was disposed Inns] identical that were not of al to the amended com- plaint ready grant he had the ... summary judgm submitted to circuit court in of 7 11, 2006, May It which the circuit court ent.” is from this Appellant order that initially refused. appeals. now 12, 2007,

On March Equity Inns filed a Response Appellant’s to alleging motion vir- II. tually arguments the same previously made in response to the first motion to STANDARD OF REVIEW 19, amend filed Appellant. On March 2007, Our review of the circuit court’s two-page reply filed a which grant summary judgment to summary asserted that judgment prema- was 1, Syl. Peavy, is See ture until de novo. Pt. Painter v. completely developed ease was 189, (1994) (“[a] 192 W.Va. 451 S.E.2d pursuant discovered a 755 time frame entry summary judgment circuit court’s discovery allowed for liberal devel- novo.”). However, opment de experts. reviewed particular, Appellant regarding In contended the circuit court’s denial Appellant’s sales contract which was mo requested before tion to amend the to assert claims granted found, ipsa loquitur could not but possi- liability be could for res and strict bly liability determine Ap- against Equity for the accident. our standard review pellant also submitted an affidavit of counsel discretion. abuse We have held that granted Appellant's parties The circuit except Equity court motion to all amend as Inns.

253 Co., 208, Daily 214 588 S.E.2d sound Gazette W.Va. with a court is vested trial “[a] (2003)(quoting Williams v. Precision 197 refusing leave to granting or in discretion Coil, 52, 61, 329, 459 S.E.2d 194 W.Va. Leave to in civil actions. pleadings amend (1995)). dispute about a material fact is justice freely given be when amend should jury a reasonable could genuine when court the action of a trial requires, but so party if nonmoving a verdict for the render grant leave to amend refusing to in rec the record at trial were identical to the reversible regarded pleading will not summary judgment pro compiled ord showing of an absence of a error in the Powderidge v. ceedings. Unit Owners Ass’n discretion in rul- the trial court’s abuse of Ltd., 692, Properties, Highland W.Va. leave to amend.” ing upon a motion for (1996). 698, 872, 878 474 S.E.2d 6, and Sons Syl. Pt. Perdue v. S.J. Groves (1968). 222, Co., 161 S.E.2d 152 W.Va. Virginia, In landowners West mind, of review we these standards With occupiers Equity Inns are not liable such as arguments of the to consider the proceed injuries non- negligence that occur to parties. land, unless trespassing entrants of their occupiers their such landowners or breach III. duty circum of reasonable care under the Pickens, stances. Mallet DISCUSSION 436, 446 In order to 522 S.E.2d Herein, assignments Appellant asserts two negligence in prima establish a facie case of First, alleges that the of error. Virginia, plaintiff must show that West summary by granting circuit court erred guilty of some act or defendant has been discovery Equity Inns because judgment duty of a owed to the omission in violation and a motion to amend pending was still lie without a plaintiff. No action will Second, Appellant filed. complaint had been Fritts, 193 W.Va. 497- broken. Jack v. by refus- alleges the circuit court erred (1995)(quoting 434-435 Appellant to amend his com- ing permit 1, Parsley Accep Syl. Pt. v. General Motors loqioitur ipsa for res plaint to assert claims 866, 280 S.E.2d 703 Corp., tance against Equity Inns. strict We (1981)). arguments sepa- of these will address each judice, Equity Inns filed a In the ease sub rately. seeking dis- Summary Judgment Motion for Judgment Summary A. prejudice of the claim asserted missal with 56(c) Equity Inns was Appellant’s complaint that Virginia Rule inspect and failing properly negligent Procedure allows a Motion Rules Civil premises in a safe manner. the maintain its Summary Judgment granted to be motion, provided support Inns depositions, an said pleadings, if the defendant planner, expert report of architect and interrogatories, any admissions swers II, affidavits, opined that the file, Guffey, A. any, if show Francis together with im- subject light fixture fell because was any genuine no issue as there is plastic expansion properly with wall defendant is enti installed fact and that the material in the mounted and # 8 wood screws judgment as a matter of law. See anchors tled to a Inc., ceiling only, gypsum board Hosp., five-eighths inch Angelucci v. Fairmont General 373, inch 364, 368, one-half inch three 377 rather than with 618 S.E.2d 217 W.Va. Comer, reached that would have Tapcon Anchors Sly., 200 (2005)(quoting Redden (1997); 1, furring space, 209, ceiling, through the Syl. past Pt. S.E.2d 484 488 above, per the deck as and into the concrete County Hodges, Bank v. 175 W.Va. Wayne (1985)). Lighting, of Lithonia 723, recommendation 202 “The essence 338 S.E.2d de- light fixture. This of the make manufacturer inquiry the court must is “whether approxi- light fixture was installed disagree fective presents a sufficient the evidence pur- years Equity Inns mately two before jury to a or require submission ment building in possession of the party and took that one chased it is so one-sided whether ” pre- Inns also Significantly, Equity v. 1994. prevail a matter of law.’ Wilson must 254 Guffey’s expert testimony

sented Mr. where- Stonewall Hosp. Jackson Memorial Co. v. opined Co., he that once the installation of the American United Ins. Life light complete, fixture was its defects were 657 To capable being burden, observed or detected meet its the nonmoving party on a anyone changing light bulbs or otherwise motion must offer examining the fixture. more than a mere scintilla of evidence and produce must evidence sufficient for a rea properly sup- Once a filed jury sonable non-moving party’s to find in a ported Summary Judgment, Motion for Ap- favor. The illustrating evidence the factual pellant had the pro- affirmative burden of controversy conjectural proble cannot be or affidavits, ducing depositions, answers to Coil, Inc., matic. Williams v. Precision interrogatories, response a which set and/or 59, 459 W.Va. at S.E.2d at 336. The nonmov specific forth showing genuine facts a ing party present must also evidence that However, Appellant issue for trial existed. showing moving contradicts the party of the failed to meet his burden to defeat sum- by pointing specific demonstrating facts mary judgment. one-page Response In his that there trial-worthy is a issue which is not Summary Judg- Inns’ Motion for only genuine issue but also is an issue that ment, Appellant argued Inns’ Moreover, involves a material fact. the non- Summary Judgment Motion for prema- moving party genuine cannot create a issue ture, proposed as the amended of material through speculation fact mere ipsa raised a loquitur res Appel- claim and building of one inference another. Id. sought lant discovery as to the insurance at party S.E.2d at 337. The opposing policies and parties contracts between the summary motion for judgment may not to the sale and construction building, allegations rest on of his or her unsworn revealing who pleadings and must instead come forth with condition which caused the fixture to genuine evidence of dispute. factual Mere However, Appellant fall. produce failed allegations are response insufficient in to a evidence, affidavits, depositions, admis- motion for summary judgment to show that sions, or other materials which show that genuine there is a issue for trial. Powder there is an issue of Ap- material fact that idge Highland Unit Owners Proper Ass’n v. pellant breached a Appellant, owed to ties, Ltd., 10, 11, 196 W.Va. at 698 nn. identify failed to with speci- reasonable 10, 11. S.E.2d at 878 nn. ficity the facts that still needed to be dis- covered, explain might how facts opponent An summary judg of a show that genuine there is a issue of mate- ment requesting motion a continuance for rial fact that summary would defeat judg- further discovery need not follow the exact ment. Virginia Rule 56 of the Rules 56(f) letter of Rule Virginia the West Civil requires Procedure more than this. Rules of Civil Procedure in order to obtain it. Schoolcraft, Elliott v. 213 W.Va. at Indeed, that, we have held However, minimum, S.E.2d at 800. at a moving [i]f the party properly party 56(f) makes a making an informal Rule motion

supported motion for summary judgment satisfy (1) must requirements. four It should and can show affirmative evidence that plausible articulate some party’s basis for the genuine fact, there is no issue of material specified belief that “discoverable” material production the burden of shifts to the non- likely facts yet exist which have not become (1) moving party who either (2) must rehabili- party; accessible to the demonstrate tate the evidence attacked the moving prospect some realistic that the material (2) party, produce additional evidence facts can be obtained within a reasonable showing the genuine (3) existence of a issue period; additional time demonstrate that trial, (3) or explain- submit an affidavit will, obtained, the material if facts suffice to (cid:127) ing why discovery further necessary engender as genuine material; an issue both 56(f) provided (4) Virginia Rule of the West good demonstrate cause for failure to Rules Civil Procedure. have discovery conducted the earlier. Id.

255 Kronjaeger Buckeye Union Appel appeal.”); on merits of assessing the In 570, 657, Co., 585, herein, 490 S.E.2d continues Ins. Appellant 200 W.Va. arguments lant’s Miller, loose, (1997); 197 very generalized assertions State v. to make (1996)(“Indeed, prema granted if summary judgment was that discovery pending still jurisdiction, was it turely any principle because is settled this filed. As that, had been extraordinary motion to amend most cir- and a absent the below, identify cumstances, fails to with Appellant legal proper- he did theories not raised facts to be specificity other reasonable cannot be broached for ly in the lower court discovered, might the facts explain or how appeal.”). the first time on genuine issue of material there is a show that Equity the circuit court ruled on When summary judgment or that would defeat fact Summary Judgment, there Inns’ Motion for already engaged in had not why he show discovery outstanding as to was no only specific argument discovery. The such A of the record reveals that Inns. review makes is that Appellant already provided Appellant Equity Inns had the written prematurely because granted was every responsive that was with document architect, expert Equity Inns’ report of posses Inns’ requests that was inferences Guffey, possible Francis leaves fact, given cop Appellant had been sion. Equity Inns would questions of fact that policies at the Inns’ insurance ies to the acci for contribution summary granted, which judgment time he stated: dent wherein regarding whether no information revealed light photos indicate a “The furnished responsible for the condition Equity Inns was to be anchored frame that was subject light fixture to fall. that caused the anchoring The ceiling in four locations. contract that Additionally, although the sales expan- wall plastic included system used produced requested had not been The wood screws. anchors and #8 sion not in its by Equity Inns because it was in the anchor was mounted plastic 5/8" subsequently provided this possession, VIM only. is a to- ceiling This gypsum board November contract anchoring this tally improper method of appear to agreement The also does not sales fixture, an- pullout resistance any liability Equity Inns.8 impute type of an- extremely low. This chor is correctly Additionally, the circuit court anyone apparent choring would not be complaint amended proposed held that otherwise ex- changing bulbs or summary judgment. The prevent did not amining the fixture.” complaint simply re- amended proposed inference exists Appellant contends that an issues, improper instal- the same two hashed by Equity Inns for if it was owned improper in- light fixture and lation of the they years, might have caused almost 10 thus, there was premises, its spection of light fixture fall process of the hastened prevented sum- nothing presented new cleaning ing by changing the bulbs granting In its order sum- mary judgment. However, argument was light fixture. judgment the circuit mary court below. presented to the circuit never explained, court attempting make that is now To the extent proposed amend- An previously pre examination argument that was not consideration, complaint it does ed discloses to the circuit court sented any allegations against this defendant state now the same. See will not entertain we 490, 506, among the issues raised that were not Mayhew, Mayhew v. (1999)(“Our factual alle- the Rule 56 motion. is clear in law S.E.2d against rule, that, gations in the amended general we will not holding as a (among moving are that Defendant for the first time pass upon an issue raised hereunder, the Pur- assumed the Purchaser Although copy could not be a of said contract obligation Equity represents any of the Inns within the chaser does not assume located record. following: arising sales contract states the any claims out of for Seller any Closing. Liability Except prior for to 8.1 of Purchaser. occurrence agreed obligation expressly to be assumed or 256 defendants”) “properly cannot party

“all failed to install avoid (the Hampton merely ipsa ... and that because the doctrine of res the fixture” defendant) negligent loquitur plaintiff “in fail- is The still moving invoked. must ing properly inspect and maintain its establish the produce to evidence to existence premises genuine safe manner. material a res in a of issue of fact for ipsa loquitur Syl. to survive.” Pt. case disposed in Both of these issues were of Clinic, Hosp. v. 184 Bronx St. Jude’s the of the motion sum- consideration 594, 402 W.Va. S.E.2d dispute mary judgment. There is no participate did moving the Defendant not agree circuit court. We with the Because fixture, and the in the installation of the properly Appel- circuit court found that the presented Plaintiff no factual material in specific did not lant offer facts or evidence expert response report the to Defendant’s showing genuine that there is a issue remain- any specific points to act omission trial, grant court’s sum- ing the circuit of constitute to main- which could the failure mary judgment be to Inns should light way the in a inspect tain or fixture affirmed. which could have disclosed the defect. Complaint B. Motion to Amend considered, The circuit court also but re- error, assignment Appel- In his second of jected, Appellant’s attempt keep his case lant maintains that the circuit court erred against Equity by amending alive his refusing to allow to amend his rely complaint upon principle of the res complaint loqui- ipsa to assert claims for res analyzed The ipsa loquitur. court’s the mat- liability against Equity and strict tur Inns. ter as follows: reviewing Upon thoroughly arguments the of proposed Plaintiffs amended us, parties the and the record before we find alleges moving 13 that the Defen- Count correctly the circuit court refused plaintiff dant is “liable the under the permit Appellant complaint. amend the theory Ipsa Loquitur light the of Res since fixture was under the exclusive control and Addressing Appellant’s claim for res management of defendant Inn.” first, loquitur ipsa alleges that legal application Count 13 asserts the Inn, “Defendant Inc. The d/b/a principle distinguished the from asser- Inn, Hampton all other defendants and/or such, permit- tion of fact. As is plaintiff also liable to are under the theo determine, issue, legal ted to as a whether ry Ipsa Loquitur of Res since fix ipsa loquitur on res reliance Count question ture was under the exclusive 13 is to defeat sufficient the Rule mo- management control defendant summary judgment. tion for Inn, Inn, Hampton Inc. all The d/b/a and/or principle It is well established that the entirely other defendants. Mr. Crum was loquitur ipsa of res does not a cause create injuries fault and without would not have is, rather, evidentiary It action. ordinary happened course of events principle that allows the of fact to trier (sic) in control had defendants used dire infer negligence when three criteria are However, evidentiary pursuant care.” to the “1) present: instrumentality which ipsa loquitur, rule res injury causes the must be the exclu- under plaintiff inferred that harm suffered management sive control and of the defen- by negligence caused defendant when: 2) dant; fault; plaintiff must be without 1) ordinarily the event is of a kind which does 3) injury must be that in the such 2) negligence; occur in the absence ordinary course of events it would not have causes, including the con other happened had the one in control of the plaintiff persons, third duct of the are instrumentality used due care.” evidence, sufficiently by the eliminated 3) permissible negligence not a inference is sub- the indicated within plaintiff. stitute factual scope for a basis defendant’s Inc., find negligence. making general Syl. Kyle Transport, “In alle- Pt. v. Dana fault, (2007); Beatty gations support, stated without

257 inherently Co., 471, falling light the fixture was with 212 574 S.E.2d W.Va. Ford Motor brief, 4, City Appel- In (2002); dangerous plaintiff.” v. his Syl. Pt. Foster 803 (1997). 1, jury alleges S.E.2d 165 herein that should be “[t]he lant Keyser, 202 W.Va. and make all allowed to consider this ease Herein, question that there is no why urge we appropriate inferences. That is satisfy second criteria the Appellant cannot liability theory of strict on this the unusual ipsa loqui of res necessary for the invocation rational Court as well. There must be some causes, tur, includ because other compensated.” Ap- way for Mr. Crum to be persons, have ing conduct of third the alleges Equity Inns “should pellant also by the evidence. sufficiently eliminated been legally responsible for the incident. It persons third contrary, the conduct of To the property.” their watch on their occurred on has incorrectly the installed who fixture Corp., 170 by to be the In Peneschi v. National Steel implicated the evidence been 511, (1982), subject explicitly incident. we responsible cause adopted that there are law the doctrine of Appellant has also maintained into our common respon multiple parties may liability abnormally dangerous who have been ac- strict builder’s, (Sec- including the injury, his tivity sible for as articulated in the Restatement decorators, ond) (Second) previous owners and unknown Restatement Torts (1) Kyle (1976) Syl. Pt. managers. § We held One provides Torts that: Inc., 220 W.Va. Transport, dangerous Dana abnormally an ac- who carries on S.E.2d tivity subject liability for harm to the is resulting of another ipsa loquitur person, cannot be land or chattels The doctrine of res negligence activity, although he has exercised the from the invoked where existence 2) harm; prevent conjecture and the the utmost care to wholly a matter of liability to the kind of This strict is limited proved, are not but must circumstances harm, possibility of which makes presumed, or when it themselves be abnormally negligence activity dangerous. Restatement there was no be inferred that (1976) (Second) § 520 states that The doctrine Torts part on the of the defendant. activity determining is abnormal- only in where defendant’s whether applies cases are to be balanced. ly dangerous, inference that can six factors negligence is the The factors are: reasonably legitimately be drawn from

the circumstances. a) degree high of risk existence of chat- Davidson’s, person, land or some harm to Inc. v. (quoting Syl. Id. Pt. (1965)). others; tels of Scott, 140 S.E.2d 807 b) that results likelihood that harm Furthermore, Appellant’s regarding great; from it will be liability against claim for strict unknown, c) that, by inability the risk we note for reasons to eliminate care; initially this claim in his did not address exercise of reasonable response Equity Inns’ Motion for Sum d) activity is not a extent to which Thus, mary Judgment. this issue was not usage; matter of common by circuit court ruled discussed or e) activity to inappropriateness of the However, had been even if the issue below.9 on; earned place where it is below, the circuit court properly presented f) to the com- extent to which its value denying error in not have committed would dangerous munity outweighed its pertains Appellant’s motion to amend as attributes. proposed amended Appellant’s this claim. (Second) Torts, § 520. Restatement complaint alleges that “Defendant’s liability of strict Inn, applying the doctrine strictly liable to Inc. and all others are have, instance, eases, ruled prior we he faced plaintiff because the situation complaint to refusing permit liability him to amend Despite claim fact that the strict Accordingly, we court raised or addressed circuit a strict claim. was not below, assert responded Appellant’s argument. Inns has will address arguments appeal the court erred 258 explosives blasting opera

that the use of always without limit. It is tempting to tions, though used, necessary lawfully and, impose concomitantly, new duties lia- being intrinsically dangerous and bilities, extraordi regardless of the economic and hazardous, narily renders the contractor lia Thus, social burden. gen- courts have damages resulting ble for property to the of erally recognized public policy another from blasting, negli such without considerations, social as well as foresee- gence contractor, part on the whether ability, important are factors determin- damage by by was caused vibrations or ing duty whether a will be held to exist casting rocks or other debris on the com particular a situation.’ plaining party’s property. Whitney Ralph v. 156, Id. at 522 S.E.2d at 447 fn. 15. Myers 130, 118 Contracting Corp., 146 W.Va. Appellant contends that as a result of the (1961); Moore, Kelly Reddish, S.E.2d 622 & rulings, circuit court’s he is now left with a Shannondale, Inc., 549, 165 Inc. v. 152 W.Va. meaningless ease and “an innocent victim is (1968); S.E.2d 113 Perdue v. S.J. & Groves left any remedy injury without for an which Co., 222, Sons 152 W.Va. 161 S.E.2d 250. by caused others.” asserts We have also held that the sale and distribu that there responsible is no one to sue be- gasoline tion of abnormally could be an dan cause he cannot locate Construction Con- gerous activity subject and is to the Restate cepts, decorators, one of the or obtain valid (Second) ment applicable Torts test of jurisdiction service or Beekley over Hotel any activity involving other similar or Limited Partnership, entity which sold greater danger public. v. Bowers the hotel to they because with- Wurzburg, 207 W.Va. 528 S.E.2d 475 However, Virginia. drew from West we find (1999). applied We have never the doctrine argument wholly this unconvincing. Al- liability owners, of strict to hotels and hotel though Concepts, Construction Inc. has and choose not to do so here. moved Virginia from West yet and has not Although Appellant urges this located, been Appel- this does not mean that Court to “tread new waters” and hold hotels lant’s counsel could not corporation find the and their strictly owners inju liable for Likewise, with effort. there is no evidence ries that premises, occur on their the Re that service could accomplished upon not be (Second) statement § Torts 519-20 and Beekley by Hotel Limited Partnership deliv- prior our ease law oper demonstrate that the ering copy of the summons ation of a hotel would not constitute an ab officer, to an agent director or compa- normally dangerous activity which would ny by publication, permitted Rule 4 subject Equity liability Inns to strict for the Virginia of the West Rules Civil Proce- injuries allegedly by Appellant.10 sustained appeal’s dure. It from the record that both Furthermore, simply disregard we cannot formerly these entities did business in requirement that a of care must in Virginia, likely thus the circuit court fact be breached before an owner and/or personal jurisdiction maintains over them. occupier of land can be held liable to a non- trespassing Pickens, entrant. Mallet v. 206 Rule designed provide 56 is W.Va. at 522 S.E.2d at 446. As we have promptly speedily method of disposing cautioned, previously controversy if there no triable issue of that, traditionally Courts have recognized fact. Guthrie v. Northwestern Mut. Life. Co., ‘[a] line must 1, 8, be drawn between the com- Ins. 65 (1974)

peting policy considerations providing (citing Sportswear Weather-Rite Co. remedy everyone injured States, who is and of v. United 62 Cust.Ct. extending exposure to tort F.Supp. (U.S.Cust.Ct.1969); almost 10 Charles brief, Reply Appellant alleges, recovery Inns, pursue against time, first Virginia that the common law of West such a Appel- claim was never asserted innkeeper makes an injuries lant below. To the extent that this issue is now guest. Lilly, occur to a being presented Shifflette for the first time before this 43 S.E.2d 289 While Court, we will not consider the same. conceivably plausible theory have been a Miller, Mary majority’s opinion, As a result of R. & the the Wright and Arthur Alan Procedure, hotel where the occurred is now Kane, incident free and Kay Federal Practice 370). liability. and clear of The circuit court’s Because the circuit p. Section grant summary judgment pri- was based summary judgment appropriately court used marily one-page on a letter from a Mr. Guf- genuine that no in this to discern matter fey, by Equity provide was who hired Inns to exists, fact there no need issue of material expert opinion. opinion, upon an His based judicial the to waste valuable for photographs light provided by fallen the continuing litigation futile by resources counsel, Equity subject Inns’ the was that Accordingly, against we believe Equity Inns. light fixture improperly fell because it was correctly granted summary the circuit court years by installed twelve earlier an unknown correctly judgment permit refused entity. Mr. Guffey stated: complaint against his to amend Architect, original Project The since re- Equity the order of the Circuit exists, longer tired and his firm no men- County is affirmed. Raleigh Building to me

tioned that the Owner brought provide in lighting “decorators” to IY. complete and interior the decor build- ing, and that was never under his control. CONCLUSION operation lights in Somewhere the reasons, foregoing For the the December question were improperly installed. The of the Circuit Court of Ra- order building originally by was constructed leigh hereby affirmed. County is Concepts, Construction Inc. from Tennes- subsequently purchased and was see sev- Affirmed. years Virgi- by eral later Inns from Inn Management original nia the owner. Justice dissents and reserves WORKMAN speculative Based and self-serv- this dissenting opinion. right the file a hearsay ing “mention” an unnamed indi- vidual, from of more than his recollection WORKMAN, Justice, dissenting: years in another past twelve un- required This the Court to determine case named and “decorator” have unknown denying whether circuit court erred provided interior decor to com- “lighting and appellant’s motion to amend com- his owner, previous plete building” prior plaint refusing grant to disturb its summary judgment court granted the circuit Inns. The important in favor of Inns. It is also majority opinion concluded that the circuit passed time to note a short be- proper. For the court’s order was reasons grant Guffey report tween the and the below, majority outlined I believe summary judgment, allowing appellant upholding Court has erred the circuit inadequate period conduct of time to dis- Therefore, I dissent. court’s actions. compli- covery expert of the in this appellee’s were, parties cated case where numerous legitimately upon appellant was own, through no unknown to fault of his Hampton Beckley, Inn1 in premises of the appellant. Virginia, serving as a mediator for a such, lawsuit, occupied reading Guffey’s civil and as the status After Mr. short letter During guest opinion entirety, of an invitee and hotel. in its it is unknown who the mediation, thirty-three pound light fix these comments individual who made head, original appellant ture fell are was the and hit the him. told that he We architect, any- causing personal injury. project In we do not know him serious but mysterious original subsequent thing about this individ- complaint and the mo unnamed amend, than that he has since appellant attempted tions to ual other the assertion retired, negligence, longer firm no sounding ipsa assert res and that his exists. claims Likewise, loquitur, liability. we know if this unknown do not strict Hampton appellee, 1. This Inns. Inn is owned who,

person, according Guffey, to Mr. injury admit in a set of circum- lighting ted that the “was here, never under his stances like the one patron where a control,” job’ days, was on the for two two injured in an established hotel business weeks, throughout completion. its entire which holds itself out as a safe environment just anything We do not know about him or paying guests and invitees. relationship prior with the owners of the An examination of the common law as fact, question. hotel in we do even (1899) § modified W.Va.Code 16-6-22 and know who the so-called “decorator” was who by subsequent case law makes clear that may have installed lighting years the twelve law, existing under the standard for liability Thus, earlier. the granted circuit court sum innkeeper of an personal injury guest to a ‘ a, mary judgment very on the basis of liability is one of strict absent an affirmative sketchy opinion that was based on rank hear showing by innkeeper the up that it has lived say speculation. and Clearly, there were duty care, to its of due at which time the “genuine of issue[s] fact to be tried and proof burden of guest. would then shift to the inquiry concerning the facts desirable [was] 1947, opinion this Court issued the of clarify application to of the law.” See 297, Lilly, 130 W.Va. 43 S.E.2d Shifflette Syllabus Casualty Point Aetna Surety & (1947), which considered the nature and York, Co. v. Federal Insurance Co. New of liability extent of the innkeeper, “desig of an 160, 133 148 W.Va. S.E.2d 770 nated in our keeper,’ statute as ‘hotel for loss majority The wrong was dead in holding goods of and chattels taken and away carried applied that: “We have never the doctrine of and, from the room guest; of a specifically, liability owners, strict to hotels and hotel and extent, Code, 16-6-22,2 to what any, if choose not to do so here.” There existing changed the liability common law for such issue, law on this and this Court has held loss.” 130 W.Va. at 43 S.E.2d at 289. innkeeper strictly that an injury liable for Syllabus In the Lilly, of this Court held: guests. to innocent Existing governing law Code, Notwithstanding 16-6-22, duty of an innkeeper guest to a is based liability common law doctrine of of an law, statute, on common an 1899 very and a innkeeper damage loss of or Nevertheless, limited older case law. there property guest, of injury or for to his law, is existing majority ignores. which the person, force, remains applies and only Not majority does the fail to enunciate keeper of a hotel or restaurant in this apply law, or existing clarify it fails to or State; statute, and said properly con- it, modify if purpose. that was their It strued, from, limits, relieves or right of completely leaves unanswered what the ma- recovery guest, only of a where such inn- jority of this Court’s view is as to the extent keeper, hotel or keeper restaurant affir- generally innkeepers’ of liability guests matively shows that he has met the re- and invitees. This is the kind of case that quirements of said statute. gives legal system reputation a bad with general added). public, only ig- (Emphasis because it not Lilly While the Court law, existing nores but also fails to focus dealing primarily on was with the issue of the the common sense issue of who should statutory liability limitation innkeep- of of an Virginia (1899), § boarder; Code pro- 16-6-22 occupied by guest 2. rooms said or and vides: keeper no of a hotel or restaurant shall be held any part liable for any guest loss on the of or duty It shall keepers be the of hotels jewelry, money boarder of or other valuables and restaurants to exercise due care and dili- nature, provided keeper like such gence shall have providing honest servants and em- posted conspicuous place in a ployees, in the every room or precau- and to take reasonable boarder, occupied by guest rooms such protect persons tion to property boarders, public reception in the guests hotel office and their room keeper but no such restaurant, any such stating hotel or hotel or notice restaurant shall be held liable greater jewelry, money in a fifty sum than and other two hundred and valuables of like na- any wearing deposited dollars for the ture apparel, loss of must be in the office of such (or baggage restaurant), property, or other hotel hereinafter unless such loss shall mentioned, boarder, belonging guest to a place deposit. take from such office after such place added). when such loss takes (Emphasis from the room or Moreover, indemnify he has guest, himself. property of a loss of regarding the er privileges. special innkeeper’s generally an discussed it also safety guest, protect (Citation omitted). Id. liability law required under common Lilly recognized that W.Va. at issue in that case. by the statute well as innkeepers § instructed “to Code 16-6-22 to be that: “It seems Court stated This protect every precaution reasonable take prior to the enactment conceded liability guests,” and then limited ... his Legislature, Chapter Acts of the only cer- property as to loss and under prop- the loss of liability innkeeper for of an Neither the statute nor tain circumstances. relationship erty guest, of a while Lilly limited the Court continued, was, effect, innkeeper guest innkeeper’s protect manner for an failure 299-300, at absolute.” safety guests. of its at 290. at at The Court S.E.2d stated: opinion the rule are of the same We guest, personal injury to a this Court As to applied duty to the to exercise should be further stated: diligence providing care and in honest due days were remote In old when inns the employees, the other re- servants and and towns, highwaymen the and when from That, think, quirements of the statute. we rampant, it was not an uncommon were always duty innkeeper, of an even was the innkeepers to thing highwaymen and though he such due care whether exercises league together, and it was realized be in liability unimportant, was inasmuch as his early existence that very stage a in our at effect, was, in absolute in event. public thing general for the the safe intent of the opinion, our it was not the innkeeper respon- statute, should enacting Legislature in the 1899 guest safety the of his and his destroy sible for lia- to the common law absolute guest’s goods. bility, up That law still remains. standard in and to set a new respect duty innkeepers, of but added). Lilly in (Emphasis The Court Id. innkeepers merely give in the to relief to explained that: way relieving providing means of of liability [against liability rule of an in- The all in certain strict themselves of others, justified stances, limiting on the in innkeeper] generally is and things, namely, the exer- public policy. provided It is said to have certain ground of reasons, providing in diligence care and namely, cise of due imposed for several been servants, rea- and the exercise of honest policy encourage to good it was a because person precaution protect to sonable secure intercourse between convenient and estab- property guests should be and parts kingdom; because different lished. necessity strangers must of travelers and honesty in the and

trust to and confide (Empha- at 43 S.E.2d at 130 W.Va. added). in vigilance innkeeper and those his explained: The Court further sis employ. statute, to all he has to do is Under our in has exercised due care establish that he (Empha- at 291. 130 at 43 S.E.2d W.Va. employees, providing honest servants added). Moreover, sis every precau- taken reasonable and has two, innkeeper is able ... of the better property person protect to tion loss, against himself while protect to guests. not difficult to his This is helpless to ascertain or guest practically is has been exer- such care establish where So, a hards rights. cised, his It is no more disprove. enforce and difficult to guests effect, for his hip innkeeper provided for an than the stat- the limitation fault, loss, being innkeepers, at party reputable a neither all open sustain ute is interest, taken a care is especially the former undertakes where in them own since If such care is honest servants. knowledge provide of his liabili- trade with a full taken, innkeeper bear the ties, should charges as regulate so his for he 262 negligence guest Lilly essentially places of his -Court initial bur- because

burden is, mercy, very large innkeeper guest at defendant when degree, his den on the to a and, grounds policy, public injured through entitled no of his own. The fault showing protection. his make such an failure to affirmative liability. results in strict 307-308, at at 294. Lowe, Similarly, Early v. 119 Thus, W.Va. Lilly opinion, read the context (1938), statute, 853 this Court S.E. of. law and seems common liability- explained: hybrid strict to have established a duty innkeep- negligence standard on the innkeeper hotelkeep- It of an is the making innkeepers ers. clear While keep premises buildings er to his strictly personal injury.to remain liable for reasonably condition safe use of his opportunity an guests, it also enunciated guests, negligence in and where his showing innkeeper to make an affirmative respect proximate injury is the cause of an every precau- taken reasonable he “has therefor, guest, provided to a he is liable protect guests.” tion ... at place guest at the time is in where he 307-308, Existing S.E.2d at 294. law reasonably right, expected, has a place must then to the initial be read burden foregoing go. applied rule has been proof innkeeper, guest. not the involving unguarded unlighted cases showing non-negli- Absent an affirmative shafts, stairways, unguarded elevator de- gence, innkeeper subject an is to strict liabili- railings, unguarded openings fective in ty. platforms of escapes, fire defective or inse- n then, Essentially, Lilly curely in or unsafely this Court reit- fastened window that, chairs, screens, except in. of and erated the case the statuto- defective an unsafe theft, ry liability guest placed. for the room in the limitation absolute was liability injury guest the for remained precisely This the with is situation the case showing by intact an absent affirmative the Equity at hand. The fact is that Inns had innkeeper duty that it met its care. The complete light hotel and control over this that, Lilly Court in no “[w]e concluded see nearly years fixture for ten the time the hardship imposed the in innkeeper, real light fell on fixture Mr. Crum’s head. Under interpretation [limiting our of the statute re- duty. our law it owed Mr. Crum More- covery for as a limitation on theft] mere the over, duty existed whether or not rule, abolishing common law and not as the question the Inns owned hotel in for ten setting up same and a new standard.” Id. years days. Equity clearly Inns was ten The declared: Court responsible cleaning inspecting for and the toup adoption reasons that led the during past years, ten fixtures the stringent the rule for pro- common-law the keeping buildings was for its public traveling tection of the in earlier reasonably fixtures in a condition safe for use altogether wanting princi- times are Thus, law, guests. existing its under ple present day. at the There is as much Equity absolutely was injury liable for then, and, for traveling occasion now as Crum, showing to Mr. absent an affirmative fact, immeasurably amount of the travel care, by Equity Inns that it exercised due greater today years many ago.... than It him. Had Inns met affirmative therefore, just, would seem to be ... duty, the proof then burden of would have innkeeper should at least be called plaintiff-appellant to the transferred at that explanation, having an he been Thus, in time. consideration of the afore- placed property, full charge and mentioned, separate from the fact that I being receipt of a valuable consideration granting believe circuit court erred custody. for its safe the court 308-309, granted at S.E.2d at should have also Mr. Crum’s motion (Citation omitted). Further, by requiring an to amend to assert a strict claim showing by innkeeper providing opportunity litigate affirmative that he him responsibilities, has met his duties and issue. negli- inspection, the issue of this view. reasonable share Many jurisdictions other jury. gone have to the gence should Wilson World in Fontana v. example,

For (Fla. Condominium, 717 So.2d 199 Maingate 717 So.2d at 200. Dist.1998), Florida District

App. 5th case, majority’s Regarding Mr. Crum’s as this a similar situation Court faced Virginia, “In statement that: blanket In that falling light fixture. faced with occupiers such as landowners and ease, in a chair which guest of the hotel sat injuries negligence not liable in Inns are and in- causing collapse it to non-trespassing defective entrants of that occur to case, land, occupi- of her such landowners or jure her. At the conclusion their unless duty un- their of reasonable care a verdict in favor of ers breach court directed lower on their der the circumstances” was based of actual was no evidence hotel because there Pickens, citation Mallet condition of notice as to the or constructive Mallet, The District Court reversed the chair. however, factually distinguishable both court and held that: lower legally from the situation at hand. insurer, it is not an though Even a hotel Mallet, Mallet, de- Patricia and Ernest duty guests the owes its nevertheless friends, good the Pickens cided to visit their care. One who ordinary and reasonable Mallets, however, not realize family. The did public is in which the conducts a business having were work done to that the Pickenses invi- owes a to such invited to enter resulting home in the access their safety----The respect their tees with being tempo- a set of front door of the house not like a involved in this ease is situation stairs, have a rary, wooden which did not in which the slip and fall case normal home, exiting railing or banister. While peel pool liquid or a banana danger is a fell, striking her head on a con- Ms. Mallet readily appar- on the floor which would bones in crete block. She suffered broken inspection at reasonable ent from a visual Mallet, surgery. In required that her face intervals; here, defect was hidden. was no the circuit court found that there merely looking at Housecleaning personnel coverage for Ms. Mallet based insurance danger. have observed the chair would not upon common distinctions between law reversing In the circuit invitee and licensee. The Court further 717 So.2d at 199-200. court, abolished such a distinction this Court reasoned: and found between an invitee licensee put though might defendant have Even did coverage injuries Mallet’s for Ms. that contrary Mallet, had the directed ver- on evidence Syllabus In Point 4 of exist. entered, the fact is that the dict not been specifically that: Court held had only appellee is that record evidence li- between The common law distinction abolished; or place inspection procedure hereby no invitees is censees and Thus, furnishings. at owe possessors maintenance of its now landowners entered, duty non-trespassing entrant a of reason- the time the directed verdict n We care under the circumstances. able appellee did not there was evidence that regard to a traditional rule with retain our of its furniture to see cheek the condition being trespasser, that a landowner Even ordi- that it was in a safe condition. need refrain from willful possessor period of time nary wear and tear over a injury. wanton jury The could have can become a hazard. 446. ap- at 522 S.E.2d at ostrich-like found that the owner’s safety premises of its did not proach to the not alter the holding in Mallet did obligations its invitees. a meet its inn- imposed between an law duties common ... an over- such as this where situation special to the rela- keeper guest and a due two, a defec- night guest injured because of nor the tionship that exists between to such prior directly point that existed tive condition law which was older case Likewise, hotel, liability. innkeeper checking into the a condition the issue guest not address this Court’s upon Mallet Court did a that would have been discovered previous ruling Lilly, impact or the 685 S.E.2d 237 § innkeeper’s 16-6-22 on an duty W.Va.Code Virginia, STATE of West Plaintiff “every precaution to take pro- reasonable Below, Appellee 307-308, guests.” tect ... his at 43 S.E.2d at 294. It did not address those they issues because did apply to the MALFREGEOT, Richard Defendant

situation in Mallet The Court Mallet Below, Appellant. specific dealt with neighbor situation of a visiting neighbor’s another home wherein an No. 34496. injury occurred in an area that was under construction. guest, This involved a social Supreme Appeals Court of not paying guest. a I nothing see in Mallet Virginia. duty innkeeper guest alters a of an to a existing based Sept. our law. Submitted 2009. hand, In the day situation at on the Decided Oct. question, Mr. Crum entered the conference room of the hotel to conduct mediation Then,

civil through lawsuit. no fault of his own, thirty-three pound light fixture fell on Although very sketchy head. expert

opinion was concluding rendered fault, Inns was without appellant never meaningful had a opportunity to conduct dis- covery expert opinion. and refute this

Even if Guffey opinion letter was deter- prima mined to constitute a showing facie having defendant met its affirmative plaintiff, appellant should have been pursue able to discovery further on the

alleged negligent maintenance of the hotel obligations, what duties any, if were by Equity

assumed purchased when my the hotel. It is belief that the better view would be for strict to be im-

posed upon innkeeper personal injury guest

to a is without fault. If who that is not view, majority they the least could have clarify done was to modify existing law to their liking. majority absolutely does

nothing law, existing enunciate nor to modify clarify majority it. The leaves the

law even murkier than it has been for the sixty-two last years, since this Court issued opinion Lilly. Therefore, above, for the reasons stated I respectfully dissent.

Case Details

Case Name: Crum v. Equity Inns, Inc.

Court Name: West Virginia Supreme Court

Date Published: Jun 22, 2009

Citation: 685 S.E.2d 219

Docket Number: 34400

Court Abbreviation: W. Va.