This is an appeal by Charles and Sheila Hawkins (hereinafter “Appellants”) from a final order of the Circuit Court of Marion County granting summary judgment in favor of the Appellees, United States. Sports Association, Inc., Marlon County Slow Pitch Softball Association, Marion County Softball Association, and the City of Fairmont (hereinafter “Appellees”). Although the lower court found that the Appellees, as defendants in the underlying civil action, had a duty of care to provide a safe playing field upon which the Appellant Charles Hawkins played softball, the lower court granted summary judgment to the Appellees based upon the court’s conclusion that the Appellants had failed to demonstrate the existence of any genuine issues of material fact. The Appellants contend that elements including negligence, due care, proximate cause, and concurrent negligence should have been permitted to be considered by a jury. Upon thorough review of the record, briefs, and applicable precedent, this Court affirms the lower court’s order of summary judgment.
I. Factual and Procedural History
On August 18, 2000, Mr. Hawkins injured his knee on a plastic pipe while sliding toward first base in the third inning of a softball tournament organized and controlled by the Appellees. Mr. Hawkins incurred in excess of $56,000.00 in medical expenses due to that injury. The Appellants filed a civil action against the Appellees, alleging that the Appellees were negligent in their failure to discover the pipe and confirm that the field was safe before allowing Mr. Hawkins to play there.
Significant discoveiy was undertaken, revealing that the Appellees had prepared the field the night before the softball game and had performed precautionary inspections of the field prior to the competition. Noticeable obstructions were removed from the field. On the morning of the competition, due to rain the prior evening, members of Mr. Hawkins’ team used brooms and rakes to further prepare the field. The evidence firmly establishes that no one noticed any type of obstruction on the field during these preparations.
Discovery also indicated that the pipe on which Mr. Hawkins injured his knee was a two-inch diameter PVC pipe located approximately five feet from first base in the base line and was approximately twelve inches long. Discovery revealed that the pipe had been installed in the base line by coaches employed by the Marion County Board of Education
The lower court granted the Appellees’ motion for summary judgment on November 19, 2004, finding that none of the Appellees had knowledge of the PVC pipe. Specifically, the lower coui't order stated that “[n]o witness testified that the [Appellees] acted impropei-ly.” The lower court found that the Appellees had fulfilled their duties by taking reasonable steps to ensui-e a safe playing field and that because the Appellees had no knowledge of the buried PVC pipe, they did not bx-each their duty by “failing to locate a latent dangei'.” The lower court concluded that because the only individuals with knowledge about the PVC pipe were Marion County Board of Education representatives, “only the Marion County Board of Education is legally responsible for the [Appellants’] inju-l-ies.”
II. Standard of Review
Summary judgment is required by Rule 56 of the West Virginia Rules of Civil Procedure when the l-ecord x-eveals that there is “no genuine issue as to any material fact and that the moving pax-ty is entitled to a judgment as a matter of law.” W.Va.R.Civ. Pro. 56(c). This Court has consistently applied a de novo standard of review in evaluating a lower court’s enti-y of summary judgment. See Syl. Pt. 1, Painter v. Peavy,
Summary judgment is appropriate whex-e the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as whex-e the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to px-ove.
In syllabus point four of Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York,
Roughly stated, a “genuine issue” for purposes of West Virginia Rule of Civil Procedure 56(c) is simply one half of a trialworthy issue, and a genuine issue does not arise unless there is sufficient evidence favoring the non-moving party for a rear sonable jury to return a verdict for that party. The opposing half of a trialworthy issue is present where the non-moving party can point to one or mox-e disputed “material” facts. A material fact is one that has the capacity to sway the outcome of the litigation under the applicable law.
III. Discussion
A. The Precedent
This Court has invai-iably maintained that the owner of px-emises upon which an injxxry occurs is not to be eonsidei-ed an insurer of the safety of an invited person present upon such premises. In syllabus point three of Puffer v. The Hub Cigar Store, Inc.,
*279 The owner or the occupant of premises used for business puiposes is not an insurer of the safety of an invited person present on such premises and, if such owner or occupant is not guilty of negligence or willful or wanton misconduct and no nuisance exists, he is not liable for injuries there sustained by such invited person.
Subsequent cases elaborated upon such principles of reasonable care and duty in a premises liability and latent defect cases. In Andrick v. Town of Buckhannon,
Where the operator of a business obtains the right for its customers to park in an adjoining lot owned by another and invites them to do so, the operator has a duty of reasonable care to protect its invitees from defective or dangerous conditions existing in the parking area which the operator knows or reasonably should know exist.
The Andrick Court concluded that summary judgment was inappropriate because “little evidence was adduced in the proceedings below” on the issue of whether the defendants knew or should have known of the existence of a dangerous condition on the parking lot.
Similarly, in McDonald v. University of West Virginia Board of Trustees,
In order to make out a prima facie case of negligence in a slip and fall case, the invitee must show (1) that the owner had actual or constructive knowledge of the foreign substance or defective condition and (2) that the invitee had no knowledge of the substance or condition or was prevented by the owner from discovering it_With respect to slip-and-fall cases, the mere occurrence of a fall on the business premises is insufficient to prove negligence on the part of the proprietor.
In Adkins v. Chevron, USA, Inc.,
The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. The test is, would the ordinary man in the defendant’s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?
The Mallet Court reasoned as follows in syllabus point six:
In determining whether a defendant in a premises liability case met his or her burden of reasonable care under the circumstances to all non-trespassing entrants, the trier of fact must consider (1) the foreseeability that an injury might occur; (2) the severity of injury; (3) the time, manner and circumstances under which the injured party entered the premises; (4) the normal or expected use made of the premises; and (5) the magnitude of the burden placed upon the defendant to guard against injury.
In Story v. Worden,
In Eichelberger v. United States,
Thus, in order to establish a prima facie negligence claim in a slip and fall case, “the invitee must show (1) that the owner had actual or constructive knowledge of the foreign substance or defective condition and (2) that the invitee had no knowledge of the substance or condition or was prevented by the owner from discovering it.”
B. Evidence in Present Case
In the present case, the Appellants maintain that the testimony of Joseph F. Merendino, Jr., the tournament manager, precludes summary judgment because Mr. Merendino indicated that the pipe should have and could have been found by representatives of the Appellees.
Q. Now the pipe, before the pipe was dug out of the ground, was it visible to the naked eye, to somebody out in the field, was it visible?
A. I can’t answer that truthful. It was visible when I walked down to first base [following the injury]. I saw they went with their hands like this and it was there.
Q. But how far did Mr. Aversa have to dig to get to the top of it?
A. Like I stated a minute ago, the one at first base, I could barely see the top of it.
Q. Because the people there already dug it—
A. Right. Now the one at second base, you had to dig down probably a good six or seven, eight inches before you could find them, and the other ones also.
Q. Mr. Merendino, the pipe that Mr. Hawkins hit, it was exposed and above ground when he hit it, wasn’t it?
MS. SANDERS: Objection.
A. It was exposed and above the ground when I went down the first baseline.
Q. You agree with me that it had to be exposed and above ground when Mr. Hawkins hit it, wouldn’t you?
MS. SANDERS: Objection, asking for speculation.
Q. You can go ahead and answer.
A. I would probably have to agree with that, yes.
Q. Otherwise he won’t have hit it; is that right?
A. That’s probably a true statement.
It is apparent to this Court that Mr. Mer-endino’s testimony consists primarily of speculation regarding the degree to which the pipe might have protruded from the ground at the time Mr. Hawkin’s knee encountered it. The testimony does not establish that the pipe was above ground or visible prior to the accident when representatives of the Appel-lees inspected and prepared the field. Nor does the testimony establish that the Appel-lees had any prior knowledge of the existence of the pipe or the ability to locate the pipe prior to the injury.
Mr. Merendino’s testimony establishes only that, in hindsight, it becomes obvious that the pipe was in existence, either completely or partially covered, at the time the competition began. To that extent, Mr. Mer-endino stated that it could have been located. However, that is not the issue. The issue is whether the Appellees had knowledge of the pipe or should have, through reasonable inspection, discovered the existence of the pipe. There is no evidence that any Appellee, prior to the injury, had seen the pipe or had actual or constructive knowledge of the pipe’s existence.
The Appellants further contend that the testimony of Steve Aversa and Ron Whiting preclude summary judgment by indicating that both men were aware that this field was also utilized by the girls’ softball team and that the girls’ baseline was five feet shorter than the men’s baseline. This Court’s review of the deposition testimony, however, reveals that Mr. Aversa, in charge of preparing the field for play, testified that he noticed no obstructions. He explained that while he was aware that a girls’ softball team utilized the field and that their baselines were shorter, he had “no clue” how their bases were affixed to the ground and had no knowledge of anything buried in the ground in front of the bases during the tournament at issue.
Similarly, Mr. Whiting, a coordinator of the Marion County Softball Association, specifically denied knowledge of the buried pipe. While he was aware that men’s softball leagues use longer distances from home plate to first than do girls’ high school softball teams, he was unaware that any pipe was buried along the baseline.
The Appellants further maintain that the factual disagreement regarding whether the pipe was hollow or concrete filled also precludes summary judgment. Mr. Carpenter, the individual who buried the pipe, testified that it was not filled with concrete when he buried it. Yet the Appellants maintain that there was concrete in the pipe which caused the injury. As the Appellees assert, whether or not the pipe was concrete-filled is immaterial. The underlying basis for the grant of summary judgment was the absence of a genuine issue of material fact regarding the Appellees’ performance of their duties in the preparation of the field. In other words, even if the pipe which injured Mr. Hawkins was not the same pipe buried by Mr. Carpenter, it does not alter the fact that there is no evidence that the Appellees knew or should have known of the existence of the buried pipe. In Anderson v. Liberty Lobby, Inc.,
IV. Conclusion
Subsequent to this Court’s review of the complete record in a light most favorable to the Appellants, this Court cannot conclude that the trial court erred in finding no genuine issue of material fact and in awarding summary judgment. Mr. Hawkins’ injury was an extremely unfortunate incident. However, “[t]he bare fact of an injury standing alone, without supporting evidence, is not sufficient to justify an inference of negligence.” Mrotek v. Coal River Canoe Livery, Ltd.,
The evidence in this case simply does not present a scenario in which the defendants, other than the Marion County Board of Education, which already settled with the Appellants, had any actual or constructive knowledge of the dangerous instrumentality. Nor does the evidence indicate any negligence in preparation of the field or failure to locate the pipe through reasonable inspection. The evidence provides no basis upon which to conclude that the injury was foreseeable in any manner, based upon the normal, expected use of the property in question and the knowledge that the Appellees had or should have had regarding the existence of the pipe. In light of the foregoing, this Court affirms the judgment of the lower court in all respects.
Affirmed.
Notes
. The Appellants settled with the Marion County Board of Education on October 8, 2003.
. The Mallet Court, discussed subsequently in this opinion, abolished the common law distinction between licensees and invitees, concluding that landowners owe any non-trespassing entrant a duty of reasonable care under the circumstances.
. In Andrick, this Court utilized the terms "actual or constructive knowledge” or "learns or should
. The Appellees contend that this Court should not consider the Appellants’ arguments regarding Mr. Merendino’s testimony because the Appellants are attempting to raise theories on appeal that were not raised below. Specifically, the Appellants are now relying upon Mr. Meren-dino’s testimony to imply that the pipe was indeed above ground, despite their failure to raise that precise contention regarding Mr. Merendi-no's testimony when the summary judgment hearing was held in the lower court. Likewise, the Appellees complain that the Appellants have altered their arguments regarding the testimony of Steve Aversa and Ronald Whiting with respect to whether the Appellees had knowledge of the existence of the buried pipe. The Appellants have also submitted the testimony of Charles Carpenter, in an apparent effort to raise suspicion regarding the meticulousness of the efforts taken to prepare the field. While this Court acknowledges that the Appellants may have emphasized different components of the extensive deposition testimony in their appellate efforts, this Court will consider the factual allegations made within that deposition testimony as they may affect the summary judgment determination.