*1 Justices STARCHER and ALBRIGHT right

dissent and to file reserve

dissenting opinions.

STARCHER, J., dissenting:

I enough dissent because there was not serious misconduct the ser-

geant disciplinary to warrant severe action. apparently spent money stay

He his own motel, night up in a and made the cost

adding four hours of overtime —which would commuting

have been his travel time for

back and forth to his home. This was not procedure,

correct but it also not theft of

funds or services. The Commission did the

right thing; judge right the circuit did the

thing; and on remand should adhere to sergeant repri-

their result. The deserves a

mand; prosecutor “malting but

mountain out of simply a molehill.” I would

affirm the actions the Commission and the

circuit court. say

I am authorized to that Justice Al-

bright joins in this dissent.

Betty Johnny Neely, K. NEELY and L. Below, Appellees,

Plaintiffs INCORPORATED,

BELK Crown Ameri- Crossroads, LLC,

can Crossroads d/b/a Newport Trading Company,

Mall and

Inc., Below, Appellants. Defendants

No. 33597.

Supreme Appeals Court of Virginia.

West

Submitted Feb. 2008.

Decided June

reversed and this matter remanded promptly directions to judgment enter a or- der consistent with the verdict. I. AND

FACTUAL PROCEDURAL HISTORY personal injury This action arises from an 7, 2002, October incident at Depart- the Belk ment Store1 located at the Crossroads Mall2 Beckley, Virginia, appellee West wherein Jones, Warner, Heather Heiskell Brian J. (hereinafter Betty Neely Neely”) “Ms. Battle, Spilman PLLC, & Thomas Charles- allegedly injured opening while the store’s ton, Appellant Incorporated. for Belk outer entrance door. regarding The facts Stebbins, Pinkerton, James C. Stebbins & actually happened what on October PLLC, Charleston, Appellant Newport disputed According at trial. to Ms. Nee- Trading Company. ly, completely the entrance door came off its Corey Palumbo, Bowles Rice McDavid hinges *5 it, open when she tried to striking her Love, Charleston, Graff & Appellant for ground. as it fell to Neely Ms. maintains Crown American Crossroads Cross- d/b/a right the door struck her knee and it side as roads Mall. Neely’s daughter, Clark, fell. Ms. Haley did testify actually not that she saw door fall Wooton, Firm, John D. The Wooton Law mother, and although strike her she did state Beckley, Appellees. for ground. By contrast, she it on the saw two employees, former Belk BENJAMIN, Frankie J: Lawson and Bailey, Avis testified that the door did not Appellants below, herein and defendants completely hinges come off its and fall to the Incorporated, Belk Crown American Cross- ground, frame, but that was still its roads, LLC, Crossroads Mall and New- d/b/a top attached at hinge and askew at the Inc., port Trading Company seek reinstate- bottom, employees after the incident. These ment of a verdict rendered in their favor they testified that after Neely, assisted Ms. eight day after personal injury an trial in this they removed the door from its frame and Upon action. appellees, motion against leaned it entryway. the wall in the County Circuit of Raleigh Court set aside the Bailey Ms. Lawson and apparently Ms. were jury’s verdict and ordered new trial employees the first Belk to see the door after original jury against verdict was the clear the incident. Appellants of evidence. argue the trial, circuit court in making finding. erred presented At Neelys case comprehensive After a mainly review of the trial focused on establishing damages and below, transcript, pertinent record legal au- attempting to utilize circumstantial evidence arguments thorities and parties, of the to problem infer a existed with the door in agree appellants. Accordingly, with for liability. order to establish respect With to herein, the reasons set forth liability, Neelys the circuit evidence that January court’s setting order aside previously the door had repaired been due to ordering verdict and problems locking,3 new trial is independent that an Department 1. This Belk Store was owned and 3.This evidence did not include what was actual- Belk, (here- operated by Appellant Incorporated ly repair done to the door to it other than re- "Belk”). interchangeably inafter referred to as placement Appellees of some of the hardware. person performed did not call the who these operated by 2. Crossroads Mall is owned and repairs testify as to the extent of the work he Crossroads, LLC, appellant Crown American performed why per- or that work had been (hereinafter interchange- Crossroads Mall d/b/a formed. "Crossroads”). ably referred to as chores, cook, garden, walk without hinges had door off of its hold seen the witness limp go per- and that shopping7 that none time and some unknown Neelys these her.8 The formed tasks for repairing appellants4 had a record Neely’s presented testimony from Ms. treat- question. The door after the incident alleged ing physicians regarding injuries her Lyons, Neelys’ liability expert, Donald did planner life care testimony and the of a inspect prior forming not the door his $900,000 projected itemizing more than provide opin- opinions and unable an was expenses. future actually happened to ion as to what cause the gave frame.5 door to come loose from its He claims, Neely’s appel- To refute Ms. opinions might hap- as to several what have Neely’s March 2002 social lants utilized Ms. and that he did pened admitted not know security disability application surveil- probable the more which scenario was cause during pendency lance video taken of her malfunctioning. door He ad- likewise litigation. In March instant could have func- mitted the door been prior to the Belk inci- more than six months immediately tioning properly prior to Ms. herein, Neely applied at issue Ms. dent Neely’s and came loose without incident security disability claiming benefits social prior warning. only thing that this ex- totally depression, anxiety disabled due to pert required degree testified to with panic application, complet- This attacks. certainty that the door fell. He did not daughter, of her ed with indi- assistance opinion requisite an offer level Neely Ms. unable to do household cated certainty why as it fell. chores, laundry, or other than drive. She interests, she no hobbies or no indicated had Neely totally At claimed to be Ms. longer shopping went and did leave the permanently disabled as a result of the office, go other to the doctor’s house than to injuries in the allegedly sustained October daughter’s her or her mother’s house. house Specifically, incident. she claimed to these same effects later claimed *6 sympathetic dystrophy developed have reflex alleges injuries from she to resulted the have complex pain syndrome in regional and her October 2002.9 sustained Belk on knee,6 inability to an to right in addition depicts Neely Ms. daily psychological and The surveillance perform routine tasks video essentially separate days, in injuries on one November 2004 kept which her home- two walking including August other without persons, Nee- and the in bound. Several Ms. husband, Johnny peri- an extended ly, Neely limp10 shopping a while for appellee her and time, dining daughter Neely doing and out. It that Ms. no od errands her testified balancing injured on her enjoyed life, longer depicts longer could no do house- also her Neely's Trading Photographs knee taken in the Appellant Newport Company, 6. of Ms. 4. Inc. 7, 2002, (hereinafter "Newport Trading”) replaced days had the incident indicate after October question September bruising swelling knee. in of the hardware on the door some and theory liability supra, See fn. 3. One 2002. Trading’s Newport repairs matter that this was shopping testimony The revealed that was one 7. inadequate were or defective. Neely's activities she did of Ms. favorite prior at a time times week for hours to several a expert at the door on the eve of 5. This did look Belk incident. upon happened when the store. trial he Howev- er, testimony regard- precluded circuit Neely's her Ms. and best 8. son-in-law ing years "inspection” as it occurred four friend/neighbor regarding the affect also testified relied after the incident and was not Neely’s they has had on Ms. believe the incident forming opinions in this matter. his disclosed behavior. explanations why This offered various for witness ground door have fallen to the as Ms. Neely could all of At Ms. testified she do 9. Neely explain testimony of the claimed. To things prior at Belk. to the incident these employees the door was still erect and Belk that scene, they Dr. in its frame when arrived on Neely walking depict good 10. The video Ms. Lyons does that a Samari- testified he assumed limp going therapist's when into her up a by, picked it in she walked the door and set tan entering tending Division of Motor Vehi- employees were office and frame to while the placard. handicapped parking Neely. to cles obtain a Ms. right leg apparently searching judge while a trial vacates a verdict [w]hen something purse. in her ex- pursuant and trial awards new to Rule 59 plained depiction by stating she has Virginia video of the West Rules Civil Proce- days good days and bad and the diere, video must judge authority the trial has the good days. have been taken on weigh the evidence and consider the credi- bility judge If witnesses. the trial 3, 2006, On November rendered n against finds the verdict is the clear against Neelys finding unanimous verdict evidence, on is based false evidence that did not sustain their burden of in miscarriage justice, or will result proving negligence. Accordingly, the circuit judge may verdict, the trial set aside the judgment court entered a order favor of supported by evidence, if even substantial appellants on November grant A judge’s and a new trial. trial Neelys timely filed a Rule 5911 motion to set subject decision to award a new trial is not argu- aside the verdict and trial award new appellate judge unless the trial review ing contrary that the verdict was abuses his or her discretion. evidence, that the misled that injustice substantial if would result the ver- Although subjecting the trial court’s decision upheld. Appellants responded dict was discretion, for an review abuse of also by pointing this motion out numerous mis- Building noted In re State Public Asbes- testimony characterizations12 of set forth in Litigation tos that a rarely new trial should Neelys’ contradictory motion and the evi- granted granted only and then it where “ liability regarding damages dence pre- ‘reasonably prejudicial clear that error has Appellants argued sented at trial. that crept jus- into the record substantial ” province was in the sole weigh tice has not been done.’ In re State Public evidence, credibility judgments make and Building Asbestos 193 W.Va. at such, disputes. resolve factual appel- As (quoting 454 S.E.2d at 418 11 Charles argued jury’s lants verdict should be Wright Miller, Alan and Arthur R. Federal upheld showing absent a of instructional or 32-33); § Practice and Procedure 2803 at prejudicial By other error. order dated Jan- also, Sharma, see Morrison v. uary granted the circuit court (1997)(same). 488 S.E.2d motion to set aside the Adkins, Maynard 456, 459-60, Neely’s ordered a trial had (1995), 136-7 we further ex- prima set forth a negligence. facie case of plained that: *7 appeal This follows. ..., Litigation, consistent with Asbestos general principle judgment that the II. awarding a trial court in trial new should OF STANDARD REVIEW “clearly wrong” be reversed if it is or if a This matter comes before us for consideration of the evidence shows that review of the circuit court’s proper decision to set the ease awas one for deter- aside a Malcomb, verdict and order a new trial Sargent on mination. v. 150 W.Va. (1966). syllabus point all issues. 561, 3 of In re State 146 S.E.2d 563 As Building Public syllabus point Asbestos 193 stated 4 of Bronson v. 119, (1994), Riffe, 362, W.Va. 454 S.E.2d 413 cert. de 148 W.Va. 135 S.E.2d 244 nied, 1160, 2614, (1964): 515 U.S. 115 S.Ct. 132 improperly “Where the trial court (1995), L.Ed.2d 857 we found that jury, sets aside a verdict of a such verdict 59(a) Virginia 11. Having Neely's Rule of the West Rules' Civil reviewed both the motion and transcript, agree provides, pertinent part, the trial we that Procedure the motion that a "new representations took liberties with its granted of trial any parties trial be to all or note, however, testimony. We do that the mo- (1) part and on all or of the issues in an action prepared by tion was and filed trial counsel who by jury, any which there been a trial has shortly withdrew from this matter after the mo- the reasons for which new trials have heretofore longer tion was filed and who was no involved in granted been in actions at law[.]” granted by this matter at the time the motion was the circuit court.

567 judg- Court and trial be this Court where it will be reinstated will reversed case, whole, fairly appears ment rendered thereon.” as was prejudicial losing- tried and no error party during committed the trial. was With mind, principles these turn to the we National Bank in Marlinton [v. First raised herein. issues Blackhurst, 472, 176 345 S.E.2d 567 W.Va. (1986)] context, in its of discretion” “abuse III. comports Litigation and with Asbestos generally with various earlier decisions of DISCUSSION concerning awarding this Court of a grant The circuit court’s decision to syllabus point trial. T. new As 7 of Earl Neely’s motion for a trial based new was Court, County Browder Inc. v. Webster 145 that verdict was 696, (1960), W.Va. 116 S.E.2d 867 states: contrary to the clear of the evidence. setting “The action of the trial court accompanying In the memorandum its order plaintiff aside a verdict for the and award trial, granting the the circuit court stat new ing the defendant a new trial will be re ed that it had: appears versed this Court that where presented during ease, whole, reviewed evidence fairly as a tried and the trial of this action.... It prejudicial no error to the defendant was disputed at trial that that the door 6, [sic] syl. pt. committed therein.” See also party had fallen on the Plaintiff and no Power, Monongahela v. Gault 159 W.Va. explain offered evidence to the cause 318, (1976); 6, syl. pt. Dillard, of the fall. Supply Western Auto 678, (1970); syl. pt. W.Va. 172 S.E.2d 388 opinion It is the court’s that the Plaintiff Storage, Brace v. Salem Cold 146 W.Va. prima against case [sic] facie (1961); syl. pt. City 118 S.E.2d 799 duty, all on the issues of defendants Fidelity Casualty, McMechen v. breach, cause, proximate damages.... (1960); syl., 116 S.E.2d 388 It cannot be said that a door cannot fall Board, Raleigh County Ward v. Park except negligence, as the result of nor does (1958); syl. pt. falling of a door shift the Hays, Ware v. 195 S.E. opinion, proof. It is the court’s burden (1938). however, produced that the evidence Although specifically a de- Gault addressed public trial that a door to a retail establish- fendant’s motion for a new note that prima patron ment fell on a constituted a principle applies regardless of the same negligence places upon case of facie party prevailed. expounded We on duty the defendants the to come forward premise that a trial should not impact of with evidence to overcome the fairly had been awarded where case tried prima strength of the case. The facie in Tennant v. Marion Health Care Founda- case, largely unchallenged by prima facie *8 tion, 374, 194 W.Va. 459 S.E.2d 383 Defendant, is such that the court must (1995), that: wherein we stated jury’s on the conclude that verdict liability contrary error affected the outcome of the to the clear

unless issue of is usually be a new trial should not of the evidence. words, granted. In other a trial when liability may jury’s finding on grants court abuses its discretion and a by explained reference to the Plaintiffs law, trial on an new erroneous view damages. Plaintiff claimed a evidence of clearly a erroneous assessment of the evi- damages amount of for a life substantial dence, appreciable or on error that has no sup- plan, questionable medical care outcome, effect on the it is this Court’s seriously port, and her claim was weak- duty to reverse. contradictory by acts and ened her own addition, Accordingly, trial In Defendants of- the action of the court statements. upon a setting awarding a fered a surveillance video aside a verdict new 568 exagger- 175, Cleavenger, could conclude that she was ease of Strahin v. 216 W.Va. (2004).

ating symptoms Therein, her it was to her 603 S.E.2d 197 when this Court explained: benefit do so.... opinion

It is the court’s that it is sub- negligence action in is based in tort [a]n stantially likely jury’s finding that the on brought damages law and is to recover liability is the result of their party conclusion from a whose acts or con- omissions exaggerated that Plaintiff had her proximate stitute the cause of a claimant’s claim, damages supported and that it ipjury. Gregory, 585, is not Sewell v. 179 W.Va. (1988). pertinent liability. 587, 82, the evidence That prevail 84 To opinion supports suit, that that negligence in a plaintiff must grounded verdict was on motivations prove by preponderance of the evidence which, understandable, although do not duty that the legal defendant owed a support the verdict. plaintiff by breaching duty and that proximately inju- the defendant caused the appeal, Appellants argue On that the circuit plaintiff. ries of the Webb v. Brown & setting court erred in aside Co., 115, Williamson Tobacco 121 W.Va. appellees prove where the had failed to es- (1939). 118, 898, 2 Consequent- S.E.2d claim, negligence sential elements of their ly, question the threshold in all actions in particularly foreseeability damages, at negligence duty is whether owed. Additionally, appellants trial. maintain that succinctly syllabus one, As point stated the circuit court abused its discretion part, Parsley of v. General Motors Ac- substituting judgment jury. its for that of the ceptance Corporation, 866, 167 W.Va. response, appellees argue In that the circuit (1981), negli- S.E.2d 703 “No action for granting did not abuse its discretion in gence duty will lie without a broken.” also, however, They trial. acknowl- edge that dispute Strahin, there was a factual as to atW.Va. 603 S.E.2d at 205. degree to which the door fell and that Additionally, recognized that: produced there no explain [d]uty not, however, princi- is an inflexible essence, why the door fell. appellees absolute, ple always since is not but “[i]t is argue appellants negligent must be time, relative to some circumstance because the fell and door there was no evi- manner, place, person.” Syl. Pt. negligence part dence of on the of Ms. Co., part, Liverpool Dicken v. Salt & Coal Therefore, opening only the door.13 (1895). 23 S.E. 582 More- issue the ap- should have decided was over, we found that: have propriate damages. disagree. We ultimate [t]he test the existence of a recently duty This Court discussed the to use care is found in the foresee- concept negligence, including ability may essential that harm result if it is not foreseeability, length is, element of in the exercised. The test would the ordi- such, Though articulating appellees Syl. pt. City Keyser, it as Foster v. appear loquitur invoking ipsa (1997). doctrine, to be the doctrine res apply 501 S.E.2d 165 To support they produced their claim as plaintiff required is to demonstrate that circum- regarding actually happened no evidence what per- stantial evidence will be that will door, only possibilities may of what have mit the to make reasonable inferences and expert's presumptions occurred based their speculate not be forced to in order to reach its contradictory and dismissal of evidence. Syl. pt. Kyle Transport, conclusion. v. Dana evidentiary ipsa Pursuant to the rule of res Inc., (2007). loquitur, may be inferred that harm suffered This doctrine not “be invoked where the plaintiff by negligence is caused negligence wholly existence of a matter of *9 (a) defendant when the event is of a kind conjecture proved, and the are circumstances not ordinarily does not occur in the absence presumed[.] but must themselves be ... [It] (b) causes, negligence; responsible of other applies only negli- in cases where defendant's including plaintiff the conduct of the and third gence only reasonably is the inference that can persons, sufficiently are eliminated the evi- legitimately and drawn from the circumstances.” dence; (c) negligence the indicated is 5, Scott, Syl. pt. part, in Davidson's Inc. v. 149 scope duty the within of the defendant's to the 470, (1965). W.Va. 140 S.E.2d 807 plaintiff.

569 negli the position, to decide whether in nary man the defendant’s defendant conduct within gent that his or her knowing or should have in he knew what fell duty by the court. known, gen- scope the anticipate that harm of the the of defined “ ““ “Questions negligence present ... likely to of of that suffered was eral nature jury determination when of fact for result? issues is pertaining to such issues the evidence 3, Gregory, v. 179 W.Va. Syl. Pt. Sewell facts, though conflicting the even or where (1988). 585, S.E.2d 82 371 men undisputed, are such that reasonable Strahin, 184, 603 S.E.2d at 206. 216 W.Va. from conclusions may draw different foreseeability, duty, including of Questions Yokum, 1, Syl. [167 them.” Pt. Ratlief v. fact, questions of with the are mixed law (W.Va.1981), 779], 584 W.Va. jury serving separate, yet trial court and 5, syl. v. Mason Real quoting Pt. Hatten Stmhin, this Court de important roles. Co., 380, 135 236 ty 148 W.Va. S.E.2d judge the distinct roles the scribed (1964).’ 6, McAllister v. Syllabus Point foreseeability play concerning the facts when 75, Co., 312 Hosp. 173 W.Va. Weirton dispute in as are follows: (1983).” 17, Syl. Pt. Anderson 738 S.E.2d determining task —in court’s “[A] Moulder, 77, S.E.2d 61 183 W.Va. 394 v. partic- “duty” not to decide whether —is Traxler, (1990).’ 1, Syl. Waugh v. 186 Pt. reasonably plaintiffs injury fore- ular (1991).” 355, Syl. 412 S.E.2d 756 light particular in defendant’s seeable of 2, Mays, v. 191 W.Va. part, Pt. in Johnson conduct, gen- more but rather evaluate Syl. 628, (1994); see also S.E.2d negligent erally category of whether Sargent, v. part, Pt. in Davis sufficiently likely to at issue is conduct (1953), Syl. Pt. experienced that in the land of harm result Farmer, 142, 133 part, Evans may appropriately imposed on liability (1963). S.E.2d 710 negligent party. judge in cases such as Essentially, the contrast, jury, by considers “fore- responsibility of one before us has focused, “fact- seeability” ... more [in] if it is suffi- reviewing the evidence to see settings_ con- specific [T]he of to make a determination cient for foreseeability of in- the likelihood or sider or not it was foreseeable whether fact, whether, determining jury in occupier property or acts of the owner negli- conduct was particular defendant’s ease, under the facts of could have gent place.” first not, unreasonable disputed or created an Uribe, Id., 41 Cal.3d quoting, Ballard v. under the high of harm to the victim risk P.2d 628-29 n. 6 Cal.Rptr. in dis- are circumstances. When facts (1986) Relating original). (emphasis in the the existence pute, identifies law, proceeded description to our own jury’s pos- duty conditioned explain: evidentiary finding. Our review sible purpose in its consider- overall a court’s regarding court’s determination the lower foreseeability conjunction ation of duty, a matter of general finding of as general duty is to discern owed law, de novo. is reviewed type at issue of conduct terms whether added); Syl. pts. also (emphasis see Id. sufficiently likely in the kind of to result 12, Id. on the evidence experienced based harm establishing Appellees’ burden If the court determines presented. change the inci because negligence does foreseeability, facts related to disputed shopping public in a retail occurred dent light in the most favorable viewed characterized, Appel Fairly establishment. support foresee- sufficient to plaintiff, are are and Crossroads against Belk lees’ claims is a ability, disputed resolution facts liability theory premise upon a founded jury has the more jury question. The held that: recovery. previously We have considering job the likelihood specific premise occupant of or the injury tin- The owner sustained foreseeability of an insur- puiposes is not in order used business the case particular der facts of *10 570 safety question any or person pres-

er of the of an invited raise the of whether all and, premises appellants ent on such if such owner or could have foreseen that the injure occupant guilty negligence question is not or door in could malfunction and 184, willful or wanton misconduct and no nui- a customer. Id. at 603 S.E.2d at 206. exists, injuries sance he is not liable for Because the facts as to the extent of the door person. dispute, in there sustained such invited malfunction and its cause were jury was the sole role of the to determine 3, Store, Syl. pt. Cigar v. The Hub Puffer presented demonstrat- whether evidence Inc., 327, (1954), 140 W.Va. 84 S.E.2d 145 injury ed that the occurred could have which grounds by overruled on other Mallet v. by any appellants. or all been foreseen of the Pickens, 145, 522 206 W.Va. S.E.2d 436 “ ‘ Id., 603 S.E.2d at 206. “When a case (1999). syllabus point In 6 of Mallet v. Pick involving conflicting testimony and circum- ens, 145, (1999), 206 W.Va. 522 S.E.2d 436 tried, fairly proper has stances been under guidelines set forth for the trier of fact to instructions, jury the verdict of the will not premises liability ascertain whether a defen plainly contrary be set aside unless to the legal duty dant breached has its of care evidence or sufficient evidence to without holding that: 4, Syllabus, support it.” Point Laslo v. Grif- determining in whether a defendant a [i]n 469, fith, Sylla- 143 W.Va. 102 S.E.2d 894.’ premises liability case met his or her bur- Monongahela bus Point Walker v. Power den of reasonable care under the circum- Co., (1963).” S.E.2d 736 entrants, non-trespassing stances to all Syl. pt. Hager, Toler v. 205 W.Va. (1) trier of fact must consider the foresee- (1999). S.E.2d 166 (2) occur; ability injury might that an (3) time, severity injury; man- Although the circuit court does ner and circumstances under determining have some role in there whether (4) injured party premises; entered support jury’s is sufficient evidence ver expected the normal or use made of the dict, it is not the role of the circuit court to (5) premises; magnitude credibility judgments substitute its for those placed upon guard burden the defendant to jury jury or to assume the made against injury.” findings certain because did not believe foreseeability particularly presented The element of evidence on other issues. The cir premise liability crucial in cases be- cuit in determining because court’s role whether suffi occupier may fore an or be held liable support jury’s owner cient evidence exists to ver negligence, syllabus “he must have had actual or point dict was set forth in 5 of Orr v. Crowder, knowledge constructive of the defective con- (1983), injury.” dition which caused the Hawkins v. wherein we held: Assoc., Inc., Sports United States determining In whether there is sufficient (2006) (per cu- support evidence verdict ). riam (1) court should: consider the evidence (2) prevailing party; most favorable to the overturning that all in assume conflicts the evidence ordering this matter and trial based were resolved favor of the evidence, insufficiency an the circuit (3) prevailing party; proved assume as all court blurred the distinction between its own prevailing party’s facts which the evidence determining role and that of the (4) prove; give prevail- tends negligence. The circuit court’s role was to ing party the benefit of all favorable infer- legal make the determination as to whether reasonably may ences which be drawn appellants, them, owed proved. from the facts legal duty to use reasonable care Strahin, authority given under the circumstances. 216 The to the circuit court to Assuming weigh credibility W.Va. at 603 S.E.2d at 205. evidence consider exists, duty such syllabus point the circuit court had the 3 of In re State Public Build- determining additional role of ing whether Asbestos “does not obviate Neelys resolving had sufficient the essential role of the

571 justify its award did not The circuit court credibility issues.” conflicting and evidence finding preju- upon a trial based of a new Bays, 200 Pauley v. W.Va. which As an S.E.2d must conclusion Court nents of weigh the evidence invariably credibility Point culiar and exclusive ^[158] of fact when the Syllabus Point Toler, the analyze the Va.W. has 3, Syllabus, Long it is jury element of that vital 490 S.E.2d at 66. that “consistently held that maintained to be regarding is evidence.” [741], to (1997) 468, 519 S.E.2d 166. assigned evidence weigh testimony Bourne and to resolve province (1975) damages and that (per and to arrive at v. Pauley, the evidence with (1979).” Likewise, and determine to various “ ‘ City 214 S.E.2d 832.’ curiam). “[i]t is task, of the Mooney, the function conflicting.” is the questions Syl. pt. the Weirton, liability. compo- have This the pe- to facie jury. the verdict was ly refuted the negligence and the while the dence or dicial error either were caused grounded upon them disbelief burden to establish were caused not establish that the circuit court is claim. The ly plausible struck, “claimed a substantial evidence case of they Rather, itself admitted to some crucial flaw in this view the as defendants believed by the Belk incident. negligence, have that contact. that in order to the circuit court Neely’s prima instructions extent, against the clear jury’s liability that the in the admission amount of that Ms. damages she claimed jury’s by the the that had not damages claimed provided to the Neelys had the of the prove pnma finding facie door, the damages for finding Neely was found that The circuit adequate- weight of An damages case of she of evi- Neelys is that equal- was the did questionable medical plan, a life care matter, testimony the the instant seriously claim weak- support, and her was the door’s malfunc regarding the extent of contradictory acts and ened her own daughter Neely and her tion conflicted. Ms. Additionally, appellants the statements.” completely fell to maintained that the door that, bruising to than the other demonstrated depiction ground. Disputing this was injuries knee, which her the conditions employees testimony former Belk who of two being alleges from struck Neely resulted door was still in its each testified that included as the basis by the door where they at the bottom when frame and askew disability applica- security benefits her social reported incident saw it after Ms. months tion filed more than six before employees also testi These Belk to them. ap- true that the While Belk incident. from its they the door fied that removed liability produce their own pellants did not entryway after the and set it in the frame circuit court erred expert at Neelys’ sole opinion incident. they not offer evidence did that large liability expert part was based ample evi- Neelys’ claim as contradict in that he credibility determination his own examination of on cross dence was elicited Belk testimony of the former disregard the Neelys’ witnesses. own not fall to the that the door did employees opinion upon formed his ground and instead transcript of the trial A fair review Nee provided Ms. depiction of events pre contradictory that evidence reveals able to daughter. The ly and her foreseeability, regarding sented to testify persons of these five each witness the door and the extent causation If the credibility for themselves. judge their Neelys able to establish were fell. While Neely and testimony of Ms. jury found the problems with experienced that Belk had credible, it daughter Newport not be would previously her locking the door jury’s province to also discount the door to repairs Trading within had made Neely’s expert who based did credibility locking problem, remedy the Belk, credibility of Crossroads on the as to how opinion, large part, present his anticipated Trading Instead could have Newport event at issue. account of the their prob locking fall or that determination, that the door would ceding possibility indicate lems would own. substituted its circuit court - *12 judgment door could fall on a customer. This Court in jury’s order accordance with the previously has held that: verdict. determining “In whether the verdict of a Reversed and Remanded. by evidence, supported every is the inference, legitimate fairly reasonable Justices STARCHER and ALBRIGHT arising from the evidence in favor of the right dissent and reserve the to file returned,

party for whom the verdict was dissenting opinions. considered, facts, must be and those which jury might properly find under the ALBRIGHT, Justice, dissenting: evidence, Syl must be assumed as true.” reversing In judge’s the learned trial deci- 3, Monongahela labus Point Walker v. grant case, a sion new trial in this Co., Power 131 S.E.2d 736 majority seeks emasculate the standard of (1963). carefully by review that was crafted this 6, Toler, Syl. Pt. Court by to differentiate the standard which Applying standard, conjunction this appeal consider an grant we from a aof new Orr, syllabus point with that set forth in 5 of trial from those cases in which the trial court we must find that the circuit court abused its grant Syl. refused to a trial. new See Pt. setting discretion in aside the verdict Bldg. In re State Public Asbestos contradictory because the evidence was on all (1994). By Thus, jury’s issues. verdict could not be ignoring significance separate of that against weight the clear of evidence. Resolv- standard, majority has thumbed its col- must, ing, questions as all favor lective long-standing jurispru- nose at the parties returned, whom verdict was clearly dence of this state which a evinces jury’s may explained by verdict be as- strong preference overturning for not a trial suming that found that the door did not judge’s grant decision to a new trial. completely fall ground, poten- tial for the door to fall was not foreseeable to adoption The of a distinct standard re- any appellant that the door did not and/or view for those cases in which a trial has new injuries by Neely. cause the claimed granted compelled by been recogni- unique Given the and vital role a has in judge uniquely tion that a trial is situated to system justice, our rarely a should circuit against assess the verdict as all the evidence jury’s court set aside a verdict and order a And, trial. at where circuit upon credibility new ti'ial based determina- judge court is convinced that “the verdict is tions preju- circuit court absent other against weight evidence, the clear evidentiary dicial or instructional error or a based on false evidence or will result in a completely record void of evidence which miscarriage justice,” this expressly Court support jury’s would verdict. judge authorized that trial to “set aside the verdict, supported if even substantial evi-

IV. dence, grant a new trial.” Id. 416, syl. pt. part. S.E.2d at Or so I CONCLUSION thought. Raleigh County The Circuit Court of erred by setting jury’s aside the ruling verdict and order- The suggests reached in this case ing personal injury trial in grant new this action. that a decision to trial new will be explained The through reversed with more ease and less deference conflicting its resolution of evidence at trial. to the trial court’s conclusion than the stan- prejudicial evidentiary As there was no other adopted in Litigation dard we the Asbestos claimed, or instructional error presumably requires. circuit decision Only when judg- court should not have clearly substituted its the trial court has abused its discre- jury. ment for that of Accordingly, granting tion trial is this Court Raleigh County’s January Circuit Court of supposed appellate to even consider review of 2007, order is case, reversed and this matter is those cases. majority’s promptly remanded with direction to enter a determination that an abuse of discretion against ruling that the verdict was simply an excuse for second- erred occurred is weight the clear of the evidence. guessing decision of the trial the studied undeniably in judge the best who was injury the door arguing Rather than position assess the verdict returned all, by Appel- taken did not occur at the tack against as introduced at question at trial the extent to lants trial. hinges the door came off its and to accordingly question damages the amount of affording enhanced basis for *13 by Neely related inci- sustained Ms. grant a trial to a trial court’s decision new jury Assuming dent. then that was con- charge placed upon emanates from sidering the to the door came degree which judge only pro- trial not the trial to oversee hinges loose from its and whether Plain- jury but cess also the verdict: resulting from any tiff suffered harm that merely judge A trial not a but is referee judge alleged trial disengagement, supervising in is vested with discretion inartfully which have selected words preventing miscarriages verdicts and of sought dispute lack of at trial express he a duty justice, power and a with the to set question the door somehow fell on or that in if verdict aside and award new trial Clearly, Neely. Ms. there was evi- struck plainly wrong supported it if it is is even injury suggesting dence that an resulted evidence, and some of the when a trial in the door came loose some fashion when acts, decision, judge being so his in dis- Neely hinges Ms. on the from its and struck charge duty pass power his and of leg. employees, examining after store weight of the evidence to that limited immediately leg Neely of after the extent, peculiar weight entitled to and is redness espying incident and both some appeal will on not be disturbed unless swelling legs, encouraged her some on one of clearly unwarranted. treatment, she did. her to seek medical which Hanis, Syl. Pt. Cook unique position Having in that of been (1976) supplied). (emphasis S.E.2d 676 Con- trial hearing all the adduced at evidence sequently, judge’s that a trial determination credibility, the being of trial witness to issues a new trial should be awarded based on one judge was convinced that reacted grounds of the this Court identified for three possibly presentation “exaggerat[edj” of setting verdict Asbestos Liti- aside her damages by deciding any not to award lightly. is gation1 not to be taken damages might be she entitled. which order, judge the trial his “the As observes ease, experienced, well-respect- In this an result be to reduce the dam- correct would judge engaged weighing ed trial of the ages to a believed would level that for a required evidence a motion trial new Plaintiff, fairly compensate the but would the determination that the reached against correct the Plaintiff on not be to find weight against clear liability she the issue of because attempt Appellants discredit evidence. damages.” Having questionable de- case on weighing the trial court’s successfully put that termined the Plaintiff primarily by taking issue with the trial prima negligence, which on a case of facie ruling that court’s statement its “[i]t “largely unchal- the trial court noted was disputed at trial that the door had fallen Defendant,” trial lenged by any party and no offered on Plaintiff the issue was one came to the conclusion that explain the cause the fall.” evidence to damages liability. and not issue of whether the Maintaining that decision to overturning the trial court’s hinges and fell on Ms. door came off its majority wrongly has disputed grant a new trial the heavily was in fact reweighing in a of the evidence. engaged Appellants argue that this incorrect object this Court has very This is the judge the trial supports position its Syl. miscarriage justice. Pt. See Asbes- grounds when in a 1. Those arise the verdict: three evidence; (1) against S.E.2d the dear tos evidence; (3) (2) will result is based on false long sought by limiting to avoid the occasions grant

in which a of a trial should be Accordingly, respectfully I

overturned. most

dissent.

I am authorized to state that Justice joins dissenting opinion.

Starcher

In re FLOOD LITIGATION COAL

RIVER WATERSHED. Litigation Upper Guyandotte

In re Flood also, See In re Flood River Watershed 2a. Subwatershed 534, 607 S.E.2d 863. Litigation Guyandotte Upper

In re Flood

River Watershed Subwatershed 2a.

Nos. 33710 and 33711.

Supreme Appeals Court of Virginia.

West April

Submitted 2008.

Decided June