West Liberty University Board of Governors v. Stewart Lane

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

West Liberty University Board of Governors

and West Liberty University, FILED

Defendants Below, Petitioners

January 5, 2018

EDYTHE NASH GAISER, CLERK

vs) No. 16-0942 (Ohio County 13-C-322) SUPREME COURT OF APPEALS

OF WEST VIRGINIA

Stewart Lane,

Plaintiff Below, Respondent

MEMORANDUM DECISION

Petitioners West Liberty University Board of Governors and West Liberty University, by

counsel, Thomas E. Buck and Bruce M. Clark, appeal various pretrial rulings in Respondent

Stewart Lane’s action for premises liability and/or defective or dangerous condition. Respondent,

by counsel James R. Leach and Victoria J. Sopranik, filed a response in support of the circuit

court’s order and also raised a cross-assignment of error. Petitioner filed a reply.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal

arguments are adequately presented, and the decisional process would not be significantly aided

by oral argument. Upon consideration of the standard of review, the Court finds no substantial

question of law and no prejudicial error. For these reasons, a memorandum decision affirming

the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

Late in the afternoon of March 1, 2012, nineteen-year-old Stewart Lane (the “plaintiff”),

then a full-time student at West Liberty University (the “University” or “defendant”), was

swimming in the University’s pool with several friends. The lifeguard on duty was West Liberty

University student/employee M.C. Boyd. Plaintiff and his friends asked the lifeguard to set up

the University’s portable basketball hoop (the “hoop”) so they could play basketball in the pool.

The lifeguard retrieved the basketball hoop from a storage room and set it at the edge of the pool.

The basketball hoop was four to five feet tall and about as wide. It had a square plastic

base that could be filled with water. The base was composed of translucent white plastic through

which one could see if the base contained water. There was little or no water in the hoop’s base.

There were no warnings on the hoop. The lifeguard later admitted she was not trained in how to

set up the hoop, she knew the hoop was unstable without water in the base, and the hoop could

tip over if touched. The lifeguard claimed she asked the men if they had used the hoop before

and twice warned that the hoop could fall into the water. Plaintiff claims he heard neither the

lifeguard’s question nor her warning.

Soon thereafter, one of the swimmers dunked a basketball through the hoop causing the

hoop to fall. The swimmers righted the hoop and continued their basketball game. Thereafter,

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another player dunked the basketball; the hoop again fell and was again reset on the pool’s edge.

During these “dunks,” the players held onto the rim of the hoop, so that when the hoop fell, it did

not land in the pool.

Minutes later, plaintiff dunked the basketball and then went under the water’s surface.

However, as he emerged from the water, the steel rim of the falling hoop struck plaintiff’s face

causing lacerations and heavy bleeding that was difficult to staunch. Plaintiff was taken to a

hospital for treatment. Plaintiff’s injuries required plastic surgery, which was followed by a

hospitalization for infectious cellulitis. A few years later, plaintiff underwent a scar revision

surgery. Plaintiff’s medical expenses totaled an undisputed $36,000, and he was left with a

permanent facial scar.

The lifeguard did not see the hoop’s rim strike plaintiff’s face because she was studying

for a test. She later admitted she knew it was a violation of her duties to be studying while

patrons were at the pool. She also admitted it was her job to keep the pool safe, to enforce pool

rules, to stop any dangerous activity by pool patrons, to remove any defective or dangerous pool

equipment, and to notify her supervisor of any issues.

After plaintiff was taken to the hospital, the lifeguard placed the basketball hoop in a

dumpster near the pool. The next morning, the lifeguard notified her supervisor, Robin Brunner,

of plaintiff’s injuries. Subsequently, Dr. Rhonda Noble, the University’s Chairperson of the

Department of Health and Human Resources, who was responsible for the pool, was also notified

of plaintiff’s injuries. Plaintiff claims that the timing of these notices would have allowed the

University’s staff to retrieve the hoop from the dumpster, but the staff failed to do so. Dr. Noble

later testified at her deposition that the “[f]irst thing you do is inspect the equipment because

that’s the first thing how they prove negligence if the equipment was unsafe or they were not

supervised.”

Plaintiff sued the University and its Board of Governors (the “defendants”) for the

damages caused by his injuries. Plaintiff alleged that the hoop was not intended to be used

without filling the base with water, and that by allowing plaintiff to use the hoop without its base

being filled with water, defendants breached their duty to protect him from an unsafe, defective,

and dangerous condition located on the University’s property. Defendants countered that the

hoop was safe; that it could be used with or without water in its base depending on whether a

permanent or temporary use was contemplated; and that the condition of the hoop was obvious.

Prior to trial, the parties debated the impact of the lifeguard’s decision to dispose of the

basketball hoop before it could be inspected. Plaintiff made a motion to preclude the defendants

from introducing evidence that the hoop was “not unsafe.” By order entered April 29, 2016, the

circuit court granted plaintiff’s motion largely because defendants failed to preserve the hoop.

Specifically, the court ruled that,

plaintiff will be permitted to argue and present evidence that the hoop was unsafe

and dangerous due to the fact that it had no or very little water in it prior to the

incident. Defendants will not be permitted to argue, present evidence, or

attack/impeach plaintiff’s expert/evidence that the hoop was not unsafe, not

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dangerous, and/or not defective. In the event that defendants attempt to

attack/impeach plaintiff’s expert/evidence in this way, a spoliation instruction will

be given at that time.

However, in a May 5, 2016, order, the circuit court modified and clarified its April 29,

2016, order and ruled that, because the specifics of the hoop were unknown, “no evidence may

be presented [by any party] as to whether this hoop was ‘assembled’ safely.” However, the court

also ruled that if the proper foundation was laid, plaintiff would be allowed to provide general

opinions regarding poolside basketball hoops, and to mention that defendants disposed of the

hoop and, as a result, its make, model, and safety instructions could not be determined.

Thereafter, the defendants filed a motion for summary judgment. In their motion,

defendants argued (1) that plaintiff failed to provide any evidence that the hoop was unsafe,

therefore, he could not succeed on a premises liability/unsafe condition claim; (2) plaintiff’s only

evidence regarding the hoop was an expert who admitted in his deposition that he knew nothing

about the hoop that had caused plaintiff’s injuries; and (3) plaintiff’s claims were barred by the

“open and obvious” doctrine. Following oral argument, the circuit court denied defendants’

motion by order entered June 6, 2016.

Defendants also filed a pretrial motion in limine to exclude any evidence regarding

whether the University’s employees had failed to properly report plaintiff’s injuries up the

University’s chain of command. Defendants maintained that plaintiff’s complaint regarded the

duties/actions of the parties prior to, and at the time of, plaintiff’s injuries; accordingly,

defendants argued that what occurred thereafter, such as the post-injury reporting, had no bearing

on the case. In a June 8, 2016, order, the circuit court deferred its ruling on defendants’ alleged

“failure to report.” Thereafter, at trial, the circuit court allowed plaintiff to enter evidence

regarding how the incident was reported up the chain of command.

Plaintiff’s three-day trial commenced on August 2, 2016. The lifeguard and plaintiff

testified that the hoop fell at least twice before plaintiff was injured. The case was thereafter

submitted to the jury, which was asked the following question: “Do you believe that the fact that

the basketball hoop could fall was open, obvious, reasonably apparent, or was as well-known to

Plaintiff as it was to Defendant?” The jury answered, “No.” The jury also found that both

plaintiff and defendants were negligent, but found that plaintiff’s negligence did not contribute to

his injury. Finally, the jury found that defendants’ negligence proximately caused plaintiff’s

injuries. The jury awarded plaintiff his undisputed medical expenses of $36,000, and $44,000 in

damages for pain, mental anguish, emotion distress, loss of enjoyment of life, and permanent

scarring.

Defendants did not file a motion for a new trial. Instead, on October 4, 2016, they filed a

direct appeal which this Court dismissed by order entered October 19, 2016, due to defendants’

failure to file a motion for a new trial. See W.Va. Dep’t of Transp., Div. of Highways v. Newton,

235 W.Va. 267, 271, 773 S.E.2d 371, 375 (2015) (failure to file motion under Rule 59 for new

trial precludes appeal of alleged trial errors). Defendants responded with a second notice of

appeal, followed by a motion to docket the second notice of appeal, which requested leave to

appeal certain pretrial rulings in the record. On December 15, 2016, this Court, on its own

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motion, consolidated defendants’ two notices of appeal under No. 16-0942; however, we

cautioned that any assignments of error requiring the filing of a post-trial motion would not be

considered.

Defendants now appeal and raise five assignments of error. Plaintiff raises a cross-

assignment of error.

Defendants’ first and second arguments are that the circuit court erred in denying their

motion for summary judgment based on the open and obvious doctrine. Defendants argue that

the open and obvious doctrine precluded plaintiff’s claim as a matter of law because the evidence

indisputably showed that plaintiff knew the hoop could fall before he chose to dunk the

basketball. Defendants highlight that plaintiff admitted seeing his friends “dunk” on the hoop at

least twice, causing it to fall. Defendants also point to the evidence that the base of the hoop was

translucent and the plaintiff could see whether it held water. Thus, defendants contend that the

condition of the hoop was not concealed from plaintiff and, therefore, plaintiff chose to dunk a

basketball with full knowledge the hoop would likely fall. Accordingly, defendants maintain they

had no duty to protect plaintiff from the hoop, and, thus, the circuit court erred in failing to grant

defendants’ summary judgment motion.

The open and obvious doctrine was legislatively established in West Virginia Code § 55­

7-28 and provides that

a possessor of real property . . . owes no duty of care to protect others against

dangers that are open, obvious, reasonably apparent or as well known to the

person injured as they are to the owner or occupant, and shall not be held liable

for civil damages for any injuries sustained as a result of such dangers.

However, “[t]he owner or the occupant of premises owes to an invited person the duty to

exercise ordinary care to keep and maintain the premises in a reasonably safe condition.” Syl. Pt.

2, Burdette v. Burdette, 147 W.Va. 313, 127 S.E.2d 249 (1962). The open and obvious statute

does not abrogate this duty.

Here, the pretrial record established genuine issues of material fact, particularly as to

whether the defendants failed to keep the pool in a reasonably safe condition. Defendants had

actual knowledge of the hoop’s dangers. Moreover, genuine issues existed regarding whether

plaintiff’s friends’ conduct or that of the lifeguard created an open and obvious condition. In this

case, defendants’ employees, including the lifeguard and Dr. Noble, admitted knowledge of the

dangerous condition created by the hoop. In contrast, the record on appeal shows that plaintiff

had no prior knowledge of the hoop’s danger because he had used the hoop only this one time,

and only for about fifteen minutes before his injury. Further, plaintiff did not help the lifeguard

set the hoop in place at the pool’s edge, he did not speak to the lifeguard, and he testified that he

did not hear the lifeguard speak to him. Further, plaintiff had no training regarding the proper set

up or use of the hoop. Thus, because the dangerous condition was not “as well known to

[plaintiff] as [it was] to the owner,” defendants were required to establish that the dangerous

condition was “open, obvious, [and] reasonably apparent” to plaintiff.

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Defendants insist that, as a matter of law, the dangerous condition of the hoop was open

and obvious because it was “undisputed” that the hoop fell into the water “when adult men were

dunking on it.” Defendants also claim that because plaintiff testified he saw some water in the

base of the hoop, the condition of the hoop was not a hidden or latent defect. However, merely

seeing water in the hoop’s base did not establish that the danger was readily apparent to plaintiff.

Nor did plaintiff’s friends’ dunking of the basketball warn plaintiff of any danger because, when

the hoop fell previously, the friends held onto the hoop so it did not fall into the pool. Whereas,

when plaintiff “dunked” the ball, he did not hold onto the hoop.

We conclude that genuine issues of material fact existed for resolution by the jury, and,

therefore, the circuit court properly rejected the defendants’ motion for summary judgment.

Petitioners’ third assignment of error is that the circuit court erred by entering pretrial

rulings that the basketball hoop was unsafe and dangerous, and by prohibiting defendants from

disputing these findings at trial.

As noted above, the circuit court’s April 29, 2016, pretrial order precluded defendants

from arguing “that the hoop in question was safe (or not unsafe), not defective and/or not

dangerous.” The court’s May 5, 2016, order modified and clarified the April 29, 2016, order by

ruling that no evidence could be presented “as to whether this particular hoop was ‘assembled’

safely.” Defendants argue that the circuit court’s decision in both orders was improper because,

in this premises liability case, plaintiff bore the burden of proving whether the hoop was

dangerous, unsafe, or defective. Defendants further claim that together, the orders (1) allowed

plaintiff to avoid that burden of proof, and (2) prevented defendants from showing that plaintiff

did not believe the hoop was unsafe. Further, although, the circuit court never gave a spoliation

instruction to the jury, defendants argue that it wrongfully threatened to sanction defendants with

a spoliation instruction if they argued that the hoop was “not unsafe.” Defendants claim that

threat was error because (1) the preclusion of the “not unsafe” argument was error; and (2) the

circuit court failed to follow the four-factor test laid out in Tracy v. Cottrell ex rel. Cottrell, 206

W.Va. 363, 524 S.E.2d 879 (1999), regarding how and when spoliation instructions should be

given. Finally, defendants claim that the circuit court also failed to follow the in camera

procedure laid out in General Pipeline Construction, Inc. v. Hairston, 234 W.Va. 274, 285-86,

765 S.E.2d 163, 174-75 (2014), in making its spoliation instruction determination. Defendants

assert the circuit court’s pretrial rulings warrant reversal of the jury’s verdict.

Our review of the record supports the circuit court’s decision. Given defendants’

disposal of the hoop, the circuit court properly acted within its discretion and limited testimony

on the assembly/safety of the hoop. In its May 5, 2016, order, the circuit court ruled that “no

evidence may be presented [by any party] as to whether this hoop was ‘assembled’ safely.” Other

than this narrow exception, based on defendants’ spoliation of the hoop, defendants’ expert was

free to testify regarding any other relevant issue. Thus, the ruling was not prejudicial to

defendants. If defendants’ expert had testified that the hoop was “not unsafe,” plaintiff would not

have been able to refute that claim given defendants’ spoliation of the hoop. This is exactly what

the spoliation doctrine was designed to do: prevent those who fail to preserve evidence from

using the lack of evidence as a defense, particularly where litigation may be anticipated. See

Tracy, 206 W.Va. at 372, 524 S.E.2d at 888.

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Our law is clear that a circuit court may impose sanctions on a party who destroys or

disposes of evidence, including giving a jury instruction on spoliation. Id. This Court has held

that

[b]efore a trial court may give an adverse inference jury instruction or impose

other sanctions against a party for spoliation of evidence, the following factors

must be considered: (1) the party’s degree of control, ownership, possession or

authority over the destroyed evidence; (2) the amount of prejudice suffered by the

opposing party as a result of the missing or destroyed evidence and whether such

prejudice was substantial; (3) the reasonableness of anticipating that the evidence

would be needed for litigation; and (4) if the party controlled, owned, possessed

or had authority over the evidence, the party's degree of fault in causing the

destruction of the evidence

Id. at 368, 524 S.E.2d at 884, syl. pt. 2. Plaintiff’s evidence satisfied each of these elements

because: (1) defendants had total control, ownership, possession and authority over the hoop; (2)

plaintiff did not know the make, model, or the design of the hoop, thus, he was precluded from

opining that the hoop was unsafe, which substantially prejudiced his case; (3) litigation was

likely over plaintiff’s injury; and (4) defendants were entirely at fault in destroying the hoop.

Accordingly, the trial court could have properly given a spoliation instruction to the jury, instead

of merely threatening to do so.

As for defendants’ complaint that the circuit court threatened to give a spoliation

instruction without holding the required spoliation hearing, we find that defendants waived any

objection to the lack of a spoliation instruction hearing because they did not object to the lack of

such a hearing. “A litigant may not silently acquiesce to an alleged error, or actively contribute

to such error, and then raise that error as a reason for reversal on appeal.” Syl. Pt. 6, Page v.

Columbia Nat. Res., Inc., 198 W.Va. 378, 480 S.E.2d 817 (1996), citing Syl. Pt. 1, Maples v.

W.Va. Dep’t of Commerce, 197 W.Va. 318, 475 S.E.2d 410 (1996). Moreover, given that no

spoliation instruction was given, the lack of a hearing on such an instruction did not prejudice

defendants. We, therefore, find no error on this point.

Defendants’ fourth assignment of error is that the circuit court refused their motion in

limine and improperly allowed the plaintiff to make claims regarding defendants’ post-accident

investigation. Prior to trial, defendants filed a pretrial motion in limine to preclude evidence of

defendants’ post-accident investigation of plaintiff’s injury. Defendants argued that when and/or

how the accident was reported was not relevant to any jury issue and that it was likely plaintiff

would raise the post-accident investigation to distract or confuse the jury. The circuit court

denied the motion and allowed plaintiff to introduce evidence regarding the university’s post-

accident investigation at trial. On this ground, defendants ask us to vacate plaintiff’s verdict.

The record, however, disposes of defendants’ argument. The circuit court did not deny

defendants’ pretrial motion. Instead, the circuit court deferred its ruling on defendants’ motion in

limine to preclude evidence of any post-accident investigation “until such time as it arises at

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trial.” Thus, the circuit court’s rulings on this issue occurred at trial. Rule 59(f) of the Rules of

Civil Procedure provides as follows:

If a party fails to make a timely motion for a new trial, after a trial by jury in

which judgment as a matter of law has not been rendered by the court, the party is

deemed to have waived all errors occurring during the trial which the party might

have assigned as grounds in support of such motion. . . .

Accordingly, we find that defendants have waived this issue.

Defendants’ fifth and final assignment of error is that the circuit court erred in allowing

plaintiff’s expert, Trevor Sherwood, to testify about lifeguard training and qualifications. Mr.

Sherwood admitted that he had not been a lifeguard or trained lifeguards for over fifteen years.

Based on this testimony, defendants contend the circuit court erred in allowing Mr. Sherwood to

opine in that regard.

Defendants also argue the circuit court erred in allowing Mr. Sherwood to testify about

the operation, inspection, and maintenance of pool accessories. The circuit court allowed Mr.

Sherwood to opine about the “use, assembly, installation and safety” of poolside basketball

hoops “in general.” Defendants contend that evidence regarding “other” hoops was clearly

irrelevant. In the alternative, defendants argue that, even if such evidence had been relevant, Mr.

Sherwood had no specialized training, education, or knowledge with regard to the use,

maintenance, or design of basketball hoops “in general.” Defendants claim Mr. Sherwood also

had no technical background in engineering, mechanical engineering, physics, or any other

subject that would allow him to provide expert testimony about load-bearing structures or weight

shifting. Moreover, he had no design background that would qualify him to testify regarding the

design and function of such hoops. Defendants highlight that Mr. Sherwood admitted in his

deposition that he was not an expert on basketball hoops and that he had obtained his knowledge

in that regard by conducting a “Google” search on “basketball hoops” and reading the results.

See Pound v. Tucker, No. 13-1277, 2014 WL 6607470, at *3 (W.Va. Nov. 21, 2014)

(memorandum decision) (conducting an internet search does not an expert make). Further, Mr.

Sherwood could not provide any testimony regarding whether the specific hoop that injured

plaintiff was unsafe, dangerous, or defective because he never saw it; he was not present when it

fell; and the circuit court precluded Mr. Sherwood from opining on the subject hoop’s safety or

lack thereof. Thus, defendants claim Mr. Sherwood’s opinions were totally unqualified, wholly

irrelevant, and served to distract and confuse the jury.

The record reveals, however, that the circuit court did not give a definitive final pretrial

ruling on the defendants’ motion to exclude Mr. Sherwood’s testimony. In its May 5, 2016,

order, the circuit court allowed Mr. Sherwood to opine, in general, about pool-side hoops and

lifeguard safety, but only “if the appropriate qualification foundations [were] laid” at trial.

Moreover, the court deferred ruling further on Mr. Sherwood’s opinions until trial. Thus, because

the court ruled on this issue at trial, defendants have waived this assignment of error due to their

failure to file a motion for a new trial. See Rule 59(f).

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Plaintiff has asserted one cross-assignment of error in his response brief. Plaintiff argues

that the circuit court erred in denying him certain costs in its judgment order. Following the

jury’s verdict, plaintiff filed a motion for pre- and post-judgment interest, witness fees, and

deposition costs in the amount of $8,495.43 against defendants. In a fourteen-page order denying

plaintiff’s motion for costs, the circuit court provided a list of “costs” it believed to be proper,

including (1) the statutory fees under West Virginia Code § 59-2-14; (2) fees of officers, copies

of pleadings, legal notices, and publications under West Virginia Code § 59-2-15; and (3) juror

mileage, meals, and daily fees under West Virginia Code § 59-2-17. However, the circuit court

found that an award of those other costs sought by plaintiff would be “penal” and, therefore,

impermissible. The circuit court’s September 26, 2016, judgment order awarded plaintiff pre-

and post-judgment interest and jury costs of $1,451.68.

Plaintiff responded by filing a renewed motion for costs. On December 19, 2016, the

circuit court denied the renewed motion on the ground that plaintiff “failed to identify or cite a

West Virginia Rule of Civil Procedure under which [he] is acting” in violation of Malone v.

Potomac Highlands Airport Auth., 237 W.Va. 235, 786 S.E.2d 594 (2015). The circuit court

presumed plaintiff was seeking costs under Rule 60, and then denied relief on the ground that

plaintiff’s motion did not reference any of the required grounds for relief under that rule.

Plaintiff argues that the circuit court erred in analyzing his renewed motion for costs

under Rule 60. He asserts that the circuit court should have analyzed the motion under Rule

59(e) because he filed the motion within ten days of the entry of the judgment order, and sought

to amend the award of costs in the judgment order. Plaintiff further argues that the costs were

fair and proper under the law. See W.Va. Code §§ 59-2-8, -14, and -15.

On the record presented, we cannot see where the plaintiff plainly identified for the

circuit court the specific rule upon which he made his renewed motion. “The filing of motions

which fail to identify the Rule of Civil Procedure or other legal authority providing the right to

relief may serve as grounds for summary denial.” Syl. Pt. 3, in part, Malone, 237 W.Va. at 236,

786 S.E.2d at 595. We, therefore, find no error in the circuit court’s ruling.

For the foregoing reasons, we affirm the pretrial rulings of which defendants complain

and affirm the circuit court’s denial of plaintiff’s renewed motion for costs.

Affirmed.

ISSUED: January 5, 2018

CONCURRED IN BY:

Chief Justice Allen H. Loughry II

Justice Robin Jean Davis

Justice Margaret L. Workman

Justice Menis E. Ketchum

Justice Elizabeth D. Walker

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