                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Stephanie P. Price and John F. Price,                                              FILED
Plaintiffs Below, Petitioners                                                  March 13, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 14-0678 (Hardy County 11-C-51)                                         OF WEST VIRGINIA


William L. LaMaster and Louis J. Pelletier,
Defendants Below, Respondents


                              MEMORANDUM DECISION
        Petitioners Stephanie P. Price and John F. Price, by counsel Timothy C. Bailey, J. Ryan
Stewart, John G. Ours, and J. Burton Hunter III, appeal the Circuit Court of Hardy County’s
order granting summary judgment to respondents.1 Respondents William L. LaMaster and Louis
J. Pelletier, by counsel Susan R. Snowden and Lisa A. Green, respond in support of the circuit
court’s order. Petitioners also 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 briefs, and the record
presented, 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.

                            I. Factual and Procedural Background

        On September 11, 2009, Petitioner Stephanie Price was traveling on Route 55 in Hardy
County, West Virginia, when she realized she had missed her turn and began looking for a place
to turn around. She chose to attempt a left turn onto a road off of Route 55. Respondent William
LaMaster was directly behind Mrs. Price and stopped or slowed to permit Mrs. Price to make her
turn. Respondent Louis J. Pelletier was a passenger in Mr. LaMaster’s vehicle.2 Richard Moyers
was following Mr. LaMaster’s vehicle and concluded that he could not stop in time to avoid
hitting it. Mr. Moyers steered his truck into the left lane, passed Mr. LaMaster’s vehicle, and
struck the front of Mrs. Price’s vehicle as it turned left. Both respondents remained at the scene
and were present when the investigating deputy sheriff arrived.

       1
         The order is stamped by the clerk as being entered on June 12, 2014. However, the
signature page of the order indicates that it was entered on June 13, 2014.
       2
         In their reply brief, petitioners assert that a master-servant relationship existed between
the respondents because petitioners contend that Mr. Pelletier was acting as Mr. LaMaster’s
supervisor at all times relevant to this matter.
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        On September 9, 2011, petitioners filed a complaint setting forth allegations of
negligence against John Doe defendants and Mr. Moyers, as to Stephanie Price, and a claim for
loss of consortium for John Price, Stephanie P. Price’s husband. On December 20, 2011,
petitioners filed their amended complaint which added respondents and alleged that the
defendants’ concurrent negligence proximately caused petitioners’ injuries and damages.
Petitioners reached a settlement with Mr. Moyers related to this accident and Mr. Moyers was
dismissed from the action on September 20, 2012, but remained as a defendant below in name
only. Respondents filed a joint motion for summary judgment in November of 2012, and
petitioners filed a response. Respondents submitted a reply, and the circuit court heard the
motion (and other pending motions) on February 26, 2013. On March 12, 2013, the circuit court
entered an order staying respondents’ motion for summary judgment due to its grant of
petitioners’ motion for a continuance. The parties conducted additional discovery, and on March
31, 2014, respondents filed a renewed joint motion for summary judgment. Petitioners
responded, and the circuit court heard oral argument on April 15, 2014.

        In its summary judgment order, the circuit court stated that it was an undisputed material
fact that Mr. LaMaster’s vehicle came to a stop without striking Mrs. Price’s vehicle. It went on
to conclude that any duty imposed on Mr. LaMaster is defined and limited by the circumstances
existing at the time of the accident and the foreseeable consequences of his actions. The circuit
court found that due to the lack of foreseeability, “it is not difficult to conclude that the
undisputed material facts are such that [Mr.] LaMaster did not breach any duty to [Mrs. Price],
nor was his operation of his vehicle the proximate cause of the accident. Construed in a light
most favorable to [petitioners] the [circuit c]ourt finds that there is no genuine issue of material
facts as relates to negligence on the part of [respondents].” Therefore, the circuit court granted
summary judgment to respondents and dismissed the action. Petitioners appeal from that order.

                                     II. Standard of Review

       Petitioners appeal the circuit court’s grant of summary judgment to respondents. Our
standard of review for such orders is de novo. Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451
S.E.2d 755 (1994) (“A circuit court's entry of summary judgment is reviewed de novo.”); Syl. Pt.
2, Wickland v. Am. Travellers Life Ins. Co., 204 W.Va. 430, 513 S.E.2d 657 (1998).

                                          III. Discussion

        On appeal to this Court, petitioners assert three assignments of error. Their first and
second assignments of error have a great deal of overlap and will be addressed together. First,
petitioners argue that the circuit court erred in holding that respondents owed no duty to
petitioners and in finding there existed no genuine issue of material fact as to whether
respondents breached a duty owed to Petitioner Mrs. Price where respondents were following too
closely to her vehicle in violation of West Virginia Code § 17C-7-10. West Virginia Code §
17C-7-10(a) states that “[t]he driver of a motor vehicle shall not follow another vehicle more
closely than is reasonable and prudent having due regard for the speed of such vehicles and the
traffic upon and the condition of the highway.” Petitioners argue that there need not be contact
between vehicles for a violation of this statute to occur and that a violation of the statute may be
prima facie evidence for the jury’s consideration. Petitioners rely heavily upon the report of their

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expert, Dr. Ron Eck, in support of their argument that respondents were following too closely to
Mrs. Price’s vehicle immediately prior to the accident at issue. They argue that because Mr.
LaMaster was following too closely, Mr. Moyers was forced to take evasive action to avoid
hitting the vehicle driven by Mr. LaMaster. Petitioners contend that it was foreseeable that an
accident could occur between the first and third vehicles in a chain where the second vehicle was
following too closely to the first.

        As their second assignment of error, petitioners assert that the circuit court erred in
finding that petitioners failed to establish an issue of material fact as to whether respondents’
actions were a proximate cause of the incident. This argument is based on petitioners’ assertion
that there is direct evidence that places fault on respondents for following too closely and
slamming on their brakes resulting in Mr. Moyers slamming on his brakes, changing lanes, and
colliding with Mrs. Price’s vehicle. Petitioners contend that this is clearly a case of concurrent
negligent acts so recovery may be had against one or all negligent parties. They further argue
that liability may attach so long as the negligence of a tortfeasor contributes in any degree to the
injury.

                In a negligence suit, a plaintiff is required to show four basic elements:
        duty, breach, causation, and damages. The plaintiff must prove that the defendant
        owed the plaintiff some duty of care; that by some act or omission the defendant
        breached that duty; and that the act or omission proximately caused some injury
        to the plaintiff that is compensable by damages. When we say that a defendant is
        “negligent,” we are merely saying the defendant owed some duty of care to
        another yet failed to abide by that duty.

Hersh v. E-T Enterprises, Ltd. P’ship, 232 W.Va. 305, 310, 752 S.E.2d 336, 341 (2013). We
have held that a “[v]iolation of a statute is prima facie evidence of negligence. [However, i]n
order to be actionable, such violation must be the proximate cause of the plaintiff’s injury.” Syl.
Pt. 1, in part, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990). Further, “[t]he
determination of whether a defendant in a particular case owes a duty to the plaintiff is not a
factual question for the jury; rather the determination of whether a plaintiff is owed a duty of
care by a defendant must be rendered by the court as a matter of law.” Syl. Pt. 5, Aikens v.
Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000).

                “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?” Syllabus point 3, Sewell v. Gregory, 179 W.Va. 585, 371 S.E.2d 82
        (1988).

Syl. Pt. 4, Louk v. Isuzu Motors, Inc., 198 W.Va. 250, 479 S.E.2d 911 (1996).

        Petitioner’s first assignment of error does not accurately reflect the circuit court’s rulings
in its summary judgment order. Rather than finding that respondents did not owe a duty to
petitioners, the circuit court found that “[l]acking foreseeability, it is not difficult to conclude that

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the undisputed material facts are that [Mr.] LaMaster did not breach any duty to [Mrs. Price], nor
was his operation of his vehicle the proximate cause of the accident.” In the instant case, the only
citation issued by the investigating officer was to Mr. Moyers for his failure to keep right.
Therefore, nothing in the record shows that the officer believed that either respondent violated
West Virginia Code § 17C-7-10. In addition, it appears to be undisputed that there was no
contact between Mrs. Price’s vehicle and the vehicle driven by Mr. LaMaster. Under the facts of
this case, we find that the circuit court did not err in finding that it was not foreseeable that the
third car in the chain would swerve to the left and strike the first vehicle when the middle vehicle
was able to avoid contact with the first vehicle.

         “The burden is on the plaintiff to prove by a preponderance of the evidence that the
defendant was negligent and that such negligence was the proximate cause of the injury.” In re
Tax Assessment of Foster Found.’s Woodlands Ret. Cmty., 223 W.Va. 14, 32, 672 S.E.2d 150,
168 (2008) (quoting Syl. pt. 2, Walton v. Given, 158 W.Va. 897, 215 S.E.2d 647 (1975)). Based
upon the record before this Court, we cannot find that the circuit court erred in concluding that
any alleged negligence on the part of respondents was not the proximate cause of Mrs. Price’s
injury.3

        Petitioners’ final assignment of error is that the circuit court erred as a matter of law by
failing to construe evidence in the light most favorable to petitioners when considering
respondents’ joint motion for summary judgment. Petitioners argue that the circuit court
accepted certain facts as true that were testified to by respondents without considering the
conflicting testimony of Mr. Moyers and Mrs. Price. Petitioners are critical of the circuit court’s
finding that Mr. LaMaster’s vehicle came to a stop without striking Mrs. Price’s vehicle.
However, the undisputed evidence was that the vehicle driven by Mr. LaMaster never struck
Mrs. Price’s vehicle and that respondents remained on scene to speak with the investigating
officer. If petitioners take issue with the circuit court’s language that Mr. LaMaster was able to
stop the vehicle, this seems to be an issue of semantics because Mr. LaMaster was clearly able to
navigate the vehicle without making contact and was able to safely stop the vehicle at some
point. Thus, this appears to be a fair statement by the circuit court based upon the record before
this Court. Petitioners also argue that the circuit court failed to give enough credence to Dr.
Eck’s opinions and testimony, including his opinion that respondents’ truck never came to a
complete stop behind petitioners’ vehicle.



       3
          Petitioners assert but do not cite law to support Mr. Eck’s opinion that Mr. Pelletier
allowing Mr. LaMaster to drive the commercial vehicle at issue was a proximate cause of the
collision and Mrs. Price’s injuries. Petitioners argue in their reply that the master-servant
relationship is applicable here and that Mr. Pelletier, as Mr. LaMaster’s supervisor, could have
ordered Mr. LaMaster to slow down if he believed that Mr. LaMaster was following too closely
to Mrs. Price’s vehicle. However, petitioners fail to cite to the record for this contention.
Pursuant to Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure, petitioners’
argument on this issue lacks the references necessary for this Court to determine whether a
master-servant relationship existed between respondents. Despite that issue, we find that
petitioner failed to establish that Mr. Pelletier’s alleged actions and/or inactions were a proximate
cause of the petitioner’s alleged injuries.
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         Pursuant to Rule 56 of the West Virginia Rules of Civil Procedure, summary judgment is
proper where the record demonstrates “that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” In this case, “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” W.Va.R.Civ.P. 56(c). Whether Mr. LaMaster was able
to stop completely behind Mrs. Price’s vehicle prior to Mrs. Price’s turn is not a genuine issue of
material fact, and petitioners cite no authority requiring Mr. LaMaster to come to a complete stop
in that instance. That disputed issue is not dispositive of any of the four elements required to
prove negligence on the part of respondents, and petitioners admit that whether Mr. LaMaster
came to a complete stop is not dispositive of whether he may be responsible for petitioners’
injuries and damages. Therefore, we find no error in the circuit court’s finding that “[c]onstrued
in the light most favorable to [petitioners] . . . there is no genuine issue of material facts (sic) as
relates to negligence on the part of [respondents].”

     For the foregoing reasons, we conclude that the circuit court did not err in granting
summary judgment in favor of respondents. Accordingly, we affirm.

                                                                                            Affirmed.

ISSUED: March 13, 2015

CONCURRED IN BY:

Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis




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