          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA



                                 January 2015 Term
                                    __________                    FILED
                                                             February 12, 2015
                                     No. 14-0258               released at 3:00 p.m.
                                                               RORY L. PERRY II, CLERK
                                     __________              SUPREME COURT OF APPEALS
                                                                 OF WEST VIRGINIA

                               DAVID RAGONESE,

                              Plaintiff Below, Petitioner


                                          v.

               RACING CORPORATION OF WEST VIRGINIA,

                 d/b/a MARDI GRAS CASINO AND RESORT,

                         a West Virginia Corporation,

                         Defendant Below, Respondent

         ______________________________________________________

                  Appeal from the Circuit Court of Kanawha County

                          Honorable Paul Zakaib, Jr., Judge

                            Civil Action No. 13-C-1092


                               REVERSED

        _________________________________________________________

                             Submitted: January 28, 2015

                              Filed: February 12, 2015



Connor D. Robertson, Esq.	              William J. Cooper, Esq.
Richard W. Weston, Esq.	                Megan Fulcher Bosak, Esq.
Weston Law Office	                      Kiersan Smith Lockard, Esq.
Huntington, West Virginia	              Flaherty Sensabaugh Bonasso PLLC
Counsel for Petitioner	                 Charleston, West Virginia
                                        Counsel for Respondent


JUSTICE LOUGHRY delivered the Opinion of the Court.

JUSTICES BENJAMIN and KETCHUM concur and reserve the right to file concurring

opinions.

                              SYLLABUS BY THE COURT




              1. “The standard of review applicable to an appeal from a motion to alter or

amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that

would apply to the underlying judgment upon which the motion is based and from which

the appeal to this Court is filed.” Syl. Pt. 1, Wickland v. American Travellers Life Ins. Co.,

204 W.Va. 430, 513 S.E.2d 657 (1998).



              2. “A trespasser is one who goes upon the property or premises of another

without invitation, express or implied, and does so out of curiosity, or for his own purpose

or convenience, and not in the performance of any duty to the owner.” Syl. Pt. 1, Huffman

v. Appalachian Power Co., 187 W.Va. 1, 415 S.E.2d 145 (1992).



              3. Where factual issues exist as to whether an invitee has forfeited his or her

status by going to a portion of the premises to which the invitation of usage may not extend,

those issues should be resolved by a jury.
LOUGHRY, Justice:


                The petitioner, David Ragonese, appeals from the February 7, 2014, order of

the Circuit Court of Kanawha County denying his motion to alter or amend the trial court’s

grant of summary judgment to the respondent, Racing Corporation of West Virginia, d/b/a/

Mardi Gras Casino and Resort (hereinafter the “Casino”).1 As grounds for a reversal, the

petitioner argues that the trial court erred in classifying him as a trespasser under the facts

of this case and submits that there are genuine issues of material fact to be decided by a jury.

Upon our careful review of the record submitted in this case, we agree and, accordingly,

reverse.



                          I. Factual and Procedural Background

                 On July 6, 2011, the petitioner and his wife checked into the Casino’s hotel

at 3:51 p.m.2 After spending an hour in their hotel room, they walked across the skyway

bridge3 that connects the hotel to the Casino to gamble. Mr. Ragonese and his wife gambled

over the next several hours, taking intermittent smoking breaks and a dinner break. Two of

       1
           The summary judgment ruling was entered by the trial court on December 16, 2013.
       2
        Following a trip to North Carolina, the Ragoneses decided to stop at the Casino on
their way home to New York.
       3
         The skyway bridge is an elevated, enclosed walkway that goes from the inside of the
hotel, across the roadway separating the hotel and Casino, and connects to the second floor
of the Casino. Hotel patrons, after walking across the skyway bridge, are able to descend
to the first floor of the Casino by means of an escalator.

                                               1

these smoking breaks took place at the “side” or “bus stop entrance” to the Casino–a location

directly facing a six-foot high retaining wall that extends along the roadside perimeter of the

property on which the hotel is situated.



              Around 9:30 p.m., Mr. Ragonese exited the Casino through the side entrance.

He crossed the street near the base of the retaining wall, turned left and continued walking

approximately 125 feet with the retaining wall parallel to his right shoulder as he proceeded

up the inclined roadway. Upon reaching the hotel’s driveway, Mr. Ragonese took a shortcut

up a grassy slope to the main entrance. He entered the hotel and spoke briefly with a desk

clerk about whether he could get a discount on his room rate or have the room on a

complimentary basis.



              At 9:34 p.m., Mr. Ragonese walked out the front door of the hotel. After

glancing to his left and noticing his wife standing outside the side entrance of the Casino,

he decided to take a shortcut to the Casino. Rather than utilizing the skyway bridge or the

roadway that he had just perambulated, Mr. Ragonese stepped through a line of shrubbery

and then proceeded down a steep, grassy hillside. According to his deposition testimony,

the petitioner was fully aware of the retaining wall just five minutes earlier when he was

traipsing up the roadway towards the hotel. In confirmation of this awareness, he testified

that you “[c]an’t miss it.” Mr. Ragonese submits that he simply forgot about the wall’s


                                              2

existence when, just minutes later, he began his descent down the sharply sloped hillside.

Due to his fall onto the roadway from that retaining wall, Mr. Ragonese sustained a spiral

fracture of his left leg.4



               On June 6, 2013, Mr. Ragonese filed a complaint against the Casino, alleging

negligence for its failure to protect him, a guest of the Casino, from the dangerousness of

the retaining wall. This case proceeded to discovery5 and the Casino subsequently moved

for summary judgment.6 In support of its motion, the Casino asserted that Mr. Ragonese was

barred from recovery as he was no longer a business invitee, but a trespasser, at the time of

his injury. Because the Casino did not breach the duty it owed to Mr. Ragonese as a

trespasser–to refrain from engaging in willful or wanton behavior–the Casino argued it was

       4
        After receiving medical attention locally, Mr. Ragonese chose to return to New York
for additional treatment, which involved surgical implantation of screws to stabilize his leg
bone.
       5
        In addition to faulting the trial court for its failure to issue a scheduling order, the
petitioner complains that the discovery phase of this case was abbreviated. He asserts that
outstanding discovery responses in need of supplementation should have prevented this case
from being disposed of through summary judgment. We note that Mr. Ragonese did not file
a Rule 56(f) affidavit for the purpose of identifying any specific discovery that he proposed
to pursue. See Syl. Pt. 1, Powderidge Unit Owners Ass’n v. Highland Props., Ltd., 196
W.Va. 692, 474 S.E.2d 872 (1996). In view of our decision to reverse this matter, we find
it unnecessary to further address this issue.
       6
        While the original motion was filed on November 8, 2013, the Casino filed a revised
motion for summary judgment on November 21, 2013, based on the issuance of this Court’s
decision in Hersh v. E-T Enterprises, 232 W.Va. 305, 752 S.E.2d 336 (2013). In its revised
motion, the Casino stated that the issues asserted in its original motion predicated on the
duty of care owed to an invitee are, under Hersh, questions of fact to be decided by a jury.

                                               3

entitled to judgment as a matter of law. In response, Mr. Ragonese insisted that he remained

a business invitee at the time of the injury and that genuine issues of material fact were

required to be submitted to and resolved by a jury.



                In ruling upon the Casino’s motion for summary judgment,7 the trial court

began its brief analysis by recognizing that Mr. Ragonese had actual knowledge of both the

retaining wall and the hillside. Addressing Mr. Ragonese’s status, the trial court opined:

“At the point Plaintiff walked past the bushes and shrubbery and proceeded down the

hillside, he exceeded the scope of his invitation as an invitee and became a trespasser.”

Applying the standard of care that governs trespass, the court concluded that the Casino “did

not breach the duty of care owed to Plaintiff, as Defendant did not willfully or wantonly

injure Mr. Ragonese; and Defendant did not act with premeditation, knowledge, or

consciousness that Plaintiff would injure himself by trespassing and falling off the retaining

wall.” By order entered on December 16, 2013, the trial court granted summary judgment

to the Casino after finding no genuine issues of material fact regarding the circumstances

surrounding Mr. Ragonese’s fall or the Casino’s compliance with the duty of care it owed

to him as a trespasser.



                On December 27, 2013, Mr. Ragonese filed a motion to alter or amend the


       7
           The trial court heard argument on the motion on December 16, 2013.

                                              4

summary judgment ruling. See W.Va. R. Civ. P. 59(e). In support of his request for relief,

the petitioner argued that the circuit court improperly relied on its judgment regarding the

status of Mr. Ragonese at the time of his injury despite the existence of genuine issues of

fact concerning that determination as well as the issue of whether the Casino acted wilfully

and wantonly towards him. Additional grounds asserted by the petitioner include the trial

court’s failure to address his alternative argument of being a technical trespasser8 and to

acknowledge his request for a continuance to allow for the completion of additional

discovery.



              After reviewing the Casino’s response to the motion to alter or amend and

hearing arguments of counsel on these issues, the trial court found that the requirements for

relief under Rule 59(e) had not been met. Id. Specifically, the trial court determined that

there had not been an intervening change in controlling law; no new evidence had come to

light that was not previously available to the court; and there was no need to remedy a clear

error of law or to prevent an obvious injustice. Consequently, the trial court ruled that Mr.

Ragonese had failed to provide evidence sufficient to warrant an alteration of its grant of

summary judgment. It is from this ruling that the petitioner seeks relief.




       8
        See, e.g., Huffman v. Appalachian Power Co., 187 W.Va. 1, 5, 415 S.E.2d 145, 149
(1992) (“Where the trespass is merely technical . . . the possessor of the property is not
insulated from liability for his failure to exercise reasonable care.”).

                                             5

                                  II. Standard of Review

              As we recognized in syllabus point one of Wickland v. American Travellers

Life Insurance Co., 204 W.Va. 430, 513 S.E.2d 657 (1998), “[t]he standard of review

applicable to an appeal from a motion to alter or amend a judgment, made pursuant to W.

Va. R. Civ. P. 59(e), is the same standard that would apply to the underlying judgment upon

which the motion is based and from which the appeal to this Court is filed.” Because the

underlying ruling challenged by the petitioner pursuant to Rule 59(e) was a grant of

summary judgment, our review is plenary. See Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189,

451 S.E.2d 755 (1994). In conducting our de novo review, we consider that “[a] motion for

summary judgment should be granted only when it is clear that there is no genuine issue of

fact to be tried and inquiry concerning the facts is not desirable to clarify the application of

the law.” Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Fed. Ins. Co., 148 W.Va. 160, 133 S.E.2d 770

(1963). It is axiomatic that “any doubt as to the existence of such issue is resolved against

the movant for such judgment.” Id. at 161, 133 S.E.2d at 772, syl. pt. 6, in part. Guided by

these precepts, we proceed to consider whether there are issues of fact that preclude

summary judgment in this matter.



                                       III. Discussion

              In deciding that the petitioner was a trespasser at the time of his injury, Mr.

Ragonese maintains that the trial court reached a conclusion regarding his legal status that


                                               6

is contrary to both the facts of this case and the law. The petitioner insists that his status as

a business invitee was not transformed to that of a trespasser with his decision to step off the

sidewalk and onto the grounds of the hotel property. In contrast to the prototypical trespass

scenario where “no trespass” signs have been posted and ignored, Mr. Ragonese observes

that in this case there were no warning signs or directives from hotel employees to keep off

the lawn and hillside area. Additionally, he cites to the fact that he did not jump a fence or

furtively sneak into a private area of the Casino premises. Mr. Ragonese further submits that

the shrubbery through which he easily passed to gain access to the lawn was not intended

to serve as a barrier. He maintains that no one invited to a recreational business premise

such as the Casino would believe they were trespassing on the property by the mere act of

walking onto the lawn.9



              To determine whether the trial court wrongly classified Mr. Ragonese as a

trespasser, we first consider the parameters of that status. In syllabus point one of Huffman

v. Appalachian Power Co., 187 W.Va. 1, 415 S.E.2d 145 (1992), we held that “[a]

trespasser is one who goes upon the property or premises of another without invitation,

express or implied, and does so out of curiosity, or for his own purpose or convenience, and

not in the performance of any duty to the owner.” Applying this definition to the specifics


       9
        In illustration of this point, the petitioner argues that an individual who passes
through the landscaping bushes onto the grass to smoke a cigarette would not be viewed as
a trespasser.

                                               7

of his situation, the petitioner argues that he cannot qualify as a trespasser because he was

an invited guest in a publicly accessible area of the Casino premises which was not

demarcated in any fashion as being off limits to guests.



              As support for its position that Mr. Ragonese was a trespasser, the Casino

relies on the definitional clause in Huffman referencing the uninvited use of property “for

his [the trespasser’s] own purpose or convenience.” Id. at 2, 415 S.E.2d at 146, syl. pt. 1,

in part. When the petitioner decided to take a shortcut to reach his wife, he was utilizing the

property beyond the scope of his invitation10 and for his own purposes. As a result, the

Casino reasons that Mr. Ragonese was necessarily trespassing as he traversed the grassy

hillside. Articulating the scope of the petitioner’s permissible use of the Casino property,

the trial court opined during the summary judgment hearing:

              He was an invitee for the purpose of gambling and the purpose
              of being at the hotel. There was no activity, gambling activity
              or sleeping activity on the hillside there. Once he came down
              the hill, he tried to come down, he then became a trespasser
              because he was not permitted to be there.



              In seeking summary judgment, the Casino relied upon Roland v. Langlois, 945

F.2d 956 (7th Cir. 1991), as support for its position that Mr. Ragonese was no longer an


       10
        The Casino submits that the scope of the petitioner’s “invitation extended only to
where the public is invited, i.e., the casino, hotel, entrances, designated walkways, and the
parking lot.”

                                              8

invitee when he passed through the bushes onto the grounds. The plaintiff in Roland took

a shortcut through a gap in a fenced-off area surrounding a carnival ride. After gaining

access to the ride’s operational area, he sustained serious brain injuries when the ride struck

his head. Id. at 958-59. While Roland is factually and legally distinct from the case before

us, the court’s recognition that “invitees can forfeit their protected status by going to a

portion of the premises to which the invitation does not extend” is both instructive and

applicable to the issues presented in this case. 945 F.2d at 959 (internal citation omitted).



              The Casino unduly emphasized the court’s recognition in Roland that “‘the

mere fact that you invite people onto your property for a fee does not make them business

invitees on the rest of the property.’” Id. (citing Orthmann v. Apple River Campground,

Inc., 757 F.2d 909, 912 (7th Cir. 1985)). That point is easily demonstrated in the instance

of a paid recreational activity which involves instrumentalities commonly recognized to be

both off limits and dangerous, such as the cordoned mechanical operations of a carnival ride.

More difficult is the situation presented by the instant case where a business invitee sustains

injury while utilizing an area of the establishment not clearly demarcated as private and off

limits. Where a consensus does exist, however, is that the decision regarding a change in

an invitee’s status may be a factual question in need of jury determination.



              In Community Christian Center Ministries, Inc. v. Plante, 719 So.2d 368 (Fla.


                                              9

Dist. Ct. App. 1998), the trial court ruled as a matter of law that the plaintiff, who exited a

convenience store and was injured while climbing upon a bookcase on a section of the

shopping plaza area, was a business invitee. The appellate court reversed, determining that

a jury question existed as to whether the plaintiff exceeded the scope of his invitation when

he decided to climb the bookcase situated on a grassy area that was not roped off or

barricaded in any manner. Id. at 370. At trial, the jury would be required to consider

whether this area was a place that the defendants should have reasonably anticipated that the

plaintiff would go. In considering the scope of an invitee’s invitation, the appellate court

recognized that “[t]he duty to keep the premises safe for invitees extends to all portions of

the premises that are included in the invitation and that are necessary or convenient for the

invitee to visit or use in the course of the business for which the invitation was extended.”

Id. (internal citations omitted).



              The issue of a visitor’s status as an invitee or trespasser is to be determined as

of the time that the visitor is injured. See Byers v. Radiant Group, L.L.C., 966 So.2d 506,

509 (Fla. Dist. Ct. App. 2007); Nelsen v. Nelsen, 23 P.3d 424, 427 (Or. App. 2001) (“A

visitor’s status can change while on the premises; thus, one’s status in a negligence action

is determined at the time of the injury, not at the time of entry onto the premises.”). In

Byers, the trial court concluded that the plaintiffs lost their status as invitees based on their




                                               10

participation in a brawl in the parking lot of the store they had just frequented.11 Discussing

factors that control a visitor’s status, the appellate court considered that the plaintiffs did not

go to a part of the premises that was off-limits to customers and they did not remain on the

premises for an unreasonable amount of time after completing their business. 966 So.2d at

509. In rejecting the trial court’s conclusion that the plaintiffs became either uninvited

licensees or trespassers when their actions changed from customer to violence instigator, the

appellate court ruled that questions of fact regarding whether their behavior in the parking

lot caused either of the plaintiffs to lose their status as invitees precluded the resolution of

this matter by summary judgment. Id. at 510.



               In this case, the trial court viewed the petitioner’s actions of passing through

the shrubbery and proceeding down the hillside as determinative with regard to the related

issues of status and duty. In deciding that Mr. Ragonese lost his status as an invitee based

on his peripatetic actions, the trial court reached a conclusion which involved a mixed

question of law and fact. See Kopczynski v. Barger, 887 N.E.2d 928, 931 (Ind. 2008)

(“[T]he existence of a duty is ordinarily a question of law for the court to decide, but it may

turn on factual issues that must be resolved by the trier of fact.”); Rhodes v. Wright, 805



       11
         Just as the plaintiffs and two other vehicle occupants were starting to pull out of the
store’s parking lot, another vehicle with four individuals drove up. Due to a prior driving-
related issue, an altercation that involved baseball bats ensued. One of the plaintiffs died
at the scene and the other individual was seriously injured.

                                                11

N.E.2d 382, 386 (Ind. 2004) (“While it is clear that the trial court must determine if an

existing relationship gives rise to a duty, it must also be noted that a factual question may

be interwoven with the determination of the existence of a relationship, thus making the

ultimate existence of a duty a mixed question of law and fact.”) (citations omitted). Because

the issue of whether his actions served to change his status from that of invitee to trespasser

was in dispute, we conclude that the trial court usurped the proper role of a fact finder.

Where, as in this case, factual issues exist as to whether an invitee has forfeited his or her

status by going to a portion of the premises to which the invitation of usage may not extend,

those issues should be resolved by a jury.



              Contrary to the position advanced by the Casino that no material facts exist

regarding the issue of Mr. Ragonese’s status, we find multiple issues of disputed fact that

bear on this subject. Among the issues to be resolved are whether the petitioner was in an

area that the public was either invited to use or its use should have been reasonably

anticipated.12 See Restatement (Second) of Torts § 332 cmt. l (1965) (“Since the status of

the visitor as an invitee may depend upon whether the possessor should have known that the

visitor would be led to believe that a particular part of the premises is held open to him, the

question is often one of fact for the jury. . . .”). Another relevant factual inquiry to be



       12
        The record indicates that ten months earlier another incident involving the retaining
wall occurred.

                                              12

decided is whether the shrubbery, as it existed on the date of injury,13 served as a proper

barrier or, alternatively, as an indicator of prohibited usage. See, e.g., Pickering v. Caesars

Riverboat Casino, LLC, 988 N.E.2d 385, 393 (Ind. App. 2013) (finding that plaintiff’s

decision to disregard barrier comprised of barrels, saw horse, and caution tape used by

owner to visibly restrict access to rooftop section of parking garage transformed invitee’s

status to licensee). Essentially, what the jury will be required to decide is whether Mr.

Ragonese acted in a manner that was inconsistent with the scope of his invitation to use the

Casino premises. See McElhaney v. Marc Glassman, Inc., 882 N.E.2d 455, 462 (Ohio Ct.

App. 2007) (“The scope of an invitation to use premises includes only such areas of the

premises as the invitee is led reasonably to believe are held open to him.”); Botka v. Estate

of Hoerr, 21 P.3d 723, 728 (Wash. App. 2001) (“The scope of an invitation depends on what

the invitee is to do on the premises, as well as on where the invitee may reasonably be

foreseen to go.”). Once the jury resolves these issues that weigh upon the petitioner’s status

at the time of his injury, then the related determinations of what duty the Casino owed to Mr.

Ragonese and whether that duty was breached can be addressed.




       13
        According to the petitioner’s affidavit, the Casino installed a fence in proximity to
the shrubbery subsequent to his injury.

                                              13

                                     IV. Conclusion

               Based on the foregoing, the decision of the Circuit Court of Kanawha County

is reversed.

                                                                                Reversed.




.





                                            14

