No. 14-1332 -         Wheeling Park Commission v. Joseph Dattoli and Kerry Dattoli, his
                      wife
                                                                               FILED
                                                                            June 2, 2016
                                                                              released at 3:00 p.m.
                                                                            RORY L. PERRY, II CLERK

                                                                          SUPREME COURT OF APPEALS

                                                                               OF WEST VIRGINIA

Davis, Justice, dissenting, joined by Justice Workman:

              This was a simple case in which the court was asked to decide whether the

Dattolis made out a prima facie case of negligence against the Commission. In resolving this

issue, the majority of the court found a distressing way to blur the lines between legal

principles that apply to premises liability causes of actions and actions for injury on property

owned by political subdivisions. In doing so, the majority opinion found that the trial court

erred in denying the Commission’s motion for judgment as a matter of law at the close of the

Dattolis’ case-in-chief. For the reasons set out below, I respectfully dissent.



                                     A. Relevant Facts

              Ordinarily I would begin my dissent by going to the merits of my disagreement

with the majority opinion. However, to properly understand the legal unsoundness of the

majority opinion, I am compelled to start with a recitation of the underlying facts.




                                               1

              The facts of this case began at around noon, on September 1, 2007, at Oglebay

Park Resort and Conference Center (“the Park”) in Wheeling, West Virginia.1 At that time,

the Dattolis were attending a family reunion at the Park. The family reunion was being

hosted by Mrs. Dattoli’s family.2 Also on that date, the Park was holding an event that was

called Fort Henry Days. As a result of this special event, there were a number of amusement

attractions, including carnival rides, set up throughout the Park.



              After the family members had lunch, Mr. Dattoli accompanied his daughter,

son, and daughter-in-law for a walk to view some of the attractions at the Park.3 At some

point, Mr. Dattoli stopped at an area near a wooden fence to watch some amusement events,

including his daughter’s attempt to ascend a rock climbing wall. It appears that Mr Dattoli’s

back was to the fence when he attempted to lean against it. As Mr. Dattoli placed his

buttocks on the fence and when he reached back to place one of his hands on the fence, the




              1
              The Park is maintained by the Commission. See Wheeling Park Comm’n v.
Hotel & Rest. Emps., Int’l Union, AFL-CIO, 198 W. Va. 215, 218, 479 S.E.2d 876, 879
(1996) (“[T]he Wheeling Park Commission . . . was formed in 1925 in order to manage
municipal parks acquired by the City of Wheeling.”).
              2
               Mrs. Dattoli’s family had a family reunion at the Park annually. Mrs. Dattoli’s
grandfather was a carpenter and helped build many of the facilities at the Park. Further, it
appears that the Park allowed her grandfather and his family to live in a house in the Park.
              3
                  Both of Mr. Dattoli’s children were adults at the time of the incident.

                                                2

fence broke suddenly, and he fell backwards down a hill. As a result of the fall, Mr. Dattoli

sustained a left shoulder, full thickness, rotator cuff tear that required surgery to repair.4



              In 2009, the Dattolis filed this action against the Commission to recover for the

damages caused by the accident.5 After extensive discovery, the case was presented to a jury

in August 2014. During the trial, both Dattolis testified. They also called their former

daughter-in-law, who actually witnessed the fall, to inform the jury of how the accident

occurred. They also called their son to testify about the impact of the injury on the family.

The Dattolis put on a video deposition of the physician who treated Mr. Dattoli for his

injured shoulder. Additionally, they called John Hargleroad (“Mr. Hargleroad”), the director

of operations for the Park. Mr. Hargleroad was called as an adverse witness. Mr. Hargleroad

testified that the Park’s wooden fence was installed during the 1990s. Mr. Hargleroad stated

that he did not know of the existence of any documents that would show repairs or

maintenance was done on the fence since it was installed.6 There also was testimony by Mr.

Hargleroad that wood had a life expectancy (i.e., decaying) and that the Park, not guests, was

in a better position to make certain the fence was in good repair. Mr. Hargleroad also



              4
              Mr. Dattoli’s surgeon described this type of injury as “something where the
tendon is completely torn off the bone[.]”
              5
                  Mrs. Dattoli’s claim was for loss of consortium.
              6
               The Dattolis had requested such information from the Commission during
discovery, but never received documents involving repair or maintenance of the fence.

                                               3

testified that the Park did not have any signs warning guests not to lean or sit on the fence.

Although Mr. Hargleroad stated that Mr. Dattoli should not have leaned on the fence, there

was no evidence showing that Mr. Dattoli did anything in violation of a Park rule that

contributed to the accident.



              At the close of the Dattolis’ case-in-chief, the Commission moved the trial

court for judgment as a matter of law. The motion was denied. The Commission thereafter

rested without calling any witnesses. After the case was submitted to the jury, a verdict was

returned awarding the Dattolis $36,894.47 for past medical bills and $19,000.00 for past lost

wages. The jury did not award damages for any of the following items listed on the verdict

form: past and future physical pain and suffering, past and future mental anguish and

emotional pain, past and future loss of enjoyment of life, past and future loss of household

services, permanency of injuries, and loss of consortium.



              The Dattolis filed a post-trial motion for a new trial on damages. The trial

court’s order of November 27, 2014, denied the motion, in part, and granted the motion, in

part. The order denied the motion for new trial for the following damages: future physical

pain and suffering, future mental anguish and emotional pain, past and future loss of

enjoyment of life, past and future loss of household services, permanency of injuries, and loss

of consortium. The order awarded a new trial on damages for the following limited items:


                                              4

past physical pain and suffering and past mental anguish and emotional pain.                 The

Commission subsequently filed this appeal.



               B. Denial of Motion for Pre-Verdict Judgment as a Matter of Law

               The Commission argued on appeal that the trial court committed error in

denying its motion for judgment as a matter of law at the close of the Dattolis’ case-in-chief.

It is clear from a review of the Commission’s appeal brief and reply brief that the

Commission failed to understand the basis of liability in this case. The Commission viewed

the case as being grounded on common law premises liability principles. The majority

opinion accepted this argument. However, as I will demonstrate, our cases have developed

distinct legal principles for premises liability and liability against political subdivisions.

Insofar as the Commission did not dispute that it is a political subdivision, the decisions of

this Court are clear in stating that premises liability principles simply do not apply to injuries

sustained on property belonging to political subdivisions.



               1. Cause of action for injury on property of a political subdivision.

Contrary to the conclusion reached by the majority opinion, it was clearly stated in Carrier

v. City of Huntington, 202 W. Va. 30, 33, 501 S.E.2d 466, 469 (1998), that “[t]his Court has

never applied premises liability theories to personal injury claims arising from injury on




                                                5

public property. Injuries occurring on public property are governed by specific statutes.”7

Liability against the Commission as a political subdivision is found in W. Va. Code

§ 29-12A-4(c)(3) (1986) (Repl. Vol. 2013) of the Governmental Tort Claims and Insurance

Reform Act.8 We have explained this statute as follows:

              7
               In Carrier, an action was brought against the defendant, City of Huntington,
under a specific statute that allowed political subdivisions to be sued for injuries caused by
defective roads, bridges, and streets. The defendant argued that the use of the word
“negligence” in the statute permitted this Court to apply premises liability principles to the
cause of action, in order to affirm the trial court’s summary judgment order in favor of the
defendant. We rejected the argument by stating that “[w]e decline to rule that imposing a
‘negligence’ standard on local governments under W. Va. Code § 17-10-17, permits this
Court to apply common law principles developed under premises liability.” Carrier v. City
of Huntington, 202 W. Va. 30, 34 n.6, 501 S.E.2d 466, 470 n.6 (1998).
              8
                The Commission asserted in its Reply brief that this statute has “no bearing
on the elements of negligence or the evidentiary requirements associated therewith.”
According to the Commission, “a negligence claim against a political sub-division is
governed by the same laws of negligence as claims filed against non-political
subdivisions[.]” As mentioned previously, the Commission misunderstands the law in this
area. Prior to enactment of the Governmental Tort Claims and Insurance Reform Act, this
Court initially permitted political subdivisions to be sued under common law principles when
a political subdivision was acting in a proprietary capacity, as opposed to a governmental
capacity. See Syl. pt. 2, Ashworth v. City of Clarksburg, 118 W. Va. 476, 190 S.E. 763
(1937) (“A municipality acts as a proprietor in maintaining a public park. In this capacity,
the municipality must exercise ordinary care, and is liable to one injured through a breach of
that duty.”); See also Ward v. County Court of Raleigh Cnty., 141 W. Va. 730, 739-40, 93
S.E.2d 44, 49 (1956) (“[T]he operation of the lake property by the Raleigh County Park
Board, at the time of the drowning of plaintiff’s decedent, was proprietary, not
governmental. We find no sound reason for holding a municipality liable for such operations
and not holding a public corporation of the nature of the Raleigh County Park Board liable
for the same type of operations. If the function is proprietary when performed by a
municipality, it is proprietary when performed by such a corporation as the Raleigh County
Park Board.”). Ultimately, this Court permitted political subdivisions to be sued under
common law principles in both their governmental and proprietary capacities. See Syl. pt.
11, Long v. City of Weirton, 158 W. Va. 741, 214 S.E.2d 832 (1975) (“A municipal
                                                                                (continued...)

                                              6

                      Under W. Va. Code, 29-12A-4(c)(3) [1986], political
               subdivisions are liable for injury, death, or loss to persons or
               property caused by their negligent failure to keep public roads,
               highways, streets, avenues, alleys, sidewalks, bridges,
               aqueducts, viaducts, or public grounds within the political
               subdivisions open, in repair, or free from nuisance[.][9]

Syl. pt. 3, in part, Koffler v. City of Huntington, 196 W. Va. 202, 469 S.E.2d 645 (1996)

(emphasis and footnote added).10 See also Syl. pt. 4, Calabrese v. City of Charleston, 204

W. Va. 650, 515 S.E.2d 814 (1999) (“The liability for political subdivisions created in

W. Va. Code, 29-12-4(c)(3) [1986] includes liability for injury, death, or loss to persons or

property caused by a subdivision’s negligent failure to keep its sewers and drains open, in



               8
                 (...continued)
corporation shall be liable, as if a private person, for injuries inflicted upon members of the
public which are proximately caused by its negligence in the performance of functions
assumed by it.”). However, W. Va. Code § 29-12A-4(b)(1) (1986) (Repl. Vol. 2013)
expressly provides that, except as provided in W. Va. Code § 29-12A-4(c), “a political
subdivision is not liable in damages in a civil action for injury, death, or loss to persons or
property allegedly caused by any act or omission of the political subdivision or an employee
of the political subdivision in connection with a governmental or proprietary function.” See
also Zirkle v. Elkins Rd. Pub. Serv. Dist., 221 W. Va. 409, 414, 655 S.E.2d 155, 160 (2007)
(“This provision of the Act suggests that political subdivisions . . . are not liable for any acts
with respect to both governmental and proprietary functions unless the acts complained of
come within the specific liability provisions of W. Va. Code, 29-12A-4(c).”).
               9
                See also W. Va. Code § 29-12A-4(c)(2) (“Political subdivisions are liable for
injury, death, or loss to persons or property caused by the negligent performance of acts by
their employees while acting within the scope of employment.”).
               10
                The Dattolis noted in their brief that they tendered a jury instruction that
specifically used language contained in W. Va. Code § 29-12A-4(c)(3). The jury charge in
the record does not show that the trial court accepted the instruction. However, the manner
in which the trial court instructed the jury on any issue in the case was not assigned as an
error on appeal to this court.

                                                7

repair, or free from nuisance.”), modified on other grounds by Posey v. City of Buckhannon,

228 W. Va. 612, 723 S.E.2d 842 (2012); Stamper by Stamper v. Kanawha Cnty. Bd. of Educ.,

191 W. Va. 297, 298-99, 445 S.E.2d 238, 239-40 (1994) (“Specifically, W. Va. Code, 29­

12A-4(c)(3) and (4) (1986), permit liability claims to be filed against a political subdivision

for injuries or death arising from the negligent failure to maintain its property.”).



              Under W. Va. Code § 29-12A-4(c)(3), the Commission had a duty to keep the

Park in repair–this would include the fence it erected on its property. Indeed, this Court long

ago noted that “municipal corporations are under a duty of exercising reasonable care in the

maintenance of parks and other public enterprises of like character[.]” Warden v. City of

Grafton, 99 W. Va. 249, 256, 128 S.E. 375, 378 (1925). Consequently, under the statute, the

Commission could “be liable for [Mr. Dattoli’s] injuries if [he] can demonstrate that such

injuries were caused by the [Commission’s] negligent failure to keep the [fence] in repair[.]”

Koffler, 196 W. Va. at 206, 469 S.E.2d at 649. See also Adams v. United States, 239 F. Supp.

503, 506 (E.D. Okla. 1965) (“[W]hen one is invited into a public park for health or recreation

it is the duty of the proprietor of said park to exercise ordinary care to keep the premises in

a reasonably safe condition for the benefit of persons lawfully using the same. This rule of

law applies even though no admission is charged.”); City of Miami v. Ameller, 472 So. 2d

728, 729 (Fla. 1985) (“Our conclusion does not make the city an insurer of the safety of all

who use its free public parks. A municipality does, however, have a duty to maintain its


                                              8

parks in a condition reasonably safe for public use.”); City of Bloomington v. Kuruzovich,

517 N.E.2d 408, 413 (Ind. Ct. App. 1987) (“Here, Bloomington maintained Sherwood Oaks

Park as a city park open to the general public. In doing so, Bloomington incurred a duty to

design the park safely and keep it free from hazards.”); McGuire v. New Orleans City Park

Imp. Ass’n, 835 So. 2d 416, 419-20 (La. 2002) (“The duty of a governmental agency or

municipality operating a public park is held to keep the premises in a reasonably safe

condition for those using the park and to discover any unreasonably dangerous conditions on

the premises and to either correct the conditions or warn of the danger.”); City of Jackson v.

Doe ex rel. J.J., 68 So. 3d 1285, 1289 (Miss. 2011) (Kitchens, J., concurring) (“Thus, while

the creation of a public park is a discretionary governmental function involving public policy

considerations, the City still has a duty to maintain the premises in a reasonably safe

condition, and to protect and warn against known hazards.”); City of Anadarko v. Swain, 142

P. 1104, 1105 (Okla. 1914) (“The city owed to adults and children alike the duty of

exercising ordinary care to avoid injuring them anywhere within the boundaries of the public

park, and it cannot escape liability for the death of this child by drawing a distinction

between the duties the city owed to the invitees at different points or portions of the park.”);

Paraska v. Scranton, 313 Pa. 227, 229, 169 A. 434, 435 (1933) (“We have uniformly

permitted recovery for negligent maintenance of parks in a long series of cases.”).




                                               9

              Having shown as a matter of law that the Commission had a statutory duty to

maintain the fence “in repair,” the next step in the analysis is to determine whether the

Dattolis presented a prima facie case of negligence in breaching that duty and causing injury

to Mr. Dattoli.



              2. The Dattolis presented a prima facie case of the Commission’s breach

of its duty to keep its fence in repair. The evidence in this case clearly showed that the

Commission did not have any signs or other warnings informing patrons of the Park to not

lean on its fence. Mr. Dattoli provided undisputed testimony that he looked at the fence

before he leaned on it, and that the fence looked safe. There also was undisputed testimony

that, when Mr. Dattoli leaned his buttocks and hand against the fence, the fence broke. There

was no evidence that Mr. Dattoli did anything wrong to cause the fence to break.11 The

evidence revealed without dispute that the Dattolis sought, through discovery, to obtain all

pertinent records involving the creation and maintenance of the fence by the Commission.

The Commission failed to provide any such records. During the trial, the Commission’s

director of operations for the Park, Mr. Hargleroad, testified essentially that no such records

existed.12

              11
                The Commission argued that Mr. Dattoli was wrong in leaning against the
fence. The jury rejected this argument by finding the Commission one hundred percent at
fault in causing the accident.
              12
                   During the examination of Mr. Hargleroad by the Dattolis’ counsel, the
                                                                            (continued...)

                                              10

             12
              (...continued)
following exchange occurred regarding maintenance of the fence:

             Q. You see where we asked [during discovery], at least in part,
             to describe any care, safety monitoring, repair of the split rail
             fence at issue?

             A. Yes.

             Q. And then tell the – answer – if I can read it. Let me read it.
             “Defendants will look to see [if] there are any documents
             responsive to the request.” That’s the answer, right?

             A. Yes.

             Q. Are you aware of any documents that you could provide that
             would help us know what monitoring, what repair, was done of
             this particular split rail fence.

             A. No.

             Q. Okay. And then go to No. 13. It’s at page seven. And that
             question, correct me if I’m wrong, basically, just asks, “Please
             tell us as to the split rail fence at issue on September 1, 2007,
             tell us what repair took place from the time of purchase,
             assembly, installation, up until the incident”; right?

             A. That’s correct.

             Q. And you folks indicate, am I correct, this is your answer,
             “The Defendants will search for any documents responsive to
             the request”; right?

             A. That’s right.

             Q. Any you don’t know of any; is that right?

                                                                                 (continued...)

                                            11

              Mr. Hargleroad also testified that the wooden fence was placed in the Park in

1990 and that wood had a life expectancy. Mr. Dattoli presented undisputed evidence that,

as a result of the fence breaking and causing him to fall, he sustained a severe shoulder injury

that required surgery. This evidence was sufficient to establish a prima facie case of

negligence under the statute. That is, the Dattolis’ evidence “warranted an inference of

negligence on the part of [the Commission] such as entitled the [Dattolis] to have the issue

determined by the jury and not determined by the directed verdict.” Jenkins v. Chatterton,

143 W. Va. 250, 255, 100 S.E.2d 808, 810 (1957). See also Nuclear Corp. of Am. v. Lang,

480 F.2d 990 (8th Cir. 1973) (finding evidence sufficient to infer that accident occurred due

to defendant failing to maintain fence in a proper state of repair); Serbalik v. State, 123

N.Y.S.2d 212, 215 (1954) (“It was the duty of the State to keep this campsite and its

amusement apparatus, including the swings, in a reasonably safe condition for the intended



              12
               (...continued)
              A. I don’t know of any.


              . . . .


              Q. And the point of this is: You folks didn’t have any sign up
              that said, “Don’t lean on the fence rail”; did you?

              A. That’s correct.

              Q. You didn’t have any caution tape saying, you know, “Stay
              away from the split rail fence”; did you?

              A. No.

                                              12

use. The circumstances under which this swing broke established prima facie evidence of

negligence.”); Kelley v. Barrett, 897 P.2d 289, 291 (Okla. 1995) (“Plaintiff’s evidence was

sufficient to support an inference that when Plaintiff struck Defendant’s horse on 89th Street,

the horse was there because it had escaped by reason of Defendant’s negligently maintained

fence.”); Reed v. Clark, 277 S.C. 310, 286 S.E.2d 384 (1982) (finding evidence of negligent

failure to maintain fence sufficient to deny defendant motion for directed verdict).



              The Commission was required to present some evidence to rebut this prima

facie case. See Laphew v. Consol. Bus Lines, 133 W. Va. 291, 299, 55 S.E.2d 881, 886

(1949) (“[A] prima facie case, of course, does not always stand up when evidence tending

to rebut is introduced[.]”); Syl. pt. 7, in part, Fairview Fruit Co. v. H.P. Brydon & Bro., 85

W. Va. 609, 102 S.E. 231 (1920) (“When such facts are proven, the burden is cast upon

defendant to rebut the presumption[.]”). The Commission failed to put on a case-in-chief to

rebut the Dattolis’ prima facie case. No evidence was presented by the Commission to show

that the fence was in fact in good repair at the time of the accident, or that it was ever

specifically inspected for safety reasons after it was installed. The Commission also failed

to present any evidence that Mr. Dattoli violated any Park rule by leaning against the fence.

In the absence of any evidence rebutting the Dattolis’ prima facie case, the trial court

properly denied the Commission’s pre-verdict motion for judgment as a matter of law. See

Lambert v. Metro. Transit Auth., 339 Mass. 94, 96, 157 N.E.2d 869, 871 (1959) (“It was for


                                              13

the jury to determine whether the defendant failed in its duty of care to users of its

passageway and if the condition of the fence was found due to negligent maintenance[,]

whether the injury to the boy was caused by such condition.”). Indeed, our law is quite clear

in holding that “[o]rdinarily the question as to whether a prima facie case made by a plaintiff

by circumstantial evidence has been overcome by direct testimony of the defendant in

conflict therewith is for the jury.” Syl. pt. 2, Webb v. Harrison, 127 W. Va. 124, 31 S.E.2d

686 (1944). See also Syl. pt. 5, Hatten v. Mason Realty Co., 148 W. Va. 380, 135 S.E.2d 236

(1964) (“Questions of negligence, due care, proximate cause and concurrent negligence

present issues of fact for jury determination when the evidence pertaining to such issues is

conflicting or where the facts, even though undisputed, are such that reasonable men may

draw different conclusions from them.”).



              It is clear to me that the majority opinion reached a result that is contrary to our

law regarding the liability of a political subdivision for breaching its duty to maintain its

property in repair. Compounding its error, the majority opinion further has heightened the

standard for making out a prima facie case of negligence in general.



              In view of the foregoing, I dissent. I am authorized to state that Justice

Workman joins me in this dissenting opinion.




                                               14

