                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS


Kayla B. Barb and Deanna K. Wright
                                                                                    FILED
Plaintiffs Below, Petitioners                                                   January 8, 2016
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 14-1115 (Jefferson County 13-C-382)                                      OF WEST VIRGINIA


The Shepherd University Board of Governors,
Defendant Below, Respondent


                                MEMORANDUM DECISION
       Petitioners, Kayla B. Barb and Deanna K. Wright,1 by counsel Jerry D. Moore and Jared
T. Moore, appeal the October 15, 2014, order of the Circuit Court of Jefferson County granting
summary judgment to respondent. Respondent, The Shepherd University Board of Governors
(“Shepherd University”), by counsel Lucien G. Lewin, Amy M. Smith, and Carlie M. Lacy,
responds in support of the circuit court’s order. Petitioners 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.

        On January 13, 2012, Kayla Barb, then a student at Shepherd University, was struck by a
motor vehicle2 as she was crossing a crosswalk on West Virginia State Route 480, a public
roadway that bisects the east and west campuses of Shepherd University. On October 22, 2013,
petitioners filed a complaint against respondent in the Circuit Court of Jefferson County,
asserting claims of negligence and premises liability.

         On September 10, 2014, respondent filed a motion for summary judgment and argued
that it could not be held liable for petitioners’ claims because it did not own the property where
the accident occurred; because Ms. Barb’s damages were not proximately caused by respondent;
because Ms. Barb failed to exercise ordinary care, assumed the risk of injury and caused her own
injuries; and because the actions of Ms. Barb and Ms. Smallwood constituted superseding and

       1
           Petitioner Wright is the mother of Petitioner Barb.
       2
       Ms. Barb was struck by a motor vehicle driven by Bonnie Mae Smallwood. While
named as a defendant in petitioners’ complaint, Ms. Smallwood is not involved in this appeal.



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intervening causes. Petitioners served a response to the motion for summary judgment on
September 26, 2014.

       The circuit court conducted a pretrial hearing on October 3, 2014, at which time the court
heard argument on respondent’s motion for summary judgment. The circuit court reserved its
ruling on respondent’s motion for summary judgment to allow respondent to file a reply in
support of its motion, which was filed on October 8, 2014. During an October 14, 2014,
telephonic hearing, the circuit court granted respondent’s motion for summary judgment.

        In its order granting respondent’s motion for summary judgment, entered October 15,
2014, the circuit court found that because respondent did not own the property upon which the
accident occurred, it had no duty to Ms. Barb to ensure her safety while crossing the crosswalk at
issue. Further, the court noted that as petitioners failed to establish a duty owed by respondent to
petitioners, petitioners claims could not proceed as a matter of law.

       The court further ruled that respondent did not cause Ms. Barb’s injuries. In making its
finding, the circuit court noted that the following facts were undisputed:

               1)      Ms. Barb was struck by a motor vehicle while crossing a crosswalk
                       located on West Virginia State Route 480 and injured as a result thereof;

               2)      Ms. Smallwood admitted that she had driven the route where the
                       crosswalk is located for thirty years, that she knows that students use the
                       crosswalk, and that she has stopped for students several times in the past;

               3)      Ms. Smallwood admitted that she could see both the road and the
                       crosswalk clearly but that she did not look to see whether any pedestrians
                       were nearing the crosswalk in preparation to cross the road;

               4)      Ms. Smallwood admitted that she had a duty to yield to Ms. Barb, a
                       pedestrian, and that she did not so yield;

               5)      Ms. Barb admitted that she was aware that vehicle traffic at the crosswalk
                       at issue was potentially dangerous, that vehicles sometimes travel too fast
                       through that area, and that drivers often do not stop to allow students to
                       cross the road;

               6)	     Ms. Barb admitted that she knew she was supposed to look both ways
                       before crossing a street, and that no evidence was submitted to show that
                       she looked both directions while crossing the crosswalk; and

               7)	     Ms. Barb admitted that she had her iPod and cell phone with her at the
                       time of the accident, and an eyewitness saw her with earbuds in her ears
                       and with the cell phone immediately prior to the accident.




                                                 2

Based on these factors, the circuit court found that Ms. Smallwood and Ms. Barb’s own
negligent actions and failure to use reasonable care were the proximate and intervening causes of
Ms. Barb’s injury and damages. It is from the circuit court’s October 15, 2014, order that
petitioners now appeal.

        We review the award of summary judgment under the standard set forth in syllabus point
one of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), where we held that “[a] circuit
court’s entry of summary judgment is reviewed de novo.” We have further held that:

               [s]ummary judgment is appropriate if, from the totality of the evidence
       presented, the record could not lead a rational trier of fact to find for the
       nonmoving party, such as where the nonmoving party has failed to make a
       sufficient showing on an essential element of the case that it has the burden to
       prove.

Syl. Pt. 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

        Pursuant to Rule 56(c) of the West Virginia Rules of Civil Procedure, in part, summary
judgment is appropriate when the record shows 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.” Accordingly, “[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. of N.Y., 148 W.Va. 160. 133
S.E.2d 770 (1963). In accord, Syl. Pt. 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421
S.E.2d 247 (1992); Syl. Pt. 1, Williams; Syl. Pt. 3, Evans v. Mut. Mining, 199 W.Va. 526, 485
S.E.2d 695 (1997).

        With these principles in mind, we turn to the issues in this case. On appeal, petitioners
assert three assignments of error. First, petitioners argue that the circuit court erred in not
recognizing, as a matter of law, that respondent owed Ms. Barb a duty of care. Second,
petitioners contend that the circuit court erred in finding that the acts and omissions of
respondent were not the proximate cause of petitioners’ injuries and damages. Lastly, petitioners
argue that the circuit court’s award of summary judgment to respondent was premature.

        In order to establish a prima facie case of negligence in West Virginia, a plaintiff must
show that a defendant has been guilty of some act or omission in violation of a duty owed to the
plaintiff. No action will lie without a duty broken. Jack v. Fritts, 193 W.Va. 494, 497-98, 457
S.E.2d 431, 434-35 (1995) (quoting Syl. Pt. 1, Parsley v. General Motors Acceptance Corp., 167
W.Va. 866, 280 S.E.2d 703 (1981)). Determinations of whether a defendant owes a duty to the
plaintiff is a determination to be rendered by the court as a matter of law. See Syl. Pt. 5, Aikens v.
Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000).

       In the case sub judice, respondent filed its motion for summary judgment seeking
dismissal of petitioners’ claims that respondent was negligent in failing to warn students and
motorists of the dangerous condition of the crosswalk; in failing to inspect, repair and monitor
warning devices in place at or around the crosswalk; and in failing to “protect the safety of

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student pedestrians crossing West Virginia Route 480.” Based upon the evidence before it, the
circuit court determined that respondent owed no duty to petitioners. The circuit court noted that
it was undisputed that the respondent did not own the property upon which the accident at issue
occurred. The accident occurred on a public roadway owned by the State of West Virginia. As
such, respondent had no duty to Ms. Barb to ensure her safety while crossing the subject
crosswalk.3

       Petitioners liken the facts of this case to the facts present in syllabus point three of
Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992), in which we held that

              [w]here the operator of a business obtains the right for its customers to park
       in an adjoining lot owned by another and invites them to do so, the operator has a
       duty of reasonable care to protect its invitees from defective or dangerous
       conditions existing in the parking area which the operator knows or reasonably
       should know exist.

        In Andrick, the defendants owned and operated a restaurant. The building where the
restaurant was located was leased from the owner of a motel located on the other side of the
street. Restaurant customers were allowed to park in the motel parking lot. Mrs. Andrick parked
her vehicle in the motel parking lot and walked towards the restaurant. While walking to the
restaurant, she fell in the motel parking lot and was injured. Petitioners contend that similar to
the restaurant owner in Andrick, respondent was fully aware that its students were required to
cross West Virginia 480 in order to travel between respondent’s west and east campuses, and that
the students predominantly used the crosswalk at issue for such purpose. As such, petitioners
contend that the circuit court erred in failing to recognize that respondent owed Ms. Barb a duty
of care under a premises liability standard. Conversely, respondent argues that the facts present
in the Andrick case are readily distinguishable from the facts of the case herein, as the accident at
issue in this case occurred on publicly owned and publicly used property, where the accident in
Andrick occurred on privately owned and maintained property. We agree.

        Here, there is no dispute in the record that the property where the accident occurred was
owned by the State of West Virginia. It was further undisputed that the WVDOH maintained
State Route 480 and controlled the crosswalk at issue at all relevant times. The record reveals
that respondent needed (and requested) permission and authority from the WVDOH to make
improvements to the crosswalk, and the correspondence between it and the WVDOH illustrates
the WVDOH’s control over the crosswalk.

       As we noted in syllabus point three of Puffer v. The Hub Cigar Store, Inc., 140 W.Va.
327, 84 S.E.2d 145 (1954) (overruled on other grounds by Mallet),

              [t]he owner or the occupant of premises used for business purposes is not
       an insurer of the safety of an invited person present on such premises and, if such

       3
        See McDonald v. Univ. of W.Va. Bd. of Trustees, 191 W.Va. 179, 444 S.E.2d 57 (1994);
Hersh v. E-T Enterprises, Ltd. P’ship, 232 W.Va. 305, 752 S.E.2d 336 (2013).


                                                 4

        owner or occupant is not guilty of negligence or willful or wanton misconduct and
        no nuisance exists, he is not liable for injuries there sustained by such invited
        person.

        Because petitioners have failed to establish a duty owed by respondent to petitioners,
their claims cannot proceed as a matter of law. Yourtree v. Hubbard, 196 W.Va. 683, 689, 474
S.E.2d 613, 619 (1996). Thus, based upon the limited circumstances of this case, we find no
error with the circuit court’s ruling that respondent did not owe Ms. Barb a duty of care to ensure
her safety as she crossed a publicly owned crosswalk.

        In their second assignment of error, petitioners contend that the circuit court erred in
construing questions of material fact against petitioners by finding that respondent’s acts and
omissions were not the proximate cause of petitioners’ injuries and damages. We decline to
address petitioner’s arguments on this issue, as our ruling on petitioner’s first assignment of error
(finding that respondent owed petitioner no duty of care) is dispositive as to this issue as well.

        Lastly, petitioners argue that the circuit court’s award of summary judgment to
respondent was premature because additional discovery was necessary.4 It is undisputed that in
the several months prior to respondent’s filing its motion for summary judgment, that petitioners
filed a motion to compel.5 Specifically, petitioners sought the circuit court’s intervention to
compel respondent to produce witnesses for deposition and to produce certain documents.
Petitioners filed their motion to compel on July 21, 2014. Respondent filed its motion for
summary judgment on September 10, 2014. In their response to the motion for summary
judgment, petitioners do not reference the need for additional discovery. At no time after the
filing of respondent’s motion for summary judgment did petitioners submit any affidavits, as
outlined in Rule 56(f) of the West Virginia Rules of Civil Procedure,6 arguing that respondent’s
summary judgment motion was premature.



        4
        In support of their position, petitioners cite Payne’s Hardware & Bldg. Supply, Inc., v.
Apple Valley Trading Co., of W.Va, 200 W.Va. 685, 690, 490 S.E.2d 772, 777 (1997), in which
this Court found that “[s]ummary judgment is appropriate only after the non-moving party has
enjoyed ‘adequate time for discovery’”. Further, this Court has recognized that summary
judgment prior to the completion of discovery is “precipitous.” Id.
        5
         During the course of discovery, on July 21, 2014, petitioners filed a motion to compel
against respondent, requesting that respondent be compelled to designate a representative with
sufficient knowledge to fully and completely answer questions with regard to certain topics and
that respondent be compelled to produce certain documents. Respondent filed a response to the
motion to compel indicating that all available information had been provided to petitioners.
Petitioners submitted a reply. No ruling was made upon the motion to compel prior to the court’s
granting of summary judgment to respondent.
        6
            Rule 56(f) of the West Virginia Rules of Civil Procedure provides that

(continued . . .)
                                                   5

        Conversely, respondent argues that the circuit court did not abuse its discretion in
granting summary judgment prior to ruling on petitioners’ motion to compel because petitioners
did not comply with Rule 56(f) of the West Virginia Rules of Civil Procedure or otherwise raise
the issue below. Respondent asserts that petitioners had adequate time for discovery, and they
provide no basis for the requested relief herein.

        In syllabus point three of Crain v. Lightner, 178 W.Va. 765, 364 S.E.2d 778 (1987), we
ruled that

               [w]here a party is unable to resist a motion for summary judgment because
       of an inadequate opportunity to conduct discovery, that party should file an
       affidavit pursuant to W.Va.R.Civ.P. 56(f) and obtain a ruling thereon by the trial
       court. Such affidavit and ruling thereon, or other evidence that the question of a
       premature summary judgment motion was presented to and decided by the trial
       court, must be included in the appellate record to preserve the error for review by
       this Court.

       Further, in syllabus point three of Williams, we held that

               [i]f the moving party makes a properly supported motion for summary
       judgment and can show by affirmative evidence that there is no genuine issue of a
       material fact, the burden of production shifts to the nonmoving party who must
       either (1) rehabilitate the evidence attacked by the moving party, (2) produce
       additional evidence showing the existence of a genuine issue for trial, or (3)
       submit an affidavit explaining why further discovery is necessary as provided in
       Rule 56(f) of the West Virginia Rules of Civil Procedure.

        Where a party fails to avail himself of the relief granted through Rule 56(f), “it is
generally not an abuse of discretion for a circuit court to rule on a motion for summary
judgment.” Id. at 62, 459 S.E.2d at 339. As we have often explained, “[t]he law ministers to the
vigilant, not those who slumber on their rights.” Powderidge Unit Owners Ass’n v. Highland
Properties, Ltd., 196 W.Va. 692, 703, 474 S.E.2d 872, 883 (1996). Accordingly, as petitioners
failed to submit an affidavit explaining the need for further discovery and failed to reference the
need for additional discovery in its response to respondent’s motion for summary judgment, we
find that the circuit court did not err in granting summary judgment to respondent.7


       [w]hen affidavits are available. - Should it appear from the affidavits of a party
       opposing the motion [for summary judgment] that the party cannot for reasons
       stated present by affidavit facts essential to justify the party’s opposition, the
       court may refuse the application for judgment or may order a continuance to
       permit affidavits to be obtained or depositions to be taken or discovery to be had
       or may make such other order as is just.
       7
        Petitioners argue that the “invocation of Rule 56(f) does not demand hypertechincal
compliance with its terms.” Powderidge, 196 W.Va. at 702, 474 S.E.2d at 882. The Powderidge
(continued . . .)
                                                6

     For the foregoing reasons, we affirm the circuit court’s October 15, 2014, order granting
summary judgment to respondent.

                                                                                         Affirmed.
ISSUED: January 8, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING:

Justice Robin Jean Davis




court ruled that “[a]n opponent of a summary judgment motion need not follow the exact letter of
Rule 56(f) in order to obtain its benefits.” Id. When a formal affidavit is not proffered under Rule
56(f), then “statement must be made in some authoritative manner by the party under penalty of
perjury or by written representations of counsel subject to Rule 11 of the West Virginia Rules of
Civil Procedure [must be made] and filed with the circuit court.” Id. In this case, petitioners
contend that they took proper steps by filing a motion to compel, subject to Rule 11, long before
respondent filed its motion for summary judgment, and that the four requirements of Powderidge
were satisfied in the body of petitioners’ motion to compel. We are not persuaded by petitioners’
arguments. Petitioners made no reference to the need for additional discovery in their response to
respondent’s motion to compel and first raises the issue of the prematurity of respondent’s
motion for summary judgment on appeal.



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