No. 14-0258 – David Ragonese v. Racing Corporation of West Virginia, d/b/a Mardi
              Gras Casino and Resort
                                                                                FILED
                                                                         February 12, 2015
                                                                            released at 3:00 p.m.

                                                                          RORY L. PERRY II, CLERK

                                                                        SUPREME COURT OF APPEALS

                                                                             OF WEST VIRGINIA


Justice Ketchum, concurring:

              I agree that the defendant was not entitled to summary judgment. As the

parties presented their case, there was a jury issue presented as to whether the plaintiff

was a trespasser.

              Before the summary judgment hearing the defendant withdrew its

contention that no duty of care was owed to the plaintiff because the steep hill and wall

he traversed were “open and obvious” defects. The defendant withdrew these grounds

for summary judgment due to this Court’s opinion in Hersh v. E-T Enterprises, 232

W.Va. 305, 752 S.E.2d 336 (2013).

              If the open and obvious issue had been presented to the circuit court, I

believe the defendants would have been entitled to summary judgment.

              Hersh makes clear that the owner of the premises is not an insurer of an

invitee’s safety; the owner is not responsible for every slip and fall; whether a premises

owner owes someone a duty of care is usually a question of law for the trial court;1 and a

landowner has no duty to eliminate every potential hazard, but rather only has a duty to


              1
                  See also Syllabus Point 5, Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d
576 (2000) (“The 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.”).
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ameliorate the risk posed by a hazard where it is reasonably foreseeable that harm is

likely to result from the hazard. Hersh v. E-T Enterprises, Ltd. P'ship, 232 W.Va. at 317,

752 S.E.2d at 348.

              Here, it is undisputed that the steep bank with a six-foot high retaining wall

at the bottom of the bank was a hazard that the plaintiff knew existed. To ameliorate the

risk posed by the hazard, the defendant built two walkways around the steep bank and

six-foot high wall. These walkways eliminated the need for anyone to pass through a row

of bushes, walk down the open-for-all-to-see and obviously steep bank and fall off the

six-foot high wall.

              The defendant met its duty of care toward the plaintiff, taking indisputably

reasonable steps to ameliorate the risk posed by the hazard. The defendant met its duty

of care, as set out in Hersh. The plaintiff blithely failed to exercise self-protective care

(and by-passed the defendant’s reasonable steps to ameliorate the hazard) when he

stepped off the sidewalk, walked through a row of bushes, descended the steep slope and

fell over the wall.

              I believe that the defendant would have been entitled to summary judgment

if they had not withdrawn their open and obvious contention after Hersh was issued.

              Although the defendant would have been entitled to summary judgment,

this Court should consider adopting a new point of law to clarify that landowners who

build sidewalks around open and obvious hazards have breached no duty of care to a

plaintiff who leaves the sidewalk and is injured by the hazard.         Other courts have

concluded that if a landowner

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             provides a clear means of ingress and egress and an invitee
             strays off the normal pathway onto an area that is obviously
             not reserved for that purpose, the landowner has not breached
             its duty of “reasonable care.” When a pathway for normal
             access is made available to an invitee and the dangers of
             straying off the clear path are, as here, open and obvious, the
             premise possessor owes no duty to warn or protect such an
             invitee.

Buhalis v. Trinity Continuing Care Servs., 296 Mich. App. 685, 689, 822 N.W.2d 254,

256 (2012)




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