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

Benjamin, Justice, concurring:


       I agree with the majority’s conclusion that factual questions exist as to whether the

petitioner, David Ragonese, was a trespasser at the time he was injured. These factual

uncertainties preclude summary judgment on the issue of trespass.



       Upon remand, should the fact-finder determine that Mr. Ragonese was not a

trespasser, this Court’s recent opinion, Hersh v. E-T Enterprises, Limited Partnership,

232 W. Va. 305, 752 S.E.2d 336 (2013), will control in determining the liability of the

respondent, Racing Corporation of West Virginia, d/b/a Mardi Gras Casino and Resort

(“Mardi Gras Casino”). In syllabus point 6 of Hersh, the Court abolished the open and

obvious doctrine in premises liability negligence actions. Justice Loughry and I dissented

in Hersh because we believe the open and obvious doctrine embodied in the law

traditional concepts of personal responsibility and because application of the open and

obvious doctrine acted to prevent frivolous law suits proceeding past the summary

judgment phase. I write separately in the present case to reaffirm the position of Justice

Loughry and myself in Hersh: By eliminating the open and obvious doctrine, this Court

has fundamentally damaged the means by which premises liability cases proceed through

our judicial system.
