                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Deana Ritchey and Paul Gruber,                                                   FILED
Plaintiffs Below, Petitioners                                                  November 22, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
vs) No. 13-0365 (Tucker County 09-C-30)                                       OF WEST VIRGINIA



Mountain State Brewing Co., LLC,
Defendant Below, Respondent


                             MEMORANDUM DECISION
        Petitioners Deana Ritchey and Paul Gruber, by counsel J. Wesley Chancey and Dorwin
Wolfe, appeal the order granting summary judgment in favor of respondent entered by the
Circuit Court of Tucker County on March 7, 2013. Respondent Mountain State Brewing Co.,
LLC, by counsel Jeffrey Zurbuch, Peter Zurbuch, and Pat A. Nichols, filed a response in support
of the circuit court’s order.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Respondent Mountain State Brewing Company is a bar located in Thomas, Tucker
County, West Virginia. During the evening of June 14 and early morning of June 15, 2007,
Petitioner Deana Ritchey (“Ritchey”) was working as a bartender for respondent. Petitioner Paul
Gruber (“Gruber”) was a patron at the bar, along with Foster Thompson (“Thompson”).
Thompson attempted to speak with Ritchey, but she rebuffed Thompson, left the main building,
and went to the outdoor patio with a female friend. Gruber later joined the women on the patio.
Thompson went to the patio and, when Ritchey again rebuffed him, he threw a glass to the
ground and left the premises. The circuit court found that the record did not show that Ritchey or
her companions entered the bar to inform anyone about the incident.

       Thompson re-entered the bar and went to the patio where he stabbed Ritchey multiple
times. Several people intervened, and Thompson stabbed two others, including Petitioner
Gruber. Thompson pled guilty to three counts of attempted second degree murder in the
subsequent criminal proceeding. Petitioners sued respondent on the ground that respondent was
negligent, and the theory that seemed to develop during discovery was that respondent was
negligent in failing to eject Thompson when he returned to the bar.



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        In its order granting summary judgment to respondent, the circuit court noted that no acts
of violence had occurred at Mountain State Brewing prior to June 15, 2007. The court stated that
while Thompson carried a pocket knife that he used to whittle, it was disputed whether
Thompson ever whittled in the bar and whether the owners of Mountain State Brewing knew that
he carried that knife. In addition, the circuit court pointed out a dispute as to whether Ritchey
told a Mountain State Brewing co-owner, Brian Arnett, that she was fearful of Thompson
because he had previously sharpened knives and a machete on Ritchey’s front porch. The circuit
court also noted a disagreement as to whether Arnett and another co-owner of Mountain State
Brewing, Willie Lehman, knew about the relationship between Ritchey and Thompson. The
court concluded that it was apparent from the pleadings and arguments at the hearing on the
motion for summary judgment that Thompson harbored romantic feelings toward Ritchey, which
were not reciprocated. In its order, the circuit court addressed negligence and foreseeability. It
found that if respondent knew of Thompson’s ownership of a pocket knife and ability to sharpen
knives, those facts did not demonstrate a tendency or proclivity towards violence. Further, the
circuit court found that Ritchey’s recitals alone did not demonstrate that Thompson’s actions
were foreseeable, particularly in light of the fact that Thompson had no previous criminal record,
had not threatened Ritchey or anyone else to her knowledge, and had not been involved in any
prior altercation at Mountain State Brewing. In summary, the circuit court concluded that
petitioners had not produced sufficient evidence to show that on the night of the incident,
respondent should have known that Thompson would attack petitioners. The circuit court granted
summary judgment to respondent, and petitioners appeal that order.

       “‘A circuit court’s entry of summary judgment is reviewed de novo.’ Syllabus point 1,
Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).” Syl. Pt. 1, Mack-Evans v. Hilltop
Healthcare Center, Inc., 226 W.Va. 257, 700 S.E.2d 317 (2010).

       “Under the provisions of Rule 56 of the West Virginia Rules of Civil Procedure,
       when the moving party presents depositions, interrogatories, affidavits and
       otherwise indicates there is no genuine issue as to any material fact, the resisting
       party to avoid summary judgment must present some evidence that the facts are in
       dispute.” Syl. Pt. 2, Guthrie v. Northwestern Mutual Life Insurance Co., 158
       W.Va. 1, 208 S.E.2d 60 (1974).

Syl. Pt. 7, Haddox v. Suburban Lanes, Inc., 176 W.Va. 744, 349 S.E.2d 910 (1986).

        Further, “‘[t]he circuit court’s function at the summary judgment stage is not to weigh the
evidence and determine the truth of the matter, but is to determine whether there is a genuine
issue for trial.’ Syl. pt. 3, Painter, 192 W.Va. 189, 451 S.E.2d 755.” Mack-Evans, 226 W.Va. at
261, 700 S.E.2d at 321.

        In their appeal, petitioners assert three assignments of error. First, petitioners contend that
the circuit court’s holding necessarily required a factual determination of foreseeability, and such
finding of fact is improper in a summary judgment proceeding. Petitioners assert that the circuit
court determined that respondent neither knew nor should have known that Thompson’s actions
were foreseeable, despite strong evidence to the contrary by petitioners. They also argue that a
business owner owes a duty to exercise reasonable care to prevent foreseeable harm. Petitioners


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assert that the only issue presented to the circuit court turned on whether the harm inflicted was
foreseeable to respondent and that the circuit court erroneously determined that no genuine issue
of material fact existed regarding the element of foreseeability. As this Court has previously
found, “‘[t]he 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.’ Syl. Pt. 5,
Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000).” Syl. Pt. 4, Strahin v. Cleavenger, 216
W.Va. 175, 603 S.E.2d 197 (2004). “When the facts about foreseeability as an element of duty
are disputed and reasonable persons may draw different conclusions from them, two questions
arise- one of law for the judge and one of fact for the jury.” Id. at 180, 603 S.E.2d at 202, syl. pt.
11. This Court examined a similar situation in Haddox, wherein we addressed the foreseeability
of a gunman entering a bowling alley and opening fire after making threats to his wife who was
in that bowling alley. See generally Haddox, 176 W.Va. 744, 349 S.E.2d 910 (1986). As
recognized in that matter:

       Failure to take precautionary measures to prevent an injury which if taken would
       have prevented the injury is not negligence if the injury could not reasonably have
       been anticipated and would not have happened if unusual circumstances had not
       occurred. Where a course of conduct is not prescribed by a mandate of law,
       foreseeability of injury to one to whom duty is owed is the very essence of
       negligence. A person is not liable for damages which result from an event which
       was not expected and could not have been anticipated by an ordinarily prudent
       person. If an occurrence is one that could not reasonably have been expected[,]
       the defendant is not liable. Foreseeableness or reasonable anticipation of the
       consequences of an act is determinative of defendant's negligence.

Haddox, 176 W.Va. at 748, 349 S.E.2d at 914 (internal citations omitted) (quoting Mathews v.
Cumberland Allegheny Gas Company, 138 W.Va. 639, 653, 77 S.E.2d 180, 188 (1953)). Just as
in Haddox, the record in the present case reveals that no one expected Thompson to act as he did.
Haddox, 176 W.Va. at 749, 349 S.E.2d at 914. Ritchey testified during her deposition that
Thompson never threatened her or anyone else that she observed. She also testified that she
never heard about Thompson threatening anyone else or being involved in any disturbances or
attacking anyone else prior to this incident. While the record reflects that Thompson did break a
glass in an outdoor area of respondent’s location, we do not find as a matter of law that under
these facts Thompson’s actions were foreseeable to respondent or anyone else at respondent’s
location at the time of the incident in June of 2007. Therefore, the circuit court did not err in
granting summary judgment to respondent on the issue of foreseeability.

        Petitioners’ second assignment of error is that the circuit court misinterpreted the Haddox
case and relied on this misinterpretation to issue its erroneous decision. See Haddox, 176 W.Va.
744, 349 S.E.2d 910 (1986). Petitioners argue that the reason this Court upheld summary
judgment in Haddox was because the plaintiffs in that action resisted the motion for summary
judgment only on argument, filing no affidavits disputing any of the bowling alley’s factual
allegations. Id. While petitioners are correct that we noted in Haddox that the plaintiffs “resisted
the motion for summary judgment only by argument[]” and that they “filed no counter-affidavit
disputing any of [the defendant’s] factual allegations[,]” petitioners ignore the majority of this


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Court’s discussion in that case. Id. at 749, 349 S.E.2d at 915. Based upon our review of the
record and West Virginia precedent, including Haddox, we find that the circuit court did not err
in granting summary judgment to respondent.

         Finally, petitioners argue that the circuit court misapplied the foreseeability standard by
failing to take into consideration what respondent knew or should have known. Petitioners are
critical of language in the circuit court’s order granting summary judgment wherein the circuit
court found that petitioners did not report the smashing of the glass and that without this key
piece of information, it is not reasonable to believe that respondent should have foreseen that
Thompson would attack petitioners. Petitioners point to the fact that one of the bar owners was
on the premises at the time of both the glass breaking and the stabbing. They argue that the
owner should have known that a patron was screaming and destroying property. As set forth
above, there is no evidence in the record that Thompson made any threats to petitioners or other
patrons on the night of the incident in June of 2007. Despite petitioners arguments to the
contrary, the record does not support their contention that Thompson was screaming and causing
a noticeable scene. We also note that the unforeseen criminal acts of an individual break “the
chain of causation which originally began with the defendant’s negligent act and relieving the
defendant of any liability.” Yourtee v. Hubbard, 196 W.Va. 683, 691, 474 S.E.2d 613, 621
(1996). As set forth herein, Thompson’s acts in respondent’s location on June of 2007 were not
foreseeable as a matter of law. To the extent petitioners argue that respondent was negligent, the
chain of causation was broken by Thompson’s criminal act of stabbing the petitioners.

       For the foregoing reasons, we affirm.


                                                                                         Affirmed.

ISSUED: November 22, 2013

CONCURRED IN BY:

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




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