                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Michael B. Slusarek,                                                              FILED
Plaintiff Below, Petitioner                                                    June 12, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 14-0955 (Brooke County 12-C-141)
                                                                               OF WEST VIRGINIA


John Riley Co., LLC, d/b/a
Kwik King Food Stores,
a West Virginia company,
Defendant Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Michael B. Slusarek, by counsel Jeffrey L. Robinette and Terry B. Tignor,
appeals the order of the Circuit Court of Brooke County, entered on August 15, 2014, denying
his motion for judgment notwithstanding the verdict, and alternatively, his motion for a new trial.
Respondent John Riley Co., LLC, d/b/a Kwik King Food Stores, by counsel Michelle L.
Gorman, filed a response. Petitioner 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.

                              Factual and Procedural Background

        The present appeal arises from an incident that occurred at the respondent’s Weirton
Kwik King store in the late hours of July 6, 2012, and early morning of July 7, 2012. Petitioner
made a purchase at the drive-through window and claimed that he received incorrect change. The
clerk who served petitioner did not know whether petitioner paid with a $10 bill or a $20 bill;
therefore, according to store policy, petitioner was asked to leave his name and telephone
number so that he could be contacted the following day and reimbursed any money due him if he
was given incorrect change. Petitioner refused to do so and began yelling at respondent’s shift
supervisor, Tamara Staats. Ms. Staats’ boyfriend, Jordan Parker, was in the store at the time of
incident and went outside to talk to petitioner. The two men eventually began yelling at each
other and Mr. Parker punched petitioner. The police were called and responded to the incident,
however, no charges were filed.

       Petitioner filed a civil action against (1) respondent, (2) John and Rita Riley, each
individually, and (3) Jordan Parker, individually. Against respondent, petitioner alleged claims of

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premises liability, vicarious liability, negligent supervision, and intentional infliction of
emotional distress. Petitioner sought both compensatory and punitive damages. Petitioner’s
appeal centers on his allegation that Mr. Parker was an agent and/or a volunteer employee of
respondent, and therefore, respondent should be liable for Mr. Parker’s conduct.

        The case proceeded to a three-day jury trial in July of 2014. After the close of evidence,
the circuit court granted Mr. and Mrs. Riley’s motion to dismiss them as individuals, finding that
there was no legally sufficient basis for a reasonable jury to find them liable. Additionally, the
circuit court granted the Rileys’ and respondent’s motions to dismiss petitioner’s claim of
premises liability and claim for punitive damages. The circuit court denied Mr. Parker’s motion
to dismiss petitioner’s punitive damages claim; however, petitioner later withdrew it.

        The jury returned a verdict finding that Mr. Parker acted intentionally to cause harmful or
offensive contact with petitioner; that Mr. Parker was ninety percent at fault; that respondent was
five percent at fault; and that petitioner was five percent at fault. Important for the purposes of
this appeal, the jury found that respondent was not vicariously liable for Mr. Parker’s actions.
The jury awarded petitioner damages totaling $206,024.09. Petitioner then filed a motion for
judgment notwithstanding the verdict against respondent, and alternatively, a motion for a new
trial on vicarious liability, respondeat superior, and premises liability against respondent. The
circuit court denied those motions by order entered on August 15, 2014, and this appeal
followed.

                                            Discussion

        Petitioner raises three assignments of error on appeal. First, he asserts that the circuit
court erred in denying his motion for judgment notwithstanding the verdict against respondent,
arguing that the jury’s failure to hold respondent vicariously liable for Mr. Parker’s actions was
against the greater weight of the evidence. With respect to our review of the denial of a motion
for judgment notwithstanding the verdict, we have held as follows:

               In reviewing a trial court's denial of a motion for judgment
       notwithstanding the verdict, it is not the task of the appellate court reviewing facts
       to determine how it would have ruled on the evidence presented. Its task is to
       determine whether the evidence was such that a reasonable trier of fact might
       have reached the decision below. Thus, in ruling on a denial of a motion for
       judgment notwithstanding the verdict, the evidence must be viewed in the light
       most favorable to the nonmoving party. If on review, the evidence is shown to be
       legally insufficient to sustain the verdict, it is the obligation of the appellate court
       to reverse the circuit court and to order judgment for the appellant.

Syl. Pt. 1, in part, Alkire v. First Nat’l Bank of Parsons, 197 W.Va. 122, 475 S.E.2d 122 (1996).
Additionally, this Court has long held that

              [i]n determining whether the verdict of a jury is supported by the
       evidence, every reasonable and legitimate inference, fairly arising from the
       evidence in favor of the party for whom the verdict was returned, must be

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       considered, and those facts, which the jury might properly find under the
       evidence, must be assumed as true.

Syl. Pt. 3, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963).

        With regard to the question of whether an agency relationship exists, we have held that
“if the facts pertaining to the existence of an agency are conflicting, or conflicting inferences
may be drawn from them, the question of the existence of the agency is one of fact for the jury.”
Syl. Pt. 1, in part, Laslo v. Griffith, 143 W.Va. 469, 102 S.E.2d 894 (1958). Moreover, “[t]he law
indulges no presumption that an agency exists; on the contrary a person is legally presumed to be
acting for himself and not as the agent of another person; and the burden of proving an agency
rests upon him who alleges the existence of the agency.” Syl. Pt. 3, Bluefield Supply Co. v.
Frankel’s Appliances, Inc., 149 W.Va. 622, 142 S.E.2d 898 (1965).

         In the present case, the issue of whether Mr. Parker was acting as respondent’s agent
when he confronted petitioner was vigorously disputed. Petitioner argues that the jury’s finding
that respondent was not liable for Mr. Parker’s conduct went against the clear weight of the
evidence. Petitioner argues that the surveillance video1 of the incident shows Mr. Parker kissing
and holding hands with Ms. Staats before the incident; the cashier taking petitioner’s order; Ms.
Staats attending to petitioner, aware of the dispute; and then, most importantly, Ms. Staats
handing Mr. Parker the receipt and allowing him to interact with petitioner, with receipt in hand.
Additionally, petitioner states that Ms. Staats confirmed that Mr. Parker was trying to explain the
store’s policy of gathering contact information to petitioner when the fight erupted, providing
clear evidence that Mr. Parker was acting on respondent’s behalf at the time. Finally, petitioner
testified that Mr. Parker told him he was an employee of respondent.

        Upon our review of the record, and given the applicable standard of review, we find it
unwarranted to disturb the jury’s finding. The jury watched the surveillance video multiple times
and drew its own conclusions. Mr. Parker disputed petitioner’s testimony that he told petitioner
he was respondent’s employee. The jury heard Mr. Parker testify that Ms. Staats did not know
what he was doing when he confronted petitioner and that she was on the phone at the time she
handed him the receipt. Additionally, the cashier who served petitioner testified that Mr. Parker
was not instructed to handle the situation on Ms. Staats or respondent’s behalf. Petitioner’s
disagreement with the jury’s findings does not equate to error. Therefore, based on our review,
the evidence was such that a reasonable jury might have reached the decision it did, and the
circuit court did not err in denying petitioner’s motion for judgment notwithstanding the verdict.

        Petitioner’s second assignment of error is that the circuit court erred by refusing to give a
fair and balanced set of jury instructions addressing a crucial aspect of petitioner’s case, which
he contends severely prejudiced his vicarious liability claim. Petitioner argues that the error came
when the circuit court gave the following instruction requested by respondent:

       You must then determine if [respondent] is liable for the acts of [Jordan Parker]
       under a theory of vicariously liable (sic). A tortfeasor whose negligence is a

       1
           Respondent notes that the video surveillance did contain audio.
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       substantial factor in bringing about injuries is not relieved from liability by the
       intervening acts of third persons if those acts were reasonably foreseeable by the
       original tortfeasor at the time of the negligent conduct. However, generally, a
       willful or malicious (sic) breaks the chain of causation.

        Petitioner requested the following balancing instruction from a 1928 case,2 which the
circuit court denied:

       Under W.Va. law, a person or business entity that sends forth an agent is
       responsible when the agent, through a “lack of judgment or discretion, or from
       infirmity of temper, or when under the influence of passion aroused by the
       circumstance and the occasion,” goes beyond the strict line of his or duty or
       authority and inflicts injury upon another.

Petitioner contends that it was clear that Mr. Parker’s acts were intentional, but such a finding
should not shield respondent from liability in every scenario.

        We disagree that the circuit court erred in its jury instructions.

               “The formulation of jury instructions is within the broad discretion of a
       circuit court, and a circuit court's giving of an instruction is reviewed under an
       abuse of discretion standard. A verdict should not be disturbed based on the
       formulation of the language of the jury instructions so long as the instructions
       given as a whole are accurate and fair to both parties.”

Syl. Pt. 6, Tennant v. Marion Health Care Found., Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995).
Additionally, we have held that

               “A trial court's instructions to the jury must be a correct statement of the
       law and supported by the evidence. Jury instructions are reviewed by determining
       whether the charge, reviewed as a whole, sufficiently instructed the jury so they
       understood the issues involved and were not misle[d] by the law. A jury
       instruction cannot be dissected on appeal; instead, the entire instruction is looked
       at when determining its accuracy. A trial court, therefore, has broad discretion in
       formulating its charge to the jury, as long as the charge accurately reflects the law.
       Deference is given to a trial court's discretion concerning the specific wording of
       the instruction, and the precise extent and character of any specific instruction
       will be reviewed only for an abuse of discretion.” Syllabus point 4, State v.
       Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

Syl. Pt. 2, Reynolds v. City Hosp., Inc., 207 W.Va. 101, 529 S.E.2d 341 (2000).

       When read in their entirety, we find that the instructions as given were correct. Petitioner
does not dispute that willful and malicious acts break the chain of causation; however, he claims

       2
           Nees v. Julian Goldman Stores, Inc., 106 W.Va. 502, 146 S.E.2d 61 (1928).
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that the instruction was erroneous because it was designed to absolve respondent of all liability
for Mr. Parker’s conduct despite overwhelming evidence that he was working on respondent’s
behalf. The obvious problem with petitioner’s argument is that there was not overwhelming
evidence to this effect. The jury simply disagreed with petitioner’s evidence. Accordingly, we do
not find any instructional error by the circuit court.

         Petitioner’s final assignment of error is that the circuit court erred by denying his
alternative motion for a new trial on his claims of vicarious liability, respondeat superior, and
premises liability against respondent. Petitioner contends that the verdict went against the greater
weight of the evidence and the circuit court’s exclusionary rulings took the issue of premises
liability away from the jury despite the availability of supporting evidence and testimony.
Petitioner argues that a new trial on vicarious liability is warranted because Mr. Parker was
acting on respondent’s behalf to resolve a purchase dispute; the jury’s finding him only
individually liable is against the clear weight of the evidence.

        Petitioner argues that a new trial on his premises liability claim is warranted because the
circuit court dismissed the claim despite respondent’s duty to protect its customer from Mr.
Parker’s attack. Petitioner states that the circuit court excluded evidence that would have
demonstrated the foreseeability of the attack, namely, that Ms. Staats knew that Mr. Parker had
issues dealing with his anger, as evidenced by a previous Facebook post that he needed “anger
management.” Additionally, petitioner states that Mr. Parker was a fan of “Ultimate Fighting
Championship,” a violent fighting sport, as evidenced by his own deposition and a “TapouT”3
logo tattooed on his fist. Petitioner challenges the circuit court’s determination that such
evidence was irrelevant.4

        Upon our review, we find no error in the circuit court’s evidentiary rulings and in its
denial of petitioner’s motion for a new trial.

                 “The West Virginia Rules of Evidence and the West Virginia Rules of
       Civil Procedure allocate significant discretion to the trial court in making
       evidentiary and procedural rulings. Thus, rulings on the admissibility of evidence
       . . . are committed to the discretion of the trial court. Absent a few exceptions, this
       Court will review evidentiary and procedural rulings of the circuit court under an
       abuse of discretion standard.”

Syl. Pt. 1, in part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).

       Petitioner sought to introduce evidence that Mr. Parker was a fan of “Ultimate
Fighting Championship” on television in an effort to show that he had a propensity for

       3
          “Tapou[t]” is an alternate name for a fighter’s submission in contact sports, and is used
as a brand name for training facilities and clothing retailers related to the mixed martial arts
industry.
       4
          The circuit court excluded the evidence because it did not demonstrate that Parker had
been in fights himself.
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fighting. However, the record is devoid of evidence that Mr. Parker personally
participated in fighting. Additionally, there was no evidence of any physical altercations
at the Kwik King prior to the incident at issue in the present case. Based on the record,
we find no abuse of discretion by the circuit court in the exclusion of this evidence.
Accordingly, petitioner has failed to demonstrate that a new trial on his claims of
vicarious liability, respondeat superior, and premises liability is warranted.

       For the foregoing reasons, we affirm the circuit court’s August 15, 2014, order.

                                                                                          Affirmed.

ISSUED: June 12, 2015

CONCURRED IN BY:

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




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