No. 12-0106 – Walter E. Hersh and Mary L. Hersh v. E-T Enterprises,
                                                                                        FILED
Limited Partnership; Ralph L. Eckenrode; P&H Investments, Inc.; and                   December 27, 2013
Trollers Associates, LLC                                                          RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA


Benjamin, Chief Justice, dissenting:


              In overruling the long-standing open and obvious doctrine established in

Sesler v. Coal Co., 51 W. Va. 318, 41 S.E. 216 (1902), and Burdette v. Burdette, 147 W.

Va. 313, 127 S.E.2d 249 (1962), the Majority confuses negligence law in West Virginia.

Therefore, I respectfully dissent.



              The Majority’s opinion creates the following new syllabus point:

                      In the ordinary premises liability case against the
              owner or possessor of the premises, if it is foreseeable that an
              open and obvious hazard may cause harm to others despite
              the fact it is open and obvious, then there is a duty of care
              upon the owner or possessor to remedy the risk posed by the
              hazard. Whether the actions employed by the owner or
              possessor to remedy the hazard were reasonable is a question
              for the jury.

(Emphasis added). This syllabus point fundamentally alters the negligence analysis in

property liability cases.



              As every first year law student learns, to maintain a negligence case a

plaintiff must prove four elements:          duty; breach; causation, which involves

foreseeability; and damages.     The existence of a duty is the threshold issue in any

negligence case, and whether there is a duty is a question of law. Syl. pt. 5, Aikens v.


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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.”). When there is no duty, there is no

liability. The open and obvious doctrine operated to establish whether a property owner

owed a duty to those on his property. Causation, on the other hand, generally presents a

question of fact for the fact finder. Syl. pt. 5, Hatten v. Mason Realty Co., 148 W. Va.

380, 135 S.E.2d 236 (1964) (“Questions of . . . proximate cause . . . present issues of fact

for jury determination when the evidence pertaining to such issues is conflicting or where

the facts, even though undisputed, are such that reasonable men may draw different

conclusions from them.”).



              Syllabus point 5 of the Majority opinion nullifies the duty element by

making its existence dependent on causation.         Where the existence of a duty was

previously a question of law, it is now dependent on findings of fact regarding

foreseeability. Although duty and causation were previously separate elements, now, any

foreseeable injury will result in a finding that the property owner owed a duty to an

invitee onto that property.



              The change in negligence law will have a dramatic effect on the way in

which premises liability cases proceed in this State. Courts will no longer be able to

dismiss cases for lack of duty as a matter of law; instead, the question of duty will be tied

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to factual inquiries which will generally require submission of the case to a jury. I am

also concerned about the real-world impact of this change in our jurisprudence. With this

decision, our traditional concept of personal responsibility now no longer exists in the

realm of premises liability. Where the open and obvious doctrine once operated to

prevent meritless suits from proceeding through the court system, I fear that the

elimination of the doctrine will throw open the courthouse doors to frivolous claims.




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