                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS



Wendi Whitmore, an individual; and                                                   FILED
Wendi Whitmore, as next friend for                                                May 30, 2014
J.V., a minor, Plaintiff Below,                                                 RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
Petitioner                                                                        OF WEST VIRGINIA


vs) No. 13-1082 (Cabell County 12-C-71)

Dorothy Brown
Defendant Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Wendi Whitmore, who appears on her own behalf and as the next friend of her
minor son J.V.,1 by counsel Mark F. Underwood and Patricia A. Jennings, appeals the order of
the Circuit Court of Cabell County, entered August 26, 2013, that granted summary judgment in
favor of Respondent Dorothy Brown. This action arose following a collision between J.V.’s
bicycle and respondent’s car. Respondent, by counsel Charles K. Garnes, Jr., filed a response to
which petitioner replied.

        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 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.

        On the afternoon of May 22, 2011, eleven-year-old J.V. was riding his bicycle without
supervision and without his mother’s permission northbound on Nineteenth Street in Huntington
when he collided with a car driven by respondent. At the time, respondent was driving eastbound
on Charleston Avenue. There was no traffic light at the intersection; however, there was a stop
sign on Nineteenth Street that J.V. would have passed as he entered the intersection. Following
the collision, J.V. was transported to a hospital by ambulance.

        A City of Huntington police officer investigated the accident. On the last page of the
resulting “Uniform Traffic Crash Report” (“crash report”), respondent wrote the following
statement: “I . . . was hit by a boy on a bike [as I was] getting ready to pass 19th Street.” In regard
to respondent, the crash report provides that her actions did not contribute to the accident, she
was not distracted, and she did not violate the law. In regard to J.V., the crash report provides
       1
         Consistent with our practice in cases involving sensitive matters, we use the initials of
the child’s name. See State v. Edward Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127
n.1 (1990); see also Rule 40(e)(1) of the West Virginia Rules of Appellate Procedure.
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that he had a non-incapacitating injury, he was suspected of failing to obey a stop sign, and he
was inattentive.

        On January 31, 2012, petitioner filed the instant action. In her complaint, petitioner
claimed that respondent struck J.V. with her car. Petitioner sought damages for loss of
consortium and negligence. Discovery ensued and petitioner took the deposition of the
investigating officer.

        On April 17, 2013, respondent filed a motion for summary judgment on the ground that
petitioner had failed to produce any evidence showing that respondent had been negligent in
regard to the accident. Petitioner filed a response opposing respondent’s motion and also
disclosed the affidavit of Nancy Flanagan, an alleged witness to the accident. Ms. Flanagan’s
affidavit stated as follows:

       I witnessed a lady driving a red car eastbound in the 1900 block of Charleston
       Avenue hit a boy riding a bicycle as he was attempting to ride across the street.
       After hitting the boy on the bicycle, the lady driving the red car did not stop, but
       continued driving eastbound on Charleston Avenue.

        At a July 18, 2013, hearing, the circuit court denied respondent’s motion for summary
judgment on the ground that Ms. Flanagan’s affidavit created a genuine issue of material fact
regarding the proximate cause of J.V.’s injuries. On July 19, 2013, the circuit court ordered
petitioner to produce Ms. Flanagan for deposition. The circuit court also ruled that, as a matter of
law, J.V. “may” be found capable of contributory or comparative negligence.

       At Ms. Flanagan’s July 24, 2013, deposition, she testified that, in fact, she had not seen
the accident occur. Instead, she said that she was walking nearby at the time of the accident,
heard a crash, looked up, and saw a boy lying on the roadway. Upon hearing sirens and seeing
other persons tending to the boy, she left the scene without speaking to anyone present.

        Following Ms. Flanagan’s deposition, respondent renewed her motion for summary
judgment. Respondent claimed that petitioner had failed to produce any evidence showing that
respondent was negligent in regard to the accident. In response, petitioner filed J.V.’s sworn
affidavit, which stated as follows:

       . . . I was riding my bike on Nineteenth Street. . . . As I started to cross Charleston
       Avenue, a car [not respondent’s] turned onto Charleston Avenue and did not slow
       down, so I had to stop on the yellow line on Charleston Avenue to let the car pass.
       Before I could get started to finish crossing Charleston Avenue[,] a red car
       [respondent’s] coming the other way on Charleston Avenue hit me.

        On August 15, 2013, the circuit court heard arguments regarding respondent’s renewed
motion for summary judgment. At the conclusion of the hearing, the circuit court stated that
“even in viewing the record in the light most favorable to [petitioner], the [c]ourt finds that
[petitioner] has failed to offer ‘any concrete evidence’ or ‘other significant probative evidence’
from which a reasonable trier of fact could return a verdict in favor of [petitioner].”

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        By order entered August 26, 2013, the circuit court granted summary judgment in favor
of respondent. In the order, the circuit court found that Ms. Flanagan’s affidavit did not create a
genuine issue of material fact sufficient to defeat respondent’s renewed motion for summary
judgment because Ms. Flanagan did not witness the accident. The circuit court also found that
J.V.’s affidavit failed to create a genuine issue of material fact because it was inconsistent with
all of the evidence in the record, including petitioner’s own pleadings and briefs. In particular,
the court highlighted that, prior to filing J.V.’s affidavit, petitioner consistently claimed that J.V.
had been “riding across Charleston Avenue” at the time of the collision and was not, as he
claimed in his affidavit, “stopped on the yellow line.” Lastly, the circuit court found that
petitioner failed to produce any evidence that J.V.’s injuries were consistent with being struck by
respondent’s car.

       Petitioner now appeals the circuit court’s order.

         Pursuant to Rule 56(c) of the West Virginia Rules of Civil Procedure, summary judgment
should be awarded “if the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” Thus, “[a] motion for
summary judgment should be granted only when it is clear that there is no genuine issue of fact
to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.”
Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770
(1963). We accord a plenary review to the circuit court’s order granting summary judgment: “[a]
circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192
W.Va. 189, 451 S.E.2d 755 (1994). Finally, “the party opposing summary judgment must satisfy
the burden of proof by offering more than a mere ‘scintilla of evidence,’ and must produce
evidence sufficient for a reasonable jury to find in a nonmoving party’s favor.” Id. at 192-93,
451 S.E.2d 758-59.

        Petitioner raises three assignments of error on appeal. Petitioner first argues that the
circuit court erred in relying on the crash report, the investigating officer’s deposition testimony,
the photographs of respondent’s car which showed a dent in the car’s passenger side door, and
car repair estimates obtained by respondent, in finding that no genuine issue of material fact
existed regarding the cause of the accident. Specifically, petitioner claims that the crash report
was based almost solely on respondent’s hearsay statements. Petitioner also contends that the
investigating officer’s investigation was inadequate because the officer failed to interview J.V. or
persons gathered at the crash site such as Ms. Flanagan. Regarding the photographs of
respondent’s car and the repair estimates, petitioner claims that respondent failed to prove that
they were based on the condition of respondent’s car immediately following the accident. In
addition to these arguments, petitioner avers that the circuit court erred by finding that J.V.’s
negligence was the proximate cause of the accident, and by acting as a finder of fact when it
dismissed J.V.’s affidavit as contrary to the evidence.

        We note at the outset that petitioner’s counsel never objected to the crash report, the
investigating officer’s deposition testimony, the photographs of respondent’s car, or the car
repair estimates obtained by respondent at any of the hearings in this matter. Such an objection is
required by Rule of Evidence 103(a)(1) and Rule of Civil Procedure 46. We have said, “[a]

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litigant may not silently acquiesce to an alleged error, or actively contribute to such error, and
then raise that error as a reason for reversal on appeal.” Syl. Pt. 1, Maples v. West Virginia Dept.
of Commerce, Div. of Parks and Recreation, 197 W.Va. 318, 319, 475 S.E.2d 410, 411 (1996).
Therefore, “‘[w]here objections were not shown to have been made in the trial court, and the
matters concerned were not jurisdictional in character, such objections will not be considered on
appeal.’ Syl. pt. 1, State Road Commission v. Ferguson, 148 W.Va. 742, 137 S.E.2d 206
(1964).” Syllabus point 1, Estep v. Brewer, 192 W.Va. 511, 453 S.E.2d 345 (1994).”

        As for petitioner’s claim of plain error, we have said, “‘To trigger application of the
‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial
rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial
proceedings.’ Syllabus point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).” Syl. Pt. 7,
Page v. Columbia Natural Res., Inc., 198 W.Va. 378, 480 S.E.2d 817 (1996). In the instant case,
we do not find that the circuit court’s review of the record in its entirety, including its review of
the crash report, the investigating officer’s deposition testimony, the photographs, and the car
repair estimates, seriously affected the fairness, integrity, or public reputation of this proceeding.
Therefore, we will not invoke the plain error doctrine in this case.

        We also disagree with petitioner’s claim that the circuit court rendered an opinion
regarding the proximate cause of the accident and wrongfully engaged in fact finding. Nowhere
in the order on appeal does the circuit court render a finding regarding the proximate cause of the
accident. Moreover, the circuit court’s determination that petitioner failed to offer any probative
evidence from which a reasonable trier of fact could find in petitioner’s favor is not a finding of
fact, but a conclusion of law. Hence, we find that the circuit court did not err.

        Petitioner’s second assignment of error is that the circuit court erred in finding that J.V.
was capable of negligence. Petitioner claims that because J.V. was eleven-years-old at the time
of the accident, he was presumed to be incapable of negligence as are all children between the
ages of seven and fourteen. See Syl. Pt. 4, Pino v. Szuch, 185 W.Va. 476, 408 S.E.2d 55 (1991)
(An opposing party may rebut the presumption that a child between the ages of seven and
fourteen lacks the capacity to be negligent with evidence of the child’s intelligence, maturity,
experience, and judgmental capacity.). Petitioner admits this incapacity for negligence may be
rebutted, but argues that the circuit court had no evidence before it regarding J.V.’s capacity for
negligence. Further, petitioner claims that the circuit court usurped the role of a jury in finding
that J.V. was, in fact, negligent. Petitioner admits that his counsel lodged no objections regarding
these issues. Therefore, petitioner claims that the circuit court plainly erred in finding that J.V.
was negligent.

       Petitioner misrepresents the circuit court’s findings. The circuit court did not find that
J.V. was negligent. Instead, at the hearing on respondent’s renewed motion for summary
judgment, the circuit court said, “I do believe an eleven-year-old minor may be found to [be] . . .
negligent.” This is a correct statement of the law pursuant to Syllabus Point 4 of Pino v. Szuch.
However, there was no need for the circuit court to conduct an analysis of J.V.’s capacity for
negligence, because the circuit court correctly found that due to petitioner’s failure to make any
showing that respondent had been negligent, no reasonable trier of fact could have returned a



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verdict in petitioner’s favor. Finally, because the circuit court did not find that J.V. was
negligent, petitioner’s plain error argument need not be addressed.

        Petitioner’s third and final assignment of error is that the circuit court erred in finding
that respondent did not breach the duty of due care she owed to J.V. without first referencing the
higher duty of care respondent owed J.V. under Deputy v. Kimmell, 73 W.Va. 595, 80 S.E. 919
(1914). In Kimmell, this Court stated that

       [t]he vigilance and care required of the operators of an automobile vary in respect
       of persons of different ages or physical conditions. He must increase his exertions
       in order to avoid danger to children, whom he may see, or, by the exercise of
       reasonable care should see, on or near the highway. More than ordinary care is
       required in such cases.

Id. at 59.56, 80 S.E. 920. See also Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974).

        Assuming arguendo that the circuit court did err in failing to make findings regarding
respondent’s duty of care, the error was harmless because there was no evidence in the record
showing that respondent failed to use such a higher standard. Moreover, during the investigating
officer’s deposition, he stated that he knew of no evidence showing that respondent did not
exercise a duty of higher care at the time of the accident. Therefore, we find the circuit court did
not err in failing to make such a finding.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.


ISSUED: May 30, 2014

CONCURRED IN BY:

Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Chief Justice Robin Jean Davis
Justice Margaret L. Workman




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