By JAY STONEKING

For years West Virginia has embraced two contradictory concepts.

On one hand, West Virginia law has always given special status and protection to those who are invited onto someone else's property. In fact, a property owner has a legal duty to maintain his property in a reasonably safe condition for the protection of any invitees.

On the other hand, West Virginia also adopted the open-and-obvious defense. Basically, this meant that a property owner had an absolute defense in any case where an invitee suffered injury from a danger that was obvious or reasonably discoverable. Naturally, insurance companies took advantage of this defense, arguing that practically any danger or defect on the property was discoverable and refusing to pay claims on that basis.

Consider the case of Walter Hersh. After visiting a Martinsburg shopping plaza, Mr. Hersh descended a set of stairs leading to the parking lot. It was undisputed that a Martinsburg city ordinance required the stairs to have a handrail. It was also undisputed that the required handrail was missing. As a result, Mr. Hersh fell and suffered injuries.

Did the insurance company pay for Mr. Hersh's injuries? After all, everyone agreed that the stairs violated a safety ordinance. You can probably guess what happened. The insurance company refused to pay and, instead, insisted that the missing handrail was an open and obvious danger. That's bad enough, but the trial court agreed and dismissed Mr. Hersh's personal injury case.

Mr. Hersh appealed and, thankfully, the West Virginia Supreme Court put an end to this kind of foolishness. Hersh vs. E-T Enterprises, LP, No. 12-0106 (W.Va. Nov. 12, 2013). The Court formally abolished the open-and-obvious defense. No longer can an insurance company simply point to a hazard, claim that it's obvious, and stubbornly refuse to pay.

Some have claimed that abolishing the open-and-obvious defense givens invitees a free pass. Everyone has a duty to protect themselves from harm, they say. Abolishing this defense means that invitees have no accountability for their own negligence.

But this simply isn't true. Like every state, West Virginia recognizes a duty of self-protection. The Court didn't abolish that duty. Instead, the Court recognized that it was up to the jury to determine if an invitee negligently failed to protect himself and, if so, to apportion the negligence of all of the parties involved under our state's comparative negligence law.

That's the right outcome, and the attorneys from Bordas & Bordas were proud to file an amicus brief on behalf of the West Virginia Association for Justice in this case. Absolute defenses have no place in West Virginia's negligence law. It's the job of the jury--common folks like you and me--to weigh the negligence of everyone involved and to return a verdict that's fair and just under the circumstances.

Jay Stoneking is an attorney with Bordas & Bordas in Wheeling. This editorial appeared on the firm’s blog.

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