Benjamin

Albright

CHARLESTON – In a case that drove Raleigh County jurors and Circuit Judge Robert Burnside in opposite decisions, three Justices of the West Virginia Supreme Court of Appeals sided with the jury and two sided with the judge.

The Court reversed Burnside, who set aside a jury verdict clearing Belk's department store and Crossroads Mall of negligence in an injury claim of shopper Betty Neely.

Burnside ruled that Neely proved negligence.

Chief Justice Spike Maynard and Justices Robin Davis and Brent Benjamin agreed with the jury, while Justices Joseph Albright and Larry Starcher agreed with Burnside.

"The jury's verdict may be explained through its resolution of conflicting evidence at trial," Benjamin wrote.

The majority second guessed a judge who was in the best position to assess the verdict as against the evidence, Albright wrote.

Neely alleged she suffered an injury at Belk's in 2002, when a door fell on her.

She claimed total and permanent disability, as well as psychological injury.

At trial, a life care planner projected her future expenses at more than $900,000.

Defendants argued that six months before the accident, she applied for disability benefits due to depression and anxiety.

Surveillance video showed her walking without a limp, shopping for an extended period, running errands and dining out.

"It also depicts her balancing on her injured right leg while apparently searching for something in her purse," Benjamin wrote.

Jurors decided Neely didn't prove negligence, but according to Burnside she did.

He wrote that "it is substantially likely that the jury's finding on liability is the result of their conclusion that the Plaintiff had exaggerated her damages claim, and that it is not supported by the evidence pertinent to liability."

He wrote, "That opinion supports that finding that the jury's verdict was grounded on motivations which, although understandable, do not support the verdict."

According to Benjamin, Burnside blurred the distinction between his role and that of the jury in determining negligence.

"Although the circuit court does have some role in determining whether there is sufficient evidence to support a jury's verdict, it is not the role of the circuit court to substitute its credibility judgments for those of the jury or to assume the jury made certain findings because they did not believe evidence presented on other issues," Benjamin wrote.

If jurors found Neely's testimony not credible, he wrote, they could discount the credibility of an expert who based his opinion on her account of the event.

"A fair review of the trial transcript reveals that contradictory evidence was presented to the jury regarding foreseeability, causation and the extent to which the door fell," he wrote.

According to Albright's dissent, Burnside was convinced that jurors reacted to possible exaggeration of damages by deciding not to award any damages.

He wrote that the majority wrongly engaged in reweighing of the evidence.

"This is the very object which this Court has long sought to avoid by limiting the occasions in which a grant of a new trial should be overturned," he wrote.

Starcher joined the dissent.

Heather Heiskell Jones and Brian Warner of Spilman Thomas and Battle in Charleston represented Belk's. Corey Palumbo of Bowles Rice in Charleston represented Crossroads Mall. John Wooton of Beckley represented Neely.

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