West Virginia Record

CHARLESTON – State Supreme Court Chief Justice Brent Benjamin has released his dissenting opinion in a case that helped land West Virginia on the “Judicial Hellholes” report recently released by a legal reform group.

Benjamin issued his dissenting opinion in Walter Hersh’s case on Dec. 27. Hersh sued the owner of a property on which he fell down a set of steps that did not have handrails. The state Supreme Court, in overturning a lower court decision, abolished the “open and obvious” doctrine.

The defendants in the case argued the lack of a handrail was an open and obvious hazard.

“The change in negligence law will have a dramatic effect on the way in which premises liability cases proceed in this state,” wrote Benjamin, who was in the two-person minority in the decision.

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

“With this decision, our traditional concept of personal responsibility now no longer exists in the realm of premises liability.”

The American Tort Reform Association listed the November decision when naming West Virginia the No. 4 Judicial Hellhole. The state has been on the report, issued annually, every year since it began in 2002.

Hersh says he sustained a head injury when he fell down steps that connected a parking lot to another parking lot in front of a store called Second Time Around on Winchester Ave. in Martinsburg. The steps did not have handrails.

Hersh testified that he felt the steps were safe, except for the lack of handrails.

The defendants argued a property owner is not liable for injuries sustained as a result of dangers that are obvious, reasonably apparent, or as well known to the person injured as they are to the owner.

Former Berkeley County Circuit Court Judge Gina Groh, who was later appointed to a federal judgeship, agreed with the defendants and granted their motion for summary judgment, but the state Supreme Court overruled her in November.

In a 3-2 vote, the court abolished the “open and obvious” doctrine.

“If a hazard is open and obvious on premises, it does not preclude a cause of action by a plaintiff for injuries caused by that hazard,” Justice Menis Ketchum wrote for the majority.

“Instead, a jury may consider the obviousness of the hazard in determining the comparative negligence of the plaintiff against that of the owner or possessor of the premises.”

In his dissenting opinion, Justice Allen Loughry wrote that the court “saddled property owners with the impossible burden of making their premises ‘injury proof’ for persons who either refuse or are inexplicably incapable of taking personal responsibility for their own safety.”

Hersh’s testimony showed that he was aware of the condition of the steps. He said he used a cane while using the stairs because there were no handrails, which were removed to discourage skateboarders.

Hersh must now use a wheelchair. Prior to the fall, he was independent in his day-to-day activities, the appeal brief says.

However, the defendants cited a report from Hersh’s neurologist that said he had “chronic slowly progressive problems with balance” such that “(s)teps are hazardous, particularly going down when his heel will get caught on the tread.”

And less than a month before the fall, Hersh told another doctor during a disability evaluation that he was having problems with balance and falling almost daily, the defendants say.

Loughry began his dissent by arguing that its decisions like the one in Hersh’s case that give the state its reputation as a Judicial Hellhole.

“(O)rdinary homeowners will pay the highest price for the majority’s pandering to persons who ignore the risk associated with open and obvious hazards that ordinary, hard-working citizens encounter every day and invariably utilize their common sense and good judgment to avoid,” Loughry wrote.

“This decision is a radical departure from our well-established law, and, therefore, I dissent.”

The state’s trial lawyers group, the West Virginia Association for Justice, filed an amicus brief in the case. It says the ATRA report misrepresented the facts of the case.

Not having handrails on the steps violated a Martinsburg ordinance.

“ATRA fails to mention that the case record shows those handrails were down for months, even though it was against city ordinances,” said Bernie Layne, WVAJ president and attorney at Mani Ellis & Layne in Charleston.

“ATRA argues Mr. Hersh was ‘falling on a daily basis’ – but that is not true, and there is no evidence to support the claim.

“Every commercial and private property owner has a responsibility to ensure that their properties do not have known hazards that could result in serious injury.”

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.