OUR VIEW: West Virginia Supreme Court undermines state development efforts

By The West Virginia Record | Jan 10, 2014

Our state Development Office describes West Virginia as a “state of achievement” with a “welcoming business climate.”

In light of a recent state Supreme Court ruling, it might be more appropriate to describe our climate as “damned if you do and damned if you don’t.”

Though not likely to encourage start-ups and expansions or re-locations from other states, this formulation is at least accurate.

In 2009, Walter Hersh fell down the wooden stairs connecting two parking lots at the Second Time Around store in Martinsburg. He then filed suit against the owner of the property. Concluding that the lack of handrails on the stairway was an “open and obvious” condition, the Berkeley Circuit Court judge granted summary judgment to the defendants in December 2011.

When Hersh appealed, our state Supreme Court ruled in his favor, overturning the lower court’s decision and effectively abolishing the “open and obvious” doctrine.

The fact that Hersh had a history of falling and that other customers negotiated the steps safely (or avoided them) seems not to have mattered to the three out of five justices who negated a well-established, long-standing principle.

The Second Time Around store had originally installed the steps, with handrails, for the convenience of customers, subsequently removing the rails to ward off skateboarders. Had skateboarders hurt themselves through their own recklessness, they might have sued the store for leaving the handrails on.

Had skateboarders hurt store customers, the latter might have sued the store for not removing the handrails.

Faced with a no-win situation, the store removed the handrails and was sued by someone with equilibrium problems who would have been better off avoiding the stairs.

In his dissent, 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 [to take] or are inexplicably incapable of taking personal responsibility for their own safety.”

Not exactly a welcoming business climate.

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