CHARLESTON – The state Supreme Court ruled that a man who fell from a retaining wall at Mardi Gras Casino & Resort was not a trespasser at the time of his injury.

As grounds for a reversal, the petitioner argued that the trial court erred in classifying him as a trespasser under the facts of this case and submits that there are genuine issues of material fact to be decided by a jury, according to an opinion filed Feb. 12.

"Upon our careful review of the record submitted in this case, we agree and, accordingly, reverse," the opinion states.

Justice Allen Loughry delivered the majority opinion. Justices Brent Benjamin and Menis Ketchum concurred and each authored a concurring opinion.

David Ragonese appealed a Feb. 7, 2014, order of the Kanawha Circuit Court denying his motion to alter or amend the trial court’s grant of summary judgment to the respondent, Racing Corporation of West Virginia, which is doing business as Mardi Gras Casino and Resort.

On July 6, 2011, Ragonese and his wife checked into the casino's hotel and spent time in the casino. At approximately 9:30 p.m., Ragonese exited the casino through the side entrance, crossed the street near the base of the retaining wall, and went to the main entrance of the hotel, where he spoke with the desk clerk.

At approximately 9:34 p.m., he left the hotel and noticed his wife standing outside the side entrance of the casino and decided to take a short cut to the casino. Even though he had been fully aware of the retaining wall just five minutes before, he forgot about the wall and began his descent down the sharply sloped hillside, where he fell onto the roadway from the retaining wall and sustained a spiral fracture to his left leg.

Ragonese filed his complaint on June 6, 2013, alleging negligence for its failure to protect him from the dangerousness of the retaining wall.

The casino moved for summary judgment, asserting that he was barred from recovery as he was no longer a business invitee, but a trespasser at the time of his injury, according to the opinion.

The trial court opined that at the point that the plaintiff walked past the bushes and shrubbery and proceeded down the hillside, he exceeded the scope of his invitation as an invitee and became a trespasser.

On Dec. 27, 2013, Ragonese filed a motion to alter or amend the summary judgment ruling, arguing that the circuit court improperly relied on its judgment regarding the his status at the time of his injury despite the existence of genuine issues of fact concerning that determination as well as the issue of whether the casino acted willfully and wantonly toward him.

"Contrary to the position advanced by the casino that no material facts exist regarding the issue of Mr. Ragonese’s status, we find multiple issues of disputed fact that bear on this subject," the majority opinion states. "Among the issues to be resolved are whether the petitioner was in an area that the public was either invited to use or its use should have been reasonably anticipated."

Another relevant factual inquiry to be decided is whether the shrubbery, as it existed on the date of injury, served as a proper barrier or, alternatively, as an indicator of prohibited usage.

"Essentially, what the jury will be required to decide is whether Mr. Ragonese acted in a manner that was inconsistent with the scope of his invitation to use the casino premises," the opinion states.

Once the jury resolves these issues that weigh upon the petitioner’s status at the time of his injury, then the related determinations of what duty the casino owed to Ragonese and whether that duty was breached can be addressed, according to the opinion.

In his concurring opinion, Benjamin said that while he agrees with the majority's conclusion that factual questions exist as to whether Ragonese was a trespasser at the time he was injured, the factual uncertainties preclude summary judgment on the issue of trespass.

"Upon remand, should the fact-finder determine that Mr. Ragonese was not a trespasser, this Court’s recent opinion, Hersh v. E-T Enterprises ... will control in determining the liability of the respondent, Racing Corporation of West Virginia..." his concurring opinion states.

In Hersh, the court abolished the open and obvious doctrine i n premises liability negligence actions.

"Justice Loughry and I dissented in Hersh because we believe the open and obvious doctrine embodied in the law traditional concepts of personal responsibility and because application of the open and obvious doctrine acted to prevent frivolous law suits proceeding past the summary judgment phase," the concurring opinion states. "I write separately in the present case to reaffirm the position of Justice Loughry and myself in Hersh: By eliminating the open and obvious doctrine, this court has fundamentally damaged the means by which premises liability cases proceed through our judicial system."

In his concurring opinion, Ketchum said he agrees that the defendant was not entitled to summary judgment.

"Hersh makes clear that the owner of the premises is not an insurer of an invitee's safety; the owner is not responsible for every slip and fall; whether a premises owner owes someone a duty of care is usually a question of law for the trial court; and a landowner has no duty to eliminate every potential hazard, but rather only has a duty to ameliorate the risk posed by a hazard where it is reasonably foreseeable that harm is likely to result from the hazard," his concurring opinion states.

Here, it is undisputed that the steep bank with a six-foot high retaining wall at the bottom of the bank was a hazard that the plaintiff knew existed, Ketchum stated in his opinion.

"To ameliorate the risk posed by the hazard, the defendant built two walkways around the steep bank and six-foot high wall," the opinion states. "These walkways eliminated the need for anyone to pass through a row of bushes, walk down the open-for-all-to-see and obviously steep bank and fall off the six-foot high wall."

Ketchum said he believes the defendant would have been entitled to summary judgment if they had not withdrawn their open and obvious contention after Hersh was issued.

"Although the defendant would have been entitled to summary judgment, this court should consider adopting a new point of law to clarify that landowners who build sidewalks around open and obvious hazards have breached no duty of care to a plaintiff who leaves the sidewalk and is injured by the hazard," the opinion states. "Other courts have concluded that if a landowner provides a clear means of ingress and egress and an invitee strays off the normal pathway onto an area that is obviously not reserved for that purpose, the landowner has not breached its duty of 'reasonable care.'"

When a pathway for normal access is made available to an invitee and the dangers of straying off the clear path are, as here, open and obvious, the premise possessor owes no duty to warn or protect such an invitee, his opinion states.

Ragonese was represented by Connor D. Robertson and Richard W. Weston of Weston Law Office.

Mardi Gras Casino & Resort was represented by William J. Cooper, Megan Fulcher Bosak and Kiersan Smith Lockard of Flaherty Sensabaugh Bonasso PLLC.

W.Va. Supreme Court of Appeals case number: 14-0258

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