WEST VIRGINIA RECORD

CHARLESTON – Nimble on ice, the West Virginia Supreme Court of Appeals carved a line between snow that falls from the sky and snow that public employees shovel.

The five Justices agreed that the Grant County Board of Education does not owe basketball fan Helen Porter anything for injuries she sustained in a fall at Petersburg High School.

Justice Spike Maynard wrote for the Court that, "... if the weather causes snow or ice to accumulate on a sidewalk and the political subdivision fails to remove it, the political subdivision is immune from liability for an injury caused by the snow or ice."

He wrote, "On the other hand, where the snow or ice is placed on the public way by an act of the political subdivision, and the snow or ice causes an injury, the political subdivision is not immune from liability."

The distinction had escaped Grant County Circuit Judge Phil Jordan. In 2004 he ruled in Porter's favor, finding that literal interpretation of the snow law led to an absurd result.

The Legislature in 1986 wrote the snow law into the Governmental Tort Claims and Insurance Reform Act, or Tort Claims Act.

They passed the act to cut the cost of insurance in local government.

Porter slipped on a sidewalk the night of Jan. 21, 2000, on her way to a basketball game with husband Eston Porter.

The school board had closed schools that day because of snow.

The Porters sued the school board in 2002. They charged negligence in permitting a game after closing schools. They sought punitive damages.

The school board moved to dismiss under the Tort Claims Act.

The law grants political subdivisions immunity from liability in a claim over "snow or ice conditions or temporary natural conditions on any public way or other public place due to weather conditions, unless the condition is affirmatively caused by the negligent act of a political subdivision."

Jordan denied the motion to dismiss. He wrote that requiring an affirmative act of the school board in creating snow or ice conditions "... is bordering on the ridiculous."

He wrote, "The legislature could not have meant that the Board of Education would have had to have made it snow, caused an ice storm, or otherwise 'affirmatively' placed ice or snow on the sidewalk before it could be held liable."

Jordan did not feel certain, so he certified a question to the Supreme Court of Appeals.

For the Porters, Duke McDaniel of Petersburg asked the Justices to rule as Jordan had ruled.

For the school board, Tamara DeFazio and Robert Russell of Morgantown argued for immunity.

The Justices rewrote the question, asking if the Tort Claims Act immunized a school board when a plaintiff slipped on snow and ice en route to a contest "where the wrongful act alleged against the board was its decision to hold the contest on the same date it cancelled classes countywide due to inclement weather."

They answered yes.

Maynard wrote that, "... construction of the provision as written does not produce an absurd result."

He wrote that a political subdivision could place snow on a sidewalk by throwing it from the road.

He wrote that a political subdivision could place ice on a sidewalk by letting water leak from a hose in freezing weather.

He wrote, "While the act by the school administrators to hold the basketball game despite that day's cancellation arguably caused the Porters to venture out to the basketball game, it certainly did not cause the snow or ice conditions on which Mrs. Porter fell."