CHARLESTON – Whether a lack of handrails on a stairway should be judged as an open and obvious condition is one of the questions taken up by the state Supreme Court during oral arguments on Sept. 10-11.

Among the cases heard by the justices was the appeal of Walter and Mary Hersh, who are arguing former Berkeley County Circuit Court Judge Gina Groh erred in December 2011 when she granted summary judgment to defendants P&H Investments, Trollers Associates, E-T Enterprises and Ralph L. Eckenrode.

Walter 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.

Groh agreed. She is now a federal judge at Martinsburg’s federal court.

“The Plaintiffs have identified, at most, two defects or conditions which allegedly caused Mr. Hersh to fall on October 9, 2009: (1) missing handrails along the subject stairs; and (2) missing guards (vertical spindles below the handrails) along the subject stairs,” Groh wrote in her decision.

“The undisputed, material facts establish, however, that both of these defects or conditions were either known to Mr. Hersh or could have easily been observed by Mr. Hersh in the exercise of ordinary care before he fell on October 9, 2009.

“Moreover, neither of these alleged defects or conditions was hidden or unnatural. Therefore, these alleged defects or conditions are not actionable under West Virginia law.”

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.

The Hershes are represented by Martinsburg attorney Harry P. Waddell. He filed their appeal brief on April 16, 2012.

Waddell argues the defendants violated a municipal safety ordinance and created the hazard by removing the handrails.

He also says Groh erred in applying the “open and obvious doctrine” because Hersh’s injury was reasonably foreseeable to the defendants, and that Groh erred in using the doctrine as a complete bar to the Hershes’ claims.

The brief adds that the handrails were removed to discourage local skateboarders.

“The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised,” Waddell wrote.

“The test is, would the ordinary man in the defendant’s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?

“In the present case, the fact that a lack of handrails may be known to the Appellant does not eliminate liability as a matter of law. Instead, the landowner has a duty, and comparative negligence principles apply, when the landowner should anticipate harm from the known or obvious danger on his land.”

Hersh was taken to the emergency room at City Hospital, where testing showed an acute subarachnoid hemorrhage. After the test results, he was transferred to Winchester Medical Center.

A CT scan there showed multifocal areas of traumatic subarachnoid bleeding with bilateral inferior frontal hemorrhagic contusions, as well as a subarachnoid hemorrhage overlying the left and right frontal lobes, the brief says.

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

The defendants also responded in their brief that an open and obvious condition can’t be a basis for a lawsuit even if the condition is a building code violation.

“By asking this Honorable Court to drastically change West Virginia premises liability law, there is also no doubt that Mr. Hersh now hopes ‘to recover at law for the consequences of his carelessness,’” the defendants wrote.

“Understandable sympathy for Mr. Hersh might tempt such a result; however, a sympathetic result cannot create good West Virginia law or sound West Virginia public policy.”

The two groups of defendants are the owners of the two parking lots, while Eckenrode maintained the stairway.

Eckenrode and E-T Enterprises are represented by Joseph L. Caltrider of Bowles Rice in Martinsburg.

P&H Investments and Trollers Associates are represented by Johnnie E. Brown, Jeffrey W. Molenda and Kameron T. Miller of Pullin, Fowler, Flanagan, Brown & Poe in Charleston.

Three groups filed friend-of-the-court briefs.

The West Virginia Insurance Federation filed a brief in support of the defendants. Its brief supports Groh’s use of the “open and obvious” doctrine in the case.

The Defense Trial Counsel’s brief also supported Groh’s conclusion. It says competing authorities from other jurisdictions offer no basis for concluding the state should abandon the “open and obvious” doctrine.

The West Virginia Association for Justice, the state’s trial lawyers group, filed a brief in support of the appeal. Representing the WVAJ is Christopher J. Regan of Bordas & Bordas in Wheeling.

The brief says proof of violation of a safety statute constitutes actionable negligence.

“The Appellee’s contention that the stairway where the Appellant fell was obviously dangerous constitutes at most evidence sufficient to raise the defense of comparative negligence before the jury,” Regan wrote.

“Like most tort cases presenting questions of due care, negligence, proximate cause, etc., this case is therefore inappropriate for disposition by summary judgment.”

Other civil cases scheduled for oral argument were:

-The appeal of the state Department of Transportation, Division of Highways of denial of its summary judgment motion in a lawsuit brought Joseph Wayne Belcher, who filed suit in Mingo Circuit Court after an automobile accident with a man operating a dump truck in an effort to remedy flooding in 2009 in Gilbert.

-The appeal of JWCF, formerly known as Baker Installations, of a Kanawha County jury’s $259,619 verdict that found it fired Steven Farruggia in retaliation for Farruggia filing a Workers’ Compensation claim;

-The appeal of David Wallace of an adverse bench trial ruling in a Summers County boundary line dispute;

-The appeal of Multiplex Inc. of a Clay County ruling that found the Town of Clay was entitled to proceeds of an injunction bond posted by the company because the Town suffered an expense as a result of Multiplex filing for a temporary injunction, then abandoning the complaint before the court could rule on it;

-A Marshall County couple’s appeal of a ruling that denied their request for Hayseeds damages after they prevailed in an Unfair Trade Practices Act lawsuit against Nationwide Mutual Insurance;

-Certified questions from U.S. District Court for the Northern District of West Virginia that ask the Supreme Court about the parental immunity doctrine;

-Ally Financial’s appeal of a Raleigh County decision that granted partial summary judgment and found the company committed 60 violations of the West Virginia Consumer Credit and Protection Act;

-A certified question from Mason County that asks whether an insurance company’s failure to use the West Virginia Insurance Commissioner’s prescribed forms under state law results in underinsured motorists coverage being added to the policy in the amount the insurer was required to offer; and

-The appeal of Psychological Assessment & Intervention Services of a Kanawha County ruling in favor of the Workers’ Compensation insurer, BrickStreet, in a bad faith case.

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

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