CHARLESTON — The West Virginia Supreme Court of Appeals ruled that a lower court erred in its application of the open and obvious doctrine, but still agreed with the court to grant summary judgment in the case.
Joey J. Butner appealed an order of the Fayette Circuit Court that granted summary judgment to the Highlawn Memorial Park Company and Highlawn Funeral Chapel, Inc. on all claims asserted in the petitioner’s civil complaint for damages arising from injuries he sustained in a fall on the respondents’ property, according to a Nov. 17 opinion.
Justice Bill Wooton authored the majority opinion. Justice Tim Armstead concurred and authored a separate opinion.
The circuit court held that the petitioner’s claims were barred by application of the West Virginia Code known as the "open and obvious doctrine" and further held that the petitioner had failed to produce any evidence of negligence on either respondent.
"Based on our review of the parties’ briefs and oral arguments, the appendix record, and the applicable law, we conclude that the circuit court erred in its application of the open and obvious doctrine," Wooton wrote. "Nonetheless, we affirm the court’s grant of summary judgment for the respondents because none of the evidence produced by the petitioner in opposition to the respondents’ motion 'show[ed] that there is a genuine issue for trial,' on the issue of negligence."
Butner stopped at Highland Memorial Park on July 23, 2017, to pay his respects to his brother-in-law's gravesite. While there, the ground beneath him gave way and he sustained a shoulder injury.
Butner filed a complaint with Fayette Circuit Court on April 12, 2019, alleging negligence. In 2021, the circuit court ruled that the respondents had no actual or constructive knowledge of the alleged defective condition that caused Butner's fall and Butner then appealed to the Supreme Court.
In his concurring opinion, Armstead wrote that while he concurred with the ultimate decision, he wanted to clarify the open and obvious statute.
"If the danger is open, obvious, or reasonably apparent, the owner or occupant’s knowledge of the danger is irrelevant to the question of whether the landowner or occupant owes a duty of care to a plaintiff," Armstead wrote. "Moreover, under the fourth circumstance, where a danger is 'as well known' to the person injured as it is to the owner or occupant, such provision does not establish any duty on the owner to know or investigate any dangers."
Armstead wrote that it merely provides that an injured party cannot assert a duty on the part of an owner or occupant of the premises for a danger that was as “well known” to the injured party as it was to such owner or occupant.
"I write separately to clarify that no such duty is established by the open and obvious statute," he wrote.
West Virginia Supreme Court of Appeals case number: 21-0387