CHARLESTON – The state Intermediate Court of Appeals has affirmed a lower court ruling in a premises liability case.
In its November 8 memorandum decision, the ICA affirmed a January 5 order from Raleigh Circuit Court that dismissed the case petitioner Jordan Linzy had filed against Beckley Galleria, Paramount Development Corporation, Paramount Development Properties, Marquee Cinemas, Marquee Cinemas-WV and Marquee Cinemas Holdings. The theater is owned by Paramount and operated by Marquee.
According to the decision, Linzy was in the parking lot of the Marquee Cinemas Galleria 14 theater in Beckley on May 30, 2020. At some point, he was standing in the bed of a friend’s pickup truck while the driver was performing a burnout in the lot. This caused Linzy to be thrown from the truck, causing him serious injuries and requiring a prolonged hospitalization.
Because this was during the early days of the COVID-19 pandemic, the theater was closed as the state had ordered the closure of nonessential businesses and ordered people to stay at home.
In 2022, Linzy filed a complaint accusing the companies of negligent as well as negligent hiring, training, retention and supervision. He said the business was aware local teenagers used the parking lot as a late-night hangout spot and said the companies had a duty of care to employ security personnel for the premises.
The companies moved for dismissal, saying they did not owe any duty to Linzy. On January 5, 2023, the circuit court issues an order granting the dismissal. Linzy appealed that order to the ICA.
In the appeal, Linzy raises six assignments of error. But the ICA says it only needs to address whether the companies owed him any duty. The three-judge ICA agreed with the circuit court that said, “A reasonable person would not foresee a need to hire security personnel to monitor a parking lot to ensure an individual does not harm himself by falling from the back of a pickup truck while the truck is performing a burnout.”
“During the relevant events, due to a global pandemic, the theater was closed as a nonessential business, and members of the public were subject to a stay-at-home order,” the decision states. “With that in mind, we decline to proclaim Mr. Linzy’s actions were reasonably foreseeable under these circumstances. To hold otherwise would require respondents (the business) to become the insurers of Mr. Linzy. …
“Moreover, beyond anticipating that individuals would be in the parking lot of a closed business amidst a statewide shutdown, one would need to foresee: (1) that these individuals would be engaging in burnouts, despite the danger that activity could present to the driver and pedestrians, and (2) that a typical danger presented by the activity of performing a burnout includes a man falling from standing atop a truck and injuring his head (as opposed to damages caused by a driver’s loss of control of the vehicle, or damage to the vehicles internals from the strain a burnout inflicts on it). Again, we are unwilling to go so far.”
West Virginia Intermediate Court of Appeals case number 23-ICA-31 (Raleigh Circuit Court case number 22-C-51)