Kanawha County 16-C-1541
Valerie Tabit, by counsel Kevin P. Davis and William P. Dean,
appeals the order of the Circuit Court of Kanawha County,
entered on February 22, 2018, granting respondents'
motion for summary judgment on petitioner's claim that
respondents' negligence caused her to fall and sustain
injury. Respondents Kroger Group Cooperative, Inc. and Kroger
Limited Partnership I appear by counsel Travis S. Haley and
Julie M. Greco.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
filed a civil complaint in the Circuit Court of Kanawha
County in October of 2016. She asserted that she suffered
damages at respondents' place of business the prior year
when she "tripped over the abnormally large caution sign
that primarily blocked ingress and egress from the bathroom
leaving only the narrow route to step over and around
it." After a period of discovery, during which
petitioner testified that she saw the thirty-inch tall
triangular cautionary sign and walked around it prior to
tripping, respondents filed a motion for summary judgment.
The circuit court granted respondents' motion, aptly
noting that our jurisprudence assigns "no liability for
injuries from dangers that are obvious, reasonably apparent,
or as well known to the person injured as they are to the
owner or occupant."
appeal, petitioner puts forth seven assignments of error. She
asserts that the trial court erred in: finding that there was
no genuine issue of material fact; disregarding witness
testimony; finding that petitioner "opted to use the
ladies' room rather than the family/handicap
bathroom"; finding that the federal Americans With
Disabilities Act ("the ADA") is not a "safety
statute"; misapplying West Virginia Code §
55-7-28(c) by failing to consider "the nature, severity,
or lack thereof, of violations of any statute relating to a
cause of action"; failing to correctly apply precedent;
and failing to consider the "five primary elements of
negligence." Our review is de novo. See Syl.
Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d
consideration of each of petitioner's assignments of
error coincides with that of the others, inasmuch as
petitioner has offered a single argument in support of all
seven points. Taking the points together, we surmise that
petitioner argues that her expert witness, Mark Derry, a
consultant with knowledge of the ADA, testified that the ADA
is a "safety statute" capable of providing the
groundwork for a private negligence action. Petitioner, a
partially- paralyzed woman and likely an intended beneficiary
of ADA accommodation, argues that the circuit court failed to
consider all precedent-including, presumably, the ADA-in
evaluating her negligence claim.
reasoning is more succinctly explained in our prior holding:
"When a statute imposes a duty on a person for the
protection of others, it is a public safety statute and a
violation of such a statute is prima facie evidence of
negligence unless the statute says otherwise. A member of a
class protected by a public safety statute has a claim
against anyone who violates such a statute when the violation
is a proximate cause of injury to the claimant."
Syllabus Point 7, Shaffer v. Acme Limestone Co.,
Inc., 206 W.Va. 333, 524 S.E.2d 688 (1999).
Syl. Pt. 1, Hersh v. E-T Enterprises, Ltd.
P'ship, 232 W.Va. 305, 752 S.E.2d 336 (2013)
superseded by statute on other grounds as stated in Tug
Valley Pharmacy, LLC v. All Plaintiffs Below in Mingo
County, 235 W.Va. 283 n.12, 773 S.E.2d 627 n.12 (2015).
builds her argument entirely on the testimony of Mr. Derry.
She cites the ADA only broadly, without underlining her
negligence claim with the identification of any particular
statutory violation. Likewise, she offers no legal authority
branding the ADA as a "safety statute," instead
characterizing her assertion as a factual one.
question of whether the ADA is such a statute under our
jurisprudence is not one of fact. It is a legal query,
turning on the determination of whether the ADA "imposes
a duty on a person for the protection of others." Syl.
Pt. 1, Hersh, 752 S.E.2d 336.The question is
unanswered by this Court, but we need not attend it at this
time. "Before the owner or occupier of
premises may be held legally liable, it must be shown that
the owner/occupier owed a duty to the person
injured, that the duty was breached, and that the breach of
duty was the proximate cause of the injury. Atkinson v.
Harman, 151 W.Va. 1025, 158 S.E.2d 169 (1967); see
McMillion v. Selman, 193 W.Va. 301, 303, 456 S.E.2d 28,
30 (1995)." Senkus v. Moore, 207 W.Va. 659,
662, 535 S.E.2d 724, 727 (2000)(emphasis in original). Or, as
later stated in syllabus point one of Hersh,
negligence may be assumed under this approach when a public
safety statute is violated and "the violation is a
proximate cause of injury to the claimant." Because the
circuit court adequately explained that petitioner failed to
articulate an ADA violation proximately causing her injury,
we need not proceed to the muddle of petitioner's
claim rests entirely on the vague assertion (made without
citation to the appendix record on appeal) that Mr. Derry
that Kroger violated a multitude of ADA standards and
regulations in regards to the restroom area, including but
not limited to: signage directing customers to the location
of the restrooms; the manner in which the restroom signs
should be labeled; how high the signs should be hung so those
with disabilities can clearly see them; the structural
dimensions of the hallway leading to the restrooms; the size
and dimensions of the restrooms; and, the size and dimensions
of the stalls in the restrooms.
nebulous offenses fall short of instigating the proximate
cause of petitioner's injury: that is, her entanglement
with a large and obvious cautionary sign in the common space
of a public restroom. The shortfall remains despite
petitioner's assertion that a factual dispute is born of
her testimony that she did not use an available accessible
restroom because it was improperly labeled under ADA
standards. Petitioner maintains that she believed, based on
signage on the restroom's outer door, that the accessible
restroom was meant for unisex use rather than for
accommodation, and that she was fearful of entering a unisex
restroom. Petitioner's misapprehension is too remote to
be of material value. "A person is not liable for
damages which result from an event which was not expected and
could not reasonably have been anticipated by an ordinarily
prudent person." Syl. Pt. 6, Puffer v. Hub Cigar
Store, 140 W.Va. 327, 84 S.E.2d 145 (1954),
overruled on other grounds as stated in Mallet v.
Pickens, 206 W.Va. 145, 522 S.E.2d 436 (1999).
Petitioner has not shown that respondents ...