United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, UNITED STATES DISTRICT JUDGE.
before the Court is a Motion for Summary Judgment by
Defendant The Rutherford Group, LLC (hereinafter
“Rutherford”), to which the Defendants
Bojangles' International LLC and Bojangles'
Restaurants, Inc. have joined. ECF No. 37 & 40. Upon
consideration of the parties' arguments and for the
following reasons, the Court DENIES, in
part, and GRANTS, in part,
undisputed that, on or about September 25, 2016, Plaintiff
Julie Huron was a patron at a Bojangles restaurant that was
franchised to Rutherford. Rutherford also owned and occupied
the premises. After eating inside the restaurant,
Plaintiff walked outside around 8:00 p.m., taking the same
route she used when she entered. As she left, it was dusk,
and she was carrying a drink and a bag with food. She also
was talking to her another individual. Although Plaintiff
acknowledges she traversed the curb between the parking
lot/drive through lane onto the sidewalk without difficulty
when she entered the building, she claims she did not notice
the change of elevation when she left. As a result, when she
stepped off the curb, she fell and broke both bones in her
lower leg. Plaintiff underwent surgery and incurred
approximately $78, 000 in medical costs. She then filed this
action seeking compensatory, general, and punitive damages,
insisting the curb should have been painted a contrasting
color to warn customers of the elevation change. On the other
hand, Rutherford argues that the curb's elevation was
open and obvious and, therefore, it is entitled to summary
judgment as a matter of law.
obtain summary judgment, the moving party must show that
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In considering a motion for summary
judgment, the Court will not “weigh the evidence and
determine the truth of the matter[.]” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead,
the Court will draw any permissible inference from the
underlying facts in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986).
the Court will view all underlying facts and inferences in
the light most favorable to the nonmoving party, the
nonmoving party nonetheless must offer some “concrete
evidence from which a reasonable juror could return a verdict
in his [or her] favor[.]” Anderson, 477 U.S.
at 256. Summary judgment is appropriate when the nonmoving
party has the burden of proof on an essential element of his
or her case and does not make, after adequate time for
discovery, a showing sufficient to establish that element.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). The nonmoving party must satisfy this burden of proof
by offering more than a mere “scintilla of
evidence” in support of his or her position.
Anderson, 477 U.S. at 252.
case, Plaintiff argues Defendants failed to exercise
reasonable care and were negligent by not painting the curb.
“In order to establish a negligence claim in West
Virginia, ‘[a] plaintiff must prove by a preponderance
of the evidence that the defendant owed a legal duty to the
plaintiff and that by breaching that duty the defendant
proximately caused the injuries of the plaintiff.'”
Cline v. 7-Eleven, Inc., Civ. Act. No. 3:11-CV-102,
2012 WL 5471761, at *5 (N.D. W.Va. Nov. 9, 2012) (citing
Neely v. Belk, Inc., 668 S.E.2d 189, 197 ( W.Va.
2008)). In 2013, the West Virginia Supreme Court
“abolish[ed] the open and obvious doctrine in premises
liability actions, [and stated] [t]he obviousness of a danger
does not relieve an owner or possessor's duty of care
towards others, and does not preclude recovery by a plaintiff
as a matter of law.” Hersh v. E-T Enters., Ltd.
P'ship, 752 S.E.2d 336, 342 ( W.Va. 2013). In
reaction, the West Virginia Legislature statutorily
reinstated the open and obvious rule in 2015 in West Virginia
Code § 55-7-28(a). This provision provides:
A possessor of real property, including an owner, lessee or
other lawful occupant, owes no duty of care to protect others
against dangers that are open, obvious, reasonably apparent
or as well known to the person injured as they are to the
owner or occupant, and shall not be held liable for civil
damages for any injuries sustained as a result of such
Code § 55-7-28(a). Nevertheless, the West Virginia
Supreme Court stated that this statute does not abrogate the
fact an owner or occupant of a premise still owes
“‘an invited person the duty to exercise ordinary
care to keep and maintain the premises in a reasonably safe
condition.'” W. Liberty Univ. Bd. of Governors
v. Lane, No. 16-0942, 2018 WL 300564, at *4 ( W.Va. Jan.
5, 2018) (unpublished) (quoting Syl. Pt. 2, Burdette v.
Burdette, 127 S.E.2d 249 ( W.Va. 1962)). This duty is
not abrogated by the “open and obvious
Rutherford argues not only that the curb was open and
obvious, but that Plaintiff also had actual knowledge of the
curb because she admitted she saw it when she walked to the
building. Plaintiff said she did not have any difficulty
entering the restaurant, and she left using the same route
she used when she entered. Therefore, Rutherford asserts that
it cannot be liable under the open and obvious doctrine and
West Virginia Code § 55-7-28(a).
it is undisputed that, at the time of Plaintiff's
accident, the curb was not painted. Plaintiff represents, and it
is evident in the video submitted to the Court, that both the
sidewalk and the parking lot/drive through lane are the same
pale gray concrete color. In his expert report, Ronald W.
Eck, P.E., Ph.D. opined to a reasonable degree of engineering
certainty that the lack of contrast and the only six-inch
rise from the parking lot to the sidewalk made the change in
elevation difficult to detect. Report of Ronald W. Eck,
P.E., Ph.D., at 4 (Feb. 16, 2018), ECF No. 45-1.
Additionally, Dr. Eck stated that, even if Plaintiff stepped
up onto the curb when she entered the restaurant, “she
would have forgotten that experience by the time she left the
restaurant.” Id. at 6. Based upon his review,
Dr. Eck opined Plaintiff's fall “was a direct
result of improper design, construction, inspection,
maintenance of this curb/sidewalk interface and a failure to
provide warning of the hazard in contravention of accepted
safety practices, principles and guidelines.”
this evidence in the light most favorable to Plaintiff and
after watching the video of the accident, the Court believes
a jury could reasonably find that change in elevation between
the sidewalk and parking lot/drive through lane was not open
and obvious. Therefore, the Court DENIES
Rutherford's motion for summary judgment on this issue.
also argues, however, that it is entitled to summary judgment
on Plaintiff's claim for punitive damages. Plaintiff
failed to respond to this argument on summary judgment. In a
parallel motion in limine, Plaintiff's only response is
that she thinks the motion is more appropriate as a motion
for directed verdict. ECF No. 69. In order to survive summary
judgment, however, Plaintiff must offer some “concrete
evidence from which a reasonable juror could return a verdict
in [her] favor[.]” Anderson, 477 U.S. at 256.
Plaintiff has failed to do so with respect to punitive
damages. Therefore, the Court GRANTS summary
judgment in favor of Defendants on Plaintiff's claim for
for the foregoing reasons, the Court DENIES
Rutherford's summary judgment motion with regard to
liability under the open and obvious doctrine, but
GRANTS the motion with respect to punitive
Court DIRECTS the Clerk to send a copy of
this Order to counsel of record and ...