HEATHER HUMPHREY, Individually, and as the Next Friend of Ozzmond Michael, a Juvenile, and as Administratrix of the Estate of Raymond Dale Michael,
WESTCHESTER LIMITED PARTNERSHIP, d/b/a WESTCHESTER VILLAGE, John Doe 2, an employee of Westchester Village, and Jane Doe 2, an employee of Westchester Village, Respondents
Heather Humphrey ("plaintiff") appeals the circuit
court's August 30, 2017, order granting summary judgment
in favor of Respondent Westchester Limited Partnership, d/b/a
Westchester Village ("Westchester"). The plaintiff
asserts that the circuit court erred by deciding questions of
proximate cause, intervening cause, and/or superseding cause
as a matter of law where genuine issues of material fact
exist. By contrast, Westchester argues that the
circuit court correctly granted summary judgment in its favor
"because the [plaintiff] presented no admissible
evidence on the essential element of proximate cause."
review and for the reasons stated herein, we affirm the
circuit court's order granting summary judgment in favor
of Westchester. Because we find no substantial question of
law and no prejudicial error, a memorandum decision affirming
the circuit court's order is appropriate under Rule 21(c)
of the Rules of Appellate Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
Dale Michael ("decedent") was struck and killed by
a motor vehicle in a hit-and-run accident that occurred at
approximately 2:00 a.m. on March 30, 2014, in Fairmont, West
Virginia. The Fairmont Police Department concluded that the
decedent, who had a .33 blood alcohol concentration
("BAC") at the time of his death, was likely lying
down in the road when he was struck by the vehicle.
Valentine, then nineteen years old, called the police at 2:00
p.m. on March 30, 2014. Mr. Valentine told the police that he
was driving a friend, Carrie Bragg, then twenty years old,
home from Goal Rush bar ("Goal Rush") when he
struck what he believed to be a bag of trash in the road. Mr.
Valentine was driving Ms. Bragg's car. He was not
administered a blood test to determine his BAC because twelve
hours had passed since the incident. He was subsequently
charged with the felony offense of leaving the scene of an
accident causing the death of another person.
arriving at Goal Rush on March 29, 2014, Ms. Bragg attended a
fraternity dinner at Westchester, a restaurant/event
venue. During this dinner, Westchester served
drinks provided by the fraternity to approximately one
hundred attendees, who were mostly fraternity members,
fraternity pledges, and their dates. Ms. Bragg attended the
dinner as a fraternity member's date. She was driven to
and from Westchester in a shuttle service provided by the
fraternity. Ms. Bragg's car was never on the premises of
Westchester on the evening of March 29, 2014, and it is
undisputed that she did not drive to or from the venue.
Following the dinner at Westchester, a fraternity pledge
drove Ms. Bragg to Goal Rush. According to testimony from a
Westchester employee, Lisa Schneider, the Westchester
fraternity event ended at 11:00 p.m. on March 29, 2014.
Valentine had no affiliation with the fraternity. He stated
that he did not attend the dinner at Westchester and did not
talk to or see Ms. Bragg until she arrived at Goal Rush. Mr.
Valentine claimed that he played pool at Goal Rush but did
not drink alcohol there. Instead, he admitted to drinking two
beers at a park and ride at 10:00 p.m. before arriving at
Goal Rush. Mr. Valentine's assertions were corroborated
by Ms. Bragg who testified that she did not see Mr. Valentine
drink alcohol at Goal Rush and that she did not believe he
was intoxicated. After spending a few hours at Goal Rush, Ms.
Bragg asked Mr. Valentine if he could give her a ride home.
Thereafter, Mr. Valentine and his friends, along with Ms.
Bragg, left Goal Rush sometime before 2:00 a.m. on March 30,
2014. One of Mr. Valentine's friends drove Ms. Bragg and
Mr. Valentine to Ms. Bragg's employer's parking lot
to retrieve her car. Upon arriving at this parking lot, Mr.
Valentine and Ms. Bragg got into her car and Mr. Valentine
proceeded to drive her home. It was during the ride home that
Mr. Valentine struck the decedent.
Heather Humphrey, on behalf of the decedent's estate,
filed a wrongful death suit against Goal Rush and
Westchester. The plaintiff alleged that Mr. Valentine
drank alcohol at Goal Rush to the point of intoxication, and
that he ran over the decedent in Ms. Bragg's car. The
plaintiff alleged that by serving alcohol to Mr. Valentine,
Goal Rush negligently contributed to the decedent's
death. The plaintiff's negligence claim
against Westchester alleged that Mr. Valentine drank alcohol
at both Westchester and Goal Rush to the point of
intoxication, that he later ran over the decedent in Ms.
Bragg's car, and that, by negligently serving alcohol to
Mr. Valentine, Westchester and Goal Rush contributed to the
moved for summary judgment, asserting that Mr. Valentine was
not at the fraternity event on the night of the accident, and
did not consume any alcohol at Westchester. Westchester noted
that approximately twenty people had been deposed, including
Mr. Valentine, Ms. Bragg, Mr. Valentine's friends, other
attendees at Westchester, the bartender at Westchester, and
investigators with the Fairmont Police Department. Each of
these witnesses either denied or stated that they had no
reason to believe that Mr. Valentine was at Westchester on
the night in question.
the hearing on Westchester's motion for summary judgment,
the circuit court found that there was no evidence to support
the plaintiff's assertion that Mr. Valentine was present
at Westchester. Thus, it determined that Westchester could
not have served Mr. Valentine alcohol. Because it was
undisputed that Mr. Valentine was not at Westchester, the
circuit court expressed concern that there was no evidence
connecting Westchester to the decedent's death. However,
the circuit court stated that there could be a cause of
action against an establishment that serves alcohol to an
underage person who negligently entrusts her keys to an
intoxicated driver who then injures a third person.
Therefore, the circuit court denied Westchester's motion
for summary judgment and allowed the plaintiff to amend her
complaint to allege that Westchester served Ms. Bragg alcohol
to the point of intoxication, and consequently, Ms. Bragg
negligently entrusted her keys to Mr. Valentine, who was also
intoxicated, and thus, Westchester negligently contributed to
the decedent's death. The circuit court's order set
forth the following issues of fact that remained for jury
(1) Westchester's duty with regard to preventing Carrie
Bragg, a citizen under the age of twenty-one (21) years, from
being served and/or consuming alcohol to a state of
intoxication while on its premises; (2) Westchester's
alleged breach of that duty by allowing, knowingly or
negligently, alcohol to be served to Carrie Bragg; (3) the
proximate causation/foreseeability of an intoxicated Carrie
Bragg's entrustment of her vehicle to another intoxicated
person; (4) the proximate causation/foreseeability that such
entrustment could cause the incident which resulted in the
death of [the decedent]; and (4) [sic] the existence of any
intervening or superseding causes.
plaintiff filed a second amended complaint alleging that Mr.
Valentine "and/or" Ms. Bragg were served alcohol at
Westchester; that Westchester knew or should have known that
Mr. Valentine "and/or" Ms. Bragg were intoxicated
and intended to drive a motor vehicle; that Westchester took
no action to prevent Mr. Valentine "and/or" Ms.
Bragg from driving; and that Mr. Valentine "and/or"
Ms. Bragg drove Ms. Bragg's car while intoxicated and
struck and killed the decedent.
filed a motion for summary judgment on the plaintiff's
second amended complaint on July 25, 2017, arguing that: (1)
there was no genuine dispute that Mr. Valentine was driving
the car that struck the decedent; (2) there was no genuine
dispute that Mr. Valentine was not at Westchester on the
night in question; and (3) no cause of action exists against
Westchester for serving alcohol to Ms. Bragg when she was not
the driver of the car, but allowed Mr. Valentine to drive her
circuit court granted Westchester's motion for summary
judgment on the plaintiff's second amended complaint. It
found that there was no genuine issue of fact that Mr.
Valentine was driving at the time of the accident and that
undisputed evidence . . . demonstrates that [Mr.] Valentine
was not present at Westchester on the evening of March 29 or
early morning of March 30, 2014, prior to [the
decedent's] death. [The plaintiff] has presented no
evidence to create a genuine issue of material fact in that
regard. Mr. Valentine, therefore, could not have been served
alcohol by, or consumed any alcohol on the premises of
Westchester and could not have become intoxicated as a result
of its conduct.
circuit court found that there is no recognized cause of
action against one who allegedly sells, or serves, alcoholic
beverages to an underage individual who did not injure
herself or another through the operation of a motor vehicle,
but who is alleged to have negligently entrusted a motor
vehicle to another. Even if it were to recognize such a cause
of action, the circuit court concluded that:
As a matter of law, the events that occurred after Carrie
Bragg left Westchester, which resulted in the death of [the
decedent], were so remote in time and so remote from any
alleged acts or omissions on the part of Westchester as to be
completely unforeseeable, and, therefore, the intervening
negligence of Ms. Bragg and/or Mr. Valentine cut off any
liability that Westchester might otherwise have incurred.
There is no genuine issue of fact in this ...