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Humphrey v. Westchester Limited Partnership

Supreme Court of West Virginia

May 21, 2019

HEATHER HUMPHREY, Individually, and as the Next Friend of Ozzmond Michael, a Juvenile, and as Administratrix of the Estate of Raymond Dale Michael,
v.
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

          Marion County 16-C-43

          MEMORANDUM DECISION

         Petitioner 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").[1] 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.[2] 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."

         After 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Raymond 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.

         Cole 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.

         Before arriving at Goal Rush on March 29, 2014, Ms. Bragg attended a fraternity dinner at Westchester, a restaurant/event venue.[3] 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.

         Mr. 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.

         Plaintiff Heather Humphrey, on behalf of the decedent's estate, filed a wrongful death suit against Goal Rush and Westchester.[4] 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.[5] 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 decedent's death.

         Westchester 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.

         During 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 determination:

(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.

         The 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.

         Westchester 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 car.

         The 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 the:

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.

         The 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 ...

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