Contrary to popular superstitious belief surrounding its origins, Ides simply marks the first day of the full moon in every month, typically falling between the 13th and 15th. Blaming the full moon for strange behavior is a time-honored tradition. In the first century AD, the Roman philosopher Pliny suggested that the full moon caused more dew to form, which led to increased moisture in the brain, and that, he said, led to madness. Whatever your Full Moon Madness, March Madness or Ides of March experiences have been, please continue to read about our experiences at Bailey & Wyant. And as always, we at Bailey & Wyant, PLLC thank you for your business and continued support.

On March 23, 2022, the West Virginia Supreme Court of Appeals handed down a memorandum decision affirming Martinsburg Member Jim Marshall and Associate Adam Strider’s summary judgment win in Hamstead v. Harvey, No. 21-0410.

In affirming the Circuit Court of Jefferson County’s order granting summary judgment on behalf of our clients, the Supreme Court held that Mr. Harvey was entitled to absolute statutory & qualified immunity, and that the County Commission was entitled to absolute statutory immunity. The document at issue had been subpoenaed by the Plaintiff’s criminal defense attorney in the course of a misdemeanor prosecution for Disorderly Conduct, Destruction of Property, and Obstructing an Officer, and had been filed unredacted into the public record by the Magistrate. 

On March 7, 2022, the West Virginia Supreme Court of Appeals entered a memorandum decision in a case dealing with a slip-and-fall, premises liability claim. This memorandum decision is noteworthy because it follows in the steps of the 2019 memorandum decision in Tabit v. Kroger Group Cooperative, Inc. with respect to the issue at hand: whether establishing that a violation of a statute/regulation, which is prima facie evidence of negligence, will preclude summary judgment in premises liability actions. In short, the answer is no unless there is sufficient evidence that the violation was what proximately caused the harm.

Before discussing Drew v. Dillons Furniture, a small overview of premises liability law in West Virginia is necessary to understand the holding in the case. In a standard negligence action, it is necessary for there to be a duty owed to the plaintiff by the defendant, that the defendant breached said duty, and that the breach of said duty proximately caused the injuries of the plaintiff. For property owners, the duty owed to those invited on the property is a duty to exercise ordinary care to keep and maintain the premises in a reasonably safe condition. However, there is no duty 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.

Taking this brief overview into account, in Drew v. Dillons Furniture, the plaintiffs appealed the lower court’s Order granting summary judgment to the defendants on the plaintiffs’ premises liability action against defendants. In the case, the plaintiffs traveled to the defendants’ furniture store and, upon arriving and walking to the front door, discovered the business was closed. While walking back to their car, one of the plaintiffs accidentally stepped off the sidewalk, lost her balance, and fell when she attempted to walk between some rocking chairs that had been placed on the sidewalk at the front of the business. The plaintiffs claimed that the defendants had a duty to maintain the sidewalk in a careful and prudent manner and that defendants had created a dangerous and hazardous condition that caused the plaintiff’s injuries.

On appeal, the plaintiffs argued two separate grounds for why the lower court erred in granting summary judgment. For purposes of this article, we will focus on the second argument: that plaintiffs had set forth a prima facie case of negligence because they had established that the condition of respondents' property (the sidewalk being too high) violated International Building Code ("IBC") 1003.5, International Property Maintenance Code ("IPMC") 302, and American Society of Testing Materials ("ASTM") 1637-13, and that these violations also constituted violations of the West Virginia Code of State Rules.

The West Virginia Supreme Court of Appeals ultimately upheld the lower court’s decision by stating that, like the plaintiffs in the 2019 case of Tabit v. Kroger Group Cooperative, Inc., the alleged violations of a public safety statute were, “at best, nebulous,” and that the allegations fell short of establishing that the violations proximately caused the plaintiff’s injuries. The plaintiff that fell in Drew v. Dillons Furniture had provided testimony that there was nothing about the height of sidewalk that caused her to fall. Thus, plaintiffs’ argument that summary judgment should be have been denied because plaintiffs established a prima facie case of negligence fell flat.

Moving forward, defendants should be aware that a plaintiff establishing a prima facie showing of negligence will not be sufficient to defeat summary judgment if there is no evidence to support that the condition on the property that violated a local regulation or statute was what proximately caused the harm.

Bailey & Wyant’s IT department strives to create a workplace with employees that are educated on current cybersecurity topics. Through the use of our email protection system which is provided via Mimecast® cybersecurity training is offered to all employees on a mandatory basis. Our IT security awareness training is developed to help broaden employee’s perspectives and promote critical thinking on new and trending security issues. Topics can include How to protect your information using Virtual Private Networks (VPN), the security risks of Internet of things devices (IoT), and protecting sensitive data while in the public or on video calls.

We are happy to announce yet another 20 Year Anniversary in our Charleston office. This March we had not one, but two employees reach this milestone. On March 6, 2022, Letha Cottle marked her twentieth year with the firm and Roberta Burks on March 25, 2022. Bailey & Wyant would simply not be the same without the two of you. Thank you for all of your hard work and dedicated service throughout the years.

Justin C. Taylor is an Equity Member in Bailey & Wyant, PLLC’s Charleston office. He received his Bachelor of Arts degree in Psychology from West Virginia University in 1996 Summa Cum Laude. Thereafter, he received his law degree in 1999, also from West Virginia University, where he was a member of the Clinical Law program.

To discuss your case, e-mail us (baileywyant@gmail.com) or give us a call.