Plaintiff's Awareness Of Slippery Stairs
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 1993 Term
__________
No. 21407
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DREMA G. BILLS AND ROBERT K. BILLS,
Plaintiffs Below, Appellants
v.
LIFE STYLE HOMES, INC., d/b/a BERRY HOMES,
Defendant Below, Appellee
________________________________________________
Appeal from the Circuit Court of Cabell County
Honorable Alfred E. Ferguson, Circuit Judge
Civil Action No. 86-C-1265
REVERSED AND REMANDED
________________________________________________
Submitted: February 2, 1993
Filed: March 26, 1993
Frank M. Armada
Hurricane, West Virginia
Counsel for Appellant
James D. Lamp
Lamp, O'Dell, Bartram
& Entsminger
Huntington, West Virginia
Counsel for Appellee
This Opinion was delivered Per Curiam.
SYLLABUS BY THE COURT
"'"An erroneous instruction is presumed to be prejudicial and
warrants a new trial unless it appears that the complaining party
was not prejudiced by such instruction." Point 2, syllabus, Hollen
v. Linger, 151 W. Va. 255 [151 S.E.2d 330 (1966)].' Syllabus Point
5, Yates v. Mancari, 153 W. Va. 350, 168 S.E.2d 746 (1969)." Syl.
Pt. 8, Kodym v. Frazier, 186 W. Va. 221, 412 S.E.2d 219 (1991).
Per Curiam:
This is an appeal by Drema G. Bills and her husband, Robert K.
Bills, from an October 31, 1991, order of the Circuit Court of
Cabell County denying the Appellants' motion to set aside the jury
verdict and to award a new trial. The jury returned a verdict of
$15,000 in favor of the Appellants, apportioning 49% liability to
Appellant Mrs. Bills and 51% liability to the Appellee. The
Appellants contend that a new trial should be awarded on the basis
of an erroneous instruction which was given to the jury. We
reverse the order of the Circuit Court of Cabell County and remand
this matter for a new trial.
I.
On November 7, 1985, at approximately 10:30 a.m., the
Appellants visited a mobile home display operated by the Defendant,
Life Style Homes, Inc., d/b/a Berry Homes (the "Appellee" or "Life
Style Homes"). The temperature was in the mid-40's with a light
rain. The Appellants were assisted in viewing the mobile homes by
salesperson Allyn Bailey. In order to enter and examine the mobile
homes, the Appellants had to walk up removable metal step platforms
consisting of four steps. The step platforms were not equipped
with handrails, and individual steps were not provided with a non-skid covering. While exiting one of the mobile homes, Appellant
Mrs. Bills slipped on the metal stairway and fell backwards onto
the steps, injuring her lower back.See footnote 1 The Appellants filed a
complaint against the Appellee asserting that the Appellee failed
to exercise ordinary care to protect Mrs. Bills from injury. The
Appellee asserted the defenses of contributory negligence,
comparative negligence, and assumption of risk. In furtherance of
these defenses, the Appellee established that Mrs. Bills was aware,
prior to her exit from the mobile home, that the metal steps were
wet and that they were not equipped with handrails. The Appellee
also emphasized the fact that Mrs. Bills had not previously
objected to ascending or descending similar steps on the mobile
home lot.
At the close of the evidence, the jury was instructed on duty
of care, burden of proof, applicable laws of negligence,
comparative negligence, and assumption of the risk. The lower
court erroneously instructed the jury that assumption of risk was
a complete bar to recovery by the Appellants. Both sides agree
that the instruction was erroneous under Syllabus Point 2 of King
v. Kayak Manufacturing Corp., 182 W. Va. 276, 387 S.E.2d 511
(1989): "A plaintiff is not barred from recovery by the doctrine
of assumption of risk unless his degree of fault arising therefrom
equals or exceeds the combined fault or negligence of the other
parties to the accident." Specifically, Defendant's instruction
number 11 informed the jury as follows:
Under West Virginia Law, a person who
voluntarily exposes himself to a hazard with
full knowledge and understanding of that
hazard, assumes the risk of any injury so
created. When one voluntarily assumes the
risk of any injury from a known danger, she is
barred from recovery in a negligence case.
Therefore, if you believe from a
preponderance of the evidence that Drema Bills
voluntarily and knowingly exposed herself to a
hazard that resulted in her injury, then you
may find that she assumed the risk and your
verdict should be for the Defendant Life Style
Homes.
The jury returned a verdict for $15,000, finding the Appellant
Mrs. Bills 49% negligent and the Appellee 51% negligent. The
Appellants have appealed to this Court alleging that the lower
court's erroneous instruction prejudiced the Appellants and
establishes cause for reversal and remand. The Appellee, while
admitting that the instruction was indeed erroneous, maintains that
it constituted harmless error and did not affect the decision of
the jury.
II.
Since The parties agree that the assumption of risk
instruction was erroneous, the remaining issue for resolution is
whether that error was harmless. In syllabus point 8 of Kodym v.
Frazier, 186 W. Va. 221, 412 S.E.2d 219 (1991), we explained:
"'An erroneous instruction is presumed to
be prejudicial and warrants a new trial unless
it appears that the complaining party was not
prejudiced by such instruction.' Point 2,
syllabus, Hollen v. Linger, 151 W. Va. 255
[151 S.E.2d 330 (1966)]." Syllabus Point 5,
Yates v. Mancari, 153 W. Va. 350, 168 S.E.2d
746 (1969).
In Kodym, we encountered an erroneous instruction regarding the
causation of damages which instructed the jury that if they were
uncertain as to whether the damages were caused by the defendant or
if they believed that it was probable that the plaintiff's injuries
were caused by non-parties, then the jury could find for the
defendants. We determined that instruction to be improper and
found reversible error based upon the erroneous and misleading
instruction. Kodym, 186 W. Va. at 227, 412 S.E.2d at 225.
Pursuant to our consistent approach to the dilemma created by an
erroneous instruction, a presumption of prejudice is raised when
such an instruction has been given. Moreover, the existence of the
erroneous instruction warrants a new trial unless it appears that
the complaining party was not prejudiced by the instruction. Id.;
see also Harris v. Matherly Machinery, Inc., 187 W. Va. 234, 417
S.E.2d 925 (1992); Rahall v. Tweel, 186 W. Va. 136, 411 S.E.2d 461
(1991); Pino v. Szuch, 185 W. Va. 476, 408 S.E.2d 55 (1991). Thus,
the burden is upon Life Style Homes in the present case to
establish that the complaining parties, the Appellants, were not
prejudiced by the erroneous instruction.
In Rahall, the trial court had given an erroneous instruction
regarding an accommodation party, one who signs an instrument in
any capacity for the purpose of lending his name to another party
to the instrument. In considering the erroneous instruction and
the effect it may have had on the jury's determination, we
explained that "[w]e cannot conclude that the plaintiff was not
prejudiced by the erroneous instruction. Had the jury been
properly instructed, it might have reached a different result."
Rahall, 186 W. Va. at 141, 411 S.E.2d at 466. This case presents
us with a similar issue, almost purely speculative in nature. We
must establish what effect, if any, the erroneous instruction had
on the jury. Furthermore, we must determine whether we can
conclude that the Appellants were not prejudiced by the erroneous
instruction. Because this case was tried on theories of
negligence, the jury's thorough understanding of relative degrees
of fault and the legal conclusions to be drawn therefrom was
indispensable. The jury was properly instructed as to the
definition of negligence, the requirement of due care, and the laws
of comparative negligence. However, in the instruction regarding
assumption of risk, the jury was erroneously informed that
assumption of risk by Mrs. Bills should result in a verdict for
Life Style Homes. While, as Life Style Homes argues, the jury may
not have relied upon that erroneous instruction in reaching its
verdict of 51% negligence by Life Style Homes and 49% by Mrs.
Bills, it is virtually impossible for us to conclude that the
erroneous instruction did not impact the jury's decision or
prejudice Mrs. Bills in any manner. If the erroneous instruction
altered the jury's conception of the interrelationship among
assumption of risk, comparative negligence, and general negligence
principles, for instance, that misconception could have affected
their judgment.
The Appellants have suggested that the jury's verdict could
represent a compromise between those members of the jury who felt
that denial of any recovery was too harsh and those who believed
that Mrs. Bills should recover nothing because she had assumed the
risk. That suggestion is not as untenable as the Appellees would
have us believe. We are confronted with a reasonable hypothesis by
the Appellants regarding the manner in which they could have been
prejudiced by the erroneous instruction and by the resulting
confusion of the jury. We cannot discount that assertion, and we
cannot conclude that the erroneous instruction did not prejudice
the Appellants' position.
Based upon the foregoing, we reverse the decision of the
Circuit Court of Cabell County and award the Appellants a new
trial.
Reversed and remanded.
Footnote: 1Mrs. Bills sustained numerous abrasions and contusions and
has worn a TENS unit since her injury in an effort to diminish her
pain. She incurred over $6,400 in medical expenses and has been
diagnosed as having a herniated disc.
*** Any law, statute, regulation or other precedent is subject to change at any time ***
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