In order to prove premises liability, plaintiffs must show that the property owner or manager knew or should have known that an unsafe condition existed and that there was a failure to warn or address the problem in a timely manner.
In the recent case of Wheeling Park Commission v. Dattoli, the West Virginia Supreme Court reversed a trial court damage award of nearly $56,000 (which plaintiff was hoping to have increased on appeal), finding plaintiffs did not establish a prima facie case of negligence because there was no evidence the park’s commission knew or should have known of the defect that reportedly caused plaintiff’s injury.
The incident in question occurred in September 2007 at a resort and conference center. Plaintiff was there with his wife attending activities at the park when he leaned against a split rail fence. As he did so, the end of the top rail broke into numerous pieces, causing plaintiff to fall down and injure his shoulder.
He then filed a personal injury lawsuit against the commission, which oversees operations at the resort. Defendant denied the allegations.
At trial, plaintiff produced evidence he suffered a rotator cuff injury that required surgery, followed by months of physical therapy and six months of missed work. There was also evidence presented as to the toll of the injury on plaintiff’s marriage and finances.
Plaintiffs also presented evidence that the fence had been installed sometime between the 1970s and 1990s. Plaintiffs lamented the fact the commission did not produce any records or documents in response to the request for maintenance and repair records pertaining to the fence. There was also presented for the court’s review several pieces of the broken fence, with the company’s corporate designee testifying it was believed to be the piece that broke off and caused plaintiff’s fall. The witness also testified he did understand that wood has a finite life expectancy, and that the park would be in a better position to ascertain whether a fence was in good repair than a park guest.
At the end of the case, defendant moved for summary judgment based on insufficient evidence, arguing there was not enough to show it breached its duty to maintain the fence. Trial court denied this motion and awarded plaintiff $56,000.
Plaintiffs requested a new trial, arguing the jury had not awarded enough in damages. Circuit court awarded a new trial only as to the issue of past damages for plaintiff’s pain and suffering.
Defense then appealed the circuit court’s denial of its motion for summary judgment as a matter of law. Specifically, defendant argued plaintiff failed to present any evidence at all to show what action a reasonable property owner should take in order to maintain that fence, and there was also no evidence of what defendant should have done differently.
The state supreme court agreed, noting that a land owner must have actual or constructive knowledge of the defective condition at issue, and there was no evidence presented to suggest the defect was obvious or that the park commission should have been conducting inspections or how regularly and whether they failed to do so.
If you have been injured in an accident, contact the Hollander Law Firm at (888) 751-7770 for a free and confidential consultation. There is no fee unless we win.
Wheeling Park Commission v. Dattoli, June 2, 2016, West Virginia Supreme Court
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Bogatov v. City of Hallendale Beach – Florida Child Playground Injury Litigated, June 4, 2016, Boca Raton Premises Liability Lawyer Blog