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Charleston judge emphasizes dissent in personal injury ruling

| Jan 4, 2014 | Brain Injuries

The West Virginia Supreme Court recently overturned the ruling of a lower court in a controversial move that may alter the landscape for personal injury lawsuits in the state. The incident in question involved a man who suffered a brain injury after falling down a flight of stairs that connects two parking lots in Martinsburg. The parking lot is located near a store known as Second Time Around.

Before the fall, the plaintiff could perform daily activities on his own, but he now requires the use of a wheelchair. The stairs that the man fell on did not have handrails, which was seen by lower courts as an “open and obvious” hazard, leading them to rule in favor of the defendants. Recently, however, the state Supreme Court essentially did away with the doctrine of “open and obvious” by ruling 3-2 in favor of the plaintiff.

A judge in the minority released his dissent. He stated that the decision will have a profound effect on the way premises liability cases are handled in West Virginia. His dissent states that the decision will cause property owners to be burdened with attempting to keep their premises “injury proof,” a task that he claims is impossible.

On the other hand, one West Virginia law organization stated that the owners of the parking lot were violating a city ordinance in Martinsburg by failing to have handrails next to the stairs. The handrails had been removed to thwart skateboarders. A majority judge stated that a jury in a given case must now debate whether an injury caused by an obvious hazard demonstrates negligence on the part of the property owner or the plaintiff.

The decision is controversial because property owners and employers in West Virginia may now be seeing more lawsuits involving hazards that they might have previously viewed as being obvious. However, the ruling could also be seen as a way to level the playing field, allowing juries to decide whether a hazard that caused an injury was “obvious” on a case-by-case basis.

Source:, “Justice Benjamin: Controversial decision will have ‘dramatic effect’” John O’Brien, Dec. 31, 2013