"Open and Obvious" Doctrine Is Clarified in WV
Natalie Schaefer
Trusted Civil Litigator defending clients in the industries of construction, mass litigation, insurance, and business in the Appalachian Tri-State region, licensed in WV/OH/KY.
In Gable v. Gable, the Supreme Court of Appeals of West Virginia remanded a dismissal of a premises liability case. By way of brief background, this case arose from a fall that occurred on defendant's (plaintiff's daughter) property when he fell on golf balls and other objects and debris. The trial court dismissed the case, finding that (1) the plaintiff was a trespasser and (2) the alleged hazard was open and obvious.
The Gable Court issued several new syllabus points:
5. Under Rule 8(a) of the West Virginia Rules of Civil Procedure, a plaintiff’s complaint need not anticipate or attempt to plead around potential defenses that may be raised by the defendant. A complaint is not required to contain any information about defenses and may not be dismissed, under the guise of Rule 12(b)(6), for that omission.
10. Whether an entrant to property is a trespasser is a question of fact.
13. Under West Virginia Code § 55-7-28(a) (2015), whether a danger was open, obvious, reasonably apparent or as well known to the person injured as it was to the owner or occupant is a question of fact.
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