West Virginia Court Considers When an “Invitee” Has Overstepped Their Invitation
In Ragonese v. Racing Corporation of West Virginia, d/b/a Mardi Gras Casino and Resort, the Supreme Court of Appeals of West Virginia was asked to determine whether a guest’s decision to take an unmarked detour around casino property, and which ultimately led to the guest’s alleged injuries, transformed his status from that of a business invitee to a trespasser so as to preclude him from recovering damages for the personal injury he sustained. Despite testimony from the guest indicating that he was aware of the potential danger associated with the detour, and that he chose to take it anyway, the Court refused to uphold the lower court’s dismissal of the case, holding that there were material issues of fact that had to be resolved by a jury.
The Plaintiff and his wife checked into the Mardi Gras Casino's hotel in July 2011. Later, the pair walked across a skyway bridge connecting the hotel to the Casino. The Plaintiff and his wife spent the evening gambling, taking intermittent smoking breaks, and a dinner break. The Court noted that “[t]wo of the smoking breaks took place at a “side” or “bus stop entrance” to the Casino - a location directly facing a six-foot high retaining wall that extended along the hotel’s roadside perimeter.”Ragonese v. Racing Corp. of W. Virginia, No. 14-0258, slip op. at 1-2 (W. Va. Feb. 12, 2015).
Approximately six hours after checking into the hotel, the Plaintiff exited the Casino through the side entrance (the entrance previously used by him and his wife). Then, the Plaintiff “crossed the street near the base of the retaining wall, turned left and continued walking approximately 125 feet with the retaining wall parallel to his right shoulder as he proceeded up an inclined roadway.” Id. at 2. The Court noted that “[u]pon reaching the hotel's driveway, the Plaintiff took a shortcut up a grassy slope to the main entrance.” Id. Approximately four minutes later, the Plaintiff walked out the front door of the hotel to meet his wife who was standing outside the side entrance of the Casino. Instead of using the skyway bridge or the roadway he had previously used, and despite his admitted knowledge of the retaining wall’s location, the Plaintiff decided to take another shortcut. This shortcut involved stepping through a line of shrubbery, and then proceeding down a steep, grassy, hillside that led to the top of the retaining wall. Moments later, the Plaintiff fell into the roadway from atop the retaining wall. The fall caused the Plaintiff to suffer a spiral fracture of his left leg. The Plaintiff alleged that the retaining wall was dangerous, and that the Casino failed to protect him as a guest/business invitee. After discovery, the Casino moved for summary judgment, arguing that at the time of his injury, the Plaintiff was a trespasser, not a business invitee; thus, he was barred from recovery.
A trespasser has been defined by the Supreme Court of Appeals of West Virginia to be one who goes upon the property or premises of another without invitation, express or implied, and does so out of curiosity, or for his own purpose or convenience, and not in the performance of any duty to the owner. Mallet v. Pickens, 206 W. Va. 145, 146, 522 S.E.2d 436, 437 (1999). In West Virginia, if it is determined that a person is a trespasser, the property owner only has a duty to refrain from engaging in willful or wanton behavior causing injury to the trespasser. Id. In this case, the trial court held that the Plaintiff exceeded the scope of his invitation and became a trespasser when he took the second shortcut. Further, the trial court held that the Casino had not broken its obligations to the Plaintiff as a trespasser because it had not “willfully or wantonly” injured the Plaintiff and had not acted with “premeditation, knowledge, or consciousness” that the Plaintiff would injure himself by trespassing and falling off the wall. Accordingly, the trial court granted summary judgment to the Casino after finding no genuine issues of material fact regarding the circumstances surrounding the Plaintiff’s fall or the Casino’s compliance with the obligations it owed the Plaintiff as a trespasser.
On appeal, the Supreme Court of Appeals of West Virginia held the trial court had usurped the role of a jury. The Court reasoned that because there was a material factual dispute as to whether the Plaintiff’s decision to take a shortcut changed his status from that of a business invitee to a trespasser, the issue should be resolved by the fact finder, i.e., the jury. Specifically, the Court raised the following issues based on the facts presented: (1) whether the Plaintiff was in an area the public was either invited to use or its use should have been reasonably anticipated; (2) whether the shrubbery, as it existed on the date of injury, served as a proper barrier or, alternatively, as an indicator of prohibited usage; and (3) whether the Plaintiff acted in a manner that was inconsistent with the scope of his invitation to use the Casino premises. Ultimately, the decision of the trial court was reversed.
The holding of the Court in Ragonese is not necessarily surprising. That is, the fact that the Court concluded that Mr. Ragonese’s status was a jury question, is not precedential. Ragonese does, however, present an opportunity to consider what a property owner might do to make a court’s or jury’s decision a bit easier. In that regard, a property owner might consider taking additional measures to ensure that non-public areas are clearly marked. Likewise, to the extent that barriers are used by a property owner, the barriers should be clearly marked and visible, e.g., caution tape or “no trespassing” signs should be used to more clearly alert invitees that public use of an area is prohibited.