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No. 19-1077 Ronald A. Gable v. Deborah Gable and John Doe(s)

Jenkins, Chief Justice, dissenting:

The majority has found that the plaintiff’s bare-bones complaint in this 

matter is sufficient to require the defendant property owner to continue to defend this 

action. Because the Legislature has made clear that a property owner owes no duty of care 

for a danger that is open and obvious, and the complaint in this case failed to include any 

facts to indicate that the alleged hazard was anything but open and obvious, I would affirm 

the circuit court’s order granting the motion to dismiss. Accordingly, I respectfully dissent.

Prior to 2013, West Virginia followed the open and obvious hazard doctrine 

in negligence actions founded on premises liability as demonstrated by this Court’s 

favorable observation that,

[i]n 65 C.J.S., Negligence, Section 50, the text contains 

this language: “The duty to keep premises safe for invitees 

applies only to defects or conditions which are in the nature of 

hidden dangers, traps, snares, pitfalls, and the like, in that they 

are not known to the invitee, and would not be observed by him 

in the exercise of ordinary care. The invitee assumes all 

normal, obvious, or ordinary risks attendant on the use of the 

premises, and the owner or occupant is under no duty to 

reconstruct or alter the premises so as to obviate known and 

obvious dangers.” In 38 Am. Jur., Negligence, Section 97, the 

principle is expressed in these terms: “There is no liability for 

injuries from dangers that are obvious, reasonably apparent, or 

FILED

June 1, 2021

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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as well known to the person injured as they are to the owner or 

occupant.”

Burdette v. Burdette, 147 W. Va. 313, 318, 127 S.E.2d 249, 252 (1962), overruled by Hersh 

v. E-T Enterprises, Ltd. P’ship, 232 W. Va. 305, 752 S.E.2d 336 (2013).

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 As the majority 

observes, in 2013 the open and obvious hazard doctrine was judicially abolished. See Syl. 

pt. 6, Hersh, 232 W. Va. 305, 752 S.E.2d 336 (“The open and obvious doctrine in premises 

liability negligence actions is abolished. To the extent Sesler v. Rolfe Coal & Coke Co., 

51 W. Va. 318, 41 S.E. 216 (1902)[,] and Burdette v. Burdette, 147 W. Va. 313, 127 S.E.2d 

249 (1962)[,] hold otherwise, they are overruled.”). In response to the Hersh decision, the 

Legislature enacted West Virginia Code section 55-7-28 for the express purpose of 

reinstating the open and obvious hazard doctrine:

(a) A possessor of real property, including an owner, 

lessee or other lawful occupant, owes no duty of care to protect 

others against dangers that are open, obvious, reasonably 

apparent or as well known to the person injured as they are to 

the owner or occupant, and shall not be held liable for civil 

damages for any injuries sustained as a result of such dangers.

(b) Nothing in this section creates, recognizes or ratifies 

a claim or cause of action of any kind.

(c) It is the intent and policy of the Legislature that this 

section reinstates and codifies the open and obvious hazard 

1 This quote refers to “invitees” because, in 1962 when Burdette was decided, 

the Court had not yet abolished the distinction between licensees and invitees. See Syl. pt. 

4, Mallet v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (1999) (“The common law distinction 

between licensees and invitees is hereby abolished; landowners or possessors now owe any 

non-trespassing entrant a duty of reasonable care under the circumstances. We retain our 

traditional rule with regard to a trespasser, that being that a landowner or possessor need 

only refrain from willful or wanton injury.”).
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doctrine in actions seeking to assert liability against an owner, 

lessee or other lawful occupant of real property to its status 

prior to the decision of the West Virginia Supreme Court of 

Appeals in the matter of Hersh v. E-T Enterprises, Limited 

Partnership, 232 W. Va. 305 (2013). In its application of the 

doctrine, the court as a matter of law shall appropriately apply 

the doctrine considering the nature and severity, or lack 

thereof, of violations of any statute relating to a cause of action.

W. Va. Code § 55-7-28 (eff. 2015). By enacting this statute, the Legislature has made clear 

that there simply is no duty owed “to protect others against dangers that are open, obvious,

reasonably apparent or as well known to the person injured as they are to the owner or 

occupant.” Id. Accordingly, I believe that to properly allege that a duty is owed, 2 a 

complaint asserting a negligence claim for premises liability must include sufficient facts

to indicate that the complained of hazard was not open and obvious. 

I recognize that West Virginia is a notice pleading state. See State ex rel. 

McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 776, 461 S.E.2d 516, 522 

(1995) (“Complaints are to be read liberally as required by the notice pleading theory 

2 As the majority correctly recognizes, duty is one of the four elements that 

must be established in a negligence case:

In any negligence or tort case, a plaintiff is required to 

show four basic elements: duty, breach, causation, and 

damages. See Carter v. Monsanto Co., 212 W.Va. 732, 737, 

575 S.E.2d 342, 347 (2002) (“[B]efore one can recover under 

a tort theory of liability, he or she must prove each of the four 

elements of a tort: duty, breach, causation, and damages.”).

Maj. op. ___ W. Va. ___, ___, ___ S.E.2d ___, ___ (2021).
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underlying the West Virginia Rules of Civil Procedure.”). However, “[u]nder Rule 8, a 

complaint must be intelligibly sufficient for a circuit court or an opposing party to 

understand whether a valid claim is alleged and, if so, what it is.” Id. “[D]espite the 

allowance in Rule 8(a) that the plaintiff’s statement of the claim be ‘short and plain,’ a 

plaintiff may not ‘fumble around searching for a meritorious claim within the elastic 

boundaries of a barebones complaint[.]’” Id. (quoting Chaveriat v. Williams Pipe Line Co., 

11 F.3d 1420, 1430 (7th Cir. 1993)). While this Court has commented that “a plaintiff is 

not required to set out facts upon which the claim is based,” id., it has been observed that 

“the pleader must set forth sufficient information to outline the legal elements of a viable 

claim for relief or to permit inferences to be drawn from the complaint that indicate that 

these elements exist.” 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and 

Procedure § 1357, at 683 (3d ed. 2004). The instant complaint merely alleged that the 

defendant “had a duty to maintain the . . . front steps in a reasonably safe condition,” and 

that the defendant “breached said duty by failing to remove golf balls and other objects and 

debris from the surface of the . . . steps and front porch of her residence[.]” The only 

reference to the defendant’s duty in this narrative amounts to a legal conclusion that the 

defendant “had a duty to maintain the . . . front steps.” The Court is not bound to accept 

as true a legal conclusion that is not supported by facts. See Ashcroft v. Iqbal, 556 U.S. 

662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (“[T]he tenet that a court must 

accept as true all of the allegations contained in a complaint is inapplicable to legal 

conclusions.”). Indeed, “[w]hile legal conclusions can provide the framework of a 
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complaint, they must be supported by factual allegations.” Id. at 679, 129 S. Ct. at 1950, 

173 L. Ed. 2d 868.

Given the Legislature’s determination that no duty on the part of a possessor 

of real property arises when a hazard is open and obvious, I would require more than a bare 

legal conclusion with respect to a defendant’s duty of care to satisfy Rule 8(a) of the West 

Virginia Rules of Civil Procedure and to survive a Rule 12(b)(6) motion to dismiss. 

“Although the pleading requirements of Rule 8(a) are very liberal and easily satisfied, 

many federal courts have made it clear that more detail often is required than the bald 

statement by the plaintiff that she has a valid claim of some legally recognizable type 

against the defendant.” 5B Wright & Miller, supra § 1357, at 544. See also id at 270 

(Supp. 2019) (“[W]hat is clear is that more detail is required than the bald statement by the 

plaintiff that she has a valid claim of some legally recognizable type against the 

defendant.”). In fact, this Court previously has observed that 

liberalization in the rules of pleading in civil cases does not 

justify a carelessly drafted or baseless pleading. As stated in 

Lugar and Silverstein, West Virginia Rules of Civil Procedure 

(1960) at 75: “Simplicity and informality of pleading do not 

permit carelessness and sloth: the plaintiff’s attorney must 

know every essential element of his cause of action and must 

state it in the complaint.”

Sticklen v. Kittle, 168 W. Va. 147, 164, 287 S.E.2d 148, 157-58 (1981) (emphasis added). 

See also 5B Wright & Miller, supra § 137, at 683 (“[T]he pleader must set forth sufficient 

information to outline the legal elements of a viable claim for relief or to permit inferences 
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to be drawn from the complaint that indicate that these elements exist.”). Because the 

complaint in this case failed to include any facts tending to show that the hazard was not 

open and obvious, which is required to establish that a duty was owed by the defendant, 

the circuit court’s order granting the defendant’s motion to dismiss should have been 

affirmed. Cf., Navarro v. Carnival Corp., No. 19-21072-CIV, 2020 WL 1307185, *2 (S.D. 

Fla. Mar. 19, 2020) (dismissing a complaint sounding in negligence, in part, because the 

complaint failed “to allege that the risk creating condition was not open and obvious” when 

an element of the claim required that the condition be open and obvious) (quotations and 

citation omitted); Spall v. NCL (Bahamas) Ltd., 275 F. Supp. 3d 1345, 1349-50 (S.D. Fla. 

2016) (dismissing one count of a complaint and explaining that “[b]ased upon wellestablished case law in this Circuit, there is no duty to warn where the dangers are open 

and obvious. Plaintiffs have failed to allege that any danger was not open and obvious to 

Plaintiff. Plaintiffs have not sufficiently alleged . . . a plausible claim for negligence based 

upon a failure to warn theory.”).

For the foregoing reasons, I would affirm the circuit court’s order dismissing 

the complaint in accordance with Rule 12(b)(6) of the West Virginia Rules of Civil 

Procedure for failing to state a claim upon which relief can be granted. I am authorized to 

state that Justice Armstead joins me in this dissent.