STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

David Edward Ball, II, FILED 

Plaintiff Below, Petitioner April 10, 2015 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs) No. 14-0582 (Grant County 10-C-46) OF WEST VIRGINIA 

A.L.L. Construction, Inc., a West Virginia 

corporation, and Allegheny Investments, LLC, 

a West Virginia Limited Liability Company, 

Defendants Below, Respondents 

And 

David Edward Ball, II, 

Plaintiff Below, Petitioner 

vs) No. 14-0583 (Grant County 10-C-46) 

OSA Enterprises, LLC, a West Virginia 

Limited Liability Company, 

Defendant Below, Respondent 

MEMORANDUM DECISION 

In these consolidated appeals, Petitioner David Edward Ball, II, by counsel James A. 

Varner, Sr., Woodrow E. Turner, David A. Sims, and Pat A. Nichols, appeals the orders of the 

Circuit Court of Grant County granting summary judgment in favor of respondents and denying 

his motions for reconsideration of the same.1 Respondents A.L.L. Construction, Inc. and 

Allegheny Investments, LLC, by counsel Peter G. Zurbuch and Jeffrey S. Zurbuch, and 

1 Although this matter arises from the same underlying civil action, petitioner filed two 

separate appeals with this Court. As more fully discussed herein, in Docket No. 14-0582, 

petitioner appeals the circuit court’s April 7, 2014, order that denied his motion for 

reconsideration of the dismissal of his deliberate intent claims against Respondents A.L.L. 

Construction, Inc. and Allegheny Investments, LLC, on summary judgment. In Docket No. 14­

0583, petitioner appeals the circuit court’s April 7, 2014, order denying his motion for 

reconsideration of the dismissal of his premises liability claim against Respondent OSA 

Enterprises, LLC, on summary judgment. As these matters arise from the same underlying civil 

action, are substantially related, and involve a review of the same appendix record on appeal, we 

hereby consolidate petitioner’s two appeals for disposition in this memorandum decision. 

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Respondent OSA Enterprises, LLC, by counsel Mary A. Prim and Nathanial Kuratomi, filed 

responses. Petitioner filed a reply to each response. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s orders are appropriate under Rule 

21 of the Rules of Appellate Procedure. 

Facts and Procedural History 

This matter stems from the dismissal of petitioner’s civil action against Respondent 

A.L.L. Construction, Inc. (“A.L.L. Construction”), Respondent Allegheny Investments, LLC 

(“Allegheny Investments”), and Respondent OSA Enterprises, LLC (“OSA Enterprises”) on 

summary judgment. Petitioner filed suit after suffering injuries on June 26, 2008, while he was 

an employee of both A.L.L. Construction and Allegheny Investments on property owned by 

OSA Enterprises. Petitioner’s suit alleged, inter alia, violations of our deliberate intent statute2 

2 Under the deliberate intent statute, in order for an employer to lose its workers 

compensation immunity, the employee plaintiff must establish the following five elements: 

(A) That a specific unsafe working condition existed in the workplace which 

presented a high degree of risk and a strong probability of serious injury or death; 

(B) That the employer, prior to the injury, had actual knowledge of the existence 

of the specific unsafe working condition and of the high degree of risk and the 

strong probability of serious injury or death presented by the specific unsafe 

working condition; 

(C) That the specific unsafe working condition was a violation of a state or federal 

safety statute, rule or regulation, whether cited or not, or of a commonly accepted 

and well-known safety standard within the industry or business of the employer, 

as demonstrated by competent evidence of written standards or guidelines which 

reflect a consensus safety standard in the industry or business, which statute, rule, 

regulation or standard was specifically applicable to the particular work and 

working condition involved, as contrasted with a statute, rule, regulation or 

standard generally requiring safe workplaces, equipment or working conditions; 

(D) That notwithstanding the existence of the facts set forth in subparagraphs (A) 

through (C), inclusive, of this paragraph, the employer nevertheless intentionally 

thereafter exposed an employee to the specific unsafe working condition; and 

(E) That the employee exposed suffered serious compensable injury or 

compensable death as defined in section one [§23-4-1], article four, chapter 

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against his employers and a premises liability claim against OSA Enterprises. 

Petitioner was hired by A.L.L. Construction in 2006 as a drilling rig operator. He 

operated A.L.L. Construction’s Ingersol Rand drill that was mounted on a crawler chassis. 

During his employment until his accident in 2008, petitioner primarily performed excavation for 

site pads for windmills on the NedPower Project on Scherr Mountain in Grant County. 

Allegheny Investments is in the business of mining limestone. On three or four occasions 

prior to the accident, including the day before the accident, petitioner had conducted drilling at 

an Allegheny Investments quarry also located on Scherr Mountain. He conducted this drilling 

without incident. Allegheny Investment’s quarry is located on property adjacent to property 

owned by OSA Enterprises, where the accident occurred. Part-owner of A.L.L. Construction, 

Jason Kitzmiller, is also the managing member of Allegheny Investments. 

On the day of the accident, petitioner was performing exploratory drilling on behalf of 

Allegheny Investments on OSA Enterprises property by collecting bore samples. The exploratory 

drilling was intended to ascertain whether the OSA Enterprises property was suitable to operate 

as a limestone quarry for Allegheny Investments. Mr. Kitzmiller and an Allegheny Investments 

foreman had previously walked the proposed drill path and staked out the starting and ending 

points. The foreman drove petitioner along the path on a parallel road to show him the drill path 

prior to his drilling. Petitioner states that, at times, it was difficult to see the drill path due to trees 

and overgrown vegetation. 

Petitioner operated the drilling rig for several hours on the day of the accident. The last 

thing petitioner remembered before the accident was being on a hill and debating whether to 

keep going or to turn and go back. Petitioner elected not to turn the rig around, which he 

admitted in his deposition that he could have done. Rather, he continued off of the drill path, 

which resulted in the drilling rig going down an embankment and overturning onto its side, 

causing injuries to petitioner’s face and head. Petitioner was able to walk back to the quarry and 

was transported to the hospital. 

Petitioner reported the accident to the United States Mine Safety and Health 

Administration (“MSHA”). MSHA investigated and determined that it did not have jurisdiction 

as the accident did not occur on MSHA-permitted property. Allegheny Investments reported the 

accident to the United States Occupational Safety and Health Administration (“OSHA”), which 

did not issue any citations to respondents. 

Following discovery, respondents filed their respective motions for summary judgment. 

By order entered on November 19, 2013, the circuit court granted respondents’ motions and 

dismissed petitioner’s suit. With respect to petitioner’s deliberate intent claim against A.L.L. 

twenty-three whether a claim for benefits under this chapter is filed or not as a 

direct and proximate result of the specific unsafe working condition. 

W.Va. Code § 23-4-2(d)(2)(ii)(A) through (E). 

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Construction and Allegheny Investments,3 the circuit court concluded that petitioner failed to 

establish a prima facie case that either respondent had “actual knowledge” of an unsafe working 

condition as required by West Virginia Code § 23-4-2(d)(2)(ii)(B). In this respect, the circuit 

court found that there were no prior accidents involving similar roll-overs of drilling rigs; there 

were no prior complaints by petitioner or other drill operators concerning the rigs or the slopes in 

the area; there were no prior complaints about the area where petitioner was to conduct the test 

drilling; and there was no citation issued by either MSHA or OSHA as a result of the accident. 

The circuit court also concluded that petitioner failed to establish a violation of statute or safety 

standard, as required by West Virginia Code § 23-4-2(d)(2)(ii)(C). Despite petitioner’s 

identification of various MSHA regulations allegedly violated, the circuit court determined that 

by virtue of MSHA’s refusal of jurisdiction over the accident, the identified regulations did not 

apply to the accident. Lastly, the circuit court concluded that petitioner failed to establish 

intentional exposure to an unsafe working condition, as required by West Virginia § 23-4­

2(d)(2)(ii)(D). The only evidence petitioner introduced in support of intentional exposure was 

unsubstantiated hearsay from petitioner that another drilling company had refused to work in the 

area due to safety concerns. The circuit court noted that respondents deposed the president of this 

other company, who refuted petitioner’s theory and testified that his company had declined to 

drill in the area because the company was too busy to do so, not due to safety concerns. 

Accordingly, the circuit court granted summary judgment in favor of A.L.L Construction and 

Allegheny Investments with respect to petitioner’s deliberate intent claim. 

In granting summary judgment in favor of OSA Enterprises with respect to petitioner’s 

premises liability claim, the circuit court concluded that there was no evidence that OSA 

Enterprises employed petitioner; was under any obligation to train petitioner or any employee of 

A.L.L. Construction or Allegheny Investments; or was otherwise responsible for the supervision 

or direction of petitioner’s actions. Petitioner argued that OSA Enterprises had an obligation to 

provide a reasonably safe place for him to work pursuant to West Virginia Code § 21-3-1.4 The 

3 Petitioner also alleged a negligence claim against Allegheny Investments, the dismissal 

of which petitioner does not challenge on appeal. Inasmuch as it is relevant to the deliberate 

intent claim, the circuit court concluded that Allegheny Investments was petitioner’s “special 

employer” pursuant to syllabus point 8 of Bowens v. Allied Warehousing Services, Inc., 229 

W.Va. 523, 729 S.E.2d 845 (2012) (“In determining whether a second employer is a special 

employer giving rise to a special employment status for workers’ compensation purposes, the 

following factors are dispositive: (1) whether the employee has made a contract of hire, express 

or implied with the second employer; (2) whether the work being done is essentially that of the 

second employer; and (3) whether the second employer has the right to control details of the 

work. When all three of the above conditions are satisfied in relation to both employers, both 

employers will be liable for workers’ compensation and both will have the benefit of the 

exclusivity defense of tort claims.”). The circuit court found it undisputed that there was an 

implied contract of hire between petitioner and Allegheny Investments; that petitioner 

acquiesced to the direction and control of Allegheny Investments; and that A.L.L. Construction 

and Allegheny Investments admitted they were petitioner’s employers. 

4 West Virginia Code § 21-3-1 provides, in relevant part, that “[e]very employer and 

every owner of a place of employment, place of public assembly, or a public building, now or 

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circuit court rejected that argument, concluding that there was no evidence that the land in 

question was defective or that the embankment upon which petitioner attempted to drive his 

drilling rig constituted a “hidden danger, trap, snare, pitfall, or the like.” McDonald v. University 

of West Virginia Bd. of Trustees, 191 W.Va. 179, 183, 444 W.Va. S.E.2d 57, 61 (1994) (citing 

Burdette v. Burdette, 147 W.Va. 313, 127 S.E.2d 249 (1962)). Further, the circuit court 

concluded that the slope of the hill was open, obvious, and observed by petitioner, and he was 

consciously aware of the slope. Accordingly, the circuit court concluded that OSA Enterprises 

owed no duty of care to petitioner and dismissed petitioner’s premises liability claim. 

Thereafter, petitioner moved for reconsideration of each ruling pursuant to Rules 60(b)5 

and 59(e)6 of the West Virginia Rules of Civil Procedure. With respect to the deliberate intent 

claim, petitioner attached an affidavit from his expert witness, dated November 15, 2013, 

indicating that the expert had revised his opinion to opine that the standards set forth in MSHA 

hereafter constructed, shall so construct, repair and maintain the same as to render it reasonably 

safe.” 

5 Rule 60(b) provides as follows: 

On motion and upon such terms as are just, the court may relieve a party or a 

party's legal representative from a final judgment, order, or proceeding for the 

following reasons: (1) Mistake, inadvertence, surprise, excusable neglect, or 

unavoidable cause; (2) newly discovered evidence which by due diligence could 

not have been discovered in time to move for a new trial under Rule 59(b); (3) 

fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, 

or other misconduct of an adverse party; (4) the judgment is void; (5) the 

judgment has been satisfied, released, or discharged, or a prior judgment upon 

which it is based has been reversed or otherwise vacated, or it is no longer 

equitable that the judgment should have prospective application; or (6) any other 

reason justifying relief from the operation of the judgment. The motion shall be 

made within a reasonable time, and for reasons (1), (2), and (3) not more than one 

year after the judgment, order, or proceeding was entered or taken. A motion 

under this subdivision (b) does not affect the finality of a judgment or suspend its 

operation. This rule does not limit the power of a court to entertain an 

independent action to relieve a party from a judgment, order or proceeding, or to 

grant statutory relief in the same action to a defendant not served with a summons 

in that action, or to set aside a judgment for fraud upon the court. Writs of coram 

nobis, coram vobis, petitions for rehearing, bills of review and bills in the nature 

of a bill of review, are abolished, and the procedure for obtaining any relief from 

a judgment shall be by motion as prescribed in these rules or by an independent 

action. 

6 “A motion under [Rule 59(e)] should be granted where: (1) there is an intervening 

change in controlling law; (2) new evidence not previously available comes to light; (3) it 

becomes necessary to remedy a clear error of law or (4) to prevent obvious injustice.” Syllabus 

Point 2, Mey v. The Pep Boys–Manny, Moe & Jack, 228 W.Va. 48, 717 S.E.2d 235 (2011). 

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regulations – regulations the circuit court found inapplicable given MSHA’s decline of 

jurisdiction over the accident – reflect a consensus safety standard in the industry. Based upon 

this opinion, petitioner argued that the court should revisit its summary judgment ruling. 

Petitioner also relied on McComas v. ACF Indus., LLC, 232 W.Va. 19, 750 S.E.2d 235 (2013), to 

argue that the violation of the safety standard served to impute “actual knowledge” of the unsafe 

working condition to A.L.L. Construction and Allegheny Investments. 

The circuit court rejected petitioner’s arguments, finding that his expert’s affidavit was 

untimely because expert opinions were required to be disclosed no later than August of 2011, as 

set forth in the court’s scheduling order. The circuit court went on to conclude that McComas did 

not materially change the law set forth in Ryan v. Clonch Industries, Inc., 219 W.Va. 664, 639 

S.E.2d 756 (2006), and that, nevertheless, petitioner’s reliance on McComas was misplaced 

because that case holds that when a specific safety statute or regulation imposes a duty of 

inspection upon an employer who fails to inspect, actual knowledge may be imputed to the 

employer. Petitioner failed to identify any applicable regulations creating a duty to inspect. By 

order entered April 7, 2014, the circuit court denied petitioner’s motion for reconsideration of its 

order granting summary judgment in favor of A.L.L. Construction and Allegheny Investments. 

By separate order also entered on April 7, 2014, the circuit court denied petitioner’s 

motion for reconsideration of its order granting summary judgment in favor of OSA Enterprises. 

Petitioner argued that this Court’s decision in Hersh v. E-T Enterprises, LP, 232 W.Va. 305, 752 

S.E.2d 336 (2013), issued three weeks after the hearing on the motions for summary judgment, 

constituted an intervening change in the controlling law of the case. Petitioner argued that, 

because this Court in Hersh abolished the “open and obvious” doctrine, the circuit court’s 

summary judgment order in favor of OSA Enterprises should be voided inasmuch as the doctrine 

was a component of the ruling. However, the circuit court concluded that, even in light of Hersh, 

there was insufficient evidence of any hazard or defect on the land where petitioner was injured 

that caused his injuries. The circuit court found that petitioner operated a drilling rig down a 

hillside of his own accord, and not due to dangerous conditions on the land. Accordingly, the 

court denied petitioner’s motion for reconsideration with respect to dismissal of his premises 

liability claim against OSA Enterprises. Petitioner now appeals to this Court. 

Discussion 

Pursuant to Rule 56 of the West Virginia Rules of Civil Procedure, summary judgment is 

proper when the record demonstrates “that there is no genuine issue as to any material fact and 

that the moving party is entitled to a judgment as a matter of law.” W.Va.R.Civ.P. 56. “Summary 

judgment is appropriate if, from the totality of the evidence presented, the record could not lead a 

rational trier of fact to find for the nonmoving party, such as where the nonmoving party has 

failed to make a sufficient showing on an essential element of the case that it has the burden to 

prove.” Syl. Pt. 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995). With 

respect to deliberate intent claims, this Court has held that 

a court shall dismiss a deliberate intention action “upon motion for summary 

judgment if it finds . . . that one or more of the facts required to be proved by the 

provisions of subparagraphs (A) through (E), inclusive, paragraph (ii) of this 

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subdivision do not exist.” W.Va. Code § 23–4–2(d)(iii)(B). Each of the five 

statutory factors “is an essential element of a ‘deliberate intention’ cause of 

action, which a plaintiff has the ultimate burden to prove. Therefore, at the 

summary judgment stage, if a defendant should establish that no material issue of 

fact is in dispute on any one of the factors, and such a finding is in favor of the 

defendant, summary judgment must be granted to the defendant.” Mumaw v. U.S. 

Silica Co., 204 W.Va. 6, 11, 511 S.E.2d 117, 122 (1998). Finally, “‘in order to 

withstand a motion for summary judgment, a plaintiff must make a prima facie 

showing of dispute on each of the five factors.’” Marcus v. Holley, 217 W.Va. 

508, 520, 618 S.E.2d 517, 529 (2005) (citation omitted) (footnote omitted). 

Smith v. Apex Pipeline Services, Inc., 230 W.Va. 620, 628, 741 S.E.2d 845, 853 (2013). “A 

circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 

W.Va. 189, 451 S.E.2d 755 (1994). 

Petitioner first argues that the circuit court erred in concluding that there were no material 

issues of fact with regard to whether A.L.L. Construction and Allegheny Investments had “actual 

knowledge” of an alleged unsafe working condition under West Virginia Code § 23-4­

2(d)(2)(ii)(B). Petitioner contends that this Court’s 2013 decision in McComas represents an 

intervening change in controlling law on the issue of actual knowledge, and therefore, the circuit 

court erred by not granting petitioner’s motion for reconsideration. The plaintiff in McComas 

was injured when he raised the handle of a 480-volt fuse box that had not been inspected or 

maintenanced by the defendant employer. This Court reversed summary judgment in favor of the 

defendant and ruled that the failure to inspect the fuse box constituted a violation of a safety 

regulation. We ruled that actual knowledge may be proven by the defendant’s failure to inspect, 

where the required inspection would have revealed the specific unsafe working condition. 

Petitioner argues that neither A.L.L. Construction nor Allegheny Investments conducted 

a pre-shift inspection of the drilling area. In addition, petitioner contends that neither respondent 

trained him on safety rules or procedures or provided him with a radio. We disagree with 

petitioner and find no error in the circuit court’s conclusion with respect to the “actual 

knowledge” element. “Actual knowledge” is a high threshold that cannot be met by speculation 

or conjecture. See Mumaw v. U.S. Silica Co., 204 W.Va. 6, 511 S.E.2d 117 (1998). Respondents 

are correct that although there are no applicable MSHA regulations that impose a duty to inspect 

the drilling area, an inspection did in fact occur in this case. As the circuit court found, 

respondents walked and staked the drill path with starting and ending points. The record reveals 

that there was nothing different about this drill path compared to others that had been worked in 

the past on this property. 

Furthermore, petitioner’s claim that respondents failed to adequately train him are 

without merit. When petitioner was hired, he had almost ten years of drill rig experience, and the 

union from which he was hired represented that he had experience as a drill rig operator. 

Petitioner worked for A.L.L. Construction for one and a half years without incident, and, by all 

accounts, was qualified to run the drilling rig. 

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As for petitioner’s claim that McComas dictates reversal of the circuit court’s denial of 

his reconsideration motion, we believe that the circuit court properly found otherwise. MSHA 

regulations, which petitioner asserts impose a duty on A.L.L. Construction and Allegheny 

Investments to inspect, do not apply to the exploratory drilling in this case. Nevertheless, as 

stated above, respondents walked the drill path, staked it out, and confirmed it was suitable for 

drilling. Importantly, petitioner failed to show how the lack of an inspection (if none occurred), 

would have prevented the accident. As respondents point out, no inspection would have 

predicted that petitioner would deviate from the drill path on his own volition and roll the rig 

down an embankment, causing the accident. Therefore, petitioner has failed to raise any genuine 

issues of material fact with regard to whether A.L.L. Construction and Allegheny Investments 

had “actual knowledge” of an alleged unsafe working condition. 

Second, petitioner argues that the circuit court erred in concluding that the alleged unsafe 

working condition was a violation of a “state or federal safety statute, rule or regulation, whether 

cited or not, or of a commonly accepted and well-known safety standard within the industry or 

business of the employer[.]” W.Va. Code § 23-4-2(d)(2)(ii)(C). According to petitioner’s expert 

witness, even if the allegedly applicable MSHA regulations did not apply to the accident, they 

set the industry standard for the operation of drilling rigs on mine sites and for exploratory 

drilling. Petitioner argues that the circuit court refused to accept this expert opinion, erroneously 

reasoning that it was not submitted until after summary judgment was granted. Petitioner asserts 

that his expert was merely clarifying his prior opinion and that such clarification did not become 

necessary until after the circuit court’s summary judgment ruling. 

We believe the circuit court correctly found that the MSHA regulations relied upon by 

petitioner were not, as a matter of law, specifically applicable to the work petitioner was 

performing on the date of the accident. MSHA did not have jurisdiction over the work as the 

accident did not occur on mine-permitted property. MSHA has made clear that exploratory 

drilling off an existing mine site is not subject to its jurisdiction. See 30 C.F.R. § 46.2. Despite 

petitioner’s assertion to the contrary, in McComas, we maintained the requirement that West 

Virginia Code § 23-4-2(d)(2)(ii)(C) requires that the safety statute, regulation, or standard 

allegedly violated must be “specifically applicable to the particular work and working condition 

involved in the action.” McComas, 232 at 26, 750 S.E.2d at 242. Petitioner attempted to create an 

issue of fact with the untimely submission of his expert’s “clarified” opinion. We agree with the 

circuit court’s decisions to refuse consideration of the late affidavit; furthermore, based on the 

foregoing analysis, we conclude that it actually provided no real support for petitioner’s 

reconsideration motion in any event. Our review of the expert’s affidavit reveals that it provided 

nothing other than unsupported conclusory assertions that the inapplicable MSHA regulations 

are “still the standard in the industry.” Accordingly, we find no error in the circuit court’s 

conclusion that petitioner failed to establish a genuine issue of fact with regard to West Virginia 

Code § 23-4-2(d)(2)(ii)(C). 

Third, petitioner contends that the circuit court erred in finding no genuine issue of fact 

with regard to whether A.L.L. Construction and Allegheny Investments intentionally exposed 

him to an unsafe working condition, as required by West Virginia Code § 23-4-2(d)(2)(ii)(D). 

We disagree. The only evidence submitted by petitioner on this element was unsubstantiated 

hearsay that another company, GTI Drilling and Blasting Company, refused to drill in the area 

due to safety-related concerns. Aside from being insufficient to overcome a motion for summary 

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judgment, respondents introduced evidence squarely refuting petitioner’s allegation. The 

president of GTI testified that there was no safety issue with the area; rather, his company was 

simply too busy to do the work. Additionally, the record demonstrates that there were no 

complaints from petitioner or other workers regarding the terrain in question, and there were no 

prior accidents. Therefore, we find no error in the circuit court’s ruling in this regard. Upon our 

review, summary judgment in favor A.L.L. Construction and Allegheny Investments with 

respect to petitioner’s deliberate intent claim was proper. 

Finally, petitioner argues that the circuit court erred in granting summary judgment in 

favor of OSA Enterprises on his premises liability claim. Petitioner argues that the circuit court’s 

ruling, in part, was based upon the “open and obvious nature of the terrain and the absence of 

any hidden danger or other hazardous condition[s].” Petitioner is correct this Court subsequently 

abolished the “open and obvious” doctrine in Hersh. Hersh involved a plaintiff who fell down 

stairs where the property owner had removed the handrail. The circuit court granted summary 

judgment to the owner, finding the lack of handrail to be open and obvious, and thus, a bar to 

plaintiff’s recovery. We reversed that ruling and remanded the case to the circuit court, holding 

that under a comparative fault scheme, recovery is not automatically barred by an open and 

obvious defect. 

Petitioner argues that pursuant to West Virginia Code § 21-3-1, OSA Enterprises had a 

statutory duty to provide a reasonably safe workplace to petitioner. He also argues that any open 

and obvious hazard on the property is no longer an absolute bar to his recovery; rather, it is a 

possible defense for the landowner. Additionally, according to Hersh, a landowner has a duty to 

remedy the risk of open and obvious hazards if harm is foreseeable. In this case, petitioner 

contends that OSA requested that Allegheny conduct exploratory drilling on its property, but 

provided a worksite consisting of a mountainside with trees, tall grass, and large rocks. Petitioner 

argues that the circuit court abused its discretion in denying his motion for reconsideration given 

the intervening change in controlling law, i.e., the issuance of Hersh. The circuit court reasoned 

that no jury could conclude that tall grass, rocks, and trees constitute a hazard, dangerous 

condition, or nuisance, in this context. 

Petitioner fails to recognize that the circuit court’s summary judgment order was not 

entirely based upon the open and obvious doctrine. As the circuit court correctly found, 

petitioner, on his own accord, drove his rig off the drill path, down an embankment, and rolled it 

over. The record fails to establish any condition – open, obvious, or otherwise -- on the drill path 

that constituted a hazard to petitioner. Petitioner identified tall grass, trees, rocks, and the slope 

of the embankment on which he chose to operate his rig as the only potential hazards at the work 

site. Additionally, OSA’s statutory duty to keep the property reasonably safe must be read 

consistent with the common law. Following Hersh, a landowner owes a duty of care to remedy a 

risk posed by an open and obvious hazard if it is foreseeable that the hazard may cause harm to 

others. The Court in Hersh stated that 

[t]o read negligence into every instance in which an obvious danger is allowed to 

remain on one’s own property would impose upon private homeowners and 

property owners a cumbersome burden, indeed, to ensure that their homes and 

yards are perfectly clear from all obvious and potentially injury-producing 

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circumstances. Regardless of which standard of care is most judicious to impose 

upon possessors of land, however, the fact remains that the law does not impose 

this burden. 

232 W.Va. at 317, 752 S.E.2d at 348. 

Even post-Hersh, a plaintiff must still produce evidence of a hazard that caused his 

injury, or else summary judgment will be proper. Petitioner does not identify how the tall grass, 

rocks, or trees presented such a hazard. The undisputed evidence is that petitioner observed the 

slope, questioned whether to turn back, but proceeded down the slope, off the drill path, resulting 

in the accident. 

Finally, the facts of the present case are distinguishable from Hersh. There was no 

question in Hersh, that the lack of handrails was a violation of the city code and that handrails 

had been removed by the landowner. Unlike the plaintiff in Hersh, petitioner fails to point to a 

specific defect or hazard on the drill path that caused his accident. In the present case, it is 

undisputed that the drill path was marked; that petitioner was shown the drill path; and that no 

one directed him to drive down the slope that resulted in his accident. Further, it was undisputed 

that petitioner observed the slope, contemplated turning around, but elected not to do so. 

Therefore, even viewing the circuit court’s summary judgment order through the lens of Hersh, 

its order is correct. 

For the foregoing reasons, we affirm the Circuit Court of Grant County’s April 7, 2014, 

orders denying reconsideration of its previous order granting summary judgment in favor of 

respondents. 

Affirmed. 

ISSUED: April 10, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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