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No. 22-625, Denise Orso v. The City of Logan

WOOTON, J., dissenting:

Our law is clear that “[n]o action for negligence will lie without a duty 

broken.” Syl. Pt. 1, in part, Parsley v. Gen. Motors Acceptance Corp., 167 W. Va. 866, 280 

S.E.2d 703(1981). Also, “[n]egligence is the violation of the duty of taking care under the 

given circumstances. It is not absolute, but is always relative to some circumstance of time, 

place, manner, or person.” Syl. Pt. 1, Dicken v. Liverpool Salt & Coal Co., 41 W. Va. 511, 

23 S.E. 582 (1895). This Court explained in Strahin v. Cleavenger, 216 W. Va. 175, 603 

S.E.2d 197 (2004), that duty is not “an inflexible principle.” Id. at 184, 603 S.E.2d at 206. 

In this regard, we reiterated our law enunciated in syllabus point three of Sewell v. Gregory, 

179 W. Va. 585, 371 S.E.2d 82 (1988), wherein we held that 

[t]he ultimate test of the existence of a duty to use care 

is found in the foreseeability that harm may result if it is not 

exercised. The test is, would the ordinary man in the 

defendant’s position, knowing what he knew or should have 

known, anticipate that harm of the general nature of that 

suffered was likely to result?

Strahin, 216 W. Va. at 184, 603 S.E.2d at 206. We then reasoned that 

[t]his test obviously involves a mix of legal and factual 

determinations which must be made regarding foreseeability in 

relation to duty in negligence cases. As this Court said over 

100 years ago,

the most the court can ordinarily do, when the 

question of care or negligence depends upon a 

variety of circumstances, is to define the decree 

(sic) of care and caution required by the law and 

FILED

March 15, 2024

released at 3:00 p.m.

C. CASEY FORBES, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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leave to the practical judgment of the jury the 

work of comparing the acts and conduct of the 

parties with the duties required of them under the 

circumstances.

Syl. Pt. 2, in part, Washington v. B. & O. R.R. Co., 17 W.Va. 

190, 1880 WL 4038 (W.Va.1880).

Strahin, 216 W. Va. at 184-85, 603 S.E.2d at 206-07. The Court then held that “[w]hen the 

facts about foreseeability as an element of duty are disputed and reasonable persons may 

draw different conclusions from them, two questions arise—one of law for the judge and 

one of fact for the jury.” Strahin, 216 W. Va. at 179, 603 S.E.2d at 201, Syl. Pt. 11. Thus, 

[a] court’s overall purpose in its consideration of 

foreseeability in conjunction with the duty owed is to discern 

in general terms whether the type of conduct at issue is 

sufficiently likely to result in the kind of harm experienced 

based on the evidence presented. If the court determines that 

disputed facts related to foreseeability, viewed in the light most 

favorable to the plaintiff, are sufficient to support 

foreseeability, resolution of the disputed facts is a jury 

question.

Id. at 180, 603 S.E.2d at 202, Syl. Pt. 12. 

In affirming the circuit court’s order granting the City’s motion for summary 

judgment, the majority, like the circuit court, embarked on its own assessment of the 

foreseeability component discussed supra – instead of placing this question in the capable

hands of a jury.1 The majority then concludes that “there is no evidence demonstrating that 

1 “Questions of negligence, due care, proximate cause and concurrent negligence 

present issues of fact for jury determination when the evidence pertaining to such issues is 

conflicting or where the facts, even though undisputed, are such that reasonable men may 
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Respondent knew or should have known that the wire was on the sidewalk causing a 

potential hazard when Petitioner fell.” While the majority reached this conclusion, I believe 

that a jury could have viewed these same facts and concluded the opposite – that based 

upon the City’s actions it was reasonably foreseeable that the City knew or should have 

known of this potential hazard. 

Although the City’s street commissioner testified that he had never received 

any complaints about the subject loop of cable wire, he also testified that he and other City 

personnel—in the discharge of their job duties—did visual inspections of the downtown 

properties several times a week, including the area of Ms. Orso’s fall, where it was 

undisputed that the loop of cable wire had been present for at least ten years.

2 A jury could 

have found that it was foreseeable that the City’s street commissioner, who was 

affirmatively looking for potential hazards on the City’s sidewalks multiple times a week,

either knew or at least should have known that the hazard which caused Ms. Orso’s injuries 

existed. 

Summary judgment is appropriate only where “the record could not lead a 

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

draw different conclusions from them.” Syl. Pt. 4, Aikens v. Debow, 208 W. Va. 486, 541 

S.E.2d 576 (2000) (citation omitted).

2 When asked how often he conducted these visual inspections, the street 

commissioner testified “we’re out on the streets every day. . . . I mean Monday through 

Friday, unless it’s a holiday. I mean we’re out every day.”
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has failed to make a sufficient showing on an essential element of the case that it has the 

burden to prove.” Syl. Pt. 2, in part, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 

S.E.2d 329 (1995). Because at least one triable issue exists in this case, I disagree with the 

majority’s decision to uphold the circuit court’s grant of summary judgment to the City. 

Jury trials are the backbone of our judicial system. This Court must assiduously ensure that 

the circuit courts (and appellate courts) do not decide questions of fact and usurp authority 

from the jury. Accordingly, I would reverse the circuit court’s summary judgment order 

and remand this case for additional proceedings.

Based on the foregoing, I respectfully dissent.