Wendi Whitmore v. Dorothy Brown

Summary

The West Virginia Supreme Court of Appeals affirmed summary judgment for Dorothy Brown in a negligence action arising from a collision between a child's bicycle and Brown's car. The court held that the petitioner failed to present sufficient evidence from which a reasonable trier of fact could find that Brown was negligent, and it rejected challenges concerning the crash report, alleged plain error, the child's capacity for negligence, and the heightened duty of care owed to children. The court issued the decision as a memorandum decision under Rule 21 of the West Virginia Rules of Appellate Procedure.

Holdings

1. Summary judgment for Brown was proper because Whitmore failed to produce concrete or otherwise sufficiently probative evidence from which a reasonable jury could find that Brown was negligent.
2. Whitmore could not obtain appellate relief based on the admission or consideration of the crash report, investigating officer's testimony, photographs, or repair estimates because counsel did not object to those materials in the circuit court.
3. The circuit court correctly stated that an eleven-year-old minor may be found negligent, although it did not determine that J.V. was actually negligent.
4. Even assuming the circuit court should have expressly addressed Brown's heightened duty of care toward children, any omission was harmless because the record contained no evidence that Brown failed to exercise that higher degree of care.

Questions Presented

1. Whether the circuit court erred in granting summary judgment because the crash report, investigating officer's testimony, vehicle photographs, repair estimates, and affidavits created a genuine issue of material fact concerning Brown's negligence.
2. Whether the circuit court erred by stating that an eleven-year-old child may be found negligent or by failing to conduct a capacity-for-negligence analysis.
3. Whether the circuit court erred by failing to apply the heightened duty of care owed by a motorist toward children.

Disposition

affirmed