David Ragonese v. Racing Corporation of West Virginia, d/b/a Mardi Gras Casino and Resort

Summary

This document is a concurring opinion in a West Virginia Supreme Court of Appeals case concerning premises liability and summary judgment. Justice Ketchum opines that the defendant would have been entitled to summary judgment because the plaintiff knowingly left available walkways and encountered an open and obvious hazard, although the defendant had withdrawn that ground before the summary judgment hearing.

Holdings

1. The concurrence agreed that the defendant was not entitled to summary judgment because the parties presented a jury issue concerning whether the plaintiff was a trespasser.
2. Under Hersh, a landowner is not required to eliminate every potential hazard but must take reasonable steps to ameliorate a hazard when harm is reasonably foreseeable. The concurrence concluded that the defendant met that duty by providing two walkways around the bank and wall.

Questions Presented

1. Whether the defendant was entitled to summary judgment where the parties presented a jury issue concerning whether the plaintiff was a trespasser.
2. Whether the defendant owed or breached a duty of care concerning a steep bank and retaining wall that the plaintiff bypassed by leaving available walkways.
3. Whether a landowner that provides sidewalks around an open and obvious hazard has no duty to a plaintiff who leaves the sidewalk and is injured by the hazard.

Disposition

other