Recently, the West Virginia Supreme Court ruled that absence of a handrail on a stairway is not an open and obvious condition that a property owner must repair, or may be found liable for injury. The ruling came after an appeal from Walter Hersh, who suffered a head injury when he fell down a flight of steps.
Hersh suffered the injury in 2009, when he was walking down steps that connected two parking lots in front of the Second Time Around store in Martinsburg. As a result, Hersh suffered bleeding in the brain and is now confined to a wheelchair. Prior to the injury, Hersh used a cane, but was otherwise independent.
In the case he filed in Berkeley County Circuit Court, he noted that the stairs themselves were safe except for the missing handrails. He argued that both missing handrails and missing guards contributed to his fall, and that the property owner should have taken steps to correct the hazard. However, the Berkeley County Circuit Court judge disagreed with Hersh’s reasoning and ruled in favor of the defendant. Hersh appealed to the West Virginia Supreme Court.
The Supreme Court agreed with the circuit court judge, noting that both of the claimed defects were known to Hersh or could have been easily observed prior to his fall. Neither claimed defect was hidden or unnatural, and thus did not meet the state’s legal requirements for premise liability. Furthermore, that an injury could occur was foreseeable to Hersh, whose neurologist had diagnosed him with chronic, progressive balance issues, and with having trouble navigating stairs. The Supreme Court agreed with the defendants’ argument that it would be drastically rewriting West Virginia premise liability law to permit Hersh to recover under the “open and obvious condition” doctrine.
In West Virginia and elsewhere throughout the country, a property owner is typically liable only for conditions that are known to the property owner, but are not obvious to the visitor. Under the circumstances of the case, Hersh would have been what is called an “invitee,” someone on the premises for business purposes. Property owners owe the strictest duty of care to invitees: they must warn or make safe hazards that they know about or could learn of through reasonable inspection. Yet they are generally only responsible for repairing hazards that are not obvious to a reasonable person, not hazards that a reasonable person could see and avoid. This is also true when the property visitor is a licensee — a guest on the property for a non-business purpose — and especially true when the visitor is a trespasser. Such limits are good to keep in mind for those who suffer an injury on someone else’s property. If you experience such an injury, contact a West Virginia premise liability attorney to learn your options.
The Wolfe Law Firm has been providing legal services for nearly 25 years. Located in Elkins, West Virginia, the firm provides services in the areas of personal injury, criminal defense, bankruptcy, and mediation. If you are looking for an experienced West Virginia attorney, contact us today.