Chaos in the Supreme Court of Appeals of West Virginia

The current status of the Supreme Court of Appeals of West Virginia has created much controversy in the Mountain State and has spread across the country with national news reporting on the matter.  How did the Supreme Court of Appeals of West Virginia go from a relatively unknown body to five impeached justices and on the brink of a constitutional crisis? It all started with a desk, a couch, some office renovations, and travel expenses.

In December 2017, the Supreme Court of Appeals of West Virginia was made up of five duly elected justices: Chief Justice Allen Loughry; Justice Robin Davis; Justice Margaret Workman; Justice Menus Ketchum; and Justice Elizabeth Walker.  Reports started surfacing that the justices had spent in the neighborhood of three million dollars of taxpayer money for their office renovations.  Additional reports stated that Justice Loughry had taken furniture from the Supreme Court building to his home, including a leather couch and a desk informally known as a “Cass Gibert” desk, named for the architect of the West Virginia State Capitol.  Following these reports, Justice Loughry was replaced by Justice Workman as the Chief Justice.  However, this was just the tip of the iceberg for the Supreme Court of Appeals of West Virginia.

At the beginning of June 2018, the West Virginia Judicial Ethics Committee charged Justice Loughry with thirty-two violations of the Code of Judicial Conduct.  This led to his suspension from the Supreme Court of Appeals of West Virginia.  Within three weeks of being suspended, the FBI arrested Justice Loughry at his home in Charleston, West Virginia, on a 22-count indictment that included charges for fraud, wire fraud, lying to federal investigators, and witness tampering.  Charges were later added and some were dropped as well.

After Justice Loughry’s arrest, Justice Ketchum retired from the Court and shortly thereafter, it was discovered that federal charges were being levied against him as well.  Specifically, wire fraud resulting from Judge Ketchum’s improper use of a state fuel card, a charge to which the justice pled guilty.

Then came the articles of impeachment.  One by one, the West Virginia House of Delegates voted to impeach each of the remaining four justices for maladministration, corruption, incompetency, neglect of duty, and certain high crimes and misdemeanors.  The House of Delegates lead the way with approving the articles of impeachment against Justice Loughry and at the end of the day, all four remaining justices had articles of impeachment approved against them and they were sent to the Senate for trial.  However, upon receiving word of the articles of impeachment approved against her, Justice Davis resigned from office.

Today, only two of the aforementioned justices remain: Justices Walker and Workman.  Although the two justices were able to keep their seats, they both had their fair share of blows hurled at each of them.  Justice Walker was the first justice tried on the charges of impeachment.  Ultimately, the West Virginia Senate voted 32-1 to acquit her of the impeachment charges, but the West Virginia Senate did vote to pass a resolution to reprimand her.

Justice Workman’s impeachment trial was scheduled for October 15, 2018, but on October 11, 2018, the Supreme Court of Appeals of West Virginia (believe it or not), with justices sitting by temporary assignment, granted a writ of prohibition ruling that the Senate did not have jurisdiction over the alleged violations and the allegations of the Articles of Impeachment violated separation of powers doctrine.  Thus, Justice Workman’s impeachment trial has been delayed indefinitely.

Currently, sitting next to Justices Walker and Workman are three new justices, one of which is sitting by temporary assignment.  Two new justices were appointed by Governor Jim Justice, Congressman Evan Jenkins and former Speaker of the House of Delegates Tim Armstead, and they both ultimately won their respective election in November of this year.  Justice Loughry resigned from his position in November 2018, opening up yet another seat on the Court for an appointment to be made by Governor Justice.

Ultimately, the chaos and debacle of the Supreme Court of Appeals of West Virginia dominated headlines in 2018 in the Mountain State.  All levels of government were dragged into the foray, including the Department of Justice, the FBI, federal district courts, state ethics committee, the West Virginia Legislature, and a temporary Supreme Court of Appeals of West Virginia deciding if the Senate had jurisdiction for the impeachment proceedings.  There are those people that believe this was all a political stunt to overthrow the Court in an attempt to have new justice appointees.  Then there are those that truly believe that all of the justices should have been impeached and removed from the Court.  Either way, this chaos and debacle has taken the level of trust in the West Virginia judiciary to an all-time low, which voters in the state echoed on election day with the passage of Amendment 2, which removes the Court’s authority over its own budget and places it with the Legislature.

For more information about this article, please contact Landon Moyer at 571.612.5950 or lmoyer@fandpnet.com.

Liability Implications for Hours of Service Regulations

When a commercial motor vehicle is involved in an automobile collision, directly or indirectly, the motor carrier and driver often end up as defendants in litigation.  Almost immediately, written discovery leads to requests for the driver’s work hours and log books for the past week, month, or even year. The intent of the Federal Motor Carrier Safety Administration’s (FMCSA) Hours of Service (HOS) regulations is to make commercial motor vehicle (CMV) operation safer by managing the amount of time drivers spend on the road.  As technology has improved, and with the help of an FMCSA mandate, which is currently “phasing in” a requirement of electronic logging devices (ELD) use, more and more carriers are using ELDs to track driver compliance with HOS regulations through data collected by ELDs.  This means that the work hours or log book data plaintiffs seek in discovery is now more readily available.

As a reminder, the HOS rules allow CMV drivers who have been off duty for ten (10) consecutive hours (sleeping or resting) to drive a maximum of eleven (11) hours within a fourteen (14) hour window once back on duty.  In addition, the rules require drivers to take at least 30 minutes off duty no later than eight (8) hours after coming on duty if they wish to continue driving after the eighth hour.  Lastly, the rules do not allow drivers to drive after having accumulated 60 hours of on-duty time in seven (7) consecutive days of any given week, or 70 hours in eight (8) days.  Drivers may restart the 60/70-hour ‘‘clock’’ by taking 34 consecutive hours off duty.

The stringent and outdated (having not been updated in over 15 years) HOS rules have had unforeseen negative effects on drivers—such as forcing them to drive during the heaviest traffic times or counting the time they sit in traffic against their permissible driving hours.  This, in turn, has led to HOS violations— off of which plaintiff’s attorneys attempt to capitalize.  Data gathered by ELD companies indicate that the most commonly violated HOS rules are the 30-minute rest break, the 14-hour overall on-duty limit, and the 11-hour driving limit.  Unsurprisingly, these violations are exactly what plaintiffs hope to find in discovery to bolster negligence claims against drivers and carriers by arguing that a driver was over-worked, tired, or asleep when a crash occurred.

As a result, while the rules may or may not be making CMV operation safer, they have been causing problems for drivers and costing fleet owners and their insurers money in litigation.

On a positive note, the FMCSA is currently considering changing the HOS rules by making them more flexible to eliminate some of the problems they have created for drivers.  In feedback gathered by the FMCSA, from the industry, its CMV drivers have suggested eliminating the 30-minute off duty rule, allowing rest breaks to stop the 14-hour clock, and increasing the 11-hour driving limit.  If the FMCSA succeeds in its HOS revisions, perhaps in time there will be a reduction in the prevalent use of HOS rule violations captured by ELDs as fuel in litigation fires.

For more information about this articled, please contact Elena Patarinski at 804.932.1996 or epatarinski@fandpnet.com.

Changes in Delaware at the Intersection of Workers’ Compensations and Liability

A recent amendment to Delaware law allows an employee to seek uninsured and/or underinsured motorist coverage from an employer’s insurance policy if he or she was injured in the course and scope of employment in a motor vehicle accident with a third-party tortfeasor.

Prior to September 2016, an employee was precluded from collecting uninsured and/or underinsured motorist benefits under his employer’s policy because he/she could only recover workers compensation benefits “to the exclusion of all other rights and remedies.” 19 Del. C. § 2304. Simpson v. State, 2016 WL 425010.

In September 2016, the Delaware State Legislature passed House Bill 308 as a response to the Delaware Superior Court decision in Simpson v. State of Delaware and Government Employees Insurance Company, 2016 WL 425010 (Del. Super. Ct. Jan. 28, 2016).

HB 308, which took effect immediately, expressly excluded uninsured motorist benefits and underinsured motorist benefits from the workers’ compensation exclusivity rule thus allowing employees injured in an automobile accident with an uninsured or underinsured tortfeasor to collect from their employer’s workers’ compensation insurance policy as well as the employer’s UM/UIM insurance policy.

For more information about this article, please contact Krista Shevlin at 302.594.9780 or kshevlin@fandpnet.com.

Delaware Courts Continue Recognition of Difficulty in Removing Snow and Ice from Premises

Delaware courts have been busy this year addressing cases involving slip and falls on ice and snow.  This spring, the court reaffirmed the Continuing Storm Doctrine holding that landowners and tenants do not need to take measures to remediate snow and ice until a reasonable time after a storm subsides.  As a result, landowners are not required to even attempt to remove snow and ice while a storm is ongoing.  Snow removal companies have been quick to pick up on the Court’s holdings, adding language to contracts that they will not respond during snow and ice events unless specifically asked to do so.

The next question became what constitutes a reasonable measure for removing snow and ice when remediation measures are taken after a storm subsides.  In Ridgeway v. Fox Run SC, et al., the Delaware Supreme Court recognized that there are occasions when a lay person is able to determine when the measures were not adequate (when no measures are taken or they are incredibly poorly performed), but that there are also occasions when lay persons are not able to make a qualified determination and expert testimony may be needed.  The Court had previously not delved into requiring expert testimony, but in Ridgeway, it was faced with a fact pattern that called into question a lay person’s ability to determine if the measures taken were reasonable.  In Ridgeway, a snow removal company performed plowing and de-icing of a business premises multiple times over three days.  The property was a large parking lot for a shopping center. The owner of the snow removal company testified to the plan used to plow and de-ice in order to best move snow to locations to protect those using the premises from melting and refreezing.  On the day of the fall, the plaintiff drove to shop at a grocery store on the premises mid-morning of the third day.  She exited her car and took two steps before she fell.  Video showed a discolored surface where she fell which was debatably ice or salt residue.

The plaintiff chose not to retain an expert and argued that her description of the ice she fell on was sufficient to create an issue of fact of whether the snow and ice remediation performed was reasonable since there was still ice on the premises.  The Court disagreed, recognizing that some injuries are not the legal fault of anyone, they just are the result of the reality that nothing in life is entirely safe. The Court held that when there is substantial evidence of reasonable measures having been taken to perform snow and ice remediation, the plaintiff must produce some evidence that a breach of duty occurred and cannot rely on the mere fact that a fall occurred; “It is not enough to point to a slip and fall and the existence of snow and ice in the area.”  Where remediation measures were performed multiple times over three days, the plaintiff will need to produce expert testimony that the landlord/tenant breached a duty owed an invitee by not taking reasonable steps to make the premises reasonably safe.

The issue of timing is set aside since the Courts have been inconsistent in what actually constitutes a reasonable amount of time after a storm that remediation measures need to be taken.  However, based on Ridgeway, where a landowner and/or snow removal company can show that reasonable measures were taken in accordance with a plan to perform snow and ice remediation in an effort to make a premises safe for business invitees, then a business invitee who falls will need to produce some evidence that the measures did not conform to industry standards and a duty owed to the injured party was breached.  This should require expert testimony.

For more information about this article, please contact Eric Scott Thompson at 302.594.9780 or ethompson@fandpnet.com.

 

Maryland Law and Ride-Sharing Apps

In today’s age of convenience, ride-sharing apps like Uber, Lyft, and Sidecar have made taxi-hailing a thing of the past. As the number of these drivers has increased exponentially over the last few years, so has the question of who’s ultimately financially responsible for accidents resulting from these unique services.

The manner in which ride-sharing companies classify their drivers is not only a crucial aspect of these companies’ hiring processes but also has huge ramifications for Maryland motorists. Instead of becoming an “employee” of the company, these drivers are identified as “independent contractors” or even “third party providers.”[1] At common law, the distinction between an employee and an independent contractor rests on the degree of control exercised by the hiring party. An employer controls the work and its instrumentalities and circumstances to a greater degree than does a hiring party in an independent contractor relationship. The Fourth Circuit applies a twelve-factor “hybrid test” in its employee/independent contractor determination, which combines the common law element of control by the hiring party over the hired party’s work with an analysis of the degree of economic dependence of the worker on the putative employer. However, the common-law derived control element is the most important factor.

By categorizing their drivers as independent contractors rather than employees, ride share companies attempt to save on costs while protecting themselves from the typical responsibilities that an employer would usually embody through vicarious liability principles. For instance, under the well-developed doctrine of respondent superior, an employer can be held responsible for the negligent acts of its employee or agent that are committed during the course and scope of the employee’s or agent’s employment. Such liability does not exist in the employer-independent contractor relationship.

Not only does this mean that Uber does not have to pay for traditional workers’ compensation insurance, but it also makes suing Uber directly much more difficult. For instance, in terms of motor vehicle insurance coverage, Uber requires all of its drivers to carry their own personal automobile insurance. It is only in particular situations that the company’s own tiered coverage is triggered. Specifically, an Uber driver will not be covered by Uber’s policy if involved in a car accident while her app is turned off as she is off duty. This accident would be covered by her personal automobile insurance. However, from the time that the driver turns on her app and accepts a passenger’s ride request to the time that the driver drops the passenger off at their final destination, the Uber driver is covered under Uber’s policy. However, claimants’ difficulties lie in cases with catastrophic losses that cannot be fully satisfied through these limits, such as wrongful death cases.

While Philadelphia and Florida courts have found that drivers for Uber are independent contractors, other states like California and New York have determined drivers are employees under those states’ laws. Maryland courts have yet to make a formal determination as to whether ride-sharing drivers are officially to be recognized as employees. The litigation surrounding these issues will continue to reflect the complicated nature of this growing market. One thing is for certain, the times they are a-changing when it comes to this competitive and revolutionary field.

For more information about this article, please contact Miranda Russell at 410.230.1092 or mrussell@fandpnet.com.

[1] “Uber shall not be liable for indirect, incidental, special, exemplary, punitive, or consequential damages, including lost profits, lost data, personal injury, or property damage related to, in connection with, or otherwise resulting from any use of the services, regardless of the negligence (either active, affirmative, sole, or concurrent) of Uber, even if Uber has been advised of the possibility of such damages.” Uber’s U.S. Terms of Use, effective December 13, 2017.

 

Alternative/Experimental Medical Treatments in Virginia Liability

Whether it’s a personal injury from an automobile or trucking accident, a slip and fall, or any other liability claim, Virginia permits recovery of damages for loss of income and earning capacity, past and future pain and suffering, disfigurement, inconvenience, and past and future medical expenses.

In addition to traditional medical expenses, sometimes alternative or experimental medical treatments, also known as “common alternative medicine”, will be included in a plaintiff’s medical expenses. These alternative treatments can be used on their own or in conjunction with traditional medicine. More importantly, they could be considered by a jury in determining how much to award a plaintiff or they could be part of a plaintiff’s demand package and therefore need to be evaluated/considered by an attorney, an adjuster, or a third-party administrator (“TPA”) in evaluating a claim for settlement.

Chronic pain management is a medical expense typically seen in a plaintiff’s  future medical expense calculations. Chronic pain management usually involves main medications/narcotics, but as pain medication addition is becoming more prevalent, plaintiffs and their doctors will likely seek alternative means to manage chronic pain.

Physical therapy is a common alternative treatment, but there are many others. Water aerobics, acupuncture, and chiropractic treatments can be part of a long-term pain management plan in addition to physical therapy. Some evidence suggests that stress management and relaxation therapy can improve pain symptoms as well. This evidence is based on the idea that when stressed, our bodies go into fight-or-flight mode, which causes an increase in blood pressure, heart rate, and tense muscles. As such, it would not be surprising to see more stress reduction techniques included as part of a plaintiff’s future medical expense plans. Some alternative treatments, related to stress reduction, include yoga, hypnotherapy, guided imagery, biofeedback, massage therapy, and herbal remedies or natural supplements.

Medical marijuana may be gaining traction as a potential alternative pain treatment as well. Proponents of marijuana and cannabis oils as alternative treatments say the medicine helps to relieve pain, inflammation, seizures, muscle spasms, and nausea—all symptoms common to plaintiffs with serious personal injuries.

This year (2018), Virginia lawmakers expanded legislation first passed in 2015 which gave medical marijuana users an affirmative defense for the possession of cannabis oils for treatment of severe epilepsy. This protection has now been expanded to allow doctors to recommend the oils for patients with any medical condition that can be treated by it. By the end of this year, Virginia plans to issue licenses to five companies that will be permitted to produce cannabidiol (more commonly known as “CBD”) or tetrahydrocannabinolic acid (“THC-A”) oil for medical use (though Virginia will limit the THC levels of these oils to five percent).

Because the oil products will be dispensed to patients who have a written recommendation from a doctor to treat the symptoms of any diagnosed condition or disease that could be treated with the oil, there is a potential for expenses associated with medicinal marijuana use for chronic pain management from personal injuries to make their way into future medical expense plans.

From a litigation standpoint, it will be important to continue to evaluate personal injury/liability claims on a case by case basis while keeping in mind that a jury could consider any alternative treatment propounded by a plaintiff as part of his/her future medical expenses in awarding damages—including medical marijuana. Attorneys, insurance adjusters, and TPAs should be prepared to do the same in analyzing the value of a claim for settlement purposes.

For more information about this article, please contact Elena G. Patarinski at 804.932.1996 or epatarinski@fandpnet.com.

 

To Stop or Not to Stop? West Virginia’s Law Concerning the Duties for Motorists to Yield the Right of Way to Emergency Vehicles

From the time we started driving, we were always taught and instructed to pull over for emergency vehicles no matter the circumstances. However, rarely are we informed of what happens if we fail to move over for an emergency vehicle or if we simply did not notice that there was an emergency vehicle coming from behind. Recently, these questions, along with others, were answered by the Supreme Court of Appeals of West Virginia in Miller v. Allman, 240 W. Va. 438, 813 S.E.2d 91 (2018).

Miller was an appeal concerning, among other issues, whether the circuit court properly instructed the jury on the duty to yield to an emergency vehicle and the standard of care a police officer must use in operating an emergency vehicle. The facts of Miller stemmed from a motor vehicle accident that occurred when a police officer was responding to an apparent distress communication of another officer. Specifically, the police officer was traveling at a very high rate of speed with his siren and lights activated when he approached an intersection, at which time the plaintiff turned onto the same street and directly into the path of the police officer. The police officer attempted to stop by slamming on his brakes, but he was unable to avoid rear-ending the plaintiff’s vehicle.

First, the Court analyzed West Virginia Code § 17C-9-5 (1971) and held that the requirement that a motorist “yield the right-of-way to an emergency vehicle is contingent upon the motorist having a reasonably opportunity to hear the emergency vehicle’s siren or see its flashing light to allow the motorist sufficient time to yield the right-of-way.” Id. By holding such, the Court found that the evidence supported the given jury instruction because there was sufficient testimony that the plaintiff did not have time to hear the police officer’s siren or to see the flashing lights of the police officer’s vehicle.

The Court then analyzed the issue raised by the police officer concerning a jury instruction on his standard of care in operating an emergency vehicle. Again, the Court looked to § 17C-9-5 and ultimately held that it was proper for the trial court to instruct the jury that the police officer had a higher standard and duty of care than that of a civilian operating a vehicle. The Court reasoned that it was appropriate to use the phrase “higher standard” because of a prior holding by the Court that stated “it may be assumed that an emergency vehicle driver will have some specialized training in the operations of his [or her] vehicle.” Id., at 101-02 (quoting Peak v. Ratliff, 185 W. Va. 548, 553, 408 S.E.2d 300, 305 (1991)).

In conclusion, it appears that the Supreme Court of Appeals of West Virginia has loosened the reigns a bit when it comes to the obligations of motorists to yield the right-of-way to emergency vehicles. In essence, the Court has confirmed that West Virginia Code § 17C-9-5 allows for a motorist’s subjective sensory perception of an emergency vehicle’s lights and siren to be used to show compliance with the statute even though the motorist did not yield the right-of-way. This is a deviation from the petitioner’s argument in Miller which sought an objective standard. Moving forward, it is expected that the issue of whether a motorist properly yielded the right-of-way to an emergency vehicle will always be a jury question because of the subjective perception that the motorist will most likely have said that he or she did not hear or see the emergency vehicle.

For more information about this article, please contact Landon S. Moyer at 304.596.2277 or lmoyer@fandpnet.com.

Delaware’s Revitalized Rule 16.1 Returns, Requiring Mandatory Non-Binding Arbitration at Election of Plaintiffs’ Counsel

In 2008, Delaware abolished Rule 16.1 of the Superior Court Rules of Civil Procedure, which provided an avenue for mandatory non-binding arbitration (“MNA”) for select civil cases that fell below a perceived value threshold of $100,000. The repeal date was effective March 3, 2008, and, for the past ten years, Superior Court practitioners typically proceeded to alternative dispute resolution (“ADR”) based on the terms of a trial scheduling order governing each particular action.

Just shy of ten years later, a committee with members from both sides of the bench and bar collaborated to revive Rule 16.1, and the new iteration of MNA effectively made its debut on January 1, 2018. Albeit similar to the past version of the Rule, the revived Rule 16.1 provides a relatively new framework for proceeding to mandatory non-binding arbitration within the Superior Court. Under Rule 16.1, MNA is available for those civil cases where (1) trial is available; (2) monetary damages are sought; (3) any nonmonetary claims are nominal; and (4) counsel for the claimant elects MNA on the civil case information sheet at the inception of the litigation.

In addition to the preliminary qualifications for the utilization of the Rule, it also provides for relatively strict filing requirements in order for a party to avail itself of MNA. Within five days of the filing of the defendant’s Entry of Appearance, the plaintiff must serve all Rule 3(h) medical records and accompanying reports on the defendant. Within five days of the filing of the Answer to the Complaint, the plaintiff must provide a HIPPA-compliant medical authorization, as well as provide all expert reports in existence at the time of the filing of the Complaint. Within 20 days of the close of initial pleadings, the Rule requires the parties to meet and confer to select an arbitrator. In the event an arbitrator is not selected within the prescribed 20-day time frame, the parties are not permitted to utilize Rule 16.1 MNA.

Other provisions of the Rule include the requirement that arbitration testimony must be under oath unless waived by the parties. Additionally, the arbitrator must file his or her written order within five days of the hearing. Following the filing of such order, either party is permitted 20 days to file a written demand for a trial de novo. The effect of such a filing essentially brings the case back to the same position as if MNA had not been elected; however, testimony from the MNA hearing may be utilized as if it were deposition testimony taken under oath. In the event the party requesting the trial de novo fails to obtain a verdict or judgment more favorable than the outcome of arbitration, that party shall be assessed the costs of arbitration in addition to the arbitrator’s total compensation. If the verdict is for the defense, defense costs may be assessed, whereas a plaintiff’s verdict would permit the assessment of interest on the judgment.

While the revitalized Rule 16.1 might prove to be a good vehicle to more quickly resolve relatively minor cases prior to the incurrence of more significant litigation costs, potential pitfalls remain. Rule 16.1 may be applied to cases where expert testimony is essential, but not required by the Rule, therefore resulting in a potentially superfluous step for cases that would most likely be returned to the court for a standard trial scheduling order on a request for a trial de novo. As the most recent iteration of the Rule only recently went into effect, the pitfalls and positives of the use of MNA will likely be forthcoming as more plaintiffs elect to proceed under Rule 16.1.

For more information about this article, please contact Noelle B. Torrice at 302.594.9780.

Landlord’s Liability for Tenant’s Dogs: Control is Key

For the most part, it is relatively well known that dog owners are liable for injuries resulting from their own dog’s aggressive behavior. However, to what extent landlords are liable for their tenants’ dogs’ assaults on guests may not be considered.  Most states have clearly defined laws, and in Maryland, the element of control plays a key role in analyzing these types of cases.

The controlling case on this issue is Andrew Ward v. Stephen A. Hartley, et al., 168 Md. App. 209 (2006). Andrew Ward was bit by a dog owned by Maconio Alston while Ward was on a premises rented by Alston from Stephen A. Hartley and his wife. Ward brought negligence and strict liability claims against the Hartleys and the Alstons in Baltimore City Circuit Court. The Hartleys filed a motion for summary judgment, which was granted by the Court. Ward filed a timely appeal.

In considering Ward’s appeal, the Maryland Court of Appeals reviewed the lease between Stephen Hartley and the Alstons, the police report concerning the incident, discovery answers filed by Ward and Hartley, and excerpts from the depositions of Ward, the Alstons, and Stephen Hartley. The Court ultimately found in the landlord’s favor, however, it is important to note the three-part test the Court used to determine whether landlords should be liable for their tenants’ dogs’ attacks:

            1) The landlord controlled the dangerous or defective condition.

            2) The landlord had knowledge or should have had knowledge of the potential danger.

            3) The harm suffered was a foreseeable result of that condition.

Many landlords think that they can avoid this precarious situation by placing “no pet” clauses in their leases. However, these provisions do not actually absolve them from responsibility.  In most situations, each new provision that landlords place in the lease increases their own obligation to control that premises. A “no pet” clause opens the door to the landlord being able to terminate the lease upon discovery of the animal. By including this language, landlords allow themselves to be in a position to rectify the potentially dangerous condition.

That being said, even if a landlord knew of a dog’s improper existence on the property, he/she would still have to be made aware of the dog’s propensity for aggression. The landlord would need to have either actual or constructive notice that the dog had caused harm or had exhibited warning signs of vicious behavior. Lack of knowledge is the strongest premises liability defense in these cases, but this does not mean that a landlord should bury his head in the sand when he hears that Apt. 2B’s schnauzer almost attacked old Mrs. Grady.

Some advice for landlords moving forward: keep your premises reasonably safe and be aware of your tenant’s pets and their behavior.

For more information about this article, please contact Molly K. Evans at 410.230.3631.

Wild and Wonderful Sports Wagering: What it Means from a Liability Perspective for West Virginia Casinos

With the recent passage and enactment of West Virginia Senate Bill 415, as well as the United States’ Supreme Court’s recent decision overturning the Professional and Amateur Sports Protection Act, sports wagering is coming to the Mountain State. There has been much discussion on the issue, but ultimately, the West Virginia legislature opted to provide the citizens of the State with the opportunity to place bets on certain sporting events. Much of the discussion has been centered on whether opportunity will be detrimental or beneficial to the citizens. Other discussions have taken place regarding whether or not sports wagering will provide enough money to the state to compensate for the potential detrimental impact on the citizens. However, one area that has not been discussed is the potential liability for casinos to guard against the specter of compulsive gambling claims.

The West Virginia Supreme Court of Appeals decision in Stevens v. MTR Gaming Grp., Inc., 237 W. Va. 531, 788 S.E.2d 59 (2016) provides substantial guidance on the issue of whether a lawsuit for compulsive sports wagering and gambling would stand. Mr. Stevens, a frequent customer at MTR’s casino in Chester, West Virginia, had committed suicide after he embezzled money from his company and exhausted all family funds to feed his gambling addiction. His wife, Ms. Stevens, acting in her capacity as personal representative of Mr. Stevens estate, brought action against the casino where her husband had frequented and the makers of slot machines and video terminals for negligence, premises liability, products liability, intentional infliction of emotional distress, and wrongful death.

The Stevens case stemmed from a certified question from the United States District Court for the Northern District of West Virginia, which asked:[1]

[w]hat duty of care exists as to each defendant given the allegation that the slot machines or video lottery terminals are designed through the use of mathematical programs to create the illusion of chance while instead fostering a disassociated mental state, to protect casino patrons from becoming addicted to gambling by using these machines or terminals

Id. at 534, 62. The Court began its analysis by first explaining what creates the existence of a duty. The Court found that the West Virginia legislature’s “deliberate and detailed proclamation of public policy through” the legalization of video lottery terminals and slot machines created a “clear legislative intent to foreclose judicial interference” with the operation of such in the State. Id. at 535, 63. Specifically, the Court reached four conclusions regarding West Virginia statutory and regulatory scheme governing lottery terminals: (1) The machines exist in West Virginia for the express purpose to create an economic boon; (2) The State thoroughly integrated itself into the provision and operation of the machines in a macro and micro sense that it cannot be divorced from the licensees and suppliers; (3) The societal costs of permitting gambling on the video lottery terminals was clearly weighed by the legislature; and (4) An administrative scheme was developed to assist compulsive gamblers with a protocol that created an “exclusion list” in which either the individual with a compulsive gambling disorder or the Director of the Lottery Commission (for specifically stated reasons) may exclude individuals of the opportunity to gamble. Id. 537-38, 65-66. Thus, because of the heavy regulation provided by the West Virginia legislature, the Court found that

[n]o duty of care under West Virginia law exists on the part of manufacturers of video lottery terminals, or the casinos in which the terminals are located, to protect users from compulsively gambling, … an action in negligence against the manufacturer or the casino may not be maintained for damages sustained by a user of the terminals as a result of his or her gambling.

Id. at 538, 66.

Based on the Stevens decision, it seems relatively clear that there is not duty on casinos to protect against compulsive gambling. However, Senate Bill 415 expressly allows for wagering at casinos as well as on any mobile application or other digital platforms that are approved by the West Virginia Lottery Commission. LOTTERY SPORTS WAGERING ACT, 2018 West Virginia Laws S.B. 415. Thus, this mode of wagering creates a very important and noticeable distinction that was not dealt with in Stevens: namely, the act of gambling through a casino while not having to present in-person at the casino. Thus, the “exclusion list” factor in the Stevens decision will be more difficult to successfully implement because if patrons do not have to present in-person at the casino, they would not be checked against the exclusion list and be properly turned away should they be on the exclusion list. Although a mobile app could very well have safeguards to prevent persons from accessing the app to place the bets, one can see how creating fictitious accounts with the intent to evade the exclusion list is a very real possibility.

In conclusion, it appears that the Stevens decision will shed much light on any dispute as to whether a casino should be liable for allowing compulsive gamblers to continue placing sports wagers. However, if liability issues do become pervasive because of the “success” of sports wagering in West Virginia, it is not unthinkable that the West Virginia legislature will come to the rescue of the casinos and others tied to the business of sports wagering. Such steps were taken in the 1980s with the passage of the West Virginia Skiing Responsibility Act (W. Va. Code § 20-3A-1, et seq.) and the Whitewater Responsibility Act (W. Va. Code § 20-3B-1, et seq.), both of which were enacted for the purpose of protecting the contributions that the sports had on the economy of West Virginia.

For more information about this article, please contact Landon s. Moyer at 304.596.2277.

[1] Three questions were ultimately certified and docketed for oral argument. However, the Court did not answer the second and third questions due to its ruling on the first certified question.