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End Run Around the Constitution?

Posted on April 23, 2015 at 1:40 PM

     On November 12, 2013, in a case, probably not noted by many people, the West Virginia Supreme Court of Appeals did away with the "open and obvious doctrine in premises liability negligence actions."  The case was Hersh v. E-T Enterprises.  The 'open and obvious' doctrine had existed in West Virginia since 1902, and, generally, stood for the proposition that if a hazard on another's property was open and obvious to a reasonable man, than a visitor to that property, who failed to observe the hazard, and was hurt thereby, could not pursue a case sounding in negligence.  That is, the visitor couldn't sue.  The important thing to note here is that the restriction of the visitor's right to sue was usually announced by a judge in the form of an order of summary judgment, well in advance of a jury ever having been seated, or the visitor having his "day in court."  The Hersh Court turned that idea on its head.  According to the Hersh decision

if it is foreseeable that an open and obvious hazard may cause harm to others despite the fact tht it is open and obvious, then there is a duty of care upon the owner to remedy the hazard.  Whether the actions of the owner were reasonable is a question for the jury... [t]he plaintiff's confrontation of an open and obvious hazard is merely an element to be considered by the jury.  

Hersh v. E-T Enterprises, 232 WVa. 305,     , 44 752 S.E.2d 336, 349 (2013).   

     The Hersh decision displeased many who identified with the monied interests in West Virginia; those same people who claim corporations have equal rights with humans.  According to the Hersh detractors, the Court had "opened the door for more lawsuits on behalf of people who through their own stupidity, get hurt."  Hoppy's Commentary, Hoppy Kercheval, Jan. 20, 2015.  With the commencement of the 2015 leglislative session, SB 13 was proposed which reintroduced the open and obvious doctrine to West Virginia, and expressly refuted the reasoning contained in the Hersh decision.  After some compromise, the open and obvious doctrince became the law of West Virginia, with an effective date of February 18, 2015.  (As an aside, more and more states are abandoning the open and obvious doctrine...thus another example of how the 2015 legislature has taken West Virginia further back in time.)

I write all of the above as a preamble for my real point:  in reintroducing the open and obvious doctrine to West Virginia, the legislature has stripped another constitutionally guaranteed right from West Virginians.  In the quote taken from the Hersh decision, above, you will note that I have highlighted language which suggests the importance of the jury in deciding civil matters.  As you read the rest of this discussion, keep in the back of your mind the question:  "If I were hurt, who would I want to decide whether I could go to trial, not whether I won or lost at trial, but rather, if I could even present my case at trial:  a jury of my peers, or a single judge?"

Trial by jury has long been a part of the anglo-saxon theory of justice.  They first began to appear during the reign of King Henry II (1154-1189), when he established assizes where twelve "free and lawful men" were assembled to declare on their oath who was the true owner of property or a heir.  The Bushnell case stood for the proposition that juries were free to deliver verdicts free from judicial (read, government) coercion.  One of the causes of the Revolutionary War was the imposition of the Navigation Acts by the British.  Many colonial juries refused to find their peers guilty of having avoided the onerous Navigation taxes.  The British, in response, set up special tribunals where colonists were convicted without juries.  The Declaration of Independence charged King George III with, among other things, of depriving the colonists "in many cases, of the benefits of a trial by jury."   The Constitution did not initially guarantee a right to a jury trial, but because of the importance of a right to a trial by a jury, and the complaints by the Anti-Federalists, the Sixth and Seventh Amendment were approved.  The Seventh Amendment reads:

In suits at common law, where the value of a controversy shall exceed twenty dollars, the right to trial by jury shall be preserved and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, then according to the rules of the common law.

Thomas Jefferson described trial by jury "as being the only anchor ever yet imagined by man, by which government can be held to the principles of its constitution."  Courts in West Virginia have traditionally been very deferential to factual determinations made by juries:

the verdict of the jury will not be set aside unless plainly contrary to the weight of the evidence or without sufficient evidence to support it.

Laslo v. Griffith, 143 W.Va. 469, 102 S.E.2d 894  (1958).  

Hopefully, based upon what I have written above, you can see that the trend has been to allow juries to determine facts, and not judges, or govenments.  Facts being the foundation upon which rights to redress are based, it has, historically, been thought better to leave them in the hands of a jury, a group not as easily swayed by individual passions or prejudices, cultural leanings, or political pursuasions versus a judge, a lone individual, who might be motivated by any number of unknown influences, some inimicalble to the rights of the litigant before the bench.  (I want to point out that I think that the lion's share of judges try to be even handed and fair.)  By the Hersh decision, the West Virginia Supreme Court of Appeals celebrated the jury, and brought West Virginia in line with the modern trend of case law.  In 2015, the legislators, bowing to corporate interests, and reintroducing the open and obvious doctrine, have again showed their disdain for the individual, for juries, and...perhaps, for our Constitution? http://www.facebook.com/msantabarbaralaw

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