Pt. 13.  Nevertheless, we find it curious that in response to this contention petitioner failed to address, in brief or in oral argument, paragraph eleven of the Settlement Agreement which provides: “No party hereto shall be deemed to have waived any rights under this Agreement unless such waiver is in writing and signed by said party.”. 11, Strahin v. Cleavenger, 216 W. Va. 175, 603 S E.2d 197 (2004). Petitioner does not argue that violation of either of these statutes does not operate to establish prima facie negligence. Begin typing to search, use arrow keys to navigate, use enter to select. Syl. “ ‘[a] motion by both plaintiff and defendant for summary judgment under Rule 56, R.C.P. Cancel anytime. law school study materials, including 801 video lessons and 5,200+ Dobbs 8th Torts Register to get FREE access to 13,000+ casebriefs Register Now Marcus v. Staubs "Teenage girl stolen car" Proximate cause (intervening criminal act): A tortfeasor whose negligence is a substantial factor in bringing about injuries is not relieved from liability by intervening acts if those acts were reasonably foreseeable. Read more about Quimbee. 3, Sewell v. Gregory, 179 W. Va. 585, 371 S.E.2d 82 (1988). Under either scenario, it would appear appropriate for the fact-finder to assess the proportionate fault of all parties to the litigation, including both infant plaintiffs, as contemplated by W. Va.Code § 55–7–24. 228 f: f: Derdiarian v. Felix Contracting Corp. New York Court of Appeals, 1980 Petitioner Jonathon Ray Marcus, appeals an adverse summary judgment order in a negligence case. Copyright © 2020, Thomson Reuters. made the general determination that the relevant disputed facts were sufficient for a jury to determine whether or not it was foreseeable that the conduct of the property owner or occupier could have created an unreasonable risk of harm to the victim under the circumstances. Marcus Staubs' Reputation Profile. This Court has cautioned lower courts that. Both petitioner's and respondent's arguments as to this portion of the first assignment of error smack of closing argument and summarily dismiss squarely contradictory evidence. Respondent Lori Ann Staubs filed suit as the mother and next friend of Jessica Staubs and as Administratrix of the Estate of Samantha Staubs against petitioner and others.2 Respondent alleged that petitioner and Woodward negligently “provided” alcohol to the minors. Firefox, or You can try any plan risk-free for 7 days. a court's overall purpose in its consideration of foreseeability in conjunction with the duty owed is to discern in general terms whether the type of conduct at issue is sufficiently likely to result in the kind of harm experienced based on the evidence presented․ The jury has the more specific job of considering the likelihood or foreseeability of the injury sustained under the particular facts of the case in order to decide whether the defendant was negligent in that his or her conduct fell within the scope of the duty defined by the court. Va.Code § 11–16–19(c) (Repl.Vol.2010) and W. Va.Code § 49–7–7 (Repl.Vol.2009);4 (2) that by virtue of his violation of these statutes, he was prima facie negligent; (3) that by refusing to pick the girls up later in the evening at their request, he was guilty of common law negligence; (4) that his negligence was a proximate cause of the accident; (5) that Misty's actions in stealing the vehicle, driving without a license, and driving intoxicated were not intervening causes; (6) that by imposing liability on petitioner, the court was not imposing “social host” liability, as argued by petitioner; (7) that Jessica Staubs, as a 13–year–old, was not guilty of contributory negligence;5 and (8) as a result of the foregoing, petitioner was liable to respondent. Whether or not the parties “mutually assented” to waive the right to appeal in the Settlement Agreement is a matter that requires factual development and legal analysis-none of which occurred here at the trial court level.13 As such, this issue is not appropriately before this Court: “[O]ur guiding precept in this regard is that the trial court must be provided with an opportunity to rule on issues properly before it and that it would be improper for this Court to rule on an issue on which the trial court had not first passed judgment.” State v. Jessie, 225 W. Va. 21, 27, 689 S.E.2d 21, 27 (2009). Strahin presents a proper roadmap for the resolution of intertwining factual and legal issues as pertains to duty. Pt. The rule of law is the black letter law upon which the court rested its decision. JESSICA STAUBS lit a candle on 02/02/2017: "HEY SAMANTHA WE ISS U SO MUCH I HOPE DADDY AND MOM ARE WITH U AND GRANDMA SANDY I KNOW UR WATCHING OVER US ALL I MISS U" Dee Hypes lit a candle on 08/22/2016: "Sammy girl. No contracts or commitments. “ ‘A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.’ Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963).” Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W. Va. 706, 421 S.E.2d 247 (1992). In late 2010, Nationwide and respondent agreed that the default against petitioner would be set aside in exchange for an agreement which made certain provisions for settlement depending on the outcome of a liability determination as to petitioner. ]” Syl. Petitioner/defendant Jonathan "Ray" Marcus (hereinafter "petitioner") appeals the Circuit Court of Jefferson County's May 25, 2011, order granting summary judgment in favor of respondent/plaintiff Lori Ann Staubs, next friend of Jessica Lynn Staubs and Administratrix of the Estate of Samantha Nichole Dawn Staubs, on the issue of liability. 10, Price v. Halstead, [177] W. Va. [592], 355 S.E.2d 380 (1987). Notes. March 29, 2013. Woodward testified that the money was for cigarettes, having refused to buy the girls alcohol. This Court has likewise cautioned that “[t]he circuit court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial.” Syl. 14, Id. No. The trial court's order awarding summary judgment establishes the negligence of petitioner on two bases: violation of statute and common law negligence. Pt. Pt. Id. Both were passengers in a vehicle stolen and driven by 14–year–old Misty Johnson (hereinafter “Misty”), who was intoxicated. When the existence of a legal duty is predicated on disputed facts, both the court and the fact-finder must be engaged before a finding of negligence can be reached. The West Virginia Supreme Court granted certiorari to review. Meinhard v. SalmonN.Y. 471 F. Supp. But I think when juries look at cases they do reach conclusions and make presumptions, I mean, they're allowed to put two and two together to equal four, cause and effect, things of that nature, which is maybe different than a cold computation of known admitted facts. Marcus Staubs, 40 Fort Myers, FL.