Justice LOUGHRY dissents and reserves the right to file a separate opinion.

Dissenting Opinion of Justice Loughry

Nov. 12, 2013.

Syllabus by the Court

1. “When a statute imposes a duty on a person for the protection of others, it is a public safety statute and a violation of such a statute is prima facie evidence of negligence unless the statute says otherwise. A member of a class protected by a public safety statute has a claim against anyone who violates such a statute when the violation is a proximate cause of injury to the claimant.” Syllabus Point 7, Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 524 S.E.2d 688 (1999).

2. “A party is not barred from recovering damages in a tort action so long as his negligence or fault does not equal or exceed the combined negligence or fault of the other parties involved in the accident.” Syllabus Point 3, Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879, 880 (1979).

3. “The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. The test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?” Syllabus Point 3, Sewell v. Gregory, 179 W.Va. 585, 371 S.E.2d 82 (1988).

4. “In determining whether a defendant in a premises liability case met his or her burden of reasonable care under the circumstances to all non-trespassing entrants, the trier of fact must consider (1) the foreseeability that an injury might occur; (2) the severity of injury; (3) the time, manner and circumstances under which the injured party entered the premises; (4) the normal or expected use made of the premises; and (5) the magnitude of the burden placed upon the defendant to guard against injury.” Syllabus Point 6, Mallet v. Pickens, 206 W.Va. 145, 522 S.E.2d 436 (1999).

5. In the ordinary premises liability case against the owner or possessor of the premises, if it is foreseeable that an open and obvious hazard may cause harm to others despite the fact it is open and obvious, then there is a duty of care upon the owner or possessor to remedy the risk posed by the hazard. Whether the actions employed by the owner or possessor to remedy the hazard were reasonable is a question for the jury.

6. The open and obvious doctrine in premises liability negligence actions is abolished. To the extent Sesler v. Rolfe Coal & Coke Co., 51 W.Va. 318, 41 S.E. 216 (1902) and Burdette v. Burdette, 147 W.Va. 313, 127 S.E.2d 249 (1962) hold otherwise, they are overruled.

7. In the ordinary premises liability case against the owner or possessor of the premises, the finder of fact may consider whether a plaintiff failed to exercise reasonable self-protective care when encountering an open and obvious hazard on the premises. The plaintiff's confrontation of an open and obvious hazard is merely an element to be considered by the jury in apportioning the relative fault of the parties.

8. The owner or the possessor of premises is not an insurer of the safety of every person present on the premises. If the owner or possessor is not guilty of negligence or willful or wanton misconduct and no nuisance exists, then he or she is not liable for injuries sustained by a person on the premises.
Harry P. Waddell, Esq., Martinsburg, WV, for the Petitioners. Christopher J. Regan, Esq., Bordas & Bordas, PLLC, Wheeling, WV, for Amicus Curiae West Virginia Association for Justice.
Joseph L. Caltrider, Esq., Bowles Rice McDavid Graff & Love LLP, Martinsburg, WV, for Respondents E–T Enterprises, Limited Partnership, and Ralph L. Eckenrode.

Johnnie E. Brown, Esq., Jeffrey W. Molenda, Esq., Kameron T. Miller, Esq., Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Charleston, WV, for Respondents P & H Investments, Inc., and Trollers Associates, LLC.

Jeffrey A. Holmstrand, Esq., Flaherty Sensabaugh Bonasso PLLC, Wheeling, WV, for Amicus Curiae Defense Trial Counsel of West Virginia.

Jill Cranston Bentz, Esq., Mychal Sommer Schulz, Esq., Jacob A. Manning, Esq., Dinsmore & Shohl, LLP, for Amicus Curiae West Virginia Insurance Federation.

KETCHUM, Justice:

In this appeal from the Circuit Court of Berkeley County, we are asked to examine the “open and obvious” doctrine as it applies in premises liability actions. Under this common-law doctrine, if a plaintiff is injured by a hazard on another's land that was “open and obvious” such that it was or could have been known to the reasonable plaintiff, then the plaintiff is barred as a matter of law from recovering any damages from the premises owner or possessor. Under the doctrine, the premises owner or possessor owes no duty of care to eliminate open and obvious hazards; instead, he or she only has a duty to correct hidden dangers.

The plaintiff below fell down a staircase in a commercial parking lot that lacked handrails. He asserts that the defendant property owners were prima facie negligent because a local ordinance legally required the installation of at least one handrail. The defendants claimed that the missing handrail was an open and obvious danger, and that the plaintiff knew there was no handrail. In two orders dated December 15, 2011, the circuit court granted summary judgment to the defendants, finding no actionable negligence because the defendants had no duty of care toward the plaintiff.

We reverse the circuit court's orders. As set forth below, we abolish the “open and obvious” doctrine. If a hazard is open and obvious on premises, it does not preclude a cause of action by a plaintiff for injuries caused by that hazard. Instead, a jury may consider the obviousness of the hazard in determining the comparative negligence of the plaintiff against that of the owner or possessor of the premises.

I.

FACTUAL AND PROCEDURAL BACKGROUND

On the morning of October 9, 2009, plaintiff Walter E. Hersh drove to a shopping plaza in Martinsburg, West Virginia. The plaza has two parking lots separated by an embankment. The lower parking lot is owned by third-party defendants P & H Investments, Inc. and Trollers Associates, LLC. The upper parking lot is owned by defendants Ralph Eckenrode and E–T Enterprises Limited Partnership.

On the embankment between the two parking lots is a set of wooden stairs, and the stairs rest on the real property owned by both sets of defendants. However, the stairs were constructed and maintained solely by Mr. Eckenrode and E–T Enterprises Limited Partnership.

The parties agree that the building code ordinance for the City of Martinsburg required at least one handrail on the wooden stairs.

The parties also agree there were no handrails on the stairs. Mr. Eckenrode testified in a deposition that he had removed the handrails.

Mr. Hersh parked in the lower parking lot and climbed up the stairs to visit a store on the upper lot. After about 25 minutes, he left the store to return to his car. As he was descending the wooden stairs, he fell to the parking lot below and sustained a severe head injury.

Mr. Hersh and his wife (plaintiff Mary L. Hersh) brought the instant case against the defendants seeking damages for Mr. Hersh's fall down the stairs. Mr. Hersh asserted that the missing handrails, which were required by law, caused or contributed to his injuries. The defendants filed motions for summary judgment because it was undisputed that the missing handrails were an “open and obvious” condition, and undisputed that Mr. Hersh knew there were no handrails on the stairs before he fell.

In two orders dated December 15, 2011, the circuit court granted summary judgment to all of the defendants. The circuit court stated that it is a fundamental principle of West Virginia premises liability law that “a property owner is not liable for injuries sustained as a result of dangers that are ‘obvious, reasonably apparent, or as well known to the person injured as they are to the owner.’ ”

The circuit court found no “disputed material facts regarding the open and obvious missing handrails along the stairs in question or [Mr. Hersh's] admitted knowledge of those missing handrails before he fell.” Stating it another way, the circuit court found that the missing handrail was a condition that “was open, obvious, reasonably apparent, and as well known to Mr. Hersh as it was to the Defendants on October 9, 2009[.]”

The circuit court concluded that Mr. Hersh had failed to state an actionable case of negligence by the defendants. Under West Virginia law, the circuit court was of the belief that an open, obvious and known condition—“like the missing handrails along the subject stairs in the case sub judice ”—could not, as a matter of law, establish a case of negligence by a defendant that could be submitted to a jury. The circuit court determined that “open, obvious, and known conditions cannot create actionable negligence in West Virginia premises liability cases, even if those conditions are a violation of a regulation or ordinance.” Accordingly, the circuit court granted summary judgment to all of the defendants and dismissed the plaintiffs' case.

The plaintiffs now appeal the circuit court's December 15, 2011, summary judgment orders.

II.

STANDARD OF REVIEW

When we review a circuit court's order granting summary judgment under Rule 56 of the Rules of Civil Procedure , we consider the order de novo.

We apply the same guidelines as the circuit court, and examine the record to assess whether there is a genuine issue of fact to be tried or whether an inquiry concerning the facts is desirable to clarify the application of the law.

III.

ANALYSIS

In a negligence suit, a plaintiff is required to show four basic elements: duty, breach, causation, and damages.

The plaintiff must prove that the defendant owed the plaintiff some duty of care; that by some act or omission the defendant breached that duty; and that the act or omission proximately caused some injury to the plaintiff that is compensable by damages. When we say that a defendant is “negligent,” we are merely saying the defendant owed some duty of care to another yet failed to abide by that duty.

This appeal centers on the first element: duty. The parties offer two competing arguments. First, the plaintiff, Mr. Hersh, asserts that the defendant landowners owed the plaintiff (and others like him) a duty of care to install a handrail on their stairs. The plaintiff further asserts this duty was imposed by a city ordinance, and contends that the defendants' failure to follow the ordinance establishes a prima facie case of negligence. The plaintiff therefore argues that the circuit court erred in finding that the defendants owed no duty of care to the plaintiff.

Second, the arguments of the parties require us to consider the continued viability of the “open and obvious” doctrine in premises liability cases. The defendants argue that under the “open and obvious” doctrine they did not owe the plaintiff any duty of care. They contend that the circuit court correctly found that the missing handrail on the defendants' staircase was an “open and obvious” hazard. Under the precedents of this Court, the defendants claim that if a danger is open and obvious, then the owner or possessor has no duty to warn or duty to protect others against the danger. The owner or possessor is absolved of all liability for that danger, and the doctrine acts as a complete bar to a plaintiff's negligence claim.

The defendants take the position that, even if their actions violated a city ordinance, their actions created a condition that was open and obvious to the public, and therefore the defendants' actions could never form the basis of a negligence cause of action. The plaintiff counters that the open and obvious doctrine should be abolished.

We examine both parts of the parties' arguments. First, as we discuss below, we find that the circuit court erred in finding that the defendants owed no duty of care to the plaintiff. Our law is clear that an ordinance designed for the safety of the public—such as one requiring handrails on stairways—imposes a duty of care. The violation of that ordinance constitutes prima facie evidence of negligence by a defendant, and the circuit court erred in finding otherwise.

Second, we expressly abolish the open and obvious doctrine in premises liability actions. The obviousness of a danger does not relieve an owner or possessor's duty of care towards others, and does not preclude recovery by a plaintiff as a matter of law. Whether a plaintiff's conduct under the circumstances was reasonable will be determined under the principles of comparative negligence. A plaintiff's knowledge of a hazard bears upon the plaintiff's negligence; it does not affect the defendant's duty. Put simply, the obviousness of a dangerous condition should inform a fact finder's assessment of the parties' comparative negligence, rather than dictate dismissal by the court as a matter of law.

A.

Violation of an ordinance is prima facie negligence.

The plaintiff's first argument is that the circuit court failed to give any legal effect to the undisputed fact that the defendants deliberately removed handrails from the staircase, in direct violation of a municipal safety statute requiring a handrail. The plaintiff argues that the violation of a statute or ordinance intended for the protection of public safety constitutes a prima facie case of negligence.

It is a firmly established rule in West Virginia that a defendant's disregard of a statute is prima facie negligence.

More specific to this case, it is just as firmly established that a defendant's violation of a municipal ordinance

or a safety regulation

is prima facie negligence.

In Syllabus Point 7 of Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 524 S.E.2d 688 (1999), Justice Davis established the following guideline for weighing whether the violation of a statute, ordinance or regulation is prima facie negligence:

When a statute imposes a duty on a person for the protection of others, it is a public safety statute and a violation of such a statute is prima facie evidence of negligence unless the statute says otherwise. A member of a class protected by a public safety statute has a claim against anyone who violates such a statute when the violation is a proximate cause of injury to the claimant.

In the instant case, the building code of the City of Martinsburg (as adopted by ordinance) required the defendants to have a handrail attached to their staircase. The building code imposes a duty on business owners such as the defendants for the protection of others. Accordingly, we can easily say that the handrail requirement is a public safety law.

Further, one of the defendants, Mr. Eckenrode, intentionally removed the handrails from the staircase at issue.

On these facts, the plaintiff asserts that he has established a prima facie case of negligence, and that the circuit court should have permitted a jury to consider whether the defendants' violation of the ordinance was a proximate cause of the plaintiff's injuries.

After examination of the record, we agree with the plaintiff that the circuit court erred. The plaintiff established genuine issues of fact regarding whether the defendants violated the Martinsburg building code ordinance requiring handrails, thereby creating a prima facie case of negligence. The determination as to whether there was in fact a violation by the defendants and whether the violation was the proximate cause of the plaintiff's injury are questions within the province of the jury.

B.

The Duty of Care and the Open and Obvious Doctrine

The defendants argue that the circuit court was still correct in its overall finding that they owed no duty of care to the plaintiff, because of the “open and obvious” doctrine. The defendants concede that while the violation of a statute, ordinance or building code may be negligence, they nevertheless assert that the violation does not create “actionable” negligence when that violation is as well known to the person injured as it is to the owner or occupant of the premises. The defendants bluntly argue that the owner or occupier of the premises owes no duty of care to others when a danger is known, open and obvious.

The defendants argue that the “open and obvious” doctrine is rooted in two West Virginia cases: Sesler v. Rolfe Coal & Coke Co.,

issued in 1902, and Burdette v. Burdette,

issued sixty years later. In both cases, this Court required the owner or occupier of premises to exercise reasonable care to keep premises in a safe condition. For example, we said in Syllabus Point 2 of Burdette,

The owner or the occupant of premises owes to an invited person

the duty to exercise ordinary care to keep and maintain the premises in a reasonably safe condition.

However, despite the general duty to keep premises in a safe condition, the Sesler Court created an exception and held that a premises owner has no duty of care to fix a dangerous condition that was known to a person injured on the premises. “[T]he owner [of premises] owes the duty of ordinary, reasonable care to have and keep his premises in safe condition ... unless defects be known to such person [going upon another's premises].”

A premises owner only has “the duty to warn them of any danger ... which he knows of ... and of which [the entrants] are not aware.”

The Court found it was “well established that if one knows, or by fair care could know of danger threatening him, he cannot encounter that danger, and charge his injury upon the owner of the premises even though that owner be in fault.”

In Burdette, the Court—without ever citing to Sesler—expanded the open and obvious doctrine. In dicta, the Court inserted two quotes from Corpus Juris Secundum and American Jurisprudence. The defendants contend these quotes establish that a premise owner only has a duty of care to protect others against “hidden dangers, traps, snares, pitfalls, and the like” that “are not known” to people entering onto the premises. The section of Burdette relied upon by the defendants (and by the circuit court in its summary judgment orders) states:

In 65 C.J.S., Negligence, Section 50, the text contains this language: “The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal, obvious, or ordinary risks attendant on the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers.” In 38 Am.Jur., Negligence, Section 97, the principle is expressed in these terms: “There is no liability for injuries from dangers that are obvious, reasonably apparent, or as well known to the person injured as they are to the owner or occupant.”

The defendants assert that these two quotes firmly establish the principle in our jurisprudence that the owner or occupier of premises is under “no duty to reconstruct or alter the premises so as to obviate known and obvious dangers.”

Put simply, the defendants contend that they were under no obligation to re-install a railing on the staircase, and they cannot be held liable for injuries to the plaintiff because the dangers presented by the missing railing were obvious, reasonably apparent, or as well known to the plaintiff as they were to the defendants.

The plaintiff argues the open and obvious doctrine should be rejected, and urges this Court to adopt Section 343A of the Restatement (Second) of Torts (1965). Under Section 343A(1), the fact that a danger is open, known, or obvious to others does not eliminate “liability” as a matter of law. Instead, Section 343A(1) states that a possessor of land has a duty of care towards others when the possessor should anticipate harm to them from a danger on the land, even if the danger is known or obvious. Section 343A(1), which is titled “Known or Obvious Dangers,” states:

A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

Section 343A(1) recognizes that if a hazard is open and obvious, then a warning by the possessor ordinarily will not provide additional protection against harm. “Risks that are known, open, or obvious already provide notice to those who might be exposed to the risk, making a warning superfluous.”

Nevertheless, despite the opportunity for an entrant to avoid an open and obvious hazard, a possessor is still required to take reasonable precautions when the possessor “should anticipate the harm despite such knowledge or obviousness.” “Even if a danger is open and obvious, the duty of reasonable care may require precautions other than a warning, including employing durable precautions that eliminate or reduce the risk posed by the condition or activity.”

“Thus, the fact that a dangerous condition is open and obvious bears on the assessment of whether reasonable care was employed, but it does not pretermit the land possessor's liability. This treatment of land possessors is consistent with that of other actors who create risks.”

Since the adoption of Section 343A(1) in 1965, many jurisdictions throughout the country have abolished the open and obvious doctrine. “The manifest trend of the courts in this country is away from the traditional rule absolving, ipso facto, owners and occupiers of land from liability for injuries resulting from known or obvious conditions, and toward the standard expressed in section 343A(1) of the Restatement (Second) of Torts (1965).”

This trend is because courts have recognized that the open and obvious doctrine is akin to contributory negligence and “is harsh when applied ... for once the claimant's knowledge of the dangerous condition is established the case is at an end regardless of other attendant circumstances.”

Under the open and obvious doctrine, the “land possessor's duty is controlled solely by the plaintiff's awareness of the danger.”

In light of the Restatement (Second) 's position, courts in other jurisdictions have concluded that “[t]he invitee's knowledge of the danger does not inevitably bar recovery.”

These courts have dispensed with the harsh open and obvious rule and now allow the jury to evaluate the comparative fault of the parties, typical in modern negligence cases.

This Court abolished the doctrine of contributory negligence and adopted the doctrine of comparative fault in Bradley v. Appalachian Power in 1979. We noted in Bradley that the judicially created concept of contributory negligence was harsh, strict, and violated “concepts of justice and fair play” because “the slightest negligence of a plaintiff precludes any recovery and thereby excuses the defendant from the consequences of all of his negligence, however great it may be.”

We therefore adopted the doctrine of comparative fault or comparative negligence, stating:

A party is not barred from recovering damages in a tort action so long as his negligence or fault does not equal or exceed the combined negligence or fault of the other parties involved in the accident.

The open and obvious doctrine was born in the era of contributory negligence, and its continued operation in our law “resurrect[s] contributory negligence as an absolute bar to recovery in cases involving a land possessor's liability”

to invitees and licensees. As the reporters' comments to the current draft of the Restatement (Third) of Torts state:

The rule that a land possessor was not subject to liability for any open and obvious danger is much easier to justify in an era when contributory negligence constituted a complete bar to recovery. An entrant who fails to take self-protective measures may be contributorily negligent and, if so, that would avoid any liability by the possessor. However, such a rule cannot be justified after contributory negligence becomes a comparative defense.

In light of our comparative negligence doctrine, we believe that the fact that a hazard was open and obvious should not relieve the possessor of the premises of all possible duty with respect to the hazard. “The modern and controlling law on this subject is that ‘although the obviousness of a danger may obviate the duty to warn of its existence, if it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it), there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability [.]’ ”

We therefore believe that the open and obvious doctrine should be abolished.

We decline, however, the plaintiffs' invitation that we adopt Section 343A(1) of the Restatement (Second) of Torts, as it is written, into our jurisprudence. As Section 343A(1) is written, it is unwieldy and does not clearly state when a premises owner or possessor may be held liable. Instead, it confusingly says that a possessor of land “is not liable” unless the possessor anticipates harm, despite someone else's knowledge or the obviousness of the danger. Furthermore, Section 343A(1) speaks in terms of one being “liable,” without clarifying if this involves considerations of duty, breach of a duty, or causation. And finally, Section 343A(1) is directed solely toward protecting “invitees,” while in this jurisdiction owners and possessors of land owe a duty of care to both invitees and licensees.

However, while we decline to adopt Section 343A(1) in toto, we find the rule and its accompanying notes and comments to be instructive.

In determining whether or not an owner or possessor of land has a duty of care to alter their conduct when faced with a hazard on the land, the focus is on foreseeability.

The risk of harm to others from an open and obvious danger can sometimes be foreseeable to an owner or possessor, thereby creating a duty to exercise care to alleviate the danger:

The principles stated in the Restatement (Second) of Torts § 343A relate directly to foreseeability and facilitate consideration of the duty issue. Whether the danger was known and appreciated by the plaintiff, whether the risk was obvious to a person exercising reasonable perception, intelligence, and judgment, and whether there was some other reason for the defendant to foresee the harm, are all relevant considerations that provide more balance and insight to the analysis than merely labeling a particular risk “open and obvious.” In sum, the analysis recognizes that a risk of harm may be foreseeable and unreasonable, thereby imposing a duty on the defendant, despite its potentially open and obvious nature.

“The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. The test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?”

We have adopted the following guidelines for assessing whether an owner or possessor of land has exercised reasonable care:

In determining whether a defendant in a premises liability case met his or her burden of reasonable care under the circumstances to all non-trespassing entrants, the trier of fact must consider (1) the foreseeability that an injury might occur; (2) the severity of injury; (3) the time, manner and circumstances under which the injured party entered the premises; (4) the normal or expected use made of the premises; and (5) the magnitude of the burden placed upon the defendant to guard against injury.

Because of the doctrine of comparative fault, the issue of the land possessor's duty and breach must be kept distinct from the question of the entrant's negligence. The finder of fact must assess whether a non-trespassing entrant failed to exercise reasonable self-protection in encountering a hazard, that is, whether the entrant would “proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.”

But an entrant's decision to encounter an open and obvious danger does not necessarily mean that the land possessor was not also negligent for failing to fix an unreasonable danger in the first place. Under our rule of comparative fault, the defendant should be held responsible for his own negligence, if any. This makes good policy sense. As the Supreme Court of Mississippi aptly stated:

This Court should discourage unreasonably dangerous conditions rather than fostering them in their obvious forms. It is anomalous to find that a defendant has a duty to provide reasonably safe premises and at the same time deny a plaintiff recovery from a breach of that same duty. The party in the best position to eliminate a dangerous condition should be burdened with that responsibility. If a dangerous condition is obvious to the plaintiff, then surely it is obvious to the defendant as well. The defendant, accordingly, should alleviate the danger.

We have repeatedly said that the owner or possessor of premises is not an insurer of the safety of people entering onto the premises. The “mere occurrence of an accident does not give rise to the presumption of negligence,”

and “an owner of business premises is not legally responsible for every fall which occurs on his premises.”

We said in 1954 that,

The owner or the occupant of premises used for business purposes is not an insurer of the safety of an invited person present on such premises and, if such owner or occupant is not guilty of negligence or willful or wanton misconduct and no nuisance exists, he is not liable for injuries there sustained by such invited person.

We continue to hold that possessors of property—particularly private homeowners—are not insurers of the safety of every person legitimately entering the property. Possessors of property do not have a duty to eliminate every potential hazard; they only have a duty to take reasonable steps to ameliorate the risk posed by the hazard where it is foreseeable that harm is likely to result from the hazard.

To read negligence into every instance in which an obvious danger is allowed to remain on one's own property would impose upon private homeowners and property owners a cumbersome burden, indeed, to ensure that their homes and yards are perfectly clear from all obvious and potentially injury-producing circumstances. Regardless of which standard of care is most judicious to impose upon possessors of land, however, the fact remains that the law does not impose this burden.

Instead, the law simply requires owners to take reasonable steps to protect invitees.

In summary, we conclude that in the ordinary premises liability case against the owner or possessor of the premises, if it is foreseeable that an open and obvious hazard may cause harm to others despite the fact it is open and obvious, then there is a duty of care upon the owner or possessor to remedy the risk posed by the hazard. Whether the actions employed by the owner or possessor to remedy the hazard were reasonable is a question for the jury. Of course, our cases make it clear this duty applies toward licensees and invitees, and not to trespassers.

Furthermore, we now hold that the open and obvious doctrine in premises liability negligence actions is abolished. To the extent Sesler v. Rolfe Coal & Coke Co., 51 W.Va. 318, 41 S.E. 216 (1902) and Burdette v. Burdette, 147 W.Va. 313, 127 S.E.2d 249 (1962) hold otherwise, they are overruled.

Additionally, in the ordinary premises liability case against the owner or possessor of the premises, the finder of fact may consider whether a plaintiff failed to exercise reasonable self-protective care when encountering an open and obvious hazard on the premises. The plaintiff's confrontation of an open and obvious hazard is merely an element to be considered by the jury in apportioning the relative fault of the parties.

Finally, we reiterate that the owner or the possessor of premises is not an insurer of the safety of every person present on the premises. If the owner or possessor is not guilty of negligence or willful or wanton misconduct and no nuisance exists, then he or she is not liable for injuries sustained by a person on the premises.

Applying these principles to the instant case, we find that the circuit court erred in granting summary judgment to the defendants. Because the lack of handrails violated a City of Martinsburg ordinance and building code, the plaintiffs have alleged a prima facie case of negligence by the defendants. Furthermore, because of (1) the foreseeability that harm to others could occur despite the obvious lack of handrails, (2) as well as the likelihood of severe injuries from falling down the stairs, (3) the fact that the plaintiff entered the defendants' business premises during business hours for a business purpose and (4) used the staircase in a normal way, like a typical customer, weighed against evidence in the record that (5) the defendants could have fixed the stairs and handrails for a reasonable cost, then the circuit court should have found that the defendants had a duty of care to install handrails on the staircase. The defendants were in the best position to remedy the legally-required handrails, and the law requires nothing more than reasonable efforts to protect individuals like the plaintiff.

Of course, the defendants are not entirely off the mark in stressing that the missing handrails were an open and obvious hazard. The finder of fact may consider whether the plaintiff failed to exercise reasonable care for his own safety when he used the staircase that obviously lacked handrails. However, the open and obvious nature of the missing handrails does not completely bar the plaintiff's recovery. It is merely an element to be considered by the jury in apportioning the comparative negligence of the parties.

IV.

CONCLUSION

The circuit court's December 15, 2011, orders granting summary judgment to the defendants is reversed, and the case is remanded for further proceedings.

Reversed and Remanded. Chief Justice BENJAMIN dissents and reserves the right to file a separate opinion.
Justice LOUGHRY dissents and reserves the right to file a separate opinion.

LOUGHRY, Justice, dissenting:

(Filed Nov. 12, 2013)

It is decisions like this that have given this state the unfortunate reputation of being a “judicial hellhole.” The majority has saddled property owners with the impossible burden of making their premises “injury proof” for persons who either refuse or are inexplicably incapable of taking personal responsibility for their own safety. More troubling, however, is the fact that ordinary homeowners will pay the highest price for the majority's pandering to persons who ignore the risk associated with open and obvious hazards that ordinary, hard-working citizens encounter every day and invariably utilize their common sense and good judgment to avoid. This decision is a radical departure from our well-established law, and, therefore, I dissent.

Until now, a property owner was responsible for removing or warning of hidden dangers but could reasonably rely upon others to watch out for hazardous conditions which were readily apparent to anyone who took the time to look where they were going. Unfortunately, the majority out of an over abundance of sympathy for the petitioner has decided to place the risk of harm due to open and obvious hazards upon property owners rather than on individuals who are simply careless. As a result of this decision, property owners have a duty to anticipate that persons who come onto their property will fail to pay attention to even the most obvious of risks.

The facts of this case illustrate why such a rule is simply untenable. Here, Mr. Eckenrode temporarily removed the handrails on the steps because they were in disrepair and he was concerned that teenagers who were using the handrails as ramps while skateboarding were going to be injured. He contracted to have the handrails reinstalled two weeks before the petitioner's fall. Given these circumstances, Mr. Eckenrode's actions were clearly reasonable. In fact, the City of Martinsburg building code, of which the majority summarily concludes he was in violation, even allows for removal of the handrails for purposes of repair. Nonetheless, according to the majority, Mr. Eckenrode should have foreseen that someone with balance and mobility issues, that could not walk without the aid of a cane and who was falling on a daily basis would choose to traverse the steps, despite the obvious lack of a handrail. Without question, Mr. Hersh suffered an unfortunate injury. However, we should not overturn years of precedent merely to indulge our natural sympathy for someone who was hurt because he chose to run the risk of walking down the steps when he knew that there was no handrail and that he was not capable of proceeding safely.

For more than one hundred years, it has been the law in West Virginia that “the owner [of premises] owes the duty of reasonable care to have and keep his premises in safe condition ... unless defects be known to [the entrant].” Syl. Pt. 1, in part, Sesler v. Rolfe Coal & Coke Co., 51 W.Va. 318, 41 S.E. 216 (1902) (emphasis added). In Burdette v. Burdette, 147 W.Va. 313, 127 S.E.2d 249 (1962), this Court stated:

The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal, obvious, or ordinary risks attendant on the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers.... There is no liability for injuries from dangers that are obvious, reasonably apparent, or as well known to the person injured as they are to the owner or occupant.
Id. at 318, 127 S.E.2d at 252 (citations omitted). Referring to the above statement from Burdette, this Court further explained in McDonald v. University of West Virginia Board of Trustees, 191 W.Va. 179, 444 S.E.2d 57 (1994), that

an owner of business premises is not legally responsible for every fall which occurs on his premises. He is only liable if he allows some hidden, unnatural condition to exist which precipitates the fall. He is not responsible if some small characteristic, commonly known to be a part of the nature of the premises, precipitates the fall. This has been otherwise stated as follows:

In order to make out a prima facie case of negligence in a slip and fall case, the invitee must show (1) that the owner had actual or constructive knowledge of the foreign substance or defective condition and (2) that the invitee had no knowledge of the substance or condition or was prevented by the owner from discovering it ... With respect to slip-and-fall cases, the mere occurrence of a fall on the business premises is insufficient to prove negligence on the part of the proprietor.
Id. at 182, 444 S.E.2d at 60 (quoting 3 S. Speiser, et al., The American Law of Torts § 14.14 (1986)).

Applying the open and obvious doctrine, this Court affirmed the trial court's grant of judgment notwithstanding the verdict in McDonald. In that case, the plaintiff, Holly McDonald, filed suit against the trustees of West Virginia University after she fell during a stage movement class on university property. Although the plaintiff claimed that she fell into a “little pit” or “little crater-type thing,” the evidence introduced at trial showed that the persons who inspected the lawn where the fall occurred could not find any hidden danger and the only hazards were open and obvious. Thus, there was no evidence that the university breached a duty with regard to keeping its premises safe.

Since McDonald, this Court has continued to consistently apply the open and obvious doctrine. For example, in Senkus v. Moore, 207 W.Va. 659, 535 S.E.2d 724 (2000), a patron of a veterinary hospital, Jennie Senkus, and her husband, Michael Senkus, filed an action for negligence and loss of consortium after Ms. Senkus tripped and fell over a scale located on the floor in a corner of the hallway near an examining room. It was undisputed that the scale was in plain view of all patrons and was not a hidden danger. Ms. Senkus testified during her deposition that she did not remember anything obstructing her view of the scale; that she had passed by the scale on entering the examining room; and that she did not know why she did not see the scale as she was exiting the room. Affirming the circuit court's grant of summary judgment in favor of the veterinary hospital, this Court explained:

In determining whether the circuit court properly granted summary judgment, it is important to review the essential elements of a negligence cause of action, which the Appellants had the burden to prove. Before the owner or occupier of premises may be held legally liable, it must be shown that the owner/occupier owed a duty to the person injured, that the duty was breached, and that the breach of duty was the proximate cause of the injury. Atkinson v. Harman, 151 W.Va. 1025, 158 S.E.2d 169 (1967); see McMillion v. Selman, 193 W.Va. 301, 303, 456 S.E.2d 28, 30 (1995).

....

The fall by Ms. Senkus on the Appellees' property is insufficient to prove that the Appellees were negligent. While the Appellants contend that the scale was negligently placed on the premises, the Appellants failed to offer any evidence before the trial court to show that the placement of the scale breached any duty to them or that it was inherently dangerous or unsafe. Rather, the uncontradicted evidence is that Ms. Senkus' negligent failure to watch where she was walking was the sole precipitating cause of the accident. Where there is no evidence from which a rational trier of fact could reasonably infer a breach of duty, summary judgment is appropriate.
Id. at 662, 535 S.E.2d at 727;see also Stevens v. West Virginia Inst. of Tech., 207 W.Va. 370, 532 S.E.2d 639 (1999) (reaffirming Burdette and finding that college student injured while setting up volleyball standard at gymnasium on campus failed to provide sufficient evidence to survive defendant school's summary judgment motion); Hawkins v. U.S. Sports Ass'n, Inc., 219 W.Va. 275, 633 S.E.2d 31 (2006) (utilizing test to establish prima facie negligence case set forth in McDonald and finding that defendant landowner did not have actual or constructive knowledge of buried plastic pipe on baseball field that caused injury to softball player when he slid toward first base).

Not only has this Court repeatedly and consistently applied the open and obvious doctrine, but we have done so even where there has been a violation of a state regulation. In Estate of Helmick by Fox v. Martin, 192 W.Va. 501, 453 S.E.2d 335 (1994), Harry Melvin Helmick was a passenger in an automobile that was struck by a truck upon exiting the parking lot of a restaurant. Mr. Helmick was rendered a quadriplegic, and he died sixteen months after the accident due to complications from his injuries. Mr. Helmick's estate filed suit alleging, inter alia, that the owner of the restaurant had failed to properly warn of the dangers of the parking lot and had failed to correct the hazard. The parking lot had an open boundary to the highway which was approximately 160 feet in length. Although it was safe to exit from the north end, there was insufficient visibility to safely exit from the south end where the accident occurred. During discovery, a district engineer employed by the West Virginia Department of Highways testified that state regulations did not allow unrestricted entry onto the highway for such a long distance. He explained that for commercial property, the maximum allowable opening onto the highway was fifty feet and that in this instance, a sufficient sight distance to exit the parking lot safely only existed at the north end. He also indicated that a permit was required for every entry onto a state highway from a driveway or parking lot and that the restaurant had no such permit.

After the circuit court granted summary judgment, Mr. Helmick's estate appealed arguing that genuine issues of fact existed as to whether the owner of the restaurant was negligent. Affirming the circuit court's decision based upon the precedent set by Burdette and McDonald, this Court stated:

All the parties recognized the dangers of the parking lot fronting Our Place Diner. The evidence demonstrated that Ms. Wamsley

and Mr. Helmick would frequent the restaurant and were aware that it was safer to exit the lot from the north end. The evidence is clear that the dangers of the lot were “as well known to the person injured as they [were] to the owner or occupant.” Accordingly, we agree with the circuit court that the defendant is not legally responsible for the accident that occurred after Ms. Wamsley and Mr. Helmick left the diner.
Martin, 192 W.Va. at 505, 453 S.E.2d at 339 (footnote added).

Despite our well-established and long-standing precedent set forth above, the majority has concluded that the open and obvious doctrine is no longer viable because of the abolishment of contributory negligence and the adoption of the doctrine of comparative fault.

While the majority purports to frame its analysis in terms of the duty of a landowner, it then completely abandons that concept and focuses on the element of causation. The majority clearly fails to understand that “the open-and-obvious doctrine is not concerned with causation but rather stems from the landowner's duty to persons injured on his or her property.” Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 788 N.E.2d 1088, 1091 (2003).

In Armstrong, the Supreme Court of Ohio explained why the focus of courts abolishing the open and obvious doctrine in favor of the comparative negligence approach is misdirected. The Court stated:

By failing to recognize the distinction between duty and proximate cause, we believe that these courts have prematurely reached the issues of fault and causation. The Illinois Supreme Court recognized this distinction in Bucheleres v. Chicago Park Dist. (1996), 171 Ill.2d 435, 216 Ill.Dec. 568, 665 N.E.2d 826, a decision upholding the viability of the open-and-obvious doctrine in that state. The court stated: The existence of a defendant's legal duty is separate and distinct from the issue of a plaintiff's contributory negligence and the parties' comparative fault. The * * * characterization of the open and obvious doctrine as a “defense” that should be submitted to the jury as part of the comparison of the relative fault of the parties overlooks the simple truism that where there is no duty there is no liability, and therefore no fault to be compared. Id., 171 Ill.2d at 447, 216 Ill.Dec. 568, 665 N.E.2d 826.
788 N.E.2d at 1091 (emphasis added). The Court also noted that “[e]ven under the Restatement view ... the focus is misdirected because it does not acknowledge that the condition itself is obviously hazardous and that, as a result, no liability is imposed.” Id. In other words,

[r]ecovery is barred when the danger is obvious, not because the negligence of the plaintiff is greater than that of the defendant, but because the defendant is not negligent at all. The defendant has no duty to warn against an obvious danger and cannot, therefore, be negligent in failing to give such a warning.
Harrington v. Syufy Enter., 113 Nev. 246, 931 P.2d 1378, 1380 (1997).

Continuing to adhere to the open and obvious doctrine, the Supreme Court of Ohio explained in Armstrong that

[b]y focusing on the duty prong of negligence, the rule properly considers the nature of the dangerous condition itself, as opposed to the nature of the plaintiff's conduct in encountering it. The fact that a plaintiff was unreasonable in choosing to encounter the danger is not what relieves the property owner of liability. Rather, it is the fact that the condition itself is so obvious that it absolves the property owner from taking any further action to protect the plaintiff. Ferrell, Emerging Trends in Premises Liability Law: Ohio's Latest Modification Continues to Chip Away at Bedrock Principles (1995), 21 Ohio N.U.L.Rev. 1121, 1134.
788 N.E.2d at 1091. Stated another way,

[l]andowners are relieved of the duty to warn of open and obvious dangers on their premises because it is not reasonably foreseeable that a visitor exercising (as the law presumes) reasonable care for his own safety would suffer injury from such blatant hazards. See Blackmer v. Toohil, 343 Mass. 269, 271–272, 178 N.E.2d 274 (1961); St. Rock v. Gagnon, 342 Mass. 722, 723–724, 175 N.E.2d 361 (1961). Stated otherwise, where a danger would be obvious to a person of ordinary perception and judgment, a landowner may reasonably assume that a visitor has knowledge of it and, therefore, “any further warning would be an empty form” that would not reduce the likelihood of resulting harm. LeBlanc v. Atlantic Bldg. & Supply Co., 323 Mass. 702, 705, 84 N.E.2d 10 (1949). See Bavuso v. Caterpillar Indus., Inc., 408 Mass. 694, 699, 563 N.E.2d 198 (1990) (products liability); Waters v. Banning, supra 339 Mass. 777, 162 N.E.2d 41 (1959).
O'Sullivan v. Shaw, 431 Mass. 201, 726 N.E.2d 951, 954–55 (2000).

I am deeply disappointed by the majority's decision to ignore the maxim of stare decisis and not adhere to this Court's prior decisions that have clearly articulated the duty of property owners with respect to persons entering their premises. The open and obvious doctrine has reflected sound public policy protecting property owners from owing a duty to persons who freely and willingly choose to expose themselves to open and obvious hazards and, as a result, suffer personal injuries. There have been many opportunities to abolish the open and obvious doctrine since the adoption of comparative fault in Bradley. Instead, this Court upheld the holdings of Burdette in McDonald, Senkus, Stevens, Hawkins and Martin. Moreover, in Mallet v. Pickens, 206 W.Va. 145, 522 S.E.2d 436 (1999), this Court adopted guidelines for assessing whether an owner or possessor of land has exercised reasonable care and reaffirmed Burdette by recognizing that

[w]hile the existence of a duty is defined in terms of foreseeability, it also involves policy considerations including ‘the likelihood of injury, the magnitude of the burden guarding against it, and the consequences of placing that burden on the defendant.’
Id. at 156, 522 S.E.2d at 447 (citation omitted). Justice Warren McGraw warned in Mallet that

a line must be drawn between the competing policy considerations of providing a remedy to everyone who is injured and of extending exposure to tort liability almost without limit. It is always tempting to impose new duties and concomitantly, liabilities regardless of the economic and social burden.
Id. at 156 n. 15, 522 S.E.2d at 447 n. 15 (citation omitted). Unfortunately, the majority has now given into this temptation.

By abolishing the open and obvious doctrine, the majority has created a subjective legal duty which is contingent, uncertain, and impractical for West Virginia property owners who wish to comply with the law. The decision unfairly and unjustly expands the legal duty of property owners and makes them potentially liable regardless of how obvious the danger may be. For example, as a result of the majority's decision, farmers who enclose their property with barbed wire face liability whenever someone simply walks into the fence and suffers an injury. Similarly, owners of land with streams and ponds face potential liability if someone falls into the water. In fact, every natural hazard now represents another source of potential liability for the property owner. Should a proactive property owner seek to mitigate the hazard by placing a barrier around it, I am certain that a property owner somewhere would face liability because they should have anticipated that someone could be injured while trying to climb over the barrier.

More to the point, the majority's decision eliminates the ability of circuit courts to dispose of meritless litigation by granting summary judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure. Litigation will abound as every slip and fall case will now be presented to a jury to apportion fault. The majority ignores this problem by suggesting that the focus should now be upon foreseeability and indicates in new syllabus point five that “if it is foreseeable that an open and obvious hazard may cause harm to others ... then there is a duty of care upon the owner or possessor to remedy the risk posed by the hazard.” In fact, by definition, it is always foreseeable that open and obvious hazards pose a risk to others. That is why they are considered to be hazards. The majority's decision simply guarantees that every premises liability case poses a question of fact for jury determination.

As further evidence of the underdeveloped and impracticable rule of law the majority has now set forth, the broad and imprecise language in its new syllabus point could ostensibly be construed as creating strict premises liability. As noted above, all “hazards” are reasonably foreseeable causes of potential harm. The majority holds that a premises owner has a duty to “ remedy the risk posed by the hazard.” (Emphasis added). In the body of the opinion explaining this new rule of law, the majority states that property owners have a duty to “eliminate” hazards where harm is foreseeable. Whether intended or not, this wording suggests that hazards must be wholly eradicated. To the extent a person is injured as the result of a hazard, the mere existence of the hazard itself establishes that it was not “eliminated” or “remedied.” As such, by the time a careless person injures him or herself with an open and obvious hazard, a property owner has already failed in his or her duty of care as crafted by the majority's new syllabus point. If the majority actually intended to convey that the steps taken by a premises owner to address or mitigate a hazard be likewise subject to a reasonableness analysis by the jury, it failed miserably and has created a troublesome lack of clarity as to what type of action is needed to address hazards by a property owner.

Some hazards cannot be eliminated; some cannot be eliminated without unreasonable effort and expense. Some hazards are quite simply required to be there, such as the barbed wire fence described above. That the majority would have the state's property owners “parade the horribles” to determine precisely what degree of carelessness or stupidity is cost effective to guard against under this new limitless rule of law is irresponsible.

Without question, rates for property insurance will increase because of this decision. Therefore, the majority has made owning property in West Virginia more costly. I disagree with this unwise and unnecessary change in our premises liability law. Accordingly, I respectfully dissent. BENJAMIN, Chief Justice, dissenting:

(Filed Dec. 27, 2013)

In overruling the long-standing open and obvious doctrine established in Sesler v. Coal Co., 51 W.Va. 318, 41 S.E. 216 (1902), and Burdette v. Burdette, 147 W.Va. 313, 127 S.E.2d 249 (1962), the Majority confuses negligence law in West Virginia. Therefore, I respectfully dissent.

The Majority's opinion creates the following new syllabus point:

In the ordinary premises liability case against the owner or possessor of the premises, if it is foreseeable that an open and obvious hazard may cause harm to others despite the fact it is open and obvious, then there is a duty of care upon the owner or possessor to remedy the risk posed by the hazard. Whether the actions employed by the owner or possessor to remedy the hazard were reasonable is a question for the jury.
(Emphasis added). This syllabus point fundamentally alters the negligence analysis in property liability cases.

As every first year law student learns, to maintain a negligence case a plaintiff must prove four elements: duty; breach; causation, which involves foreseeability; and damages. The existence of a duty is the threshold issue in any negligence case, and whether there is a duty is a question of law. Syl. pt. 5, Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000) (“The determination of whether a defendant in a particular case owes a duty to the plaintiff is not a factual question for the jury; rather the determination of whether a plaintiff is owed a duty of care by a defendant must be rendered by the court as a matter of law.”). When there is no duty, there is no liability. The open and obvious doctrine operated to establish whether a property owner owed a duty to those on his property. Causation, on the other hand, generally presents a question of fact for the fact finder. Syl. pt. 5, Hatten v. Mason Realty Co., 148 W.Va. 380, 135 S.E.2d 236 (1964) (“Questions of ... proximate cause ... present issues of fact for jury determination when the evidence pertaining to such issues is conflicting or where the facts, even though undisputed, are such that reasonable men may draw different conclusions from them.”).

Syllabus point 5 of the Majority opinion nullifies the duty element by making its existence dependent on causation. Where the existence of a duty was previously a question of law, it is now dependent on findings of fact regarding foreseeability. Although duty and causation were previously separate elements, now, any foreseeable injury will result in a finding that the property owner owed a duty to an invitee onto that property.

The change in negligence law will have a dramatic effect on the way in which premises liability cases proceed in this State. Courts will no longer be able to dismiss cases for lack of duty as a matter of law; instead, the question of duty will be tied to factual inquiries which will generally require submission of the case to a jury. I am also concerned about the real-world impact of this change in our jurisprudence. With this decision, our traditional concept of personal responsibility now no longer exists in the realm of premises liability. Where the open and obvious doctrine once operated to prevent meritless suits from proceeding through the court system, I fear that the elimination of the doctrine will throw open the courthouse doors to frivolous claims.