Wal-Mart Stores East, L.P. v. Ankrom

• Court: West Virginia Supreme Court
• Decided: November 18, 2020
• Docket: 19-0666
• Status: Published

Opinion

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2020 Term _______________ FILED November 18, 2020 No. 19-0666 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK _______________ SUPREME COURT OF APPEALS OF WEST VIRGINIA

WAL-MART STORES EAST, L.P., Petitioner

v.

JOHNA DIANE ANKROM, Respondent

____________________________________________________________

Appeal from the Circuit Court of Wood County, West Virginia The Honorable Judge John D. Beane Civil Action No. 15-C-319

AFFIRMED

Submitted: October 13, 2020 Filed: November 18, 2020

Jeffrey M. Wakefield, Esq. James G. Bordas, III, Esq. Erica M. Baumgras, Esq. Scott S. Blass, Esq. Mitchell B. Tuggle, Esq. James B. Stoneking, Esq. Flaherty Sensabaugh Bonasso PLLC BORDAS & BORDAS, PLLC Charleston, West Virginia Wheeling, West Virginia

Elbert Lin, Esq. Todd S. Wiseman, Esq. Hunton Andrews Kurth LLP Wiseman Law Firm, PLLC Richmond, Virginia Vienna, West Virginia Counsel for the Petitioner Counsel for the Respondent Ancil G. Ramey, Esq. Steptoe & Johnson, PLLC Huntington, West Virginia Counsel for Amicus West Virginia Retailers Association

JUSTICE WALKER delivered the Opinion of the Court.

CHIEF JUSTICE ARMSTEAD and JUSTICE JENKINS concur in part and dissent in part and reserve the right to file separate opinions. SYLLABUS BY THE COURT

1. “The appellate standard of review for an order granting or denying a

renewed motion for a judgment as a matter of law after trial pursuant to Rule 50(b) of the

West Virginia Rules of Civil Procedure [1998] is de novo.” Syllabus Point 1, Fredeking v.

Tyler, 224 W. Va. 1, 680 S.E.2d 16 (2009).

2. “When this Court reviews a trial court’s order granting or denying a

renewed motion for judgment as a matter of law after trial under Rule 50(b) of the West

Virginia Rules of Civil Procedure [1998], it is not the task of this Court to review the facts

to determine how it would have ruled on the evidence presented. Instead, its task is to

determine whether the evidence was such that a reasonable trier of fact might have reached

the decision below. Thus, when considering a ruling on a renewed motion for judgment as

a matter of law after trial, the evidence must be viewed in the light most favorable to the

nonmoving party.” Syllabus Point 2, Fredeking v. Tyler, 224 W. Va. 1, 680 S.E.2d 16

(2009).

3. “Negligence is the violation of the duty of taking care under the given

circumstances. It is not absolute, but is always relative to some circumstance of time, place,

manner, or person.” Syllabus Point 1, Dicken v. Liverpool Salt & Coal Co., 41 W. Va.

511, 23 S.E. 582 (1895).

i 4. “In order to establish a prima facie case of negligence in West

Virginia, it must be shown that the defendant has been guilty of some act or omission in

violation of a duty owed to the plaintiff. No action for negligence will lie without a duty

broken.” Syllabus Point 1, Parsley v. General Motors Acceptance Corp., 167 W. Va. 866,

280 S.E.2d 703 (1981).

5. “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).

6. “Proximate cause is a vital and an essential element of actionable

negligence and must be proved to warrant a recovery in an action based on negligence.”

Syllabus Point 3, McCoy v. Cohen, 149 W. Va. 197, 140 S.E.2d 427 (1965).

7. “ ‘ “Proximate cause” must be understood to be that cause which in

actual sequence, unbroken by any independent cause, produced the wrong complained of,

without which the wrong would not have occurred.’ Syllabus Point 3, Webb v. Sessler, 135

W.Va. 341, 63 S.E.2d 65 (1950).” Syllabus Point 4, Spencer v. McClure, 217 W. Va. 442,

618 S.E.2d 451 (2005).

ii 8. “ ‘ “ ‘An intervening cause, in order to relieve a person charged with

negligence in connection with an injury, must be a negligent act, or omission, which

constitutes a new effective cause and operates independently of any other act, making it

and it only, the proximate cause of the injury.’ Syllabus Point 16, Lester v. Rose, 147 W.Va.

575, 130 S.E.2d 80 (1963) [modified on other grounds, State ex rel. Sutton v. Spillers, 181

W.Va. 376, 382 S.E.2d 570 (1989) ].” Syllabus Point 1, Perry v. Melton, 171 W.Va. 397,

299 S.E.2d 8 (1982).’ Syl. Pt. 3, Wehner v. Weinstein, 191 W.Va. 149, 444 S.E.2d 27

(1994).” Syllabus Point 8, Harbaugh v. Coffinbarger, 209 W. Va. 57, 543 S.E.2d 338

(2000).

9. “ ‘A tortfeasor whose negligence is a substantial factor in bringing

about injuries is not relieved from liability by the intervening acts of third persons if those

acts were reasonably foreseeable by the original tortfeasor at the time of his negligent

conduct.’ Syl. Pt. 13, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990).”

Syllabus Point 9, Harbaugh v. Coffinbarger, 209 W. Va. 57, 543 S.E.2d 338 (2000).

10. “ ‘ “ ‘ “If there be evidence tending in some appreciable degree to

support the theory of proposed instructions, it is not error to give such instructions to the

jury, though the evidence be slight, or even insufficient to support a verdict based entirely

on such theory.” Syllabus Point 2, Snedeker v. Rulong, 69 W.Va. 223, 71 S.E. 180 (1911).’

Syllabus Point 4, Catlett v. MacQueen, 180 W.Va. 6, 375 S.E.2d 184 (1988).” Syllabus

point 6, Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert. denied, 511 U.S.

iii 1129, 114 S.Ct. 2137, 128 L.Ed.2d 867 (1994).’ Syllabus point 3, Craighead v. Norfolk &

Western Railway Company, 197 W.Va. 271, 475 S.E.2d 363, (1996).” Syllabus Point 4,

Coleman v. Sopher, 201 W. Va. 588, 499 S.E.2d 592 (1997).

11. “A trial court’s refusal to give a requested instruction is reversible

error only if: (1) the instruction is a correct statement of the law; (2) it is not substantially

covered in the charge actually given to the jury; and (3) it concerns an important point in

the trial so that the failure to give it seriously impairs a defendant’s ability to effectively

present a given defense.” Syllabus Point 11, State v. Derr, 192 W. Va. 165, 451 S.E.2d

731 (1994).

12. “Injured plaintiffs should not have to forego the collateral source rule

merely to recover prejudgment interest.” Syllabus Point 13, Ilosky v. Michelin Tire Corp.,

172 W. Va. 435, 307 S.E.2d 603 (1983).

13. “The primary object in construing a statute is to ascertain and give

effect to the intent of the Legislature.” Syllabus Point 1, Smith v. State Workmen’s Comp.

Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975).

14. “In ascertaining legislative intent, effect must be given to each part of

the statute and to the statute as a whole so as to accomplish the general purpose of the

iv legislation.” Syllabus Point 2, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108,

219 S.E.2d 361 (1975).

15. “When a statute is clear and unambiguous and the legislative intent is

plain, the statute should not be interpreted by the courts, and in such case it is the duty of

the courts not to construe but to apply the statute.” Syllabus Point 5, State v. Gen. Daniel

Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959).

v WALKER, Justice:

A shoplifter collided with Johna Diane Ankrom in the “action alley” of a

Wal-Mart in Parkersburg, West Virginia, in February 2015. Ms. Ankrom was severely

injured, sued Wal-Mart Stores East, L.P. (Wal-Mart), and, after a jury trial, was awarded

approximately $16.9 million in damages. The jury apportioned thirty percent of the fault

for Ms. Ankrom’s injuries to Wal-Mart and the remainder to Robert Leist, the shoplifter

and third-party defendant. Post-trial, Wal-Mart challenged the jury’s findings that it had

breached a duty owed to Ms. Ankrom and that Mr. Leist’s actions were not the sole

proximate cause of her injuries. Wal-Mart also claimed that evidentiary and instructional

errors necessitated a new trial. The circuit court denied Wal-Mart’s motions. Over Ms.

Ankrom’s objection, the court entered judgment against each defendant according to its

apportioned fault. And, over Wal-Mart’s objection, the court granted Ms. Ankrom

prejudgment interest on medical expenses.

On appeal, Wal-Mart reprises its arguments in support of its motion for

judgment as a matter of law and motion for a new trial. Those arguments are no more

persuasive on appeal than they were below. As for the judgment order, we see no error in

either the circuit court’s entry of judgment against Wal-Mart for only thirty percent of the

jury verdict or award of prejudgment interest on medical expenses to Ms. Ankrom. So, we

1 affirm the circuit court’s order denying Wal-Mart’s posttrial motions and the judgment

order. 1

I. FACTUAL AND PROCEDURAL HISTORY

Ms. Ankrom sued Wal-Mart in May 2015 after she sustained serious injuries

in a collision with a fleeing shoplifter, Mr. Leist, in the Parkersburg Wal-Mart. She alleged,

generally, the pursuit of Mr. Leist and attempt to apprehend him by Wal-Mart employees

directly and proximately caused her serious injuries. 2 Wal-Mart pleaded, among other

defenses, that Ms. Ankrom’s injuries were “the result of independent and/or superseding

causes over which [it had] no control or in any way participated.” And, in November 2015,

Wal-Mart filed a third-party complaint against Mr. Leist for contribution.

The parties tried Ms. Ankrom’s claim against Wal-Mart in February and

March 2019, approximately three years after she filed her complaint. Wal-Mart

surveillance cameras captured the majority of events preceding Ms. Ankrom’s injury, so

the actual occurrence and sequence of those events was not contested. Instead, the dispute

at trial concerned whether Wal-Mart employees’ stop of Mr. Leist had complied with

Wal-Mart’s internal policy on apprehending shoplifters, “Investigation and Detention of

We gratefully acknowledge the brief amicus curiae filed by the West Virginia 1

Retailers Association.

Wal-Mart does not dispute that it is vicariously liable for the acts of its employees 2

within the scope of their employment under the doctrine of respondeat superior.

2 Shoplifters Policy (AP-09),” (AP-09 Policy), and whether Mr. Leist’s flight inside the store

was foreseeable to those same employees. 3

Relative to those disputes, the jury heard testimony from four Wal-Mart

employees: Nate Newbanks, asset protection associate; Joe Daniel, asset protection

manager; 4 Amy Edgar, customer service manager and eyewitness; and Kevin Ohse, store

manager. Ms. Ankrom; 5 her daughter, Sierra Thomas; and her son, George Ankrom, also

testified. 6 The jury also heard portions of deposition testimony from Wal-Mart’s corporate

representative, Melissa Wacha, regarding Wal-Mart’s shoplifting policies. And, the parties

offered “dueling” experts, James Murphy for Ms. Ankrom, and William Birks for

Wal-Mart. Two exhibits were entered into evidence: a DVD containing Wal-Mart

surveillance video of the events of February 23, 2015, and the AP-09 Policy.

Trial testimony and surveillance footage established the following: On

February 23, 2015, Mr. Newbanks observed Mr. Leist pocket a pair of auto mechanic

Wal-Mart did not contest Ms. Ankrom’s past or future medical expenses or her 3

economic damages. 4 By trial, Mr. Daniel’s title had become “asset protection assistant manager.” 5 Ms. Ankrom did not appear at trial. Portions of her sworn deposition testimony were played for the jury.

Ms. Ankrom also offered testimony from several expert witnesses regarding 6

damages.

3 gloves. 7 Mr. Leist walked to the front of the store, and Mr. Newbanks followed. As

captured by Wal-Mart surveillance cameras, Mr. Newbanks stopped Mr. Leist in the

vestibule that separated the interior of the store from the parking lot. Mr. Newbanks

positioned himself in front of Mr. Leist, between him and the door leading from the

vestibule to the parking lot. Mr. Daniel, along with at least two other Wal-Mart employees,

surrounded Mr. Leist. As shown by the surveillance cameras and confirmed by witness

testimony, Mr. Daniel grabbed Mr. Leist’s arm. At some point, Mr. Leist returned the

gloves to Mr. Newbanks. Again, as shown by the surveillance cameras and confirmed by

witness testimony, Mr. Leist then tried to get around Mr. Newbanks and Mr. Daniel,

leading to a physical altercation, struggle, or scuffle—as characterized by various

witnesses—in which the two men grabbed Mr. Leist’s jacket, restrained him, and then spun

him around to face the store’s interior. According to Ms. Edgar, it appeared as if

Mr. Newbanks and Mr. Daniel were wrestling Mr. Leist back toward the store’s entry. 8

After Mr. Leist “finally . . . calmed down,” the two men released their hold

on him. He then complied with the request of Mr. Newbanks and Mr. Daniel to go back

inside the store. As the three men reentered the store’s interior through the vestibule doors,

surveillance footage shows that Mr. Newbanks walked behind Mr. Leist and Mr. Daniel

7 Mr. Leist did not testify at trial.

Ms. Edgar gave this testimony at her deposition. Counsel for Ms. Ankrom 8

impeached Ms. Edgar with this statement during trial.

4 walked to his left. Seconds after reentering the store, Mr. Leist ran from Mr. Newbanks

and Mr. Daniel. Ms. Ankrom’s expert, Mr. Murphy, opined that Mr. Leist’s flight was the

“culmination of everything else that took place beforehand. The way it was stopped, the

number of people, the struggle, and then they take a very relaxed atmosphere with it. That’s

why he was able to run.” On the other hand, Wal-Mart’s expert, Mr. Birks, opined that

when a shoplifter like Mr. Leist decides to bolt and run, it is the shoplifter’s own decision.

He further testified that it was Mr. Leist’s own “decision to bolt into the store. It wasn’t a

loss prevention management’s efforts [sic.]. It was his and his alone effort to bolt back

into the store.”

Surveillance videos show that after Mr. Leist fled from Mr. Newbanks and

Mr. Daniel, he turned into “action alley,” a lane that runs perpendicular to the front of the

store, delineated at the back by a wall of merchandise and to the front by the checkout lanes

that funnel shoppers towards the vestibule. Store surveillance cameras captured that

immediately upon turning into action alley, Mr. Leist collided with Ms. Ankrom’s

shopping cart. Ms. Ankrom tried to control the cart, but her knee gave out. She fell to the

floor, and the cart came down on top of her. Ms. Ankrom’s young granddaughter—who

had been riding in the shopping cart—was also thrown to the floor, although she was not

injured.

Immediately after the collision, Ms. Ankrom was transported to Camden

Clark Memorial Hospital in Parkersburg and treated there for a severe attack of angina. 5 After experiencing increasing pain over the next two weeks, she was life-flighted to the

Cleveland Clinic for surgery to treat bruising, necrosis, and microperforations in her small

intestine. Since 2015, Ms. Ankrom has experienced over twenty inpatient hospitalizations,

six surgeries, and other emergency room visits. As of the date of trial, her physicians were

considering her for an intestinal transplant.

At the conclusion of evidence, the circuit court held a final instruction

conference on March 1, 2019. 9 While Wal-Mart and Ms. Ankrom agreed on the majority

of instructions to be delivered, they disagreed on the inclusion of an

intervening/superseding cause instruction in the charge. The circuit court denied

Wal-Mart’s request to give the instruction. On March 4, 2019, the jury returned a verdict

finding that Wal-Mart’s negligence was a proximate cause of the injuries Ms. Ankrom

sustained on February 23, 2015. The jury also found that Mr. Leist had been negligent,

and that his negligence also proximately caused Ms. Ankrom’s injuries. The jury found

that Wal-Mart was thirty percent at fault for Ms. Ankrom’s injuries and that Mr. Leist bore

9 At the close of Ms. Ankrom’s case-in-chief, Wal-Mart moved for judgment as a matter of law, arguing that Ms. Ankrom had not established that the actions of Wal-Mart’s employees were the proximate cause of her injuries. The circuit court denied that motion because, in its view, Ms. Ankrom had produced sufficient evidence to permit the case to proceed. Wal-Mart renewed its motion for judgment as a matter of law at the close of evidence, which the circuit court denied as well.

6 the remaining seventy percent of fault. The jury awarded damages to Ms. Ankrom totaling

$16,922,000.

On March 28, 2019, Ms. Ankrom filed a motion for entry of judgment order

seeking judgment against Wal-Mart for the entire damages award, but with a right of

contribution against Mr. Leist in the amount of seventy percent of the jury verdict,

$11,845,400. Wal-Mart responded that under West Virginia Code § 55-7-24 (2005), it was

responsible only for that portion of the verdict that corresponded to its comparative fault

as determined by the jury. The circuit court agreed with Wal-Mart, reasoning that by

enacting § 55-7-24 in 2005, the Legislature created a hybrid system of liability that

mandated (1) that Mr. Leist, although a third-party defendant, count as a defendant for

purposes of the statute; and (2) entry of judgment severally against Wal-Mart and Mr. Leist.

On April 12, 2019, the circuit court entered a lengthy order memorializing that reasoning.

That same day, the court entered judgment against Mr. Leist and Wal-Mart severally, in

the amounts of $5,076,600 against Wal-Mart and $11,845,400 against Mr. Leist. The court

also awarded Ms. Ankrom four percent, simple interest on her past medical expenses

($2,500,000) apportioned between Wal-Mart and Mr. Leist.

On April 26, 2019, Wal-Mart filed a Renewed Motion for Judgment as a

Matter of Law or, in the Alternative, Motion for New Trial and Motion to Amend

Judgment. Wal-Mart argued that the evidence offered at trial showed that Mr. Leist’s

flight—and not the actions of its employees in intercepting Mr. Leist or returning him 7 inside the store—proximately caused Ms. Ankrom’s injuries. Wal-Mart argued that the

circuit court further erred, and in a similar vein, when it refused to instruct the jury on

intervening cause. And, Wal-Mart argued that the circuit court erred when it precluded

Wal-Mart from using allegations from Ms. Ankrom’s complaint at trial to impeach her

credibility along with her daughter’s. Finally, Wal-Mart argued that the circuit court erred

by awarding Ms. Ankrom prejudgment interest on her medical expenses. 10

The circuit court conducted a hearing on Wal-Mart’s post-trial motions on

June 24, 2019, and then denied them by order four days later. On July 2, 2019, the court

entered an amended order elaborating on its rulings. The circuit court explained that,

taking the evidence in the light most favorable to Ms. Ankrom, a reasonable factfinder

could have found that Mr. Leist’s flight was not the sole, proximate cause of Ms. Ankrom’s

injuries. With regard to the allegations from Ms. Ankrom’s complaint, the court found that

their probative value was slight and the likelihood that they would confuse the jury and

prejudice Ms. Ankrom was substantial. The court found that the evidence offered at trial

did not support an instruction on intervening cause, and that “conduct of [Mr.] Leist and of

Wal-Mart security personnel while in the vestibule area where [Mr.] Leist was confronted

and subsequently escorted back into the main body of the store was sufficient to refuse an

10 Even though the jury did not award Ms. Ankrom punitive damages, Wal-Mart still challenged the circuit court’s instruction on punitive damages, arguing that it gave “unwarranted credibility” to Ms. Ankrom’s claims. The circuit court rejected that argument, and Wal-Mart does not renew it on appeal.

8 instruction on independent, intervening cause.” Finally, the court found that it had not

abused the discretion granted to it by West Virginia Code § 56-6-31(b) (2006) by awarding

Ms. Ankrom prejudgment interest on her past medical expenses.

Wal-Mart now appeals the circuit court’s July 2, 2019 amended order

denying its renewed motion for judgment as a matter of law, or in the alternative, motion

for new trial. It also renews its objection to the award of prejudgment interest on medical

expenses to Ms. Ankrom. Ms. Ankrom cross-assigns error to the April 12, 2019 order in

which the circuit court denied her motion for entry of judgment. We consider first

Wal-Mart’s assignments of error and then shift to Ms. Ankrom’s cross-assignment of error.

II. STANDARDS OF REVIEW

Wal-Mart appeals the circuit court’s denial of its post-trial motion for

judgment as a matter of law, made pursuant to Rule 50(b) of the West Virginia Rules of

Civil Procedure. We review de novo the circuit court’s decision to grant or deny a renewed

motion for a judgment as a matter of law, which, in turn means that we review the parties’

arguments just as the circuit court did. So, we take the evidence in the light most favorable

to the non-moving party—here, Ms. Ankrom—to determine whether a reasonable trier of

fact might have concluded that Wal-Mart was thirty percent at fault for Ms. Ankrom’s

injuries. Syllabus Points 1 and 2 of Fredeking v. Tyler encapsulate this standard:

1. The appellate standard of review for an order granting or denying a renewed motion for a judgment as a matter of law

9 after trial pursuant to Rule 50(b) of the West Virginia Rules of Civil Procedure [1998] is de novo.

2. When this Court reviews a trial court’s order granting or denying a renewed motion for judgment as a matter of law after trial under Rule 50(b) of the West Virginia Rules of Civil Procedure [1998], it is not the task of this Court to review the facts to determine how it would have ruled on the evidence presented. Instead, its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, when considering a ruling on a renewed motion for judgment as a matter of law after trial, the evidence must be viewed in the light most favorable to the nonmoving party.[11]

Wal-Mart also appeals from the circuit court’s denial of its motion for a new

trial. We review that ruling, “and its conclusion as to the existence of reversible error under

an abuse of discretion standard, and we review the circuit court’s underlying factual

findings under a clearly erroneous standard. Questions of law are subject to a de

novo review.” 12 A trial court’s ruling on a motion for new trial will be reversed, however,

“ ‘when it is clear that the trial court has acted under some misapprehension of the law or

the evidence.’ Syllabus point 4, Sanders v. Georgia–Pacific Corp., 159 W.Va. 621, 225

S.E.2d 218 (1976).” 13

11 Syl. Pt.s 1 and 2, Fredeking v. Tyler, 224 W. Va. 1, 680 S.E.2d 16 (2009). 12 Tennant v. Marion Health Care Found., Inc., 194 W. Va. 97, 104, 459 S.E.2d 374, 381 (1995). 13 Syl. Pt. 3, in part, Carpenter v. Luke, 225 W. Va. 35, 689 S.E.2d 247 (2009).

10 III. ANALYSIS

Wal-Mart’s first and second assignments of error turn upon its overarching

theory of this case: that it did not owe a duty to Ms. Ankrom and that, even if it did, Mr.

Leist’s decision to flee from Mr. Newbanks and Mr. Daniel once they reentered the store

was the proximate cause of Ms. Ankrom’s injuries. In its third and fourth assignments of

error, Wal-Mart challenges two relatively discrete issues: use of the allegations in Ms.

Ankrom’s complaint at trial and prejudgment interest on medical damages. We address

these assignments of error in turn.

A. Duty and Proximate Cause

Wal-Mart argues that the circuit court erroneously denied its post-trial

motion for judgment as a matter of law because, in its view, the undisputed testimony at

trial established that it did not owe Ms. Ankrom a duty and that Mr. Leist’s actions were

the proximate cause of Ms. Ankrom’s injuries—not those of Wal-Mart’s employees. We

disagree.

Fundamentally, “[n]egligence is the violation of the duty of taking care under

the given circumstances. It is not absolute, but is always relative to some circumstance of

time, place, manner, or person.” 14 “[T]o prevail in a negligence suit, ‘it is incumbent upon

14 Syl. Pt. 1, Dicken v. Liverpool Salt & Coal Co., 41 W. Va. 511, 23 S.E. 582 (1895).

11 the plaintiff to establish, by a preponderance of the testimony, three propositions: (1) A

duty which the defendant owes him; (2) A negligent breach of that duty; (3) injuries

received thereby, resulting proximately from the breach of that duty.’” 15 We next consider

the first and then the third elements.

1) Wal-Mart’s Duty to Ms. Ankrom

As to the first element, duty, “[i]n order to establish a prima facie case of

negligence in West Virginia, it must be shown that the defendant has been guilty of some

act or omission in violation of a duty owed to the plaintiff. No action for negligence will

lie without a duty broken.” 16 As we have explained, foreseeability is key when determining

whether a particular actor operates under a duty of care:

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?[17]

15 Wheeling Park Comm’n v. Dattoli, 237 W. Va. 275, 280, 787 S.E.2d 546, 551 (2016) (quoting Webb v. Brown & Williamson Tobacco Co., 121 W.Va. 115, 118, 2 S.E.2d 898, 899 (1939) (citations omitted)).

Syl. Pt. 1, Parsley v. Gen. Motors Acceptance Corp., 167 W. Va. 866, 280 S.E.2d 16

703 (1981). 17 Syl. Pt. 3, Sewell v. Gregory, 179 W. Va. 585, 371 S.E.2d 82 (1988).

12 Wal-Mart raises two arguments as to why it did not owe a duty to Ms.

Ankrom as a matter of law. We dispose of the first, quickly, and then examine the second

in more depth. First, Wal-Mart points to the shopkeeper’s privilege found in West Virginia

Code § 61-3A-4 (1981) and intimates that the immunities bestowed upon merchants by the

Legislature in that statute somehow extend to claims from bystanders like Ms. Ankrom.

Section 61-3A-4 states:

An act of shoplifting as defined herein, is hereby declared to constitute a breach of peace and any owner of merchandise, his agent or employee, or any law-enforcement officer who has reasonable ground to believe that a person has committed shoplifting, may detain such person in a reasonable manner and for a reasonable length of time not to exceed thirty minutes, for the purpose of investigating whether or not such person has committed or attempted to commit shoplifting. Such reasonable detention shall not constitute an arrest nor shall it render the owner of merchandise, his agent or employee, liable to the person detained.

Plainly, this statute does not say what Wal-Mart wants it to say. 18 The statute

immunizes merchants and their agents from liability to suspected shoplifters so long as the

merchant has “reasonable ground to believe” that the suspect has shoplifted and detains

that suspect “in a reasonable manner and for a reasonable length of time . . . .” On its face,

the statute does not extend that immunity to claims by a third party like Ms. Ankrom. And,

the statute is permissive; it does not require a merchant like Wal-Mart to investigate and

18 Obviously, the Legislature can amend § 61-3A-4 at any time.

13 detain suspected shoplifters. Rather, it protects the merchants from liability to the suspect

should the merchant choose to take on the responsibility of investigating and detaining

suspected shoplifters in a reasonable manner.

Second, Wal-Mart argues that, as a matter of law, it did not owe Ms. Ankrom

a duty because its employees were authorized to investigate and detain Mr. Leist under the

Wal-Mart shoplifting policy, Policy AP-09. That may be, but the policy’s mere existence

does not end the duty inquiry. While “a person does not [generally] have a duty to protect

others from the deliberate criminal conduct of third parties,” that duty of protection may

arise “when the person’s affirmative actions or omissions have exposed another to a

foreseeable high risk of harm from the intentional misconduct.” 19 So, on the facts of this

case, the existence of a duty depends on whether Wal-Mart’s employees’ actions or

omissions exposed Ms. Ankrom to a foreseeable high risk of harm from Mr. Leist’s

intentional misconduct, shoplifting.

Wal-Mart argues the apprehension of Mr. Leist by its associates did not

expose Ms. Ankrom to a foreseeable high risk of harm because its associates complied with

the policy, which, according to Wal-Mart, means that their employees exercised due care.

Generally, the policy directed Wal-Mart’s associates who were authorized to surveil,

Miller v. Wentworth, 193 W. Va. 262, 266, 455 S.E.2d 821, 825 (1995) (citing 19

RESTATEMENT (SECOND) OF TORTS §§ 302B cmt. e and 315 (Am. Law Inst. 1965)).

14 investigate and/or detain suspected shoplifters to “PUT PEOPLE FIRST,” when

investigating, detaining, or pursuing suspects. The policy also notified the authorized

associates that “[p]rotecting the physical well-being of . . . customers, [among others] is

your first priority.” The policy included specific direction to those authorized associates

as to how they could investigate, detain, and pursue suspected shoplifters safely. When

approaching or investigating a suspect, the policy required authorized associates to

disengage and withdraw from a violent suspect. If faced with physical resistance from a

suspect, the policy directed the authorized associate to “determine whether [his or her] next

reasonable step is to disengage from the confrontation or move to an authorized detention

method.” The policy also provided that an authorized associate could use “reasonable force

to physically limit or control the movements of a Suspect,” but that, “[i]f restraint is

attempted and the [s]uspect cannot be controlled with a reasonable level of force, disengage

from the situation, withdraw to a safe position, and contact law enforcement.”

The jury heard conflicting testimony as to whether the apprehension of Mr.

Leist complied with the policy. Mr. Newbanks initially testified that after he stopped Mr.

Leist in the vestibule, Mr. Leist did not use any violence towards him or Mr. Daniel, and

that Mr. Leist was just trying to get around them. Mr. Daniel testified similarly, stating

that they detained Mr. Leist when he tried “to go through us,” i.e., Mr. Newbanks and Mr.

Daniel. However, Mr. Newbanks later conceded that Mr. Leist “struggled” to escape them.

Likewise, Wal-Mart’s expert witness, Mr. Birks, initially described Mr. Leist’s interaction

with Mr. Newbanks and Mr. Daniel in the store’s vestibule as “resistance,” but on 15 cross-examination, agreed that it was a “scuffle.” According to a Wal-Mart employee who

witnessed the apprehension, it appeared as if Mr. Newbanks and Mr. Daniel were wrestling

Mr. Leist back toward the store’s entry. Additionally, the jury viewed the surveillance

video depicting the interaction among Mr. Leist, Mr. Newbanks, and Mr. Daniel numerous

times. Contrary to Wal-Mart’s assertion in its reply brief, that video clearly shows some

sort of physical confrontation between the Wal-Mart employees and Mr. Leist. Taking that

testimony and video footage in the light most favorable to Ms. Ankrom, we cannot say that

a reasonable juror could not have concluded that Mr. Leist was violent at the most or

physically resistant at the least. In the case of the former, the policy required the employees

to disengage from the confrontation, which Mr. Newbanks and Mr. Daniel clearly did not

do. In the case of the latter, the policy instructed Mr. Newbanks and Mr. Daniel to pick

the more reasonable of two options: disengagement or detention. Given the totality of the

testimony and surveillance video, a reasonable juror could have concluded that they picked

the wrong one.

Moreover, the jury also heard deposition testimony from Wal-Mart’s

corporate representative, Ms. Wacha, that regardless of whether a shoplifter returns store

merchandise, Wal-Mart’s loss prevention associates may use verbal commands to stop a

fleeing shoplifter, but they may not go further. In Ms. Wacha’s words, “[r]egardless of

whether we get the merchandise back or not, if the suspect attempts to flee or leave the

facility, we act the same way. . . . Again, we attempt to verbally—with a few feet—try to

get that person to back into the facility with us. And if they do not comply— . . . we let 16 them go.” It was disputed at trial at exactly what point in the stop Mr. Leist returned the

gloves to Mr. Newbanks. Regardless, taking Ms. Wacha’s testimony at face value, 20 a

reasonable juror might have concluded that once Mr. Leist tried to “go through them” or

“struggled” to escape Mr. Newbanks and Mr. Daniel, Wal-Mart policy required them to let

him go.

In sum, Wal-Mart incorrectly asserts that the evidence offered at trial

indisputably showed that its employees complied with the policy. Taking the conflicting

testimony as well as the surveillance footage described above in the light most favorable

to Ms. Ankrom, we find that a reasonable juror could have concluded that in this case

Wal-Mart employees exposed Ms. Ankrom to a foreseeable high risk of harm in the course

of apprehending Mr. Leist and, therefore, that Wal-Mart owed a duty to Ms. Ankrom to

protect her from his criminal conduct.

2) The Proximate Cause of Ms. Ankrom’s Injuries

Wal-Mart next argues that, even if its employees did expose Ms. Ankrom to

a foreseeable high risk of harm, Mr. Leist’s decision to flee inside the store was the

proximate cause of her injuries. According to Wal-Mart, Mr. Leist’s flight superseded any

20 Wal-Mart downplays Ms. Wacha’s testimony, asserting that it conflicted with the language of the policy. That assertion, however, merely highlights the conflicting nature of the evidence submitted to the jury.

17 breach of its own duty, so he—and not Wal-Mart—was the sole proximate cause of Ms.

Ankrom’s injures.

“Proximate cause is a vital and an essential element of actionable negligence

and must be proved to warrant a recovery in an action based on negligence.” 21 It is “ ‘that

cause which in actual sequence, unbroken by any independent cause, produced the wrong

complained of, without which the wrong would not have occurred.’ Syllabus Point 3, Webb

v. Sessler, 135 W.Va. 341, 63 S.E.2d 65 (1950).” 22 An intervening cause, however, may

jump in, break that chain of causation, and so constitute the new, effective cause of the

injury. We have held that “ ‘ “ ‘[a]n intervening cause, in order to relieve a person charged

with negligence in connection with an injury, must be a negligent act, or omission, which

constitutes a new effective cause and operates independently of any other act, making it

and it only, the proximate cause of the injury.’ Syllabus Point 16, Lester v. Rose, 147 W.Va.

575, 130 S.E.2d 80 (1963) [modified on other grounds, State ex rel. Sutton v. Spillers, 181

W.Va. 376, 382 S.E.2d 570 (1989)].” Syllabus Point 1, Perry v. Melton, 171 W.Va. 397,

299 S.E.2d 8 (1982).’ Syl. Pt. 3, Wehner v. Weinstein, 191 W.Va. 149, 444 S.E.2d 27

(1994).” 23 But not every intervening event wipes out another’s preceding negligence. In

fact, “ ‘[a] tortfeasor whose negligence is a substantial factor in bringing about injuries is

21 Syl. Pt. 3, McCoy v. Cohen, 149 W. Va. 197, 140 S.E.2d 427 (1965). 22 Syl. Pt. 4, Spencer v. McClure, 217 W. Va. 442, 618 S.E.2d 451 (2005). 23 Syl. Pt. 8, Harbaugh v. Coffinbarger, 209 W. Va. 57, 543 S.E.2d 338 (2000).

18 not relieved from liability by the intervening acts of third persons if those acts were

reasonably foreseeable by the original tortfeasor at the time of his negligent conduct.’ Syl.

Pt. 13, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990).” 24

Initially, Wal-Mart asserts that the undisputed evidence at trial showed its

employees could not have foreseen that Mr. Leist would run once back inside the store,

meaning his negligence would supersede Wal-Mart’s. Wal-Mart points to the following

evidence to support that assertion: (1) Mr. Newbanks and Mr. Daniel testified that Mr.

Leist agreed to go back inside the store with them; (2) The surveillance video shows that

Mr. Daniel and Mr. Newbanks escorted Mr. Leist back into the store without force and in

a calm and non-combative manner; (3) The surveillance video shows that Wal-Mart

employees did not chase Mr. Leist after he returned to the store; (4) Mr. Daniel also testified

that he had never been in a situation where a shoplifter fled toward the inside of the store;

and (5) Ms. Ankrom’s own expert acknowledged that Mr. Leist’s decision to run was his

alone.

Wal-Mart then suggests a comparison between the facts of this case and those

in Ward v. West. 25 There, a suspected shoplifter ran from Sears employees and collided

24 Syl. Pt. 9, id. 25 Ward v. West, 191 W. Va. 366, 445 S.E.2d 753 (1994).

19 with a shopper. 26 While store employees maintained they had been “politely escorting”

the shoplifter to the store’s security office before he ran, 27 an eyewitness later testified that

the employees were chasing the shoplifter when he ran into the shopper. 28 Citing that

material, factual discrepancy, this Court reversed the grant of summary judgment to Sears

and remanded the case for further proceedings. 29

Wal-Mart extrapolates from our analysis in Ward a near-bright line rule that

it asserts should have resulted in judgment as a matter of law: “liability may be imposed

only if there is an active pursuit or chase of a shoplifter who otherwise appears peaceful.”

We disagree, based in large part on the numerous cases cited in Wal-Mart’s own briefing. 30

26 Id. at 367, 445 S.E.2d at 754. 27 Id. 28 Id. at 369, 445 S.E.2d at 756. 29 Id. at 370, 445 S.E.2d at 757. 30 See Mills v. Jack Eckerd Corp., 482 S.E.2d 449, 449–50 (Ga. App. 1997) (affirming summary judgment to store on shopper’s negligence claim where shoplifter had “voluntarily accompanied” store employees to office before fleeing, “suddenly and without warning”); Butler v. K-Mart Corp., 432 So. 2d 968, 968–69 (La. Ct. App. 1983) (affirming summary judgment to merchant where cause of injury suffered by plaintiff was not foreseeable; depositions did not show that store manager chased shoplifter out of the store before he collided with plaintiff in parking lot); Graham v. Great Atl. & Pac. Tea Co., 240 So. 2d 157, 157–59 (Fla. Dist. Ct. App. 1970) (holding that “a storeowner is not negligent, absent special circumstances, in attempting to detain suspected shoplifters, and does not create any foreseeable risk of harm to business invitees by doing so” where burly shoplifter acquiesced to slight-statured manager’s request to follow him back inside the store, then ran and injured a bystander). But see Kilpatrick v. Dollar Tree Stores, Inc., No. 2:13-CV- 20 While those cases arose in the context of fleeing shoplifters, their outcomes

did not depend, solely, on whether the merchant gave chase. So, they do not support Wal-

Mart’s requested, bright-line rule. Instead, they turned on whether, under the particular

facts and circumstances of each case, the shoplifter’s flight was foreseeable. For example,

in Martin v. Piggly Wiggly Corp., a Louisiana appellate court affirmed the trial court’s

finding that a store had “no duty to protect patrons from unforeseeable or unanticipated

intentional acts perpetrated by a third party” where, before colliding with a patron, the

shoplifter “went quietly” in response to a store employee’s request to follow her to a

security area. 31 In Knight v. Powers Dry Goods Co., the Supreme Court of Minnesota

reversed a jury verdict for a plaintiff where the storeowner’s employees did not have “any

reasonable ground to anticipate that the act of taking [a shoplifter] over to the [store]

elevator would or might result in any injury to anybody” because the shoplifter had agreed

to come inside when asked to do so and walked along quietly even after a store detective

took hold of his arm. 32 In K-Mart Corp. v. Lentini, the appellate court reversed a jury

verdict for the plaintiff because “Kmart’s conduct [had not] foreseeably created a broader

2659-SHL-TMP, 2014 WL 12531118, at *3 (W.D. Tenn. Sept. 19, 2014) (granting store’s motion for summary judgment where risk that fleeing shoplifter would run into bystander was not foreseeable; shoplifting was rare in the store and illogical to foresee that shoplifter would run into a bystander and so impede his flight). 31 469 So. 2d 1057, 1059 (La. Ct. App. 1985). 32 30 N.W.2d 536, 537, 539 (Minn. 1948).

21 zone of risk that posed a general threat of harm to others” 33 where the shoplifter, “who until

then had been calm and cooperative, suddenly left his chair and ran out of the conference

room and through the store, [before] colliding with the plaintiff.” 34

In Radloff v. National Food Stores, Inc., the Supreme Court of Wisconsin

reversed a jury verdict in favor a bystander who was injured by a fleeing shoplifter. 35 The

shoplifter had hesitated to follow store personnel, at first, but then acquiesced once they

“asked [him] to please come back into the store” and assured him that they would not “gang

up” on him. 36 The court rejected the trial court’s conclusion that the store employees

carelessly escorted the shoplifter to the rear of the store because “they had no reason to

believe that he was about to act as he did,” 37 that is, based on the shoplifter’s earlier

behavior, the employees could not have foreseen his flight. Notably, there is no indication

in Radloff that the shoplifter physically resisted apprehension by store employees before

agreeing to reenter the store. Instead, when employees confronted the shoplifter in the

store’s vestibule, they

asked the shoplifter if he would please come back into the store and come to the rear of the store. The shoplifter replied: [“]No,

33 650 So. 2d 1031, 1032 (Fla. Dist. Ct. App. 1995) (internal quotation omitted). 34 Id. 35 121 N.W.2d 865, 866 (Wis. 1963). 36 Id. 37 Id at 871.

22 you’re going to gang up on me.[”] The employees assured him that they were not going to gang up on him and asked him again to please come back into the store. He agreed. The two employees and the shoplifter reentered the store.[38]

None of these cases establish the per se rule that Wal-Mart wants. And, none

of them dictates that Wal-Mart was entitled to judgment as matter of law on Ms. Ankrom’s

negligence claim. In Martin, Knight, Lentini, and Radloff, the shoplifters submitted to store

employees’ initial requests to follow them to a security office or other location inside the

store. Based on the evidence offered at trial, that was not the case, here. Mr. Newbanks

and Mr. Daniel described their encounter with Mr. Leist in the store’s vestibule as a

“struggle” and a “scuffle,” respectively. Mr. Daniel testified that he had never been in a

situation where a shoplifter fled toward the inside of the store, but Mr. Newbanks testified

at his deposition that it was foreseeable that Mr. Leist would run because he had already

tried once. 39 And, while Mr. Murphy acknowledged that Mr. Leist’s decision to run was

his own, he also opined that Mr. Leist’s flight was the “culmination of everything else that

took place beforehand. The way it was stopped, the number of people, the struggle, and

then they take a very relaxed atmosphere with it. That’s why he was able to run.” In sum,

while Mr. Newbanks and Mr. Daniel testified that Mr. Leist agreed to go back inside the

38 Id. at 866. 39 Ms. Ankrom’s counsel impeached Mr. Newbanks with his deposition testimony at trial. In the course of that impeachment, Mr. Newbanks acknowledged that at his deposition, he had answered “Yeah,” when asked whether he “knew that there was a danger that [Mr. Leist] was going to flee, because he had already tried once, correct?”

23 store with them, that acquiescence does not necessarily undo the foreseeable high risk of

harm created by Wal-Mart employees in the course of apprehending Mr. Leist moments

before he fled.

We have held that even where a third person’s acts intervene in the causal

chain leading to injury, those intervening acts do not relieve the first link in that chain from

liability “ ‘if those acts were reasonably foreseeable by the original tortfeasor at the time

of his negligent conduct.’ Syl. Pt. 13, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61

(1990).” 40 Taking the evidence offered at trial in the light most favorable to Ms. Ankrom,

a reasonable juror could certainly have concluded that Mr. Leist’s flight was foreseeable—

or should have been foreseeable—to Wal-Mart employees, chase or no chase. 41 A

reasonable juror could have also concluded that Mr. Leist’s decision to flee inside the store

did not operate independently of his apprehension by Wal-Mart employees in the store’s

vestibule, so that his flight was not the sole proximate cause of Ms. Anrkom’s injury. For

those reasons, the circuit court did not err when it denied Wal-Mart’s renewed motion for

judgment as a matter of law.

40 Syl. Pt. 9, in part, Harbaugh, 209 W. Va. at 57, 543 S.E.2d at 338. 41 See Colombo v. Wal-Mart Stores, Inc., 709 N.E.2d 301, 302–03 (Ill. App. Ct. 1999) (where security personnel detained and gained control of shoplifter outside of store, then brought the shoplifter back inside where he fled and injured a bystander, holding that “once security personnel undertook the duty of detaining the suspect and escorting him back into the store, they were under a duty to use reasonable care in carrying out that process.”).

24 B. Intervening Cause Jury Instruction

Wal-Mart argues that it is entitled to a new trial because the circuit court

erred when it refused to instruct the jury on intervening cause. The proposed instruction

correctly stated the law of intervening cause and that concept was not covered elsewhere

in the jury instructions, according to Wal-Mart. It also argues that the evidence shows that

any negligence in its employees’ stop of Mr. Leist ended when he willingly returned to the

store, so the circuit court’s refusal to deliver the intervening cause instruction seriously

hampered its ability to present one of its defenses.

In response, Ms. Ankrom emphasizes the circuit court’s broad discretion

when drafting jury instructions and the deference afforded to a court’s refusal to give a

particular instruction. 42 Ms. Ankrom asserts that evidence offered at trial conclusively

showed that Mr. Leist’s flight upon reentry to the store was foreseeable to Wal-Mart’s

employees and the circuit court did not abuse its discretion when it found that the facts

adduced at trial did not support delivery of the intervening cause instruction requested by

Wal-Mart. She also argues that because Wal-Mart requested an instruction on joint

42 Ms. Ankrom does not contend that Wal-Mart’s proposed instruction on intervening cause misstated the applicable law.

25 negligence, the circuit court could not also give the intervening cause instruction because

the two conflicted. 43

We review a circuit court’s refusal to deliver a requested jury instruction for

an abuse of discretion. 44 That standard also applies to our determination of “[w]hether

facts are sufficient to justify the delivery of a particular instruction.” 45 As to “the degree

of evidence necessary to support the giving of a particular instruction,” 46 we have held that:

“ ‘ “ ‘If there be evidence tending in some appreciable degree to support the theory of proposed instructions, it is not error to give such instructions to the jury, though the evidence be slight, or even insufficient to support a verdict based entirely on such theory.’ Syllabus Point 2, Snedeker v. Rulong, 69 W.Va. 223, 71 S.E. 180 (1911).” Syllabus Point 4, Catlett v. MacQueen, 180 W.Va. 6, 375 S.E.2d 184 (1988).’ Syllabus point 6, Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert. denied, 511 U.S. 1129, 114 S.Ct. 2137, 128

43 In reply, Wal-Mart asserts that jury instructions that present alternative theories are not in conflict, as Ms. Ankrom argues, and so the circuit court could not have properly refused to give the proposed intervening cause instruction for that reason. Wal-Mart attempts to distinguish the cases cited by Ms. Ankrom, concluding that they prohibit a circuit court from delivering instructions that are contradictory on the same point of law. Wal-Mart reiterates its arguments that the evidence at trial supported delivery of its jury instruction on intervening cause and that the circuit court’s refusal of the instruction seriously hampered the presentation of its defense. 44 Kessel v. Leavitt, 204 W. Va. 95, 144, 511 S.E.2d 720, 769 (1998) (“ ‘As a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion.’ ”) (quoting Syl. Pt. 1, in part, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996)). 45 Syl. Pt. 12, in part, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994). 46 Coleman v. Sopher, 201 W. Va. 588, 602, 499 S.E.2d 592, 606 (1997).

26 L.Ed.2d 867 (1994).” Syllabus point 3, Craighead v. Norfolk & Western Railway Company, 197 W.Va. 271, 475 S.E.2d 363, (1996).[47]

In total, and to afford appropriate deference to the circuit court’s decision to refuse to

deliver a particular instruction, “we will presume that the trial court acted correctly unless

it appears from the record in the case that the instructions refused were correct and should

have been given.” 48

The circuit clearly expressed its rationale for refusing to instruct the jury on

intervening cause in the amended order denying Wal-Mart’s motion for a new trial:

The premise of Wal-Mart’s position is that the act of Robert Leist in running from security upon returning to the main part of its store was an intervening, superseding cause of plaintiff’s injuries. The premise is unfounded. The [c]ourt properly determined that the evidence failed to establish that Leist’s conduct was an intervening cause and did not support instruction on intervening cause. The evidence presented as to the conduct of Leist and of Wal-Mart security personnel while in the vestibule area where Leist was confronted and subsequently escorted back into the main body of the store was sufficient to refuse an instruction on independent, intervening cause.

47 Syl. Pt. 4, id. 48 Kessel, 204 W. Va. at 144, 511 S.E.2d at 769 (cleaned up).

27 The circuit court also acknowledged in the amended order Wal-Mart’s theory that Ward v.

West controlled the outcome of this case. It discounted the import of Ward, however,

because it found that the evidence presented at trial distinguished this case.

Given the deferential standard of review, we cannot say that the circuit

court’s rationale and resultant ruling are an abuse of its discretion. “In general, an abuse

of discretion occurs when a material factor deserving significant weight is ignored, when

an improper factor is relied upon, or when all proper and no improper factors are assessed

but the circuit court makes a serious mistake in weighing them.” 49 The court considered

the evidence offered at trial to determine whether it justified delivery of the instruction. It

also considered Wal-Mart’s argument that Ward v. West mandated the instruction. It then

exercised its discretion and concluded that they did not. Simply stated, the circuit court

did not ignore a factor or rely on an improper one. Rather, it did not afford Wal-Mart’s

intervening cause theory the weight Wal-Mart believed it was due.

Even if the circuit court had abused its discretion by refusing to instruct the

jury on intervening cause, Wal-Mart must still demonstrate that the circuit court’s abuse of

discretion “constitutes reversible harmful error.” 50 As we have held, we consider three

factors in this analysis:

49 Gentry v. Mangum, 195 W. Va. 512, 520 n.6, 466 S.E.2d 171, 179 n.6 (1995). 50 Kessel, 204 W. Va. at 145, 511 S.E.2d at 770.

28 A trial court’s refusal to give a requested instruction is reversible error only if: (1) the instruction is a correct statement of the law; (2) it is not substantially covered in the charge actually given to the jury; and (3) it concerns an important point in the trial so that the failure to give it seriously impairs a defendant’s ability to effectively present a given defense.[51]

Regardless of the first two factors, Wal-Mart cannot demonstrate that the

circuit court’s refusal to deliver the intervening cause instruction “seriously impaired [its]

ability to effectively present [that] defense.” Wal-Mart emphasized the evidence that it

contends supports its intervening cause theory during closing argument. For example,

Wal-Mart highlighted for the jury Mr. Leist’s agreement to go back inside the store, as well

as Mr. Daniel’s testimony that he had never seen a suspected shoplifter run into a store.

And, Wal-Mart emphasized to the jury its theory that Mr. Leist’s decision to

run was the sole cause of Ms. Ankrom’s injuries and explained how the jury could adopt

that theory in the verdict form:

[Ms. Ankrom] is trying to blame everything on WalMart.

And you can see that in the verdict form. The first question that you’re going to be asked to answer – and [Ms. Ankrom’s counsel] gave you a preview of it already – is “Do

51 Syl. Pt. 11, Derr, 192 W. Va. at 165, 451 S.E.2d at 731. See W. Va. R. Civ. P. 61, in part (“The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”). Cf. Danco, Inc. v. Donahue, 176 W. Va. 57, 60, 341 S.E.2d 676, 679 (1985) (“On the other hand, refusing to instruct the jury on a litigant’s theory of the case when it is supported by competent evidence prevents consideration of that theory by the jury, and thus invites reversal.”).

29 you find that Walmart was negligent?” I’d submit to you that based upon the evidence that’s in front of you and the law that the Judge described to you, the answer to that is “No.”

WalMart was apprehending a shoplifter in accordance with policy. They were walking him back in, and the shoplifter made a decision of his own, and that decision was to take off running.

We’re here today because of a shoplifter. That is why we’re here. And I’d ask that you remember that when you go back to the jury room to deliberate.

Now, getting back here, if you answer “No” to this question, you’re done. They’re looking to hold WalMart responsible for this entire thing. They have – they don’t care about Mr. Leist, even though Mr. Leist is the one who knocked her to the ground running by [sic.] when he was running in a haphazard way. They only want us.

***

And if you do select “Yes, [that Mr. Leist was negligent],” you are required to figure out the percentage of fault between the two parties. And that’s something that you all would have to do, based on the evidence.

Again, we’re here because of Mr. Leist. We’re not here for any other reason.

To sum up, Wal-Mart argued to the jury that Mr. Leist’s decision to run was

completely independent of its employees’ actions in the vestibule. It also argued that Mr.

Leist’s decision to run—and not the actions of its employees—was the sole cause of Ms.

Ankrom’s injuries. Finally, Wal-Mart actually told the jury that if it concluded that Mr.

Leist’s decision to run was his own, then the jury should answer “No” to the first question

on the verdict form: “Do you find that Wal-Mart was negligent and such negligence was

30 a proximate cause of the injuries sustained by Diane Ankrom on February 23rd, 2015?” In

view of Wal-Mart’s statements during closing arguments as well as its directions to the

jury on how to fill out the verdict form if it accepted Wal-Mart’s theory that Mr. Leist was

the sole cause of Ms. Ankrom’s injuries, the circuit court’s refusal to instruct the jury on

intervening cause did not seriously impair Wal-Mart’s ability to effectively present its

intervening cause defense. So, any error by the circuit court in refusing that instruction is

not harmful, reversible error. 52

C. Impeachment by Allegations in Plaintiff’s Complaint

As noted above, Ms. Ankrom initially sued Wal-Mart and its employee, Ryan

Clinton. She alleged in the complaint that Mr. Clinton pursued Mr. Leist after he ran from

security personnel. Ms. Ankrom dismissed Mr. Clinton before trial, then moved to

preclude Wal-Mart from referring to him or to the chase allegations in Ms. Ankrom’s

complaint. The circuit court granted Ms. Ankrom’s motion. We review that ruling for an

abuse of discretion. 53

52 Because the circuit court’s refusal to instruct the jury on intervening cause did not seriously impair Wal-Mart’s ability to present its intervening cause defense, we do not address Ms. Ankrom’s argument that the intervening cause instruction conflicted with the joint negligence instruction, which Wal-Mart also requested. 53 Syl. Pt. 4, State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998) (“A trial court’s evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard.”)

31 Wal-Mart argues that the circuit court’s ruling is erroneous because the chase

allegations in Ms. Ankrom’s complaint show that her theory of liability was a “moving

target.” 54 Wal-Mart further argues that cross-examination of Ms. Ankrom with those

allegations was necessary for it to make a “full and complete presentation of the case to the

jury.”

After reviewing the parties’ arguments as well as the evidence at trial, we

conclude that even if the circuit court abused its discretion when it precluded Wal-Mart

from impeaching Ms. Ankrom with the “chase” allegations in her complaint, any error was

harmless. Under Rule 61 of the West Virginia Rules of Civil Procedure, we are to

“disregard any error or defect in the [trial] which does not affect the substantial rights of

the parties.” Moreover, “[a] party is entitled to a new trial only if there is a reasonable

probability that the jury’s verdict was affected or influenced by trial error.” 55

54 Wal-Mart repeatedly complains that Ms. Ankrom seemingly abandoned her original theory of the case—that Wal-Mart employees chased Mr. Leist before he collided with her—on the eve of trial. West Virginia Rule of Civil Procedure 15(b) belies Wal- Mart’s complaint. Under Rule 15(b), “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Wal-Mart was certainly prepared at trial to address Ms. Ankrom’s theory that Wal-Mart employees’ initial stop of Mr. Leist in the store vestibule did not comply with Wal-Mart policy and was a proximate cause of Ms. Ankrom’s injury. And, Wal-Mart in fact took advantage of Ms. Ankrom’s shifting theory of liability, using it for impeachment as described above. 55 Tennant, 194 W. Va. at 111, 459 S.E.2d at 388.

32 Here, we find that it is not reasonably probable that Wal-Mart’s inability to

impeach Ms. Ankrom with the “chase” allegations affected or influenced the jury’s verdict

because Wal-Mart effectively impeached Ms. Ankrom on this issue in other ways.

Wal-Mart elicited testimony from Ms. Ankrom that she observed Mr. Newbanks jogging

at the front of the store, like “he was on a mission,” before Mr. Leist ran into her. She then

testified that “within seconds” of observing Mr. Newbanks, Mr. Leist “blasted into [her]

shopping cart” while running “[f]ast, like he was running away from something.”

Inference: Mr. Newbanks chased Mr. Leist into Ms. Ankrom.

However, Ms. Ankrom also testified that she “didn’t know why” Mr. Leist

was running. Later, on cross-examination, Ms. Ankrom admitted that she had not seen any

Wal-Mart employees running towards her while she stood in the action aisle, before the

collision with Mr. Leist. Ms. Ankrom also admitted that she did not observe Mr. Leist

coming back into the store because she couldn’t see the vestibule from where she stood.

Inference: No Wal-Mart employee chased Mr. Leist as he ran toward Ms. Ankrom and,

even if one had, Ms. Ankrom couldn’t have seen it. Impeachment accomplished.

Finally, Wal-Mart tied a bow on that discrepancy during closing argument:

One of the other things that has been alleged in this case – and I’ll say that it has been getting quieter and quieter through the week – is that one of the five things, the five points that were pointed out to you by [Ms. Ankrom’s counsel] at the start of this case is the word “chase.”

33 Well, that seems to have gone away. There was no chase of the suspect once he broke free and when he was walking into the store. So that seems to have gone away.

You’re going to recall that Ms. Ankrom’s testimony was that she was standing in the candy aisle when she was observing someone from loss prevention running . . . .

And the reason I’m pointing that out is just to point out an inconsistency between what is being said on the witness stand . . . here she is, here’s everybody already in the vestibule.

Her testimony, people running. That’s an impossibility.

Considering Wal-Mart’s examination of Ms. Ankrom and coverage of the

chase theory during closing arguments, it is improbable that the circuit court’s exclusion

of certain allegations in Ms. Ankrom’s complaint affected the jury verdict. Consequently,

any error by the circuit court was harmless. 56

D. Prejudgment Interest on Past Medical Expenses

Ms. Ankrom received disability benefits due to a condition that preceded her

injury in February 2015. So, she did not pay for medical expenses incurred after her injury

and before judgment was entered against Wal-Mart and Mr. Leist in April 2019. After the

56 Wal-Mart also argues that the circuit court abused its discretion by prohibiting impeachment of Ms. Ankrom’s daughter, Sierra Thomas, with the chase allegations in Ms. Ankrom’s complaint. We fail to see how the allegations in Ms. Ankrom’s complaint are relevant to Ms. Thomas’s veracity. The complaint contains Ms. Ankrom’s allegations, not Ms. Thomas’s. Moreover, Ms. Thomas did not witness her mother’s injury.

34 jury rendered its verdict, Ms. Ankrom requested that the circuit court award her

prejudgment interest on her past medical expenses. Wal-Mart objected, but the court

awarded Ms. Ankrom four percent prejudgment interest on the $2,500,000 jury award for

past medical expenses. Wal-Mart now asks this Court to reverse the April 12, 2019

judgment order.

Wal-Mart argues that the circuit court abused its discretion under West

Virginia Code § 56-6-31(b) (2006) by imposing that interest because Ms. Ankrom was not

obligated to pay medical expenses at trial. 57 Wal-Mart relies upon a portion of Syllabus

Point 3 of our decision in Grove By and Through Grove v. Myers, in which we stated:

Under W.Va.Code, 56–6–31, as amended, prejudgment interest is to be recovered on special or liquidated damages incurred by the time of the trial, whether or not the injured party has by then paid for the same. If there is sufficient evidence to demonstrate that the injured party is obligated to pay for medical or other expenses incurred by the time of the trial, and if the amount of such expenses is certain or reasonably ascertainable, prejudgment interest on those expenses is to be recovered from the date the cause of action accrued.[58]

57 West Virginia Code § 56-6-31(b) states that a court “may award prejudgment interest on all or some of the amount of the special . . . damages [which] include . . . medical expenses . . . .” 58 Syl. Pt. 3, Grove By & Through Grove v. Myers, 181 W. Va. 342, 382 S.E.2d 536 (1989) (emphasis added).

35 According to Wal-Mart, because a third party paid for Ms. Ankrom’s medical expenses

incurred by the time of trial, she wasn’t obligated to pay any medical bills then, so she

wasn’t entitled to prejudgment interest under § 56-6-31(b).

We disagree, and find no abuse of discretion in the circuit court’s award of

prejudgment interest to Ms. Ankrom on her past medical expenses. Wal-Mart is making a

collateral source argument, and it is one that this Court has already addressed in Ilosky v.

Michelin Tire Corp. 59 There, a jury awarded Ms. Ilosky $500,000 in compensatory

damages for horrible injuries she suffered in a car accident caused by the defendant-tire

company’s negligence. 60 At trial, the tire company “attempted to cross-examine [Ms.

Ilosky’s] economist on what expenses [she] had actually paid for between the time of injury

and trial, and what expenses had been paid for by other sources, such as insurance.” 61 The

tire company’s theory was essentially the same as Wal-Mart’s: that “it should not be held

liable for prejudgment interest on expenses which the appellee did not actually incur

because she then did not actually lose the use of funds.” 62

59 Ilosky v. Michelin Tire Corp., 172 W. Va. 435, 307 S.E.2d 603 (1983). 60 Id. at 445–46, 307 S.E.2d at 613–14. 61 Id. at 446, 307 S.E.2d at 614–15. 62 Id. at 447, 307 S.E.2d at 615.

36 This Court rejected that theory because it ran counter to the premise behind

the collateral source rule, that “it is better for injured plaintiffs to receive the benefit of

collateral sources in addition to actual damages than for defendants to be able to limit their

liability for damages merely by the fortuitous presence of these sources.” 63 Consequently,

even though interest on special damages “serves to compensate for the loss of the use of

funds that have been expended,” 64 this Court found that the collateral source rule demanded

payment of prejudgment interest to Ms. Ilosky, even if a collateral source had actually paid

her medical expenses. We concluded that, “[r]egardless of who pays the bill for expenses

prior to trial, someone is losing the use of that money. Injured plaintiffs should not have to

forego the collateral source rule merely to recover prejudgment interest.” 65

We reach the same conclusion here. While Ms. Ankrom was not obligated

to pay for her past medical expenses due to disability benefits predating her February 2015

injury, someone was, which, as in Ilosky, means that someone lost the use of those funds.

Prejudgment interest on medical expenses is intended to compensate for that loss. If this

Court would accept Wal-Mart’s argument—that it doesn’t have to pay prejudgment interest

63 Id. at 446, 307 S.E.2d at 615. 64 Id. at 447, 307 S.E.2d at 615 (quotation omitted). 65 Id. Cf. Syl. Pt. 1, Buckhannon-Upshur Cty. Airport Auth. v. R & R Coal Contracting, Inc., 186 W. Va. 583, 584, 413 S.E.2d 404, 405 (1991) (“Prejudgment interest, according to West Virginia Code § 56–6–31 (1981) and the decisions of this Court interpreting that statute, is not a cost, but is a form of compensatory damages intended to make an injured plaintiff whole as far as loss of use of funds is concerned.”).

37 on medical expenses to Ms. Ankrom because her disability benefits covered those

expenses—then we would advantage Wal-Mart, disadvantage Ms. Ankrom, and frustrate

the purpose of the collateral source doctrine. “Injured plaintiffs should not have to forego

the collateral source rule merely to recover prejudgment interest.” 66

Wal-Mart cherry-picks language from our decision in Grove By & Through

Grove v. Myers to support its position that the circuit court abused its discretion by

awarding Ms. Ankrom prejudgment interest on her medical expenses. That argument is

not well-taken because Grove restates the rule from Ilosky. And, the additional cases cited

by Wal-Mart are distinguishable. 67 For those reasons, we find that the circuit court did not

abuse its discretion by awarding Ms. Ankrom prejudgment interest on her past medical

expenses.

E. Ms. Ankrom’s Cross-Assignment of Error

Ms. Ankrom cross-assigns as error the circuit court’s refusal to enter her

proposed judgment order. Under that proposed order, the circuit court would have entered

66 Syl. Pt. 13, id. 67 See Doe v. Pak, 237 W. Va. 1, 7, 784 S.E.2d 328, 334 (2016) (prejudgment interest on loss of household services—an out-of-pocket expenditure under W. Va. Code § 56-6- 31—available only where “the claimant has incurred an obligation to pay some sort of compensation for household services”); Miller v. Fluharty, 201 W. Va. 685, 701, 500 S.E.2d 310, 326 (1997) (no prejudgment interest on policyholder’s attorney’s reasonable litigation expenses because they were not “out-of-pocket expenditures” under W. Va. Code § 56-6-31).

38 judgment against Wal-Mart for the full amount of the jury verdict with a right to

contribution from Mr. Leist, rather than thirty percent of the total ($5,076,600), only. Ms.

Ankrom insists that because Mr. Leist is a third-party defendant, he is not a “defendant”

for purposes of West Virginia Code § 55-7-24 (2005). 68 According to Ms. Ankrom’s

theory that means, in turn, that the statute simply doesn’t apply to this situation and

Wal-Mart is jointly and severally liable to Ms. Ankrom. We disagree.

Ms. Ankrom’s cross-assignment of error requires us to interpret § 55-7-24.

The interpretation of a statute is a question of law that we review de novo. When we

conduct that review, our “primary object in construing [the] statute is to ascertain and give

effect to the intent of the Legislature.” 69 To ascertain the Legislature’s intent for a

particular statute, we cannot view a subsection of that statute in a vacuum. Instead, “[i]n

ascertaining legislative intent, effect must be given to each part of the statute and to the

statute as a whole so as to accomplish the general purpose of the legislation.” 70 Once we

do that, a statute will appear either plain or ambiguous. If the “statute is clear and

unambiguous and the legislative intent is plain, the statute should not be interpreted by the

68 The Legislature repealed § 55-7-24 effective May 25, 2015. Ms. Ankrom was injured in February 2015, so § 55-7-24 (2005) still applies to her case.

Syl. Pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 69

361 (1975). 70 Syl. Pt. 2, id.

39 courts, and in such case it is the duty of the courts not to construe but to apply the statute.” 71

Conversely, if “the statute’s language connotes doubtfulness, doubleness of meaning or

indistinctness or uncertainty of an expression,” then it must be construed. 72 Applying those

rules to § 55-7-24, we see no ambiguity in the statutory language and find, contrary to Ms.

Ankrom’s argument, that for purposes of § 55-7-24, a “third-party defendant” like Mr.

Leist is a “defendant.”

The operative language of § 55-7-24 states that,

(a) In any cause of action involving the tortious conduct of more than one defendant, the trial court shall:

(1) Instruct the jury to determine, or, if there is no jury, find, the total amount of damages sustained by the claimant and the proportionate fault of each of the parties in the litigation at the time the verdict is rendered; and

(2) Enter judgment against each defendant found to be liable on the basis of the rules of joint and several liability, except that if any defendant is thirty percent or less at fault, then that defendant’s liability shall be several and not joint and he or she shall be liable only for the damages attributable to him or her, except as otherwise provided in this section.[73]

Syl. Pt. 5, State v. Gen. Daniel Morgan Post No. 548, Veterans of Foreign Wars, 71

144 W. Va. 137, 107 S.E.2d 353 (1959). 72 State ex rel. Morrisey v. Copper Beech Townhome Communities Twenty-Six, LLC, 239 W. Va. 741, 747, 806 S.E.2d 172, 178 (2017) (quotations and alterations omitted). 73 Emphasis added.

40 By its plain language, the statute kicks in when “a cause of action involve[es]

the tortious conduct of more than one defendant . . . .” This expansive language is telling,

and it strongly contradicts Ms. Ankrom’s position that, in the context of this statute,

“defendant” does not include a third-party defendant, such as Mr. Leist. Notice that the

Legislature did not say that the statute applies when a plaintiff sues more than one

tortfeasor, but not when a plaintiff sues only one tortfeasor, even though there may be other

individuals or entities whose conduct contributed to the plaintiff’s injury. Had the

Legislature intended § 55-7-24 to put the plaintiff in the driver’s seat, it would have said

so. It did not. Instead, it directed that the statute should apply to a broader scope of tortious

conduct than that of the party the plaintiff chooses to sue. 74

Next, the statute specifies that “when a cause of action involve[es] the

tortious conduct of more than one defendant,” the circuit court must instruct the jury to

find the total amount of the damages sustained by the claimant. The court must also instruct

the jury to apportion the fault for that injury among “each of the parties in the litigation at

74 Ms. Ankrom also argues that because Wal-Mart sought contribution from Mr. Leist in its third-party complaint, that is the only role that Mr. Leist could ever play in the litigation. That argument ignores West Virginia Rule of Civil Procedure 54(c), which states in pertinent part that, “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings.” Citing that rule and Rule 15(b), relating to amendment of pleadings to conform to evidence at trial, we have observed that “[c]hallenges based on such technicalities cannot prevail under our Rules of Civil Procedure.” Elsey Ford Sales, Inc. v. Solomon, 167 W. Va. 891, 895, 280 S.E.2d 718, 721 (1981) (cleaned up). For those reasons, we reject Ms. Ankrom’s argument that a pleading technicality precludes application of § 55-7-24 in this case.

41 the time the verdict is rendered.” This language deeply undermines Ms. Ankrom’s theory:

why would a third-party defendant, who is still in the case when a verdict is rendered, not

be a “part[y] in the litigation”? “[W]hen we interpret a statutory provision, this Court is

bound to apply, and not construe, the enactment’s plain language,” and we see no reason

to do anything but that in this case. 75 The Legislature’s choice to use “party” in

§ 55-7-24(a)(1) further demonstrates its intent that the statute apply to the tortious conduct

of more than one defendant—including those in the litigation in a third-party capacity.

Finally, § 55-7-24(a)(2) directs the circuit court to “[e]nter judgment against

each defendant found to be liable on the basis of the rules of joint and several liability . . .

.” The statute then tempers that rule for “any defendant [that] is thirty percent or less at

fault”—not just those whom the plaintiff has choosen to sue—by mandating that such a

“defendant’s liability shall be several and not joint and he or she shall be liable only for the

damages attributable to him or her, except as otherwise provided in this section.”

Viewing § 55-7-24 in total, we cannot accept Ms. Ankrom’s theory that

third-party defendants don’t count for the purpose of determining whether that statute

applies because, as the circuit court found, the statute

effected a fundamental change in tort law by, for the first time, explicitly creating an exception to the principle of joint and

75 Rose ex rel. Rose v. St. Paul Fire & Marine Ins. Co., 215 W. Va. 250, 255, 599 S.E.2d 673, 678 (2004).

42 several liability by its adoption of what may be called “the thirty percent rule.” This fundamental change would have been rendered meaningless if plaintiff’s interpretation of the term “defendant” as used in [§] 55-7-24(a) were accepted for in that case, plaintiffs and only plaintiffs would control whether and which, tortfeasors would be subject to joint and several liability and which would not be.

It is an easy retort that § 55-7-24 says “defendant,” and not “third-party

defendant.” But, “[i]t is always presumed, in regard to a statute, that no . . . unreasonable

result was intended by the Legislature.” 76 Taken to its outer limits, Ms. Ankrom’s theory

would undo § 55-7-24, because the statute’s application would always depend on whether

a plaintiff chooses to sue one tortfeasor, but not more. At that outer limit, the Legislature

might as well not have enacted the statute, at all. For that reason, we must reject Ms.

Ankrom’s proposed interpretation of § 55-7-24 and affirm the circuit court’s judgment

order entered April 12, 2019.

IV. CONCLUSION

For the reasons discussed above, we affirm the circuit court’s July 2, 2019

amended order denying Wal-Mart’s renewed motion for judgment as a matter of law, or in

the alternative, motion for new trial and the court’s April 12, 2019 judgment order.

76 Click v. Click, 98 W. Va. 419, 127 S.E. 194, 198 (1925) (quoting Rice and Others v. Ashland Co., 108 Wis. 189 84 N.W. 189 (1900)).