W.Va. SC weighs in on muddy, wiry issue

John O'Brien Nov. 13, 2008, 4:18pm

Chief Justice Spike Maynard

CHARLESTON, W.Va. (Legal Newsline) - The West Virginia Supreme Court has overturned a decision that held three companies not liable for the injuries of a 13-year-old who was temporarily blinded by mud and rode his bike into three of their wires.

William Smoot II, by his mother Kari Major, argued that Verizon of West Virginia, Charter Communications and American Electric Power (one of the largest utilities in the country) should have placed markers on their guy wires. Guy wires are tensioned cables added to structures like utility poles for support.

The Kanawha County Circuit Court found that Smoot was a trespasser at the time because his bicycle veered 19 feet off the road after mud flew into his eye. Smoot ended up severely injuring his right lower leg after hitting the wires on Aug. 12, 2003.

The trial court also said the defendants were not required to place guy markers on the wires because they were not exposed to pedestrian traffic. The wires were located on someone else's property.

The per curiam opinion said the defendants could not rely on the defense of trespass.

"Even though a child is a trespasser on the property of a third party, he is not a trespasser as to one who maintains electric wires either on or in such proximity to the lands of the third person that the child while on such lands or objects on such lands may come in contact with the wires," the opinion says.

The opinion also says the wires were exposed to pedestrian traffic.

"It is clear from the photo images presented to this Court, and to the trial court, that the guy wires are exposed to pedestrian traffic," the opinion says.

"This is evident by the fact that a mail box, newspaper box, gas meter and flower garden are near the guy wires. Further, insofar as no evidence to the contrary has been presented, the lawn immediately around the guy wires is mowed and maintained. We are not concerned with the defendants' emphasis on the fact that the guy wires are approximately nineteen feet from the roadway."

Justice Brent Benjamin did not participate, most likely because his former firm, Robinson & McElwee, was involved. Kanawha Circuit Judge Duke Bloom took his place, while Senior Status Justice Thomas McHugh continued to fill in for Justice Joseph Albright, who is still recovering from esophageal surgery.

From Legal Newsline: Reach John O'Brien by e-mail at john@legalnewsline.com.

More News