Morrison v. Hobby Lobby Stores, Inc. et al

Filing 97

MEMORANDUM OPINION AND ORDER granting Defendant Hobby Lobby Stores, Inc.'s 70 MOTION for Summary Judgment. Signed by Judge Robert C. Chambers on 1/22/2018. (cc: counsel of record; any unrepresented parties) (jsa)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

SAUNDRA KAYE MORRISON,
Plaintiff,
v.

CIVIL ACTION NO. 3:16-3813

HOBBY LOBBY STORES, INC.,
SCHOTTENSTEIN PROPERTY GROUP, LLC. and
SSC BARBOURSVILLE LLC,
Defendants and
Third-Party Plaintiffs,
v.
PAVEMENT MAINTENANCE CONTRACTORS, INC.,
Third-Party Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Hobby Lobby Stores, Inc.’s Motion for Summary
Judgment. ECF No. 70. On this day, the Court held a hearing on the motion and, for the following
reasons, GRANTS the motion.

In this case, Plaintiff Saundra Kaye Morrison alleges she slipped on ice and fell
in a shopping center parking lot outside of the Hobby Lobby store located in Barboursville, West
Virginia. The parties do not dispute that the alleged fall occurred in the common area of the
shopping center that serves multiple tenants. It further is undisputed that Hobby Lobby and SSC
Barboursville, LLC are parties to a lease agreement wherein the parking lot adjacent to the
shopping center is defined as a “Common Area” to be solely maintained and controlled by SSC

Barboursville. The lease expressly provides that the “Common Area” includes “parking areas” and
“[t]he Landlord agrees to maintain in good condition the Common Area of the Landlord’s Center
. . . . including snow and ice removal[.]” Hobby Lobby Creative Center, Sublease Agreement, at 7
¶7, ECF No. 70-2.

As a result of the lease, Hobby Lobby argues it is entitled to summary judgment
based upon the West Virginia Supreme Court’s holding in Durm v. Heck’s, Inc., 401 S.E.2d 908
(W. Va. 1991). In Syllabus Point 1, the West Virginia Supreme Court held:
Where a lease agreement clearly sets forth that the
lessor has the duty to maintain the non-leased
common areas, thereby retaining the lessor's control
over such areas, the lessee of a store located in a
shopping center is not liable when a patron sustains
injuries as a result of an accident which occurs on the
non-leased common area.
Id., at Syl. Pt. 1. Although Plaintiff attempts to argue this syllabus point does not apply to her
because Hobby Lobby owed her a duty pursuant to Andrick v. Town of Buckhannon, 421 S.E.2d
247 (W. Va. 1992), the Court is not persuaded.

The West Virginia Supreme Court distinguished Andrick from Durm by finding the
lease in Andrick did not designate the parking lot at issue as a “common area,” nor did the lease
establish that the landlord had the duty to maintain the lot, “as did the lease in Durm.” Andrick,
421 S.E.2d at 250. In addition, the West Virginia Supreme Court recognized in Andrick that all the
common use cases it cited “involved situations in which an area of the demised premises which
was not included in the tenant’s leasehold was used by multiple tenants and/or the public in

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general,” which was not the case in Andrick. Given that the facts of this case are directly in line
with Durm, not Andrick, the Court GRANTS Hobby Lobby’s Motion for Summary Judgment.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented parties.
ENTER:

January 22, 2018

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

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