Kyle v. Dana Transport, Inc. (concurring)
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No. 33183 David R. Kyle v. Dana Transport, Inc., a New Jersey corporation authorized to do business in West Virginia, and Ronnie Doddrill Starcher, J., concurring: FILED June 11, 2007 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA I join in the well-reasoned majority opinion and write separately to emphasize two points. First, a plaintiff is not required to prove the elements of res ipsa loquitur to a trial court in the context of a summary judgment motion. Rather, the plaintiff must point to some evidence that would permit a reasonable jury to find that the elements of res ipsa loquitur had been established. The credibility and weight to be given to such evidence, and the inferences to be drawn from the evidence, are entirely within the province of the jury. In the instant case, there was no evidence proffered upon which a jury could make the requisite finding. However, had the plaintiff been able to call an expert who could testify that accidents of this sort are likely the result of superior negligence by the person who owned and operated the breaker box, and not third parties or the plaintiff, then a sufficient evidentiary proffer would have had to have been be laid for the jury to receive a res ipsa loquitur instruction. Second, I want to point out that this Court s opinion in Foster v. City of Keyser, 202 W.Va. 1, 501 S.E.2d 165 (1997) made it clear that to apply res ipsa loquitur in West Virginia, the sufficient elimination of a plaintiff s conduct as a cause of the accident does not require evidence tending to show that the plaintiff had no responsibility for the accident. Rather, in a modified comparative negligence state like West Virginia, it is necessary for the plaintiff to adduce evidence that tends to show that the plaintiff s negligence was less than 50% of the causation of the accident. See Foster, 202 W.Va. at 19, n.11, 501 S.E.2d at 183, n.11. Accordingly, I concur. 2
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