WALTER E. Hersh climbed a set of wooden stairs that had no handrail at a parking lot at a shopping plaza in Martinsburg on Oct. 9, 2009.
But as he returned to his vehicle 25 minutes later, he fell while descending the stairs. He and his wife sued the landowners, citing a city ordinance that requires handrails. The owners had taken the handrail down for repair.
Two years later, Berkeley Circuit Judge Gina Groh ruled in favor of the property owners because the lack of handrails posed such an "open and obvious" hazard - a legal term - that any adult would be expected to know of the danger.
On Nov. 12, the state Supreme Court dismissed the "open and obvious" precedent and reversed the judge on a 3-2 vote. Justices Allen Loughry and Brent Benjamin dissented.
"Until now, a property owner was responsible for removing or warning of hidden dangers but could reasonably rely upon others to watch for hazardous conditions which were readily apparent to anyone who took the time to look where they were going," Loughry wrote.
The disturbing part is that this decision removes responsibility from an adult for his own actions. Hersh had climbed the stairs and clearly knew of the danger, yet the court majority blamed someone else for his decision to use the stairs again.
By ignoring precedent, three justices made the state's judiciary less reliable in the eyes of potential investors in the state.
"It is decisions like this that have given this state the unfortunate reputation of being a 'judicial hellhole'," Justice Loughry wrote.
The decision is especially disappointing because this particular lineup of the court has done so well in moving toward center, where cases are decided on the law and the facts. Justices Menis Ketchum, Margaret Workman and Robin Jean Davis are not the knee-jerk liberals who once dominated the court. Yet in this case they voted to ignore precedent.
Let this be an exception rather than the a return to the bad old days.