Jarred Hanshaw and Tessa Hanshaw v. Columbia Gas, Columbia Gas Transmission, LLC, Columbia Gas Transmission Corp, Columbia Pipeline Group Services, Appalachian Power Company, and Carol Leist

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
December 23, 2024
JARRED HANSHAW AND TESSA HANSHAW,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Plaintiffs Below, Petitioners INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 23-ICA-474 (Cir. Ct. Wayne Cnty. Case No. CC-50-2022-C-44)

COLUMBIA GAS, COLUMBIA GAS TRANSMISSION, LLC,
COLUMBIA GAS TRANSMISSION CORP, COLUMBIA PIPELINE
GROUP SERVICES, APPALACHIAN POWER COMPANY,
AND CAROL LEIST,
Defendants Below, Respondents

MEMORANDUM DECISION

Petitioners Jarred Hanshaw and Tessa Hanshaw appeal the October 2, 2023, order
entered by the Circuit Court of Wayne County granting Respondents’ motions for summary
judgment. Respondent Appalachian Power Company filed a response. Respondents
Columbia Gas Transmission, LLC, Columbia Pipeline Group Services, and Carol Leist
filed a joint response which included cross-assignments of error.1 The Hanshaws filed a
reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the circuit court’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

This case arises from a motorcycle accident on May 10, 2020, when Jarred Hanshaw
was traveling westbound on his motorcycle on Route 75 in Wayne County, West Virginia.
As he went around a sharp curve, Mr. Hanshaw lost control of his bike and wrecked. Tessa

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Jarred and Tessa Hanshaw are represented by Matthew P. Stapleton, Esq., and
Scott G. Stapleton, Esq. Appalachian Power Company is represented by Brian R. Swiger,
Esq., Rebecca D. Pomeroy, Esq., and Christopher D. Smith, Esq. Columbia Gas
Transmission, LLC, and Columbia Pipeline Group Services are represented by Peter J.
Raupp, Esq., John J. Meadows, Esq., and S. Caleb Davis, Esq. Columbia Gas and Columbia
Gas Transmission Corp. did not participate in this appeal. Carol Leist is represented by
Randall L. Trautwein, Esq., and Jill E. Lansden, Esq. James Leist is deceased and was
dismissed from the underlying case by order entered March 22, 2023.

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Hanshaw, his wife, was following him in the family minivan with their children, as they
were on their way home from a Mother’s Day lunch. Mr. Hanshaw did not have a valid
motorcycle endorsement on his driver’s license and lacked formal motorcycle training as
required in West Virginia. He testified that he regularly drove his motorcycle throughout
Ohio, West Virginia, and Kentucky, despite being unlicensed.

As a result of the wreck, Mr. Hanshaw suffered a displaced fractured left scapula,
eight fractured ribs, a lacerated spleen, a spinal fracture at T5-T6, a traumatic
hemopneumothorax, right knee lacerations and contusions, a facial laceration, a head
injury, headaches, a left ankle injury, permanent scarring, other disfigurements, and general
pain. Mr. Hanshaw underwent surgery and had titanium plates and screws permanently
inserted into four of his ribs.

The Hanshaws allege that the crash was caused by gravel, rocks, and other debris
scattered across the road that had migrated from a nearby adjoining utility access road. The
Hanshaws filed suit in the Circuit Court of Wayne County alleging negligence claims
against Columbia Gas Transmission, LLC (“Columbia Gas”), Columbia Pipeline Group
Services (“Columbia Pipeline”), the other named Columbia entities, Appalachian Power
Company (“APCo”), and James and Carol Leist, for creating a hazardous condition on the
public roadway.

The utility access road is about seventy-five to one hundred feet long and was built
by Columbia Gas on land owned by Carol Leist and her late husband. Columbia Gas
obtained an easement across the Leist property and built the access road to its pipeline
facilities and a cathodic protection rectifier pole. From Route 75, the ingress to the access
road is open to the public and anyone traveling along the public roadway can pull into the
driveway to park or turn around. Further along the access road, the Leists installed a gate
to prevent trespassers from entering. Columbia Gas employees visit the site periodically
and Columbia Gas paid for upgrades to the access road in 2017 or 2018.

APCo has an easement over a different tract of the Leist property that allows the
company to construct poles and run powerlines, but it does not have an easement or right
of way related to the access road. Consistent with its easement, APCo placed a power pole,
drop line, and a meter near the Columbia Gas rectifier at Columbia Gas’s request, but APCo
claims that otherwise, it does not travel on or use the land. All parties admit they have no
evidence that APCo owned, maintained, used, or otherwise conducted any activities on the
access road.

During the course of litigation below, the respondents filed motions for summary
judgment. On March 28, 2023, the circuit court held a hearing on multiple motions
including APCo’s motion for summary judgment and the motion for summary judgment
of Columbia Gas and Columbia Pipeline, joined by Carol Leist. The circuit court granted
the motions on the basis that the respondents owed no duty to the Hanshaws. Specifically,

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the court found that APCo’s easement, which allowed it to place and maintain power poles,
created no duty to maintain the access road and that there was no reason for APCo to
“foresee risks stemming from a driveway that it did not build, did not own, and did not
use.” Moreover, the circuit court found that neither APCo nor any other respondent had
any duty to maintain Route 75, where the motorcycle accident occurred, or to monitor or
clear gravel off it. Accordingly, the circuit court found that the respondents had no duty as
it related to the Hanshaws, and their negligence claims failed as a matter of law. Based on
this ruling, the circuit court found that the remaining pending motions were moot and
dismissed the case. The Hanshaws appeal these rulings, memorialized in the October 2,
2023, order. Columbia Gas and Columbia Pipeline have also raised two cross-assignments
of error in their joint response brief.

Our review of a circuit court’s entry of summary judgment is de novo. Syl. Pt. 1,
Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). “Summary judgment is
appropriate if, from the totality of the evidence presented . . . the nonmoving party has
failed to make a sufficient showing on an essential element of the case that it has the burden
to prove.” Syl. Pt. 2, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329
(1995). “[T]he party opposing summary judgment must satisfy the burden of proof by
offering more than a mere ‘scintilla of evidence’ and must produce evidence sufficient for
a reasonable jury to find in a nonmoving party’s favor.” Id. at 60, 459 S.E.2d at 337
(quotations and citations omitted).

On appeal, the Hanshaws raise six overlapping and interrelated assignments of error,
which we will address in combination.2 First, they allege that the circuit court erred in
ruling that the respondents’ lack of duty to maintain the public roadway is a dispositive
issue. The Hanshaws assert that they never argued that respondents had a duty to
“maintain” Route 75 or perform maintenance and repair activities like paving, painting, or
filling potholes. They contend that Mr. Hanshaw’s injuries were caused by negligent
construction, inspection, maintenance, and use of the utility access road that introduced
hazards and obstructions into the public roadway, not from the lack of “maintenance” of
the public roadway. Therefore, the Hanshaws assert that the respondents may not have a
duty to “maintain” the public roadway, but they do have a duty not to create an
unreasonable hazard on the road and should have a duty to clean up any hazards they cause.
They further argue that the circuit court improperly used the lack of a duty to maintain the
public roadway to grant summary judgment. Second, they allege that the circuit court erred
by failing to find that the respondents had a duty to construct and maintain the access road
in a manner that would prevent rocks from flowing onto the public roadway. Third, they
allege that the circuit court erred by ruling that the landowners of the access road could not
be held liable because they had no duty to maintain the public roadway. Fourth, they allege

2
See generally Tudor’s Biscuit World of Am. v. Critchley, 229 W. Va. 396, 402, 729
S.E.2d 231, 237 (2012) (allowing consolidation of related assignments of error).

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that the circuit court erred in finding that the utility company that constructed the access
road could not be held liable because it had no duty to maintain the public roadway. Fifth,
they allege that the circuit court erred by ruling that APCo had no duty to maintain the
access road when it had power poles and lines in the area where the accident occurred.

We disagree. The Hanshaws alleged negligence against the respondents. To prevail
on a negligence claim, a plaintiff must establish “(1) [a] duty which the defendant owes
him; (2) [a] negligent breach of that duty; [and] (3) injuries received thereby, resulting
proximately from the breach of that duty.” Wheeling Park Comm’n v. Dattoli, 237 W. Va.
275, 280, 787 S.E.2d 546, 551 (2016) (quotations omitted). It is well established that “[n]o
action for negligence will lie without a duty broken.” Syl. Pt. 1, Parsley v. Gen. Motors
Acceptance Corp., 167 W. Va. 866, 280 S.E.2d 703 (1981). The existence of a duty is a
question of law to be determined by the court. Syl. Pt. 5, Aikens v. Debow, 208 W. Va. 486,
541 S.E.2d 576 (2000). To determine whether a duty is owed, we look to the foreseeability
of harm resulting from the complained of conduct. “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.”
Syl. Pt. 3, in part, Sewell v. Gregory, 179 W. Va. 585, 371 S.E.2d 82 (1988).

Here, we find that duty was correctly addressed by the circuit court when it
determined that none of the respondents owed a duty to the Hanshaws concerning the
condition of Route 75, where the subject accident occurred. Route 75 is part of the state
road system, owned and maintained by the State of West Virginia. See W. Va. Code § 17-
4-1 (1972) (“The authority and control over the state roads shall be vested in the
commissioner of highways.”). Therefore, none of the respondents has any ownership of or
obligation towards the condition of the roadway, including an obligation to monitor and/or
clear gravel from it.3

Petitioners argue that this finding should not be dispositive of their negligence
claims but put forth no evidence establishing negligence based on an alternative breach of
a duty related to the access road. It is undisputed that Mr. Hanshaw did not travel on the
access road at any time before he lost control of his motorcycle on Route 75. Petitioners
assert that Mr. Hanshaw lost control of his bike because he hit a large piece of gravel in
the road, and now ask the Court to infer that the gravel migrated from a negligently
constructed and/or maintained access road. However, there is no evidence in the record to
establish that the rock came from the access road or was under the direction or control of
the respondents. Moreover, there is no statutory duty for a landowner or occupant of land
situated along a state or county road to remove an obstruction from the road unless such

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Likewise, we note that the circuit court did not suggest that the lack of a duty to
“maintain” Route 75 included tasks such as paving, painting, or filling potholes, as
petitioners suggest. Rather, it elaborated on the duty to maintain by stating, “[n]one of the
[respondents] had a duty to monitor and clear gravel off Route 75.”

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obstruction was placed there by the landowner/occupant or with his or her consent. W. Va.
Code § 17-16-2 (1921). Accordingly, we find no duty imputed to respondents arising from
the coincidental existence of gravel on Route 75 at the time of the subject motorcycle
wreck.

Regardless of whether any respondent has a general duty to maintain or construct
the access road in any particular manner, there is no evidence of any breach of that duty.
Because there is no evidence in the record affirmatively connecting the maintenance,
construction, or condition of the access road to the motorcycle wreck, there is no basis to
find that the duty was breached with respect to the Hanshaws. As previously stated, there
is no evidence establishing that any gravel in the public roadway at the time of the accident
came from the access road. There is also no evidence that the access road was improperly
constructed or maintained, that any gravel had previously migrated from it into the public
road causing a hazardous condition or an accident, or that any respondent had prior notice
that the access road created a hazard to Route 75. Therefore, it would not have been
foreseeable to the respondents that their construction or maintenance of the road could have
caused the subject wreck, and consequently, we find no duty under this set of facts.4

Finding no duty owed by respondents to petitioners, we find that petitioners’
negligence claims fail as a matter of law. In light of this determination, we find that
Columbia Gas and Columbia Pipeline’s Cross Assignments of Error5 are moot.

Accordingly, we affirm the circuit court’s October 2, 2023, order.

Affirmed.

ISSUED: December 23, 2024

CONCURRED IN BY:

4
We also concur with the circuit court’s specific finding that APCo’s easement
across the access road did not create a duty for it to maintain the access road. Accordingly,
it cannot be liable for any negligence arising from a breach of a duty to maintain the access
road.
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Columbia Gas and Columbia Pipeline asserted that respondents were entitled to
judgment as a matter of law on two alternative grounds in addition to those granted: that
there was no dispute in the record that the gravel in the roadway was an open and obvious
hazard, and that there was no evidence in the record that the gravel in the roadway came
from the access road.

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Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear

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