Parties and Pleading

A hotel’s owners do not have the right to file a negligence suit against a group of mining and power generating companies for structural damages until the owners acquire legal title to the hotel, even though the parents of one of the owners had initially purchased the hotel with the understanding that it was to be operated by the owners, where a prior damages claim has not been assigned to the new owners or the parents.  It is well settled that persons cannot recover damages for property that they do not own[i].

In a suit where the plaintiff’s concrete-finishing broom came in contact with an overhead power line, the plaintiff’s employer was properly allowed to participate in the trial as an adverse party where the defendant utility company has sued the employer for indemnity.

With regard to pleadings in actions for electrical injuries, the pleadings are to be construed more strongly against the pleader.  Every reasonable intendment and presumption must be made in favor of the pleader.  Therefore, if two permissible constructions of a complaint are presented, the court must adopt the one which will support the cause of action rather than another which would tend to show no legal ground of action[ii].

As in other actions based on negligence, contributory negligence is an affirmative defense which must be specially pleaded.  Contributory negligence is a special and affirmative defense and must be specially pleaded with particularity and no other acts than those specially pleaded can be proved on trial, and, if proven, cannot be made the predicate for a verdict[iii].

A gas company must exercise a degree of care to prevent the escape of gas proportionate to the danger which it is its duty to avoid.  In actions against gas companies for injury or damage due to the escape of gas, the plaintiff should allege facts which impose a legal duty upon the defendant gas company in the plaintiff’s favor and s/he should also allege a breach of such duty.

A gas company is bound to inspect for discovery of leaks due to defects in materials, deterioration of pipes and valves, displacement or dislocation by accident, the weather and the like, because it knows these things often occur[iv].  To be sufficient, a declaration should state such facts as, in law, impose a duty upon the defendant in favor of the plaintiff, and aver a breach thereof in appropriate terms[v].  Therefore, a failure to allege the notice of a gas company’s escape of gas shall render a complaint insufficient.

The appellate court overturned a district court’s dismissal of a complaint for failure to state a claim upon which relief could be granted, accepting the allegations in the complaint as true and construing them in the light most favorable to the plaintiff.  Furthermore, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief[vi].

[i] Anderson v. BNSF Railway Co., 2010 Mont. Dist. LEXIS 84 (Mont. Dist. Ct. 2010).

[ii] Highway Trailer Co. v. Janesville Electric Co., 178 Wis. 340 (Wis. 1922).

[iii] Blalack v. Blacksher, 11 Ala. App. 545, 548 (Ala. Ct. App. 1914).

[iv] Foster v. City of Keyser, 202 W. Va. 1, 13 (W. Va. 1997).

[v] Redden v. James T. McCreery Co., 123 W. Va. 367, 371 (W. Va. 1941).

[vi] Fin. Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1282 (11th Cir. Ga. 2007).


Inside Parties and Pleading