Strahin v. Cleavenger, etc. (concurring)
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No. 31373 - Daniel R. Strahin, James A. Strahin and Willa Strahin v. Robert Glenn Cleavenger, Larry Cleavenger, Jr. Mary Cleavenger and Earl Sullivan FILED July 2, 2004 released at 10:00 a.m. Starcher, Justice, concurring: RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA While I agree with the majority regarding all issues addressed in the opinion, I write separately to respond to the implication raised by the dissent that we should have made findings of fact and thereby intrude upon the province of the jury in order to reach a contrary conclusion regarding foreseeability. Upon a thorough review of the record and in faithful adherence to the principles of law established nearly ten years ago in Miller v. Whitworth, 193 W.Va. 262, 455 S.E.2d 821 (1995), the majority determined only that the facts were such that a jury could find a high risk of harm was foreseeable. We cannot usurp the role of the jury nor substitute our judgment when we may differ with a fact-driven outcome. Moreover, the alarmist prognostications of the dissent are simply unfounded given the narrow exception which Whitworth established, as was cogently explained by the majority.
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