IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

 

AT CHARLESTON

 

No. 31697

 

HI-LAD, INC., d/b/a the COMFORT INN

OF CHARLESTON, a West Virginia corporation,

 

Appellant,

 

v.                                                                    

 

 

BRAD BOWYER, plaintiff-below,

WESTFIELD INSURANCE COMPANY,

Intervenor below, and

SECURITY & SURVEILLANCE, INC.,

third-party defendant below,

 

Appellees.

___________________________________

 

Circuit Court of Kanawha County

Civil Action No. 00-C-2023

(Hon. Paul Zakaib, Jr., Judge)

__________________________________

 

 APPELLANT=S SUPPLEMENTAL REPLY BRIEF

 

Rudolph L. DiTrapano, Esq. (WV Bar No. 1042)

Sean P. McGinley, Esq. (WV Bar No. 5836)                                                                

DITRAPANO BARRETT & DIPIERO, PLLC

604 Virginia Street East

Charleston, WV 25301

304-342-0133

Counsel for Appellant

TO THE JUSTICES OF THE SUPREME COURT OF APPEALS:

The Appellant files this supplemental reply brief to respond briefly to one specific issue raised by the Appellee for which additional persuasive facts became known only on Friday, November 26, 2004.  Appellant respectfully requests the Court consider this filing.

The Appellee based his claim against the Appellant hotel on an argument that the hotel security system, one that had both a video and audio capability, was criminal in nature.  Appellee argued the use of such devices would be prosecuted by police, not condoned or used to deter or fight crime as intended.  Indeed, at trial, counsel for Appellee Bowyer repeatedly argued that no other business has a security system with an audio component, and that law enforcement would never allow a security system to operate that had both video and audio capability.  E.g.,trial transcript at 454 (Counsel for Appellant Bowyer stated to the jury in closing argument:

AI want you to light him up.  And I want no mistake about it that in this community a jury finally said, ALaw enforcement officials abide by it; good citizens and companies abide by it.  And, Mr. Hicks, you=re going to abide by it too.@

 

See also e.g., trial transcript at 435-36.

Attached hereto is a transcript of a news story posted on the website of WCHS-TV in Charleston on Friday, November 26, 2004.  See http://www.wchstv.com/newsroom/showscripts/11fri.shtml#5 .  That news story shows portrays both the voice and image of a man robbing a Marathon gas station on MacCorkle Avenue in Charleston, both his voice and image captured by a security surveillance system.  According to the news story, far from accusing the gas station of criminal conduct in using the security system with both audio and video capability, the police themselves released the tape to the media in an attempt to prevent further crime, with a particular focus on releasing the audio of the perpetrator:

ADET. STEVE THOMAS SAYS THEY'VE HAD SEVERAL ROBBERIES IN SOUTH CHARLESTON IN THE LAST WEEK-- THAT'S WHY THEY'RE RELEASING THIS SURVEILLANCE TAPE. THEY WANT YOU TO GET A GOOD LISTEN TO THE MAN'S VOICE.@

 

Id.  This recent news story directly contradicts the primary theory in Appellant Bowyer=s case.  If the Court were to accept Appellee Bowyer=s theory, the bizarre situation would arise where a thief like the one referred to in above-referenced news story could bring a statutory claim for punitive damages against the gas station for capturing both his image and voice while he was robbing it.  Although the news story obviously was not part of the record below (because it aired only on Friday, November 26, 2004), the Court certainly should be aware that local police do not prosecute small businesses that use security systems that have both audio and video capability, and law enforcement clearly approve and indeed utilize such devices in an effort to deter crime.  Accepting Appellee Bowyer=s theory of liability in this case would defeat that appropriate purpose.

CONCLUSION

For the foregoing supplemental reason, Appellant moves this Court to vacate the judgment and  reverse the final orders of the Circuit Court of Kanawha County.

HI-LAD, INC., d/b/a the COMFORT INN

OF CHARLESTON, Appellant,

 

BBy Counsel--

_______________________________________

Rudolph L. DiTrapano, Esq. (WV Bar No. 1042)

Sean P. McGinley, Esq. (WV Bar No. 5836)                                                                                    

DITRAPANO BARRETT & DIPIERO, PLLC

604 Virginia Street East

Charleston, WV 25301

304-342-0133

Counsel for Appellant