Stump, et al. v. Ashland Inc.
Annotate this Case IN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA
September 1997 Term
_____________
No. 23818, 23819, 23820, 23821, 23822, 23823,
23824, 23825, 23826, 23827 and 23828
_____________
ELIZABETH ANN STUMP,
JAMES LEO BURTON,
RONNIE LEE MCCLURE,
JOEL MALCOLM MCCLURE,
LINDA FAYE ADKINS,
BARBARA GAY PENNINGTON,
SESCO MCCLURE, JR.,
RICHARD KEITH MCCLURE,
DANIEL JAMES BURTON,
LENA MAE LOVEJOY,
MARILYN SUE BURTON,
Appellants
v.
ASHLAND, INC., WILEY AND NOWLAN ASHLAND OIL
AGENTS,
INC., AND SANDRA TURNER, ADMINISTRATOR OF THE ESTATE
OF ERNEST EUGENE MARCUM,
Appellees
____________________________________________________________________
Appeal from the Circuit Court of Logan County
Honorable Eric H. O'Briant, Judge
Civil Action Nos. 95-C-17, 95-C-18, 95-C-19,95-C-23, 95-C-24,
95-C-25, 95-C-26,
95-C-27,
95-C-28, 95-C-29,95-C-30
REVERSED AND REMANDED
____________________________________________________________________
Submitted: September 16, 1997
Filed: November 24, 1997
W. Coleman Allen, Jr., Esq.
Allen, Allen, Allen &
Allen
Richmond, Virginia
and
Thomas V. Flaherty, Esq.
Flaherty, Sensabaugh & Bonasso
Charleston, West
Virginia
Attorneys for the Appellants
Marc E. Williams, Esq.
Robert L. Massie, Esq.
Huddleston, Bolen, Beatty, Porter & Copen
Huntington, West Virginia
Attorneys for
Ashland
Anita Casey, Esq.
Mark A. Eck, Esq.
Robert P. Martin, Esq.
Meyer, Darragh, Buckler, Bebenek & Eck
Charleston, West Virginia
Attorneys for Wiley & Nowlan and Turner
JUSTICE MAYNARD delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. "A
plaintiff's right to recover for the negligent infliction of
emotional distress, after witnessing a person closely related to
the plaintiff suffer critical injury or death as a result of
defendant's negligent conduct, is premised upon the traditional
negligence test of foreseeability. A plaintiff is required to
prove under this test that his or her serious emotional distress
was reasonably foreseeable, that the defendant's negligent
conduct caused the victim to suffer critical injury or death, and
that the plaintiff suffered serious emotional distress as a
direct result of witnessing the victim's critical injury or
death. In determining whether the serious emotional injury
suffered by a plaintiff in a negligent infliction of emotional
distress action was reasonably foreseeable to the defendant, the
following factors must be evaluated: (1) whether the plaintiff
was closely related to the injury victim; (2) whether the
plaintiff was located at the scene of the accident and is aware
that it is causing injury to the victim; (3) whether the victim
is critically injured or killed; and (4) whether the plaintiff
suffers serious emotional distress." Syllabus Point
2, Heldreth v. Marrs, 188 W.Va. 481, 425 S.E.2d 157
(1992).
2. In a negligent infliction of emotional distress action in which fire causes serious injury or death to the victim, in order for the plaintiff to meet the sensory observation requirement articulated by this Court in Syllabus Point 2 of Heldreth v. Marrs,
188 W.Va. 481, 425 S.E.2d 157 (1992), it is not
necessary that the plaintiff actually witness the injury being
inflicted to the victim by the fire, provided the plaintiff is at
the scene of the fire and is sensorially aware, in some important
way, of the fire and the necessarily inflicted injury to the
victim.
3. In
a negligent infliction of emotional distress claim involving
serious injury or death by fire, in order for the plaintiff to
meet the second requirement articulated by this Court in Syllabus
Point 2 of Heldreth v. Marrs, 188 W.Va. 481, 425 S.E.2d 157 (1992), that the plaintiff is present at the injury-producing
event at the time it occurs, the plaintiff's presence during the
preceding negligent act that caused the fire is not necessary. It
is sufficient that the plaintiff is present at the fire because
it is actually the fire itself that is the injury-producing
event.
4. An
action for death by wrongful act brought pursuant to W.Va. Code
§ 55-7-5 (1931) and W.Va. Code § 55-7-6 (1992) in which W.Va.
Code § 55-7-6(c)(1)(A) provides damages for "mental
anguish," is not duplicative of an action for negligent
infliction of emotional distress because each action provides for
recovery of damages for a different injury. Therefore, both an
action for death by wrongful act and an action for negligent
infliction of emotional distress may arise from the same event.
5. Upon
appropriate proof, both compensatory and punitive damages may be
awarded to a plaintiff in an action for negligent infliction
of emotional distress.
Maynard, Justice:
The
appellants, eleven family members of decedents Sesco and Lena
McClureSee footnote 1 1
, appeal the February 9, 1996 order of the Circuit Court of
Logan County granting the motion for summary judgment of the
appellees, Ashland Inc. (Ashland), Wiley and Nowlan Ashland Oil
Agents, Inc. (Wiley and Nowlan), and Sandra Turner, Administrator
of the Estate of Ernest Eugene Marcum (Sandra Turner), in
negligent infliction of emotional distress claims stemming from
the death of Sesco and Lena McClure. The decedents were killed
when a tanker truck carrying gasoline fuel crashed into their
home and ignited a fire. The court dismissed the appellants'
claims because it found that the contemporaneous observation
requirement of a negligent infliction of emotional harm claim
articulated by this Court in Heldreth v. Marrs, 188 W.Va. 481,
425 S.E.2d 157 (1992) was not met.
Ashland
cross-assigns as error the court's February 9, 1996 order
inasmuch as it denied Ashland's motion for dismissal of the
appellant's punitive damages claim. Ashland also cross-assigns as
error the court's supplemental order of July 29, 1996 holding
that the claims for negligent infliction of
emotional distress were not duplicative of the claims asserted in
the wrongful death suits.
For
the reasons that follow, we reverse the circuit court's February
9, 1996 order dismissing the appellants' claims. We affirm both
the February 9, 1996 order inasmuch as it denied Ashland's motion
for dismissal of the appellants' punitive damages claim and the
July 29, 1996 order.
I.
FACTS
The tragic events in this case occurred in the early morning hours of May 11, 1993 when a tanker truck owned by Wiley and Nowlan and driven by Ernest Eugene MarcumSee footnote 2 2 crashed into the home of Sesco and Lena McClure on Dairy Road near West Hamlin, West Virginia. Upon impact, the tanker truck exploded and set fire to the McClure home.See footnote 3 3
Three of the
appellants, Sue Burton, daughter of Sesco and Lena McClure, her
husband, James Leo Burton, and their son, Daniel James Burton,
lived next door to the McClure home. Upon being awakened by the
tanker truck collision and the fire next door, they fled their
home which was also consumed by the fire. Despite desperate
attempts, the Burtons were unable to rescue Sesco and Lena
McClure due to the terrific heat of the flames.
James Leo Burton subsequently raced to a neighbor's house where he phoned the other eight children of Sesco and Lena McClure who lived nearby. These eight arrived almost immediately at the scene of the fire and were greeted by chaos and confusion as their parents' home continued to burn and firemen battled the blaze. Several of the children made repeated attempts to approach their parents' home, only to be turned back by police and firemen.See footnote 4 4 Unable to rescue their parents, the children finally huddled
together across the road where they were forced
to watch helplessly with the awful knowledge that the same heat
and flames preventing a rescue were also consuming the flesh of
their parents.
Several
hours later, the fire now reduced to smoldering embers, a fireman
approached the band of family members and informed them that
their parents' bodies had been found, and that they were dead.
The body of Sesco McClure was found in the front bedroom of their
home, lying face down along the back wall of the room. The body
of Lena McClure was found at the rear of their home, just
outside, facing away from the house.
The eleven family members who were at the scene of the fire filed claims alleging negligent infliction of emotional distress. Appellees Wiley and Nowlan, and Sandra Turner moved for summary judgment alleging, inter alia, that the appellants were not present at the scene of the accident as it occurred, nor did they witness it, and thus failed to state a claim for negligent infliction of emotional distress under Heldreth v.
Marrs, 188 W.Va. 481, 425 S.E.2d 157 (1992).
Ashland also moved for summary judgment incorporating the motion
for summary judgment of Wiley and Nowlan and Sandra Turner. In
addition, Ashland contended that the appellants' emotional
distress claims were duplicative of two wrongful death actions
filed by the appellants.See
footnote 5 5 Further, Ashland moved to have the
appellants' claim for punitive damages dismissed, maintaining
that punitive damages are not recoverable as a matter of law in
West Virginia for claims of infliction of emotional distress.
By
order of February 9, 1996, the circuit court denied Ashland's
motion for summary judgment finding that the appellants may
recover punitive damages subject to appropriate proof. However,
the court granted the appellees' motion based on the fact that
the appellants did not have a contemporaneous observation of the
accident as required by Heldreth, supra. Specifically, the
circuit court found in part:
On
the issue of the contemporaneous observation of the accident,
sufficient to allow the plaintiffs a recovery under the
requirements of Heldreth v. Mars (sic), the Court is of the
opinion that the location of the Plaintiffs, at the time of the
accident, is controlling. The Court does find that none of the
witnesses to the fire could see the injury to their parents and
grandparents because of the fire. The Court does further find
that eight of the Plaintiffs voluntarily came to the scene after
receiving a phone call. The Court does further find that the
plaintiffs are attempting to extend the Court's
holding in Heldreth v. Mars (sic) further than intended and
does specifically find that coming to the scene of an accident,
after the fact, is not sufficient to establish a separate cause
of action for the negligent infliction of emotional distress.
By supplemental order of July 29, 1996, the
circuit court found that the claims for negligent infliction of
emotional distress were not duplicative of the claims asserted in
the wrongful death suits.
II.
DISCUSSION
Standard of Review
Initially, we note that "[a] circuit court's entry of summary judgment is reviewed de novo." Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Further, "[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). Finally, "[s]ummary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential
element of the case that it has the burden to
prove." Syllabus Point 2, Williams v. Precision Coil, Inc.,
194 W.Va. 52, 459 S.E.2d 329 (1995). With this in mind, we now
review the issues before us.
A.
Contemporaneous Sensory Observation
As noted in
the circuit court's order, the determinative issue in this case
concerns the interpretation of Heldreth v. Marrs, 188 W.Va.
481, 425 S.E.2d 157 (1992), this Court's definitive statement of
the necessary elements of a claim of negligent infliction of
emotional distress. The underlying facts of Heldreth were as
follows. Mr. and Mrs Heldreth were walking to their automobile in
a department store parking lot. Mr. Heldreth preceded Mrs.
Heldreth to the automobile and was placing a package into the
trunk when Mrs. Heldreth was struck by another vehicle. Upon
being struck, Mrs. Heldreth screamed, was thrown into the air,
and then to the ground. Mr. Heldreth heard his wife scream and
then realized that she had been struck by a car. Mr. Heldreth was
subsequently hospitalized for suffering a heart attack.
The primary issues in Heldreth were,
whether
a plaintiff should be allowed to recover for the negligent
infliction of emotional distress from witnessing or having some
sensory observation of a person closely related to the plaintiff,
suffer critical injury or death as a result of the defendant's
negligence, and if so, what factors should be considered in
determining whether it was reasonably foreseeable.
Heldreth, 188 W.Va. at 484, 425 S.E.2d
at 160.
This Court answered the first question in the
affirmative, concluding, in part, in Syllabus Point 1:
A
defendant may be held liable for negligently causing a plaintiff
to experience serious emotional distress, after the plaintiff
witnesses a person closely related to the plaintiff suffer
critical injury or death as a result of the defendant's negligent
conduct, even though such distress did not result in physical
injury, if the serious emotional distress was reasonably
foreseeable.
In Syllabus Point 2, the Court stated:
A
plaintiff's right to recover for the negligent infliction of
emotional distress, after witnessing a person closely related to
the plaintiff suffer critical injury or death as a result of
defendant's negligent conduct, is premised upon the traditional
negligence test of foreseeability. A plaintiff is required to
prove under this test that his or her serious emotional distress
was reasonably foreseeable, that the defendant's negligent
conduct caused the victim to suffer critical injury or death, and
that the plaintiff suffered serious emotional distress as a
direct result of witnessing the victim's critical injury or
death. In determining whether the serious emotional injury
suffered by a plaintiff in a negligent infliction of emotional
distress action was reasonably foreseeable to the defendant, the
following factors must be evaluated: (1) whether the plaintiff
was closely related to the injury victim; (2) whether the
plaintiff was
located at the scene of the accident and is
aware that it is causing injury to the victim; (3) whether the
victim is critically injured or killed; and (4) whether the
plaintiff suffers serious emotional distress.
In its discussion of the location of the
plaintiff at the time of the accident, this Court adopted the
reasoning of the Supreme Court of California in Thing v. La
Chusa, 48 Cal. 3d 644, 257 Cal. Rptr. 865, 771 P.2d 814 (1989) :
The
impact of personally observing the injury-producing event in
most, although concededly not all, cases distinguishes the
plaintiff's resultant emotional distress from the emotion felt
when one learns of the injury or death of a loved one from
another, or observes pain and suffering but not the traumatic
cause of the injury. Greater certainty and a more reasonable
limit on the exposure to liability for negligent conduct is
possible by limiting the right to recover for negligently caused
emotional distress to plaintiffs who personally and contemporaneously
perceive the injury-producing event and its traumatic
consequences.
Heldreth, 188 W.Va. at 488, 425 S.E.2d at 164
(quoting Thing, 257 Cal. Rptr. at 879, 771 P.2d at 828)
(emphasis added). This Court likewise concluded that a plaintiff
in a negligent infliction of emotional distress action must be
present at the scene of the injury -producing event at the time
it occurs and must be aware that it is causing injury to
the victim. In other words, the plaintiff must have a
"sensory observation" of the injury to or the death of
the victim. Heldreth, 188 W.Va. at 484, n. 2, 425 S.E.2d
at 160, n. 2.
In
this case, therefore, we must decide whether the plaintiffs, who
did not actually witness the tanker truck collide with the
decedents' home but arrived to witness the resulting fire, meet
the sensory observation requirement of Heldreth.
The
circuit court based its order awarding summary judgment to the
appellees on three findings. First, the court found that
"none of the witnesses to the fire could see the injury to
their parents and grandparents because of the fire." Second,
"eight of the plaintiffs voluntarily came to the scene after
receiving a phone call." Finally, "coming to the scene
of an accident, after the fact, is not sufficient to establish a
separate cause of action for the negligent infliction of
emotional distress."
In response, the appellants contend that the clear language of Heldreth does not mandate that the appellants actually see the injury being inflicted upon a close relative, but it is sufficient that there be "some sensory observation" of the death or injury. Citing Heldreth, 188 W.Va. at 484, 425 S.E.2d at 160. The appellants note that, particularly in cases of fire, the flames are likely to conceal the victim from the view of witnesses. Further, one who observes a fire that causes the death of a loved one is still likely to experience severe and traumatic emotional distress. In addition, the appellants assert that the injury-producing event is actually the fire itself, and not the preceding negligent act, i.e. the collision of the tanker truck into the decedents' home. Finally, the appellants
maintain that the circuit court's reliance on
the voluntariness of the appellants' presence at the scene of the
fire was error, in that it imposes an element that is not a part
of this Court's analysis of negligent infliction of emotional
distress claims.
We
are persuaded by the appellants reasoning. In their briefs to
this Court, the appellants cite several negligent infliction of
emotional distress cases involving death or injury by fire. We
find the following cases instructive on the issue before us.
Wilks v. Hom, 2 Cal. App. 4th 1264, 3 Cal. Rptr. 2d 803 (1992)
involved an explosion and fire that occurred in a residence
rented by the plaintiff and her three young daughters. On the
morning of the explosion, the plaintiff's boyfriend had hooked up
the house's propane system to a propane stove. Later that day,
one of the plaintiff's daughters pulled a vacuum cleaner plug out
of the electrical socket, setting off an explosion that blew the
plaintiff and one of her daughters out of the house and trapped
the other two daughters inside the burning home. One of the
daughters trapped inside the house was killed and the other was
severely burned. Although the plaintiff was aware that the
explosion and fire likely harmed her two daughters, she could not
visually witness the infliction of the injury.
In deciding whether the trial court had properly instructed the jury on awarding damages for emotional distress to the plaintiff bystander under these
circumstances, the California Court of Appeals
carefully reviewed the limits of bystander liability for
negligent infliction of emotional distress claims both before and
in the aftermath of Thing v. La Chusa, supra. The court
determined that the language of the rule in Thing that the
plaintiff "is present at the injury-producing event at the
time it occurs and is then aware that is causing injury to the
victim," does not mandate that the plaintiff must
"visually perceive the injury while it is being
inflicted." Wilks, 2 Cal. App. 4th at 1271, 3 Cal. Rptr. 2d at 807. The court concluded that "it is not
necessary that a plaintiff bystander actually have witnessed the
infliction of injury to her child, provided that the plaintiff
was at the scene of the accident and was sensorially aware, in
some important way, of the accident and the necessarily inflicted
injury to her child." Id.
In In re Air Crash Disaster Near Cerritos, Cal., 967 F.2d 1421 (9th Cir. 1992), the plaintiff left her husband and children at home one morning to buy breakfast food at a nearby grocery store. Returning from the store, the plaintiff "saw, heard, and felt a big explosion." Id., 967 F.2d at 1422. Upon arriving home, the plaintiff discovered that an Aeromexico passenger airliner had crashed into her home which was now engulfed in flames. The plaintiff's family was killed in the explosion and fire. The plaintiff brought an action for negligent infliction of emotional distress. The court was guided by the reasoning in Wilks, supra, in concluding that the plaintiff did meet the second requirement of the Thing rule in that she was sensorially aware that injury was being inflicted on her
family. Concerning whether the plaintiff was
present at the scene of the injury-producing event, the court
stated:
The
district court did not err by concluding that Estrada was at the
scene of the injury-producing event. . . . Estrada saw the fire
consuming the home in which she had just left her family. The
injury-producing event was the fire. Since Estrada was present
at the scene of the fire, she was present at the scene of the
injury-producing event.
The
district court correctly found that Estrada knew her husband and
children were being injured by the fire. . . . Estrada left her
house briefly to go the store, leaving her husband in his pajamas
in the living room and her children asleep in bed. There could be
very little doubt in Estrada's mind that her husband and children
were in the house that she saw engulfed in flames.
In
holding that Estrada may recover for the negligent infliction of
emotional distress, we are mindful of the California Supreme
Court's determination that "it is appropriate to restrict
recovery to those persons who will suffer an emotional impact
beyond the impact that can be anticipated whenever one learns
that a relative is injured, or dies." Thing, 257 Cal. Rptr. at 880, 771 P.2d at 829. Estrada's emotional distress
did not stem merely from the knowledge that her husband and
children had died. Estrada understandably experienced great
emotional distress as a result of watching helplessly as flames
engulfed her home and burned her family to death.
In Re Air, 967 F.2d at 1425 (emphasis
added).
We note that in their briefs to this Court, the appellees attempt to distinguish Wilks and In re Air from the present case. First, they emphasize that in Wilks the plaintiff was present in the home at the time of the explosion and was actually blown out the front
door. Likewise, in Estrada, the
plaintiff actually "saw, heard, and felt a big
explosion." According to the appellees, this is how the
contemporaneous sensory observation requirement was met in those
cases. Also, they assert that in both cases the plaintiffs were
certain of the victims' location immediately prior to the
explosions.
We
note the distinguishing facts in Wilks, but believe that
the court's carefully reasoned conclusion that the plaintiff need
not actually witness the injury to the victim is certainly
applicable to the facts in the present case. Also, despite the
fact that the plaintiff in In re Air had a sensory
observation of the explosion, it was the court's clearly stated
determination that the injury-producing event was the fire that
was dispositive. Further, we believe that the appellants in the
case at hand possessed a reasonable degree of certainty that the
decedents were inside the burning house. Although several of the
appellants searched the immediate area for their parents upon
arriving at the scene, their failure to find them could only lead
to the conclusion that their parents were trapped in the fire.
We hold,
therefore, that in a negligent infliction of emotional distress
action in which fire causes serious injury or death to the
victim, in order for the plaintiff to meet the sensory
observation requirement articulated by this Court in Syllabus
Point 2 of Heldreth v. Marrs, 188 W.Va. 481, 425 S.E.2d 157 (1992), it is not necessary that the
plaintiff actually witness the injury being
inflicted to the victim by the fire, provided the plaintiff is at
the scene of the fire and is sensorially aware, in some important
way, of the fire and the necessarily inflicted injury to the
victim. We believe that the language used by this Court in Heldreth
merits such a conclusion. When this Court selected the proper
language in Heldreth with which to describe the
observation requirement, it stated that "a plaintiff who
witnesses or has a sensory observation of a person closely
related to the plaintiff suffer critical injury or death as a
result of the defendant's negligence should be allowed to bring
an action for negligent infliction of emotional distress." Id.,
188 W.Va. at 485, 425 S.E.2d at 161(emphasis added). Indeed,
the very language of the requirement itself demands only that the
plaintiff "is aware" that the injury-producing event is
causing serious injury or death to the victim. Also, as noted by
the appellants, in cases involving fire the flames are likely to
hide the victims from the view of those present at the scene. To
disallow recovery to plaintiffs in such cases merely because they
did not actually view the injury being inflicted on the bodies of
the victims defies reason and common sense.
In addition, we find that the appellants were present at the scene of the injury-producing event because here the injury-producing event was the fire. The appellees argue that, because the collision, impact, and subsequent explosion of the tanker truck in the decedents' home was the injury-producing event, the appellants arrived to merely view the aftermath of the event. In support of their argument, the appellees cite
several cases holding that arrival at the scene
after the occurrence and resulting injury is an insufficient
basis for recovery. See Fife v. Astenius, 232 Cal. App. 3d 1090, 284 Cal. Rptr. 16 (1991) (holding arrival at scene of
accident "within seconds" of hearing impact is
insufficient); Hathaway v. Superior Court, 112 Cal. App. 3d 728, 169 Cal. Rptr. 435 (1980) (holding arrival at site minutes
after electrocution and subsequent observation of son's resulting
injuries is insufficient); Parsons v. Superior Court, 81 Cal. App. 3d 506, 146 Cal. Rptr. 495 (1978) (holding arrival at
accident scene "before dust had settled" is
insufficient); Fineran v. Pickett, 465 N.W.2d 662 (Iowa
1991) (holding arrival at scene of bicycle/car accident two
minutes after collision and observation of resulting injuries is
insufficient). These cases concern automobile accidents or
similar events which happen instantaneously. In the case of fire,
however, the injury-producing event is not instantaneous, but
takes place over a protracted period of time. We hold, therefore,
that in a negligent infliction of emotional distress action
involving serious injury or death by fire, in order for the
plaintiff to meet the second requirement articulated by this
Court in Syllabus Point 2 of Heldreth v. Marrs, 188 W.Va.
481, 425 S.E.2d 157 (1992) that the plaintiff is present at the
injury-producing event at the time it occurs, the plaintiff's
presence during the preceding negligent act that caused the fire
is not necessary. It is sufficient that the plaintiff is present
at the fire because it is actually the fire that is the
injury-producing event.
We
pause here to emphasize that we are not in any way enlarging this
Court's holding in Heldreth.See footnote 6 6 Instead,
we are simply acknowledging the unique circumstances of cases
involving serious injury or death as the result of fire, and we
limit our holding here to such cases.
For
the reasons stated above, we find our holding here consistent
with the rule set forth in Heldreth. There this Court
explained the reason for allowing a plaintiff to recover for the
negligent infliction of emotional distress by quoting the New
Jersey Supreme Court in Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521, 526 (1980):
No
loss is greater than the loss of a loved one, and no tragedy is
more wrenching than the helpless apprehension of the death or
serious injury of one whose very existence is a precious
treasure. The law should find more than pity for one who is
stricken by seeing that a loved one has been critically injured
or killed.
Heldreth, 188 W.Va. at 484, 425 S.E.2d
at 160.
Our law would be cruel and less than adequate
if it did not recognize the severe degree of emotional harm
certain to be suffered by those who must watch helplessly while
fire is causing injury or death to a loved one.
Finally,
we conclude our discussion of this issue by noting that we agree
with the appellants that whether they "voluntarily"
came to the scene of the accident is plainly not relevant to the
specific requirements contained in Heldreth. Clearly, upon
hearing that a close relative is in life-threatening situation,
it would be the natural reaction of a person to rush to the scene
in order to affect a rescue or aid the injured victim. Our law
does not punish a plaintiff for such behavior.
B.
Duplicative Claims
We now proceed to discuss the cross-assignments of error raised
by appellee Ashland Inc. First, Ashland claims that the circuit
court erred in holding that the claims for negligent infliction
of emotional distress are not duplicative of the claims asserted
in the wrongful death suits. The gravamen of Ashland's argument
here is that, because our wrongful death statute provides for the
awarding of damages for "mental anguish", to allow the
appellants to collect damages for both wrongful death claims and
negligent infliction of emotional distress claims would confer a
double recovery for the same injury in violation of this Court's
holding in Syllabus Point 7 of Harless v. First National Bank,
169 W.Va. 673, 289 S.E.2d 692 (1982):
It
is generally recognized that there can be only one recovery of
damages for one wrong or injury. Double recovery of damages is
not permitted; the law does not permit a double satisfaction for
a single injury. A plaintiff may not recover damages twice for
the same injury simply because he has two legal theories.
Ashland also relies on Criss v. Criss, 177 W.Va. 749, 356 S.E.2d 620 (1987) for support. There, a wife instituted an action against her estranged husband, alleging that he entered her residence and sexually assaulted her. She sought recovery based on two legal theories. First, that her husband wilfully, wantonly and intentionally assaulted and battered her. Second, that her husband's conduct was outrageous and that he intentionally inflicted emotional distress upon her. This Court held that "[b]ecause an action for assault and battery allows for recovery of damages due to resulting emotional distress, a claim for the
tort of outrageous conduct is duplicitous of a
claim for assault and battery, where both claims arise from the
same event." Syllabus Point 4, Criss, supra.
In
the present case, however, we find that the separate claims for
wrongful death and negligent infliction of emotional distress are
clearly not duplicative because they provide recovery for
separate and distinct injuries. W.Va. Code § 55-7-6(c)(1)(A)
(1992) provides, in part, that in a wrongful death action
"[t]he verdict of the jury shall include, but may not be
limited to, damages for the following: (A) Sorrow, mental
anguish, and solace which may include society, companionship,
comfort, guidance, kindly offices and advice of the
decedent[.]" In a negligent infliction of emotional distress
claim the plaintiff must prove that he experienced serious
emotional distress, "after the plaintiff witnesses a person
closely related to the plaintiff suffer critical injury or death
as a result of the defendant's negligent conduct." Heldreth,
188 W.Va. at 485, 425 S.E.2d at 161.
In a wrongful death action, damages result from the decedent's death alone, and are designed to provide for recovery "from the typical type of grief suffered by all who lose a loved one." R.D. v. W.H., 875 P.2d 26, 32 (Wyo. 1994) (where the court found that the appellant's intentional and negligent infliction of emotional distress claims
"clearly were not parasitic to the
wrongful death claims even though they arose out of the same
circumstances.")See
footnote 7 7
The tort of negligent infliction of emotional distress, on the other hand, concerns a completely different injury. See Cimino v. Milford Keg, Inc., 385 Mass. 323, 334, 431 N.E.2d 920, 927 (1982) ("Since emotional distress is a wrong to the plaintiff distinct from that done [to the decedent] and the statutory beneficiaries of the decedent, it is not a duplicative remedy and is not 'preempted' by the wrongful death statute"); Dawson v. Hill & Hill Truck Lines, 671 P.2d 589, 593 (Mont. 1983) ("A negligent infliction action . . . compensates for mental distress from having witnessed an accident. The mental
distress for which recovery can be sought [in a
wrongful death action] is limited to mental anguish, sorrow or
grief resulting from the death. The two actions are distinct and
separate.") The essence of the tort of negligent infliction
of emotional distress
is
the shock caused by the perception of an especially horrendous
event. It is more than the shock one suffers when he learns of
the death or injury of a child, sibling or parent over the phone,
from a witness, or at the hospital. It is more than bad news.
Gates v. Richardson, 719 P.2d 193, 199 (Wyo.
1986) (citation omitted).
The kind of shock required results from a plaintiff witnessing or
having "a sensory observation of a person closely related to
the plaintiff suffer critical injury or death as a result of the
defendant's negligence." Heldreth, 188 W.Va. at 485,
425 S.E.2d at 157. The tort provides, therefore, "for
recovery in special circumstances where plaintiffs suffer from
extreme shocks." R.D., 875 P.2d at 32. We hold,
therefore, that an action for death by wrongful act brought
pursuant to W.Va. Code § 55-7-5 (1931) and W.Va. Code § 55-7- 6
(1992), in which W.Va. Code § 55-7-6(c)(1)(A) provides damages
for "mental anguish," is not duplicative of an action
for negligent infliction of emotional distress because each
action provides for recovery of damages for a different injury.
Therefore, both an action for death by wrongful act and a
negligent infliction of emotional distress action may arise from
the same event.
C.
Punitive Damages
In
its second cross-assignment of error, Ashland asserts that the
circuit court wrongly failed to dismiss the appellants' punitive
damages claim.See footnote 8
8 Ashland argues that claims for punitive damages
are not recoverable as a matter of law in this case, and bases
its argument on Dzinglski v. Weirton Steel Corp., 191
W.Va. 278, 445 S.E.2d 219 (1994) where this Court did not allow
punitive damages in addition to compensatory damages for the tort
of outrageous conduct where there was no physical injury, holding
that "damages awarded for tort of outrageous conduct are
essentially punitive damages." Syllabus Point 8, in part, Dzinglski,
supra. According to Ashland, this principle applies with
equal force to a negligent infliction of emotional distress claim
where reckless conduct is alleged, in that "the injury
suffered and the type of compensatory damages awarded are
identical, and are punitive in nature."See footnote 9 9
We
disagree. This Court first recognized the tort of outrage in
syllabus point 6 of Harless, supra: "One who by
extreme and outrageous conduct intentionally or recklessly causes
severe emotional distress to another is subject to liability for
such emotional distress, and if bodily harm to the other results
from it, for such bodily harm." "[T]he hallmark of this
tort . . . is intentional and outrageous conduct." Harless,
169 W.Va. at 695, 289 S.E.2d at 704. Such conduct must be,
so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.
Generally, the case is one in which the recitation of the facts
to an average member of the community would arouse his resentment
against the actor, and lead him to exclaim, 'Outrageous!'
Tanner v. Rite Aid of West Virginia, Inc., 194 W.Va. 643, 651, 461 S.E.2d 149, 157 (1995) (quoting Restatement (Second) of Torts § 46(1) Comment (d) (1965)). Even though the focus is on the defendant's conduct, the plaintiff must still prove severe emotional distress. "[B]ut in many cases the extreme and outrageous character of the defendant's conduct is in itself important evidence that the distress has existed." Id., at 651, n. 11, 461 S.E.2d at 157, n. 11 (quoting Restatement (Second) of Torts § 46 Comment (j)). Because of this strong relationship between the defendant's conduct and the severity of the plaintiff's emotional distress in a claim based on the tort of outrage, this Court determined "that expert testimony is not required in every case to prove the causation and severity elements for intentional infliction of emotional distress." Id., at 653, 461 S.E.2d at 159.
In Dzinglski, this Court recognized that
in a tort of outrage claim in which there is no physical trauma,
all damages are essentially punitive damages given the
significance of the defendant's conduct, both in supporting a
tort of outrage claim and in assessing the severity of the
plaintiff's emotional distress.
In
a claim for negligent infliction of emotional distress, on the
other hand, the focus is on the seriousness of the emotional
distress suffered by the plaintiff. The seriousness of this
distress must be proved through the use of medical and
psychiatric evidence. See Heldreth, supra. Once the
plaintiff proves the serious nature of the emotional distress, as
well as the other factors outlined in Heldreth, he or she
can be compensated according to the degree of the injury. This
determination of damages is independent of the defendant's
conduct once, of course, the defendant's negligence has been
established. If a plaintiff can further show wanton, wilful, or
reckless conduct by the defendant, the jury may assess punitive
damages. See Syllabus Point 1, Wells v. Smith,171
W.Va. 97, 297 S.E.2d 872 (1982), overruled on other grounds,
Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991). We hold, therefore, that upon appropriate proof, both
compensatory and punitive damages may be awarded to a plaintiff
in an action for negligent infliction of emotional distress.
III.
CONCLUSION
In
conclusion, after careful review of the briefs, the record, and
oral argument, we conclude that the circuit court improperly
granted summary judgment to the appellees. We further find that
the cross-assignments of error raised by appellee Ashland Inc.
are without merit. Accordingly, based on the foregoing analysis,
we reverse and remand this cause for further proceedings
consistent with this opinion.
Reversed and Remanded.
Footnote: 1 1 Eleven suits for negligent infliction of emotional distress were filed below. The eleven suits were consolidated for purposes of discovery and were decided together in the circuit court, including the entry of identical final orders. This Court granted petitions for appeal in the eleven cases.
Footnote: 2 2 In their complaints, the appellants allege that Ernest Eugene Marcum was acting as "the agent, servant and/or employee" of Wiley and Nowlan Ashland Oil Agents, Inc. and Ashland Inc. They further allege that Wiley and Nowlan was acting within the scope of its agency with Ashland Inc.
Footnote: 3 3 Ernest Eugene Marcum was killed in the accident.
Footnote:
4 4
In his affidavit, Richard Keith McClure states,
I
tried to get to my parents' home, to help them, but was stopped
by a fireman, who restrained me. A policeman then joined us, and
led me back to his car. We got inside the police car, and the
officer kept talking to me, trying to calm me down, and to keep
me from going to the house.
According
to the affidavit of Sesco McClure Jr.,
We then went down through the bottom, looking for our parents. We tried to get the firemen to help us look through the backyard and throughout the bottom, but they refused, and kept insisting that we leave. . . . Because we were so persistent, the fireman finally turned a fire hose on us to drive us away from the area.
Footnote: 5 5 According to Ashland, Rodney L. McClure and Marilyn Sue Burton, the co- administrators of the estates of Lena and Sesco McClure, have filed wrongful death actions on behalf of all of the beneficiaries.
Footnote: 6 6 An Amicus Curiae Brief was filed with this Court urging us to adopt the rule articulated by the Wisconsin Supreme Court in Bowen v. Lumbermens Mutual Casualty Company, 183 Wis.2d 627, 658, 517 N.W.2d 432, 445 (1994) in which that court allowed a claim for emotional trauma arising out of the plaintiff's witnessing of the "gruesome aftermath" of an accident. Also, the appellants exhort us to further define the second requirement of Heldreth to include those plaintiffs who witness the immediate aftermath of an accident. We decline so to do.
Footnote: 7 7 This Court found few cases that directly confronted this issue. In Purty v. Kennebec Valley Medical Center, 551 A.2d 858 (Me. 1988) the Supreme Judicial Court of Maine held that an emotional distress action was separate and independent from Maine's statutory wrongful death action. Following that decision, the state legislature amended the wrongful death statute in order to reverse the court's decision in Purty. See Krempels v. Mazyck, 868 F. Supp. 355 (D.Me. 1994); 18-A M.R.S.A. § 2-804 (1995). In their briefs to this Court, the appellants list several cases from other jurisdictions in which wrongful death claims and emotional distress claims arising from the same event were allowed without comment: Tommy's Elbow Room, Inc. v. Kavorkian, 727 P.2d 1038 (Alaska 1986); Krouse v. Graham, 19 Cal. 3d 59, 137 Cal. Rptr. 863, 562 P.2d 1022 (1977); Millican and Clayton v. Wolfe, 701 P.2d 107 (Col. 1985); Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996); Littleton v. OB-GYN Associates of Albany, P.C., 194 Ga.App. 787, 391 S.E.2d 806 (1990); Villamil v. Elmhurst Memorial Hospital,175 Ill.App.3d 668, 529 N.E.2d 1181 (1988); Wilhoite v. Cobb, 761 S.W.2d 625 (Ky. Ct. App. 1988); LaCour v. Safeway Ins. Co., 676 So. 2d 761 (La.App. 3 Cir. 1996); Gustafson v. Faris, 67 Mich.App. 363, 241 N.W.2d 208 (1976); State v. Eaton, 101 Nev. 705, 710 P.2d 1370 (1985); Carey v. Lovette, 132 N.J. 44, 622 A.2d 1279 (1993); Folz v. State, 110 N.M. 457, 797 P.2d 246 (1990); Gardner v. Gardner, 334 N.C. 662, 435 S.E.2d 324 (1993); Neff v. Lasso, 382 Pa.Super. 487, 555 A.2d 1304 (1989).
Footnote: 8 8 In their complaints, the appellants allege that the conduct of the appellees resulting in the deaths of Lena and Sesco McClure "was willful, wanton, reckless, egregiously tortious, and evinced reckless disregard of the safety" of the decedents, and request punitive damages in addition to compensatory damages.
Footnote: 9 9 In its brief to this Court, Ashland cites to no supporting authorities from other jurisdictions in support of its position on this issue. Our research likewise revealed no cases from other jurisdictions that prohibit punitive damages as a matter of law in claims for the negligent infliction of emotional distress.
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