Opinion
No. 19-0415
11-14-2019
STATE of West Virginia EX REL. MAXXIM SHARED SERVICES, LLC, a foreign Limited Liability Company, and ANR, Inc., a Delaware Corporation Petitioners v. The Honorable Warren R. MCGRAW, Judge of the Circuit Court of Wyoming County, West Virginia, and Charles Blankenship, Respondents
Thomas P. Mannion, Tim J. Yianne, Tonya P. Shuler, LEWIS BRISBOIS BISGAARD & SMITH LLP, Charleston, West Virginia, Attorneys for Petitioners Stephen P. New, Amanda J. Taylor, The Law Office of Stephen P. New, Beckley, West Virginia, Attorneys for Respondent
Thomas P. Mannion, Tim J. Yianne, Tonya P. Shuler, LEWIS BRISBOIS BISGAARD & SMITH LLP, Charleston, West Virginia, Attorneys for Petitioners
Stephen P. New, Amanda J. Taylor, The Law Office of Stephen P. New, Beckley, West Virginia, Attorneys for Respondent
Jenkins, Justice: This case was brought as a writ of prohibition under the original jurisdiction of this Court by Petitioners, Maxxim Shared Services, LLC and ANR, Inc. (collectively "Petitioners"). Respondent, Charles Blankenship ("Mr. Blankenship"), filed his complaint in June of 2018, in which he alleges that he suffered significant emotional injuries after witnessing a co-worker sustain injuries due to Petitioners’ negligence. In response, Petitioners filed a motion to dismiss the complaint under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, wherein they argued that Mr. Blankenship failed to state a claim for emotional distress arising from witnessing injuries to an unrelated co-worker. Judge Warren R. McGraw, of the Circuit Court of Wyoming County, entered an order on February 28, 2019, denying the motion.
Before this Court, Petitioners challenge the circuit court’s ruling, and contend that the circuit court committed clear legal error in finding: (1) that Mr. Blankenship’s relationship with his co-worker satisfied the "closely related" requirement for a claim of negligent infliction of emotional distress; and (2) that Mr. Blankenship is entitled to proceed on a claim for general negligence. Having considered the briefs submitted, the appendix record, the parties’ oral arguments, and the applicable legal authority, we grant the requested writ of prohibition in part, and deny in part.
I.
FACTUAL AND PROCEDURAL HISTORY
In July of 2016, Mr. Blankenship was employed at an underground mine operated by Spartan Mining Company, Inc. at the Road Fork #51 mine located in Wyoming County, West Virginia. On July 28, 2016, Mr. Blankenship was directed by the mine foreman to repair the guarding at the No. 3 shaft pump installation. The next morning, Mr. Blankenship enlisted the help of his co-worker, Donald Workman ("Mr. Workman"), to assist him in repairing the loose guarding. They travelled to the shaft, and began making the repairs. While Mr. Workman was still working, Mr. Blankenship stepped away from the guarding and heard a "jet engine" sound coming from the shaft. Mr. Blankenship turned toward the shaft, and observed a methane explosion, which propelled Mr. Workman into the air. Despite attempts to assist Mr. Workman in removing his gloves and gear, Mr. Workman subsequently died as a result of his injuries.
On June 21, 2018, Mr. Blankenship filed a complaint alleging two counts against Petitioners in their capacity as entities that "oversee and manage" the subject mine: (1) negligence and (2) negligent infliction of emotional distress. Then, on August 16, 2018, Petitioners filed a motion to dismiss the complaint. Therein, Petitioners argued that Mr. Blankenship failed to state a claim for negligent infliction of emotional distress arising from witnessing injuries to an unrelated co-worker. Petitioners also asserted that Mr. Blankenship’s claim for negligence should be dismissed because it was a restatement of his claim for negligent infliction of emotional distress, and sought recovery for duplicative damages.
Mr. Blankenship also brought suit against Spartan Mining Company, LLC alleging wrongful termination in contravention of substantial public policies. Spartan Mining Company is not a part of the current petition for writ of prohibition.
On February 28, 2019, the circuit court denied the motion to dismiss. The circuit court reasoned that "[t]o strictly require a blood or marital relation is overinclusive in that it allows recovery whether the biologically linked parties are close or not, is underinclusive in that it arbitrarily denies justice to those that can prove a functionally close relationship." The circuit court found Mr. Blankenship’s complaint was sufficient and adequately pled to survive the motion to dismiss under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. Petitioners filed this petition requesting a writ of prohibition on April 30, 2019, challenging the denial of its motion.
II.
STANDARD OF REVIEW
In Syllabus point 2 of State ex rel. Peacher v. Sencindiver , 160 W. Va. 314, 233 S.E.2d 425 (1977), we held that "[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va. Code , 53-1-1." Further, this Court will only grant a writ of prohibition
to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.
Syl. pt. 1, in part, Hinkle v. Black , 164 W. Va. 112, 262 S.E.2d 744 (1979), superseded by statute on other grounds as stated in State ex rel. Thornhill Grp., Inc. v. King , 233 W. Va. 564, 759 S.E.2d 795 (2014).
When considering a writ of prohibition, this Court is guided by the following:
In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal’s order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
Syl. pt. 4, State ex rel. Hoover v. Berger , 199 W. Va. 12, 483 S.E.2d 12 (1997). "In determining the third factor, the existence of clear error as a matter of law, we will employ a de novo standard of review, as in matters in which purely legal issues are at issue." State ex rel. Gessler v. Mazzone , 212 W. Va. 368, 372, 572 S.E.2d 891, 895 (2002).
With these standards in mind, we now examine the Petitioners’ request for a writ of prohibition.
III.
DISCUSSION
Petitioners seek an extraordinary writ because they contend the circuit court committed clear legal error in denying their motion to dismiss. First, Petitioners contend that the circuit court erred in finding that Mr. Blankenship’s relationship with his co-worker satisfied the "closely related" requirement for a bystander claim of negligent infliction of emotional distress. Petitioners allege that in doing so, the circuit court exceeded its authority, usurped this Court’s authority to define the bounds of the common law, and expanded the scope of liability for emotional distress claims. Second, Petitioners contend that the circuit court erred in finding that Mr. Blankenship’s complaint was sufficient to sustain a claim for general negligence. In support, Petitioners argue that Mr. Blankenship’s negligence claim is a duplicative claim that seeks identical relief as his negligent infliction of emotional distress claim and for the same alleged conduct. We will address each assignment of error in turn.
A. Negligent Infliction of Emotional Distress
The first issue before this Court is whether the circuit court erred as a matter of law when it held that a plaintiff who witnesses injury to an unrelated co-worker can recover for negligent infliction of emotion distress. Petitioners argue that Mr. Blankenship does not have a legal right under West Virginia law to assert a claim for negligent infliction of emotional distress arising from witnessing injuries to a co-worker. Notably, the parties do not dispute that Mr. Blankenship and his co-worker were not related by blood or by marriage. Rather, the two men were co-workers who worked together at the Road Fork #51 mine in Wyoming County. Therefore, Petitioners contend that Mr. Blankenship’s relationship with his co-worker does not satisfy the "closely related" requirement needed to sustain a claim for negligent infliction of emotional distress. As such, the circuit court’s holding—that the friendship and shared occupation of Mr. Blankenship and his co-worker fulfilled the "closely related" requirement—was in direct contravention to the law established by this Court in Heldreth v. Marrs , 188 W. Va. 481, 425 S.E.2d 157 (1992) and its progeny.
Mr. Blankenship responds that the circuit court properly denied Petitioners’ motion to dismiss when it found that the circumstances pled in the complaint demonstrated that Mr. Blankenship was not a mere bystander with no significant relationship to the victim. According to Mr. Blankenship, the motion to dismiss was denied on the basis that the "closely related" requirement was adequately pled because coal miners are more than co-workers, they are "members of a close-knit coal mining ‘family’ that transcends blood ties."
Under this State’s law, "[i]n order to prove actionable negligence there must be shown a duty on the part of the person charged with negligence and a breach of such duty." Syl. pt. 2, Atkinson v. Harman, 151 W. Va. 1025, 158 S.E.2d 169 (1967). The
elements of duty, breach and injury are essential to actionable negligence and in the absence of any of them the action must fall. 38 Am. Jur., Negligence, Sec. 11. This proposition is succinctly stated in 38 Am. Jur., Negligence, Sec. 12, as follows: "An action to recover damages for an injury sustained by the plaintiff on the theory that they were caused by the negligence of the defendant will not lie unless it appears that there existed, at the time and place where the injury was inflicted, a duty on the part of the defendant and a corresponding right in the plaintiff for the protection of the latter." See Faull v. Abbot , 137 W. Va. 777, 73 S.E.2d 727 [ (1952) ] ; Morrison v. Roush , 110 W. Va. 398, 158 S.E. 514 [ (1931) ].
Atkinson , 151 W. Va. at 1031, 158 S.E.2d at 173. In West Virginia, "[d]uty is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in light of the apparent risk." Robertson v. LeMaster , 171 W. Va. 607, 611, 301 S.E.2d 563, 567 (1983) (internal citation omitted).
This Court first addressed duty and foreseeability in the context of bystander claims of negligent infliction of emotional distress in the seminal case, Heldreth v. Marrs , 188 W. Va. 481, 425 S.E.2d 157 (1992). In Syllabus point 2 of Heldreth , this Court held:
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.
Here, we are asked to consider the first factor of the foreseeability determination—whether Mr. Blankenship was "closely related" to the injury victim.
When the Heldreth Court was tasked with formulating this State’s standard for negligent infliction of emotional distress claims asserted by bystanders, it reviewed the law in other jurisdictions, and examined the factors they used for evaluating these claims. It was determined that when analyzing foreseeability, all courts agreed that an important factor was "whether the plaintiff has a close relationship with the injury victim. Courts have recognized that the relationship between the plaintiff and the injury victim is valuable in determining foreseeability, and therefore is an essential element in establishing liability." Id. at 486, 425 S.E.2d at 162. Further, in discussing the importance of being "closely related," this Court noted:
We agree with the Supreme Court of Nebraska and other courts which have held that the plaintiff must have a close marital or familial relationship with the injury victim. Clearly, a plaintiff who witnesses a closely related person severely injured or killed by the negligence of another will experience a more profound emotional trauma than a plaintiff who has no relationship with the injury victim. It is the very nature of the relationship between the plaintiff and the victim which makes the emotional reaction experienced by the
plaintiff so poignant. We shall therefore require, as one element of the test, that a close marital or familial relationship exist between the plaintiff and the victim.
Id. at 487, 425 S.E.2d at 163.
Under West Virginia law, it is undisputed that a plaintiff can recover—in limited circumstances—for emotional distress arising from witnessing injury to another person. See, e.g. , Jones v. Sanger , 204 W. Va. 333, 512 S.E.2d 590 (1998) ; Stump v. Ashland, Inc. , 201 W. Va. 541, 499 S.E.2d 41 (1997) ; Heldreth v. Marrs , 188 W. Va. 481, 425 S.E.2d 157 (1992). However, bystander recovery is limited to a narrow group of "closely related" individuals.
It would be an entirely unreasonable burden on all human activity if the defendant who has endangered one person were compelled to pay for the lacerated feelings of every other person disturbed by reason of it, including every bystander shocked at an accident, and every distant relative of the person injured, as well as all his friends. And probably the danger of fictitious claims, and the necessity of some guarantee of genuineness, are even greater here than before. It is no doubt such considerations that have made the law extremely cautious in extending its protections to the bystander.
W. Prosser and W. Keeton, Prosser and Keeton on Torts , § 54, at 366 (5th ed. 1984).
The limitations set forth above, and the policy reasons for adopting said limitations, have been echoed not only in this Court, but also in courts across the country. In surveying how other jurisdictions have approached the "closely related" factor, our research indicates that the vast majority of courts is steadfast in limiting the phrase "closely related" to marital and blood relations. See Hislop v. Salt River Project Agric. Improvement and Power Dist ., 197 Ariz. 553, 5 P.3d 267 (Ariz. Ct. App. 2000) (relationship of co-worker and friend does not qualify for bystander recovery); Drew v. Drake , 110 Cal.App.3d 555, 168 Cal. Rptr. 65 (1980) (romantic partner who lived with victim as de facto spouse was denied recovery for negligent infliction of emotional distress); Batista v. Backus , 28 Conn. L. Rptr. 624 (Conn. Super. Ct. 2000) (relationship of friends did not meet the "closely related" requirement); Smith v. Toney , 862 N.E.2d 656 (Ind. 2007) (fiancée was not analogous to spouse for purposes of recovering as a bystander in a negligent infliction of emotional distress claim); Michaud v. Great N. Nekoosa Corp. , 715 A.2d 955 (Me. 1998) (co-worker could not make a claim for negligent infliction of emotional distress after watching fellow co-worker’s trapped under water while repairing a dam); Nugent v. Bauermeister , 195 Mich.App. 158, 489 N.W.2d 148 (1992) (minor plaintiff did not meet the "closely related" requirement and could not recover as a bystander after watching his best friend be fatally struck by an automobile); Hinojosa v. S. Texas Drilling & Expl., Inc ., 727 S.W.2d 320 (Tex. App. 1987) (court held that an unrelated co-worker could not state a claim in negligence for emotional distress after witnessing injuries to an unrelated co-worker).
Here, in dismissing the motion to dismiss, the circuit court reasoned that Mr. Blankenship and his co-worker met the "closely related" requirement because, as coal miners, they "are not only co-workers, but also members of a close-knit coal mining ‘family’ that transcends blood ties. The functional relationship of the parties is just as, if not more important than their biological or legal relationship." However, while this Court recognizes the close friendship and working relationship of these men, the fact still exists that Mr. Blankenship has not alleged any familial relationship or marital bond between him and Mr. Workman other than that of co-worker and friend. This State’s law on bystander recovery for negligent infliction of emotional distress is consistent with the vast majority of jurisdictions across the country that interpret "closely related" to mean marital or blood relations. As such, we hold that in West Virginia, an employee cannot recover damages for emotional distress after witnessing an injury to an unrelated co-worker under a claim of negligent infliction of emotional distress.
In view of the foregoing, and despite Mr. Blankenship’s contentions to the contrary, we refuse to expand the class of individuals entitled to recover damages for emotional injuries as a bystander under a claim of negligent infliction of emotional distress. Rather, we agree with Petitioners that the circuit court’s order denying their motion to dismiss the complaint—wrongly extending this State’s common law and holding that a co-worker relationship met the "closely related" requirement for negligent infliction of emotional distress claims—was clearly erroneous as a matter of law.
B. Negligence
In their second assignment of error, Petitioners contend that the circuit court erred in finding that Mr. Blankenship’s complaint was sufficiently pled to sustain a claim for general negligence. In support, Petitioners argue that Mr. Blankenship’s negligence claim is duplicative of the negligent infliction of emotional distress claim, insofar as it is a restatement of the legal theory used in his claim for negligent infliction of emotional distress. More specifically, Petitioners assert that Mr. Blankenship’s negligence claim arises from the same underlying incident to his co-worker and the causal relationship of that incident to the resulting alleged emotional distress. Thus, Petitioners argue that the negligence claim should have been dismissed because courts in West Virginia regularly dismiss duplicative claims.
Mr. Blankenship maintains that his negligence claim is not duplicative of his claim for negligent infliction of emotional distress because the underlying factual scenarios are different for each claim. For his negligence claim, Mr. Blankenship states that he seeks compensation for emotional damages and the physical effects that he suffered as a result of Petitioners’ wrongful actions. Additionally, he seeks damages for the negligent infliction of emotional distress caused by witnessing the injuries and death of his co-worker and friend, Mr. Workman.
In West Virginia,
[i]t 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.
Syl. pt. 7, Harless v. First Nat. Bank in Fairmont , 169 W. Va. 673, 289 S.E.2d 692 (1982). Although this State’s law on duplicative damages is well established, we do not find that Mr. Blankenship’s claim for general negligence is duplicative of his claim for negligent infliction of emotional distress because each claim seeks recovery for separate injuries. While it is true that Mr. Blankenship seeks to recover damages for emotional distress under both legal theories, it is clear that each claim arises from a different set of underlying facts. As evidenced by a close reading of Mr. Blankenship’s complaint, the damages claimed for negligent infliction of emotional distress arise from witnessing "his friend and fellow coal miner suffer a critical, gruesome injury that later resulted in Mr. Workman’s death." Conversely, the damages sought by Mr. Blankenship for general negligence arise from "psychiatric injuries—injuries that had physical and bodily effects—resulting from him having to flee for his very life from a methane explosion that was accompanied by jet-engine roars and a violent explosion of blue flame."
Because these claims arose from different underlying circumstances, we find that Mr. Blankenship’s claim for negligence is not duplicative of his claim for negligent infliction of emotional distress. Therefore, the circuit court did not err in denying Petitioners’ motion to dismiss as to Mr. Blankenship’s claim for general negligence.
IV.
CONCLUSION
For the reasons set forth above, we conclude that the Circuit Court of Wyoming County exceeded its legitimate powers and was clearly erroneous when it refused to dismiss Mr. Blankenship’s claim for negligent infliction of emotional distress. Therefore, we grant the writ to prohibit enforcement of the circuit court’s February 28, 2019 order denying Petitioners’ motion to dismiss as to the negligent infliction of emotional distress claim, and we order the circuit court to dismiss this claim. Finally, we deny the writ of prohibition with respect to the general negligence claim.
Writ granted in part and denied in part.
JUSTICE WORKMAN dissents and reserves the right to file a dissenting opinion.
WORKMAN, J., dissenting:
From a policy perspective, the majority’s refusal to permit development of facts in support of a claim for negligent infliction of emotional distress by anyone other than a person of marital or familial relation ignores the fact that other significant human relationships may be sufficiently emotionally close to be equated with that generally created by marriage or family.
From a legal perspective, if the majority’s goal was to apply the law enunciated in Heldreth v. Marrs , 188 W. Va. 481, 425 S.E.2d 157 (1992), no new syllabus point was even necessary to rule in favor of petitioner inasmuch as Mr. Blankenship never alleged or purported to be in a marital or familial relationship with the victim, Mr. Workman. A simple reference to Heldreth’s "closely related" holding would be all that was necessary to find the claim invalid and issue the writ. Further, if the majority wanted to illuminate the meaning of "closely related" by lifting the more specific language contained in the body (but not in the syllabus point) of Heldreth —i.e. a "close marital or familial relationship"—it could have created a new syllabus point doing so. Id . at 487, 425 S.E.2d at 163 (emphasis added). Instead, it inartfully discusses these concepts and in so doing, haphazardly injects the issue of whether "familial relationship" requires blood relation with its repeated reference to "blood or marriage" in the body of the opinion. As is evident, whether "familial" relationship requires "blood relation" is in no way in controversy in this case inasmuch as Mr. Blankenship and the victim were only alleged to be friends and co-workers.
See State Farm Mut. Auto. Ins. Co. v. Schatken , 230 W. Va. 201, 210, 737 S.E.2d 229, 238 (2012) ("[W]e have traditionally held that ‘courts will not ... adjudicate rights which are merely contingent or dependent upon contingent events, as distinguished from actual controversies.’ ... ‘Indeed, a matter must be ripe for consideration before the court may review it. Courts must be cautious not to issue advisory opinions.’ " (quoting Zaleski v. West Virginia Mut. Ins. Co ., 224 W.Va. 544, 552, 687 S.E.2d 123, 131 (2009) (citations omitted))).
Moreover, while the majority asserts that the opinion is in lockstep with other jurisdictions, a review of other jurisdictions actually reveals a disparate treatment of the central issue: "The tort of negligent infliction of emotional distress has bedeviled courts and commentators for over 100 years. The lack of agreement on the appropriate rule and the seeming arbitrariness of each states’ rule illustrate the continuing problems besetting this area of tort law." Uhl, Thomas T., Bystander Emotional Distress: Missing an Opportunity to Strengthen the Ties That Bind , 61 Brook. L. Rev. 1399, 1403–04 (1995). Implicitly then, the majority’s establishment of rigid boundaries serves the sole purpose of ease of application. However, as the New Jersey Supreme Court observed, the concern for "counteract[ing] fraudulent and meretricious claims" should not "outweigh the need to recognize claims that are legitimate and just." Dunphy v. Gregor , 642 A.2d 372, 378 (N. J. 1994). Certainly many such claims, in absence of a marital or familial relationship, may well prove insufficient to permit recovery; however, without an examination of the evidence regarding the relationship between the victim and bystander, valid claims will be excluded and render an injustice.
But even absent the majority’s preemptive exclusion of Mr. Blankenship’s claim, its opinion is problematic. In Heldreth , written nearly thirty years ago, this Court required a plaintiff seeking to bring a negligent infliction of emotional distress claim to establish that he or she was "closely related" to the injury victim. Syl. Pt. 2, in part, 188 W. Va. 481, 425 S.E.2d 157. In dicta , the Heldreth Court referenced the "close marital or familial relationship" contemplated by the phrase "closely related." Id . at 487, 425 S.E.2d at 163 (emphasis added).
The majority’s new syllabus point now holds (somewhat unnecessarily given the language of Heldreth ) that an "unrelated co-worker" may not recover for negligent infliction of emotional distress. However, it casually tosses about the phrase "blood or marriage" in the opinion and boldly declares that "[t]his State’s law on bystander recovery for negligent infliction of emotional distress is consistent with the vast majority of jurisdictions across the country that interpret ‘closely related’ to mean marital or blood relations." (emphasis added). Does the majority now suggest that, in West Virginia, only those of marital or blood —rather than familial —relation satisfy the Heldreth "closely related" requirement? Is its declaration of our "consistency" with other such jurisdictions intended to tacitly adopt such a narrow interpretation of "closely related"? If so, on what justification does the majority draw this drastic and arbitrary line? If not, what does this statement actually mean going forward?
Any such backhanded narrowing of "familial relationship" to "blood relationship"—even in dicta—creates an astounding degree of unnecessary confusion on the state of our law. Under Heldreth , an in-law, step-relative, or adoptive family member—or even those who live in a familial-type construct—would be permitted to recover. The majority’s inartfully suggested narrowing of "familial" to "blood" relation would exclude these individuals from the ability to recover for emotional distress caused by witnessing the serious injury or death of family members. By way of example of its absurdity, if a biological child, a step-child, and an adoptive child all witness their mother seriously injured or killed, only the biological child could recover for negligent infliction of emotional distress under the majority’s implicit definition of "familial relation." To whatever extent the majority did not intend to suggest such a drastic potential alteration to our existing law, its careless wording has created nothing more than unnecessary confusion.
As the mother of three children, one of whom is adopted, it is disturbing to think that the majority opinion discounts the relationship between me and my child (and other adoptive families) because we are not "blood."
This criticism is more than semantics or legal sophistry. While certainly dicta is not binding upon West Virginia courts, the language of the Court’s opinions is instructive and elucidates its syllabus points. Had the majority wished to alter the Heldreth rule of "marital or familial" relation, it should have done so forthrightly in a syllabus point, rather than slipping such a newly narrowed interpretation of "familial" into one of the few, if not only, cases to construe that aspect of Heldreth since its inception.
The West Virginia Constitution provides: "[I]t shall be the duty of the court to prepare a syllabus of the points adjudicated in each case in which an opinion is written and in which a majority of the justices thereof concurred, which shall be prefixed to the published report of the case." W. Va. Const. art. VIII, § 4. This Court has explained that "[t]his Court will use signed opinions when new points of law are announced and those points will be articulated through syllabus points as required by our state constitution." Syl. Pt. 2, Walker v. Doe , 210 W. Va. 490, 558 S.E.2d 290 (2001), holding modified by State v. McKinley , 234 W. Va. 143, 764 S.E.2d 303 (2014) (emphasis added). The Court explained that "if the Court addresses a novel legal issue or otherwise intends to change the law ," it issues a new syllabus point. Id . at 497, 558 S.E.2d at 297 (Starcher, J., concurring in part and dissenting in part) (emphasis added). See also State v. Lopez , 197 W. Va. 556, 569, 476 S.E.2d 227, 240 (1996) (Workman, J., dissenting) (noting that new syllabus points reflect "major policy changes in the law"). It is the duty of this Court to articulate its holdings with thoughtful care and precision and not unnecessarily generate meaningless or inadvertent inconsistency in its decisions.
From a broader perspective, as indicated, the majority’s out-of-hand rejection of Mr. Blankenship’s claim is equally precipitous. As the circuit court below observed, an inflexible rule which limits recovery for negligent infliction of emotional distress to only those who are married or of a traditional familial relationship is as arbitrary as it is unfair. This "line in the sand" elevates formal relationships over real ones. It permits recovery to those who fulfill legalistic requirements but may have no substantial emotional connection to the injured party and simultaneously denies recovery to those who may have such a connection, but lack the formality the rule requires. As the New Jersey Superior Court observed, whether a relationship is sufficient to warrant a claim of bystander liability should "not [ ] be determined by application of a verbal formula but rather by particularized attention to the qualities of the actual relationships at issue in the context of the goals sought to be served by the legal standard at issue." Dunphy v. Gregor , 617 A.2d 1248, 1253 (N. J. Super. Ct. App. Div. 1992), aff’d , 136 N.J. 99, 642 A.2d 372 (1994). A "mechanistic formula in a definition" serves little equity. Id . at 1254. See Hislop v. Salt River Project Agr. Imp. & Power Dist ., 5 P.3d 267, 275 (Az. Ct. App. 2000) (Garbarino, J., dissenting) ("While this rule will be predictable, it will permit some people to pursue this claim who have no close relationship, and yet prohibit others who have a loving, close relationship with someone injured or killed from pursuing these claims merely because they are not related by blood or marriage." (quoting Grotts v. Zahner , 989 P.2d 415, 417 (Nev. 1999) (Rose, C. J., dissenting))).
Instead of adhering to a simplistic rule that admittedly excludes meritorious claims, the majority should have permitted bystanders claiming a sufficiently close relationship to an injured party to develop their evidence and, if sufficient, present it to a jury for assessment. While certainly not every acquaintanceship or familiarity will give rise to an actionable claim and, without question, the circuit court is well-situated to serve as a gatekeeper for claims which are "spurious." See Syl. Pt. 2, Ricottilli v. Summersville Mem’l Hosp ., 188 W. Va. 674, 675, 425 S.E.2d 629, 630 (1992) ("An individual may recover for the negligent infliction of emotional distress absent accompanying physical injury upon a showing of facts sufficient to guarantee that the emotional damages claim is not spurious ." (emphasis added)).
However, where the facts support an emotional bond equivalent to that which one would expect those of close familial relations, there is no justification for denying the opportunity to present the claim to a jury for determination. As the Dunphy court wisely noted: "Our courts have shown that the sound assessment of the quality of interpersonal relationships is not beyond a jury’s ken and that courts are capable of dealing with the realities, not simply the legalities, of relationships to assure that resulting emotional injury is genuine and deserving of compensation. 642 A.2d at 378. Moreover, as Judge Garbarino observed,
We ask juries to make all sorts of difficult determinations and deciding the closeness of a relationship is a judgment juries are uniquely qualified to make. Leaving this factual determination to the jury would [provide] ... a reasonably flexible rule that does not arbitrarily bar those who would otherwise be able to establish a close relationship.
Hislop , 5 P.3d at 276 (Garbarino, J., dissenting) (quoting Grotts , 989 P.2d at 417-18 (Rose, C. J., dissenting). Just as the "credibility of the plaintiff’s claim of emotional attachment should always be open to disproof, and not presumed to exist just because a particular degree of kinship exists," a claim of emotional attachment should not be presumed to be absent given the simple lack of marital or familial relation. Dunphy, 617 A.2d at 1254. Rather, such claims should be assessed on the merits of their individual facts. Accord Dziokonski v. Babineau , 380 N.E.2d 1295, 1302 (Mass. 1978) (holding that determination whether bystander liability exists based in part on "degree ... of familial or other relationship between the claimant and the third person" (emphasis added)); Leong v. Takasaki , 520 P.2d 758, 766 (Haw. 1974) (holding that "plaintiff should be permitted to prove the nature of his relationship to the victim and the extent of damages he has suffered because of this relationship"); see also Smith v. Kings Entm’t Co ., 649 N.E.2d 1252, 1253 (Oh. Ct. App. 1994) (recognizing viability of bystander liability claim between friends but dismissing based on lack of close relationship).
Limitation of this cause of action to those who are of marital or familial relation is not only an idle dismissal of an important issue, but an attempt to force complex, modern relationships into unrealistic boxes: "What constitutes a ‘familial relationship’ is perforce a fact-sensitive analysis, driven by evolving social and moral forces. No one can reasonably question that the social and legal concept of ‘family’ has significantly evolved ...." Moreland v. Parks , 191 A.3d 729, 736-37 (N. J. Super. Ct. App. Div. 2018) ; see Hislop , 5 P.3d at 275-76 (Garbarino, J., dissenting) ("Anyone living in a non-traditional relationship will be denied the chance to recover emotional distress damages, while those living together with benefit of marriage will not suffer such prejudice."). Permitting plaintiffs such as Mr. Blankenship to develop their evidence and, in the event of a sufficiently close relationship, presenting it to a jury creates no unreasonable burden upon defendants nor expands the scope of foreseeable injury beyond that which already exists. As the Dunphy Court observed:
The identical acts of reasonable care that would have prevented the fatal accident that claimed the life of Michael Burwell would have preserved the emotional security of Eileen Dunphy. Certainly the extension of such a duty of care [to a closely related bystander] ... as a foreseeable and protectable person does not increase the burden of care or extend it beyond what is ordinarily expected and appropriate for reasonable drivers.
642 A.2d at 377. Similarly, the duty of care owed by petitioners to avoid injuring Mr. Workman is the same measure of care which would have prevented the trauma suffered by Mr. Blankenship. Simply permitting Mr. Blankenship to attempt to establish a close affinity and relationship with Mr. Workman does nothing to broaden the scope of petitioner’s duty. Further, as noted above, any concern about insubstantial claims was addressed nearly contemporaneously with Heldreth with the express requirement that a court evaluate such claims for spuriousness. See Syl. Pt. 2, Ricottilli, 188 W. Va. 674, 425 S.E.2d 629. Rather than examining whether our existing law adequately serves the competing interests presented or addressing the underlying difficulty with the rule, the majority casually creates even sharper limitations on the cause of action.
Heldreth was issued on December 14, 1992. Ricottilli was issued four days later on December 18, 1992.
There is little question that the relationship between "co-workers and friends can be enduring, substantial, and sealed by strong emotional bonds[.]" Hislop, 5 P.3d at 273 (Garbarino, J., dissenting). In this event, "[t]he law should find more than pity for one who is stricken by seeing that a loved one has been critically injured or killed." Dunphy , 617 A.2d at 1255 (quoting Portee v. Jaffee, 417 A.2d 521, 526 (N. J. 1980) ). The majority herein blithely dismisses Mr. Blankenship’s claim as one for bystander liability between mere co-workers and fails to address the inherent inequity in the Heldreth rule. While Mr. Blankenship may well have been unable to develop evidence sufficient to demonstrate a non-spurious claim, it is simply premature to make that calculation in absence of anything more than his complaint. Moreover, the majority’s haphazard use of imprecise and confounding terms inconsistent with our existing law casts a startling new shadow over a long-settled concept.
Accordingly, I respectfully dissent.