Rohrbaugh v. Wal-Mart Stores, Inc.

Decision Date11 October 2002
Docket NumberNo. 30441.,30441.
CourtWest Virginia Supreme Court
PartiesBradley S. ROHRBAUGH, Plaintiff Below, Appellant, v. WAL-MART STORES, INC., A Delaware Corporation; Greg Sharp; John Wilshere; and Sherry Harper, Defendants Below, Appellees.

Michael J. Florio, Esq., Florio Law Offices, Clarksburg, for Appellant.

Sandra K. Law, Esq., Schrader, Byrd & Companion, Wheeling, for Appellees. DAVIS, Chief Justice.

Bradley Rohrbaugh, appellant/plaintiff below (hereinafter referred to as "Mr. Rohrbaugh"), appeals an order entered by the Circuit Court of Harrison County denying his motion for a new trial. Mr. Rohrbaugh filed an action against Wal-Mart Stores, Inc., appellee/defendant below (hereinafter referred to as "Wal-Mart"),1 alleging invasion of privacy, disability discrimination and workers' compensation discrimination. The jury returned a verdict in favor of Mr. Rohrbaugh on the invasion of privacy claim, finding that he was entitled to punitive damages even though he was not awarded compensatory damages. On the remaining two discrimination claims, the jury returned a verdict in favor of Wal-Mart. Here, Mr. Rohrbaugh seeks a new trial on damages for the invasion of privacy claim. He also seeks a new trial on damages and liability for the disability discrimination and workers' compensation discrimination claims. After reviewing the briefs and record in this case, we reverse the denial of a new trial on damages for the invasion of privacy claim. However, we affirm the circuit court's denial of a new trial on the disability discrimination and workers' compensation discrimination claims.

I. FACTUAL AND PROCEDURAL HISTORY

Mr. Rohrbaugh was hired by Wal-Mart at its Clarksburg store, in August of 1997.2 Although he was first hired to work in Wal-Mart's lawn and garden department, Mr. Rohrbaugh ultimately worked as a "stocker" in the store's toy department.

Although Wal-Mart initially considered Mr. Rohrbaugh's work performance to be excellent, he nevertheless exhibited attendance problems.3 Following the back injury he incurred at work on February 9, 2000, Mr. Rohrbaugh's attendance problems worsened, and his excellent standing as a Wal-Mart employee declined. Several days after the injury, Wal-Mart referred Mr. Rohrbaugh to a physician for an examination and for drug and alcohol testing. Although there was no indication that Mr. Rohrbaugh used drugs or alcohol, Wal-Mart had a policy of having all injured workers undergo such testing. The physician reported that Mr. Rohrbaugh could, with certain limitations, return to work on February 19, 2000. Mr. Rohrbaugh could not lift anything heavier than fifteen pounds and could walk only four hours per day.4 The physician also reported that there was no indication of drug or alcohol use by Mr. Rohrbaugh.5 Also as a result of this injury, Mr. Rohrbaugh filed a workers' compensation claim, which was not contested by Wal-Mart. Nevertheless, Mr. Rohrbaugh was awarded no temporary or permanent partial disability benefits.

After Mr. Rohrbaugh's injury, he appears to have continued his pattern of attendance problems. On February 25, 2000, two of Mr. Rohrbaugh's superiors met with him and told him that he had one "last chance" to improve his attendance.6 Despite the warning, Mr. Rohrbaugh's work attendance did not improve to the satisfaction of Wal-Mart. Thus, on March 27, 2000, Mr. Rohrbaugh was terminated because of excessive lateness and absences.

Following his termination, Mr. Rohrbaugh filed the instant action against Wal-Mart alleging his right to privacy had been invaded by the requirement that he undergo blood and alcohol tests and that his termination constituted disability discrimination and workers' compensation discrimination.7 The case was tried before a jury on June 5, 2001.8 On June 8, a jury returned a verdict finding no disability discrimination or workers' compensation discrimination attended Mr. Rohrbaugh's termination. However, the jury concluded that Wal-Mart did invade Mr. Rohrbaugh's privacy by requiring the blood and alcohol tests. The jury also found that Mr. Rohrbaugh was not entitled to compensatory damages, but that he was entitled to punitive damages as a result of the invasion of privacy claim. From this jury verdict, the trial court determined that because no compensatory damages had been awarded, a hearing on punitive damages was not required. Mr. Rohrbaugh filed post-trial motions, which the trial court denied. From these adverse rulings, Mr. Rohrbaugh now appeals.

II. STANDARD OF REVIEW

In this proceeding we have been called upon to review the trial court's denial of Mr. Rohrbaugh's motion for a new trial as to damages on his invasion of privacy claim, and as to liability and damages on the disability discrimination and workers' compensation discrimination claims. This Court has held that,

[a]lthough the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.

Syl. pt. 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976). We have also more succinctly held that, in examining an order denying a new trial, we review "the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo." Syl. pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996). With these standards set forth, we now turn to the issues before us.

III. DISCUSSION
A. Awarding Punitive Damages Without Compensatory Damages

The first issue we must address involves the verdict rendered by the jury on Mr. Rohrbaugh's cause of action for invasion of privacy.9 The trial court submitted a verdict form to the jury which asked the jury to determine liability and compensatory damages, and to answer the question of whether or not Mr. Rohrbaugh was entitled to receive punitive damages for the invasion of privacy claim.10 The jury then rendered a verdict finding Wal-Mart violated Mr. Rohrbaugh's right to privacy by subjecting him to blood and alcohol tests.11 However, the jury determined that Mr. Rohrbaugh was not entitled to compensatory damages. In spite of failing to award compensatory damages, the jury responded that Mr. Rohrbaugh was entitled to receive punitive damages. Mr. Rohrbaugh moved the court for a new trial on the issue of such damages, which motion the trial court denied. In doing so, the trial court ruled that compensatory damages are not presumed. The trial court further determined that, under this Court's decision in Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991), there could be no award of punitive damages when compensatory damages had not been awarded.

Although the trial court was correct in finding that Garnes prohibits an award of punitive damages when there has not been an award of compensatory damages, the trial court was wrong in holding that Garnes precluded a new trial on damages. Garnes involved a nuisance action, wherein a jury awarded the plaintiffs punitive damages, but not compensatory damages. Under the law existing at the time of the Garnes jury's verdict, this Court had held, in Syllabus point 3, in part, of Wells v. Smith, 171 W.Va. 97, 297 S.E.2d 872 (1982), that "the failure of the jury to return an award of compensatory damages against a particular defendant will not of itself allow that defendant to escape liability for punitive damages assessed against him." Garnes ultimately overruled Wells and held that a jury could not be allowed "to return punitive damages without finding compensatory damages[.]" Syl. pt. 1, in part, Garnes, 186 W.Va. 656, 413 S.E.2d 897.

Unlike the trial court's ruling in the case sub judice, the remedy provided in Garnes was not that of vacating the jury's award of punitive damages and granting judgment for the defendant. Rather, Garnes reversed the judgment for the plaintiffs and awarded a new trial to the defendant.12 Here, however, the trial court, in effect, vacated the jury's determination that Mr. Rohrbaugh was entitled to punitive damages and granted judgment to Wal-Mart. Garnes does not support such a disposition.13

Mr. Rohrbaugh additionally argues that this Court's decision in Payne v. Gundy, 196 W.Va. 82, 468 S.E.2d 335 (1996), required the trial court to grant his motion for a new trial on damages. Payne involved a civil action for assault and battery that was brought by a woman against the man with whom she had cohabited. The jury returned a verdict awarding the plaintiff punitive damages, but not compensatory damages. The plaintiff moved for a new trial on damages, which the trial court denied, and from which the plaintiff appealed. This Court reversed and awarded the plaintiff a new trial on damages.14 In doing so, Payne relied upon Syllabus point 3 of Biddle v. Haddix, 154 W.Va. 748, 179 S.E.2d 215 (1971), wherein we stated:

In a civil action for recovery of damages for personal injuries in which the jury returns a verdict for the plaintiff which is manifestly inadequate in amount and which, in that respect, is not supported by the evidence, a new trial may be granted to the plaintiff on the issue of damages on the ground of the inadequacy of the amount of the verdict.

Responding to Mr. Rohrbaugh's argument, Wal-Mart contends that Payne is distinguishable because there was evidence of injury proven in Payne. In this regard, Wal-Mart asserts that Mr. Rohrbaugh failed to present any evidence of harm stemming from the invasion of privacy, and, consequently, he was not entitled to an award of damages. We disagree.15

The issue of damages for invasion of privacy is addressed in Section 652H of the Restatement (Second) of...

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    ...claim on remand from Eighth Circuit Court of Appeals with directions to substantially remit award); Rohrbaugh v. Wal-Mart Stores, Inc., 212 W.Va. 358, 572 S.E.2d 881, 888 (2002) (adopting Restatement (Second) of Torts' (1977) position on damages for invasion of privacy claim and, additional......
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    ...Court `will not interfere with a bifurcation decision in the absence of an abuse of . . . discretion.'" Rohrbaugh v. Wal-Mart Stores, Inc., 212 W.Va. 358, 368, 572 S.E.2d 881, 891 (2002) (quoting Bennett v. Warner, 179 W.Va. 742, 748, 372 S.E.2d 920, 926 (1988)). Further, "because the trial......
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    • James Publishing Practical Law Books Litigating Employment Discrimination Cases. Volume 1-2 Volume 1 - Law
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    ...(Second) of Torts, §652H (1977). Most states have adopted the Restatement position. See, e.g., Rohrbaugh v. Wal-Mart Stores , Inc., 212 W. Va. 358, 364, 572 S.E.2d 881, 887 (W.Va. 2002) (“A majority of courts addressing the issue have adopted the Restatement’s position on damages.”); see al......

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