Aikens v. Debow

Decision Date06 November 2000
Docket NumberNo. 27376.,27376.
Citation208 W. Va. 486,541 S.E.2d 576
PartiesRichard AIKENS and Motel 81, Inc., d/b/a Martinsburg Econo-Lodge, Plaintiffs, v. Robert DEBOW and Craig Paving, Inc., Defendants.
CourtWest Virginia Supreme Court
Concurring Opinion of Justice Starcher January 16, 2001.

D. Michael Burke, Burke & Schultz, Martinsburg, for Plaintiffs.

Michael D. Lorensen, Tracey A. Rohrbaugh, Bowles Rice McDavid Graff & Love, PLLC, Martinsburg, for Defendants. SCOTT, Justice.

This case arises upon certified question from the Circuit Court of Berkeley County and presents the issue of entitlement to recovery in tort of economic loss not accompanied by bodily injury or property damage, a matter not previously resolved with precision by this Court.

I. Factual and Procedural Background

Plaintiff1 Richard Aikens operates a motel and restaurant known as the Martinsburg Econo-Lodge ("Econo-Lodge"), which is located on Route 901 and can be accessed by exiting from Interstate 81 at the Spring Mills Road exit. While the Route 901 overpass bridge permits the shortest, most-convenient means of accessing the Econo-Lodge for south-bound travelers traveling on I-81, the establishment can still be accessed through alternate routing. On September 18, 1996, Defendant Robert Debow, a truck driver and employee of Defendant Craig Paving, Inc., was driving a flatbed truck north on I-81 carrying a trackhoe. Because the trackhoe was too high to pass safely under the Route 901 overpass, an accident resulted which caused substantial damage to the bridge. It was closed for nineteen days to make the necessary repairs.

Plaintiff instituted the underlying cause of action on May 28, 1997, seeking recovery for the decreased revenues he experienced due to closure of the Route 901 overpass. Asserting that his reduced revenues were proximately caused by the accident, Plaintiff seeks recovery of $9,000 in lost income.

Arguing that as a matter of law Plaintiff could not recover for his economic losses in the absence of direct bodily injury or property damage, Defendants moved for summary judgment. The circuit court denied Defendants' motion for summary judgment, ruling that "there are factual issues in this case pertaining to causation and foreseeability which remain appropriate for jury determination." The circuit court further held that, "under West Virginia law, the Plaintiff may not be barred from recovering for economic injuries alleged to have been suffered as a result of the Defendants' negligence."

Following the circuit court's denial of Defendants' motion for summary judgment, the parties requested and the circuit court agreed to certification of the following issue:

Whether a claimant who has sustained no physical damage to his person or property may maintain an action against another for negligent injury to another's property which results consequentially in purely economic loss to the claimant.

The circuit court answered this question in the affirmative. In syllabus point three of Kincaid v. Mangum, 189 W.Va. 404, 432 S.E.2d 74 (1993), we explained:

When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it under both the Uniform Certification of Questions of Law Act found in W.Va.Code, 51-1A-1, et seq., and W.Va.Code, 58-5-2 [1967], the statute relating to certified questions from a circuit court of this State to this Court.

Recognizing that this Court, in addressing certified questions, has "retained the right to address them with some flexibility[,]" we reframe the question presented in the case sub judice to more thoroughly encompass the full breadth of the question to be answered. Miller v. Lambert, 195 W.Va. 63, 69, 464 S.E.2d 582, 588 (1995). The question, as reformulated, is consequently as follows:

May a claimant who has sustained purely economic loss as a result of an interruption in commerce caused by negligent injury to the property of a third person recover damages absent either privity of contract or some other special relationship with the alleged tortfeasor?

We answer this question in the negative.

II. Standard of Review

We recognized in syllabus point one of Light v. Allstate Insurance Co., 203 W.Va. 27, 506 S.E.2d 64 (1998), "[a] de novo standard is applied by this Court in addressing the legal issues presented by a certified question from a federal district or appellate court." This same standard requiring de novo review applies equally to legal issues presented by circuit courts.

III. The Existence of a Duty

The resolution of any question of tort liability must be premised upon fundamental concepts of the duty owed by the tortfeasor.

"In order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission in violation of a duty owed to the plaintiff. No action for negligence will lie without a duty broken." Syl. Pt. 1, Parsley v. General Motors Acceptance Corp., 167 W.Va. 866, 280 S.E.2d 703 (1981).

Syl. Pt. 4, Jack v. Fritts, 193 W.Va. 494, 495, 457 S.E.2d 431, 432 (1995). Importantly, the determination of whether a defendant in a particular case owes a duty to the plaintiff is not a factual question for the jury; rather, "[t]he determination of whether a plaintiff is owed a duty of care by the defendant must be rendered as a matter of law by the court." Id. at 498, 457 S.E.2d at 435. Only the related questions of negligence, due care, proximate cause, and concurrent negligence which present jury issues, as we explained in syllabus point five of Hatten v. Mason Realty Co., 148 W.Va. 380, 135 S.E.2d 236 (1964): "Questions of negligence, due care, proximate cause and concurrent negligence present issues of fact for jury determination when the evidence pertaining to such issues is conflicting or where the facts, even though undisputed, are such that reasonable men may draw different conclusions from them." Id. at 381, 135 S.E.2d at 238, syl. pt. 5.

Given our reliance on Hatten, we must address a recent misapprehension of that decision in Harris v. R.A. Martin, Inc., 204 W.Va. 397, 513 S.E.2d 170 (1998), a per curiam opinion. In discussing the determination that a genuine issue of material fact existed regarding a city employee's injury, this Court asserted that it had repeatedly held that duty is a question of fact for jury determination. Id. at 402, 513 S.E.2d at 175. As support for this assertion, however, the opinion references the above-quoted syllabus point from Hatten, as well as three other opinions citing to that syllabus point. Syllabus point five of Hatten does not stand for the proposition that the existence of duty is a question of fact. To the contrary, it declares that "[q]uestions of negligence, due care, proximate cause, and concurrent negligence" are questions of fact for the jury. 148 W.Va. at 381,135 S.E.2d at 238, syl. pt. 5. The initial determination of the existence of a duty, however, continues to be an issue resolved by the trial court. To correct any misconception this anomaly of Harris might have generated, we restate the law of this State, as follows: The determination of whether a defendant in a particular case owes a duty to the plaintiff is not a factual question for the jury; rather the determination of whether a plaintiff is owed a duty of care by a defendant must be rendered by the court as a matter of law.

This declaration is in accord with prior West Virginia law, as well as legal commentators on this issue. In Miller v. Whitworth, 193 W.Va. 262, 455 S.E.2d 821 (1995), this Court explained that "[w]e are mindful that the determination of whether there is a duty is a question of law and not a question of fact for the jury." Id. at 265, 455 S.E.2d at 824. Likewise, legal commentators agree that "[t]he determination of any question of duty... has been held to be an issue of law for the court rather than for the jury, to be determined by reference to the body of statutes, rules, principles, and precedents which make up the law ." 57A Am.Jur.2d Negligence § 86, at 142 (2d. ed.1989) (footnote omitted).

We recognized in Robertson v. LeMaster, 171 W.Va. 607, 301 S.E.2d 563 (1983), that while foreseeability of risk is a primary consideration in determining the scope of a duty an actor owes to another, "[b]eyond the question of foreseeability, the existence of duty also involves policy considerations underlying the core issue of the scope of the legal system's protection[.]" Id. at 612, 301 S.E.2d at 568. "Such considerations include the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant." Id.

In Puffer v. Hub Cigar Store, 140 W.Va. 327, 84 S.E.2d 145 (1954), overruled on other grounds as stated in, Mallet v. Pickens, 206 W.Va. 145, 522 S.E.2d 436 (1999), this Court held in syllabus point five: "`To be actionable, negligence must be the proximate cause of the injury complained of and must be such as might have been reasonably expected to produce an injury.' Point 3, syllabus, Hartley v. Crede, [140] W.Va. [133, 82 S.E.2d 672]." Accord Wehner v. Weinstein, 191 W.Va. 149, 444 S.E.2d 27 (1994). "A person is not liable for damages which result from an event which was not expected and could not reasonably have been anticipated by an ordinarily prudent person." Puffer, 140 W.Va. at 328, 84 S.E.2d at 148, syl. pt. 6.

Emphasizing the relationship between foreseeability and duty, we explained in syllabus point three of Sewell v. Gregory, 179 W.Va. 585, 371 S.E.2d 82 (1988):

The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. The test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the

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