Courtney v. Courtney

Citation186 W.Va. 597,413 S.E.2d 418
Decision Date19 December 1991
Docket NumberNo. 20122,20122
CourtSupreme Court of West Virginia
Parties, 60 USLW 2484 . Denzil COURTNEY and Maud Courtney, Defendants Below, Appellees. Supreme Court of Appeals of West Virginia
Syllabus by the Court

1. "The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 , 2 L.Ed.2d 80 (1957)." Syllabus Point 3, Chapman v. Kane Transfer Co., 160 W.Va. 530, 236 S.E.2d 207 (1977).

2. A third person may recover emotional distress damages if the direct victim of the defendant's outrageous conduct is a member of the third person's immediate family, and the third person witnessed the outrageous conduct.

3. "Violation of a statute is prima facie evidence of negligence. In order to be actionable, such violation must be the proximate cause of the plaintiff's injury." Syllabus Point 1, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990).

4. "One who engages in affirmative conduct, and thereafter realizes or should realize that such conduct has created an unreasonable risk of harm to another, is under a duty to exercise reasonable care to prevent the threatened harm." Syllabus Point 2, Robertson v. LeMaster, 171 W.Va. 607, 301 S.E.2d 563 (1983).

5. For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself.

6. "Under the provisions of W.Va.Code, 48-3-19, the defense of interspousal immunity is not available in suits between spouses in this State." Syllabus, Coffindaffer v. Coffindaffer, 161 W.Va. 557, 244 S.E.2d 338 (1978).

7. "An unemancipated minor may maintain an action against his parent for personal injuries sustained in a motor vehicle accident caused by the negligence of said parent and to that extent the parental immunity doctrine is abrogated in this jurisdiction." Syllabus Point 2, Lee v. Comer, 159 W.Va. 585, 224 S.E.2d 721 (1976).

8. The abrogation of parental immunity discussed in Lee v. Comer, 159 W.Va. 585, 224 S.E.2d 721 (1976), was confined to automobile accidents. It would appear that most courts have not totally abolished the doctrine of parental immunity for negligent injuries inflicted by a parent upon a child. Rather, they have subjected the doctrine to various exceptions.

9. Parental immunity is abrogated where the parent causes injury or death to his or her child from intentional or wilful conduct, but liability does not arise from reasonable corporal punishment for disciplinary purposes.

LaVerne Sweeney, Grafton, for appellants.

No one represented appellees.

MILLER, Chief Justice:

This appeal is by the plaintiffs, Frances Courtney, individually, and her infant son, Patsy Jo Compaleo, who sues by and through his mother. A final order of the Circuit Court of Taylor County dismissed two counts of their complaint for failure to state a claim upon which relief can be granted. We find this ruling to be erroneous.

I.

Frances Courtney and Denzil Courtney were husband and wife. During their marriage, Denzil allegedly physically abused Frances and her son, Patsy Jo. After the Courtneys were divorced, Frances and Patsy Jo sued Denzil and Maud Courtney, Denzil's mother, for damages they sustained from these attacks. The complaint asserts four counts: (I) that Denzil intentionally assaulted and battered Frances; (II) that Maud was liable for Denzil's tort because she, while aware that Denzil was a manic depressive and an alcoholic, nonetheless supplied him with alcohol and drugs, which she knew would cause him to become abusive; (III) that Denzil intentionally inflicted emotional distress upon Patsy Jo when he assaulted Frances in Patsy Jo's presence; and (IV) that Denzil intentionally assaulted and battered Patsy Jo. Both defendants filed motions to dismiss pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. 1 In an order dated December 20, 1990, the trial court dismissed Counts II and III.

II.

In Syllabus Point 3 of Chapman v. Kane Transfer Co., 160 W.Va. 530, 236 S.E.2d 207 (1977), we articulated the standard trial courts should employ in determining whether to grant a motion to dismiss:

"The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 , 2 L.Ed.2d 80 (1957)."

See also Dunn v. Consolidation Coal Co., 180 W.Va. 681, 379 S.E.2d 485 (1989); Price v. Halstead, 177 W.Va. 592, 355 S.E.2d 380 (1987); Whitehair v. Highland Memory Gardens, Inc., 174 W.Va. 458, 327 S.E.2d 438 (1985); Sticklen v. Kittle, 168 W.Va. 147, 287 S.E.2d 148 (1981). With this standard in mind, we address the merits of each claim dismissed.

III.

We have not had occasion to decide whether a child can recover damages for severe emotional distress in the absence of a physical injury because the child witnessed a third person verbally abusing and physically assaulting his mother.

We addressed a similar issue in Lambert v. Brewster, 97 W.Va. 124, 125 S.E. 244 (1924), where the plaintiff suffered a miscarriage after she saw her father assaulted by the defendant. The critical difference between Lambert and this case is that in Lambert, the plaintiff suffered a physical injury as a result of defendant's conduct. In Syllabus Point 3 of Lambert, we held:

"Where defendant wrongfully and violently assaulted and beat plaintiff's father, in plaintiff's sight and hearing, thereby causing her to be greatly frightened, and as a consequence thereof she suffered a miscarriage, defendant is liable to the plaintiff for all damages which can be directly traced to his wrongful conduct, even though he was not aware of her presence or her delicate condition."

Lambert was our first case to recognize a tort for physical injury "even though there was no physical impact between the body of the person injured and the wrongdoer, or any object set in motion by him." Syllabus Point 2, in part, Lambert v. Brewster, supra.

In Harless v. First National Bank, 169 W.Va. 673, 289 S.E.2d 692 (1982), we recognized that damages could be recovered for the intentional infliction of emotional distress even though the plaintiff suffered no physical injury. This cause of action is often termed the "tort of outrageous conduct" and has been recognized by a number of jurisdictions. 2 In Syllabus Point 6 of Harless, we adopted Section 46(1) of the Restatement (Second) of Torts (1965):

"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." 3

In Harless, a bank employee had been fired for attempting to have the bank comply with state and federal consumer credit and protection laws. He filed suit for retaliatory discharge and for intentional infliction of emotional distress. We concluded in Harless that because emotional distress damages could be recovered in a retaliatory discharge cause of action, duplicate damages would be obtained if a cause of action for intentional infliction of emotional distress were permitted on the same set of facts. We nonetheless outlined the contours of a cause of action for the intentional infliction of emotional distress by quoting from Womack v. Eldridge, 215 Va. 338, 342, 210 S.E.2d 145, 148 (1974):

" '[A] cause of action will lie for emotional distress, unaccompanied by physical injury, provided four elements are shown: One, the wrongdoer's conduct was intentional or reckless. This element is satisfied where the wrongdoer had the specific purpose of inflicting emotional distress or where he intended his specific conduct and knew or should have known that emotional distress would likely result. Two, the conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality. This requirement is aimed at limiting frivolous suits and avoiding litigation in situations where only bad manners and mere hurt feelings are involved. Three, there was a causal connection between the wrongdoer's conduct and the emotional distress. Four, the emotional distress was severe.' " 169 W.Va. at 694-95, 289 S.E.2d at 704. (Citations omitted).

Again, there is a factual difference between Harless and the present case. In Harless, the plaintiff who claimed the emotional distress was the person directly subjected to the defendant's tortious conduct. However, both Section 46(2) of the Restatement and a majority of courts that have addressed this question have concluded that a third person may recover emotional distress damages, if the direct victim of the defendant's outrageous conduct is a member of the third person's immediate family, and the third person witnessed the outrageous conduct. 4 See, e.g., Foster v. Trentham's Inc., 458 F.Supp. 1382 (E.D.Tenn.1978) (applying Tennessee law); Croft v. Wicker, 737 P.2d 789 (Alaska 1987); Rogers v. Williard, 144 Ark. 587, 223 S.W. 15 (1920); M.M. v. M.P.S., 556 So.2d 1140 (Fla.App.), review denied, 569 So.2d 1279 (Fla.1990); H.L.O. v. Hossle, 381 N.W.2d 641 (Iowa 1986); Wiehe v. Kukal, 225 Kan. 478, 592 P.2d 860 (1979); Latremore v. Latremore, 584 A.2d 626 (Me.1990); Nancy P. v. D'Amato, 401 Mass. 516, 517 N.E.2d 824 (1988); Miller v. Cook, 87 Mich.App. 6, 273 N.W.2d 567 (1978); ...

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