Flannery v. U.S.

Decision Date21 May 1981
Docket NumberNo. 80-1563,80-1563
Citation649 F.2d 270
PartiesWilliam FLANNERY, Committee for Michael George Flannery, Appellee, v. UNITED STATES of America, Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Marc Johnston, Civil Division, Dept. of Justice, Washington, D. C. (Alice Daniel, Asst. Atty. Gen., Washington, D. C., Robert B. King, U. S. Atty., Charleston, W. Va., Anthony J. Steinmeyer, Civil Division, Dept. of Justice, Washington, D. C., on brief), for appellant.

Ray L. Hampton (Lafe C. Chafin, Barrett, Chafin, Lowry & Hampton, Huntington, W. Va., on brief), for appellee.

Before WINTER, Chief Judge, HAYNSWORTH, Senior Circuit Judge, and HALL, Circuit Judge.

K. K. HALL, Circuit Judge:

The United States appeals from a judgment entered by the district court in favor of William Flannery, Committee for Michael Flannery, under the Federal Tort Claims Act (Act), 28 U.S.C. § 2671, et seq. Because we conclude that the dispositive issues of this case present questions of West Virginia state law for which there appears no controlling precedent, we certify the questions set forth in Part IV of this opinion to the West Virginia Supreme Court of Appeals, pursuant to that state's certification statute, W.Va.Code Ann. § 51-1A-1, et seq., (1981 Replacement Vol.).


On October 27, 1974, Michael Flannery's vehicle was struck by another automobile at an intersection in Huntington, West Virginia. The automobile was owned by the United States and was being operated by a government employee in the course of his employment. As a result of his injuries, Flannery was left permanently semi-comatose.

William Flannery, as committee for Michael Flannery, filed a personal injury claim against the government pursuant to the Act. After the administrative remedies of the Act were exhausted, a complaint was filed in federal district court.

The case was tried to the court without a jury, and West Virginia law was applied to determine the government's liability in accordance with Section 2674 of the Act. After separate trials on liability and damages, the court found the government employee negligent and entered judgment in Flannery's favor for $2,300,000.00. This award included, in part, $1,300,000.00 for the impairment of Flannery's capacity to enjoy life, and $535,855 for his lost earning capacity.

On appeal, the government does not challenge the district court's finding of liability. Rather, the government argues (1) that the damage award for impaired capacity to enjoy life was not sanctioned by West Virginia law; (2) that the award for lost earning capacity did not reflect the impact of federal income taxes; and (3) that both awards were excessive.


The court found that due to his semi-comatose condition, Flannery could not experience pain, suffering, pleasure or any other sensation. However, the court determined that under West Virginia law, impaired capacity to enjoy life was separable from pain and suffering, and was recoverable despite Flannery's inability to sense his impairment. The court concluded that Flannery had been totally deprived of his capacity to enjoy life and, therefore, was entitled to damages.

The government contends that under West Virginia law, impaired capacity to enjoy life is an element of pain and suffering and, like pain and suffering, is necessarily dependent upon the plaintiff's ability to sense and experience the injury. Because Flannery in his semi-comatose state cannot sense his impairment, the government argues that he is not entitled to recover. Flannery's representative counters that Flannery's impairment is a clear and undeniable fact. The representative characterizes the government's argument as an attempt to take advantage of the severe injuries its employee inflicted.

Both parties cite the decisions of the West Virginia Supreme Court of Appeals in Nees v. Julian Goldman Stores, Inc., 109 W.Va. 329, 154 S.E. 769 (1930), and Warth v. Jackson County Court, 71 W.Va. 184, 76 S.E. 420 (1912). Neither of these cases is dispositive. In Nees the court discussed the difficulties of measuring certain types of compensatory damages. During this discussion, the court posed the question:

"Who shall measure physical pain, mental anguish, or impairment of capacity to enjoy life?"

109 W.Va. at 339, 154 S.E. at 774. (Emphasis added)

Because the court listed these injuries in the disjunctive, the district court concluded that impaired capacity to enjoy life was independently recoverable. However, later in the same opinion, the Nees court stated:

"The elements of damages for which (the plaintiff) could recover were physical pain, mental anguish, and impairment of her capacity to enjoy life."

109 W.Va. 340, 154 S.E. at 774. (Emphasis added)

In Warth, the court discussed the propriety of certain instructions tendered by the defendant. In regard to a proposed instruction on damages, the court stated:

"No. 7 was properly refused because it is a binding instruction and leaves out of account, as elements of damage, physical pain, mental anguish, and impairment of capacity to enjoy life."

71 W.Va. at 191, 76 S.E. at 423. 1 (Emphasis added)

These decisions indicate that West Virginia recognizes impaired capacity to enjoy life as an injury, but they offer no guidance for determining whether a semi-comatose plaintiff is entitled to recover for such an injury. This question presents difficult legal and policy considerations which we believe should be addressed first by the highest court of the state.


The government requested the district court to measure Flannery's lost earning capacity by his potential net income after federal income taxes. The government argued that the wages Flannery would have earned in the future would have been subject to federal income taxes and, therefore, the proper measure of this loss was his net wages....

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5 cases
  • Wilt v. Buracker
    • United States
    • West Virginia Supreme Court
    • May 31, 1994
    ...Federal Tort Claims Act, 28 U.S.C. § 2671, were to be determined under the state law where the injury occurred. See Flannery v. United States, 649 F.2d 270 (4th Cir.1981). After receiving our answers to the certified questions, the Fourth Circuit decided that federal law applied and decline......
  • Flannery v. U.S.
    • United States
    • West Virginia Supreme Court
    • October 28, 1982
    ...in its decision to certify the question, correctly recognized that our cases in this area were not dispositive. Flannery v. United States, 649 F.2d 270 (4th Cir.1981). In Nees v. Julian Goldman Stores, Inc., 109 W.Va. 329, 154 S.E. 679 (1930), and Warth v. Jackson County Court, 71 W.Va. 184......
  • Rufino v. U.S.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 24, 1987
    ...at 978-79 (emphasis in original) (footnote omitted).9 Flannery had been before the Fourth Circuit once before. See Flannery v. United States, 649 F.2d 270 (4th Cir.1981). The trial court had found that "impaired capacity to enjoy life" was an independently compensable injury under West Virg......
  • McDougald v. Garber
    • United States
    • New York Supreme Court — Appellate Division
    • January 28, 1988
    ...Virginia law. On appeal, the Fourth Circuit initially certified the question of state law to the West Virginia Supreme Court of Appeals (649 F.2d 270), which found that loss of enjoyment of life damages were properly allowed in the case of a semi-comatose plaintiff who, because of the sever......
  • Request a trial to view additional results
1 books & journal articles
  • How to defend against claims for hedonic damages.
    • United States
    • Defense Counsel Journal Vol. 61 No. 4, October 1994
    • October 1, 1994
    ...a Life or Not to Value a Life? 95 W. Va. L. Rev. 1055, 1060 (1993) [hereinafter Price]. (19.) 297 S.E.2d at 436, questions certified, 649 F.2d 270 (4th Cir. 1981). (20.) 718 F.2d 108 (4th Cir. 1983). (21.) See Simmons v. Hartford Ins. Co., 786 F.Supp. 574, 580-81 (E.D. La. 1992) (Louisiana ......

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