Gen. Pipeline Constr., Inc. v. Hairston

• Citation: 234 W.Va. 274,765 S.E.2d 163
• Decision Date: 17 October 2014
• Docket Number: Nos. 13–0933,13–0934.,s. 13–0933
• Court: West Virginia Supreme Court
• Parties: GENERAL PIPELINE CONSTRUCTION, INC., Petitioner, v. Cora Phillips HAIRSTON, et al., Respondents, and Equitable Production Company, Petitioner, v. Cora Phillips Hairston, et al., Respondents.

234 W.Va. 274

765 S.E.2d 163

GENERAL PIPELINE CONSTRUCTION, INC., Petitioner

v.Cora Phillips HAIRSTON, et al., RespondentsandEquitable Production Company, Petitioner

v.Cora Phillips Hairston, et al., Respondents.

Nos. 13–0933

13–0934.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 30, 2014.

Decided Oct. 17, 2014.

Daniel R. Schuda, Esq., Schuda & Associates, PLLC, Charleston, WV, for Petitioner General Pipeline Construction, Inc.

Brian R. Swiger, Esq., Rodney W. Stieger, Esq., Jackson Kelly PLLC, Charleston, WV, for Petitioner Equitable Production Company.

Kevin W. Thompson, Esq., David R. Barney, Jr., Esq., Thompson Barney, Charleston, WV, for Respondents.

Opinion

KETCHUM, Justice:

In this appeal from the Circuit Court of Logan County, we are asked to review a jury's verdict finding that two defendants desecrated numerous graves in an old, rural cemetery. The plaintiffs established that the defendants bulldozed a road through the cemetery, damaging the graves of their deceased next-of-kin.

West Virginia Code § 29–1–8a [1993] protects ancient, unmarked gravesites of historic significance. The statute preempts an exceptionally narrow class of common law grave desecration claims, and permits only the State Director of the Historic Preservation Section to seek criminal penalties and civil damages for disturbing old, unmarked gravesites. At trial, the plaintiffs proved their common law grave desecration claims involved marked gravesites, and proved their claims were neither encompassed within nor preempted by the statute. Nevertheless, at the request of the plaintiffs, the circuit court instructed the jury it could consider whether the defendants violated W.Va.Code § 29–1–8a when they damaged the cemetery, and could impose liability upon the defendants for those violations.

As we discuss below, we find that the circuit court improperly instructed the jury about W.Va.Code § 29–1–8a to the prejudice of the defendants. In drafting W.Va.Code § 29–1–8a, the Legislature did not intend to create a private cause of action in the plaintiffs. Despite the evidence of record favorable to the plaintiffs, we cannot say the circuit court's erroneous instruction to the jury was harmless.

As set forth below, we reverse the jury's verdict and award the defendants a new trial.

I.FACTUAL AND PROCEDURAL BACKGROUND

Crystal Block Hollow is the site of a now-defunct coal mining town near the unincorporated city of Sarah Ann, deep in the hills of Logan County, West Virginia. Within Crystal Block Hollow lies the Crystal Block Cemetery, which was established sometime after 1923 when the Crystal Block Coal & Coke Company leased the land. The lease allowed Crystal Block Coal & Coke Company to establish a company mining town, and of the many structures erected by the company, one was a cemetery for company employees and their families. Death certificates, the Register of Death, and local funeral home records identify the Crystal Block Cemetery as the final resting place for numerous decedents.

Defendant Equitable Production Company¹ (“Equitable”) explores for and produces oil and natural gas. Defendant General Pipeline Construction, Inc. (“General Pipeline”) constructs pipelines for Equitable.

In 2004, Equitable began a project to relocate a gas pipeline on a large tract of wooded, unimproved land in Crystal Block Hollow. Equitable contracted with General Pipeline to relocate the pipeline in July 2004. Prior to construction, Equitable checked its own title documents and marked the right-of-way for the pipeline across the tract, and it generally established where General Pipeline could enter and egress from the tract to access the pipeline.

In August 2004, Vandle Keaton, a bulldozer operator for General Pipeline, constructed a road across the tract to relocate the pipeline. Trial testimony indicated that Mr. Keaton did not inspect the path upon which he planned to bulldoze the road. A witness testified he warned Mr. Keaton that there was “a cemetery over in there and it's black people,” but Mr. Keaton inveighed his lack of care for the African–American occupants of the cemetery with a derogatory term. Mr. Keaton plowed the road through the Crystal Block Cemetery with his bulldozer, removing headstones, crosses and fieldstones that marked gravesites. Other employees of General Pipeline testified to later digging stone and marble grave markers out of the dirt pushed aside by the bulldozer. Those employees used shovels and rakes to repair some damage to the graves, and moved the displaced grave markers to depressions in the ground that they suspected were graves. Mr. Keaton apparently used the road he plowed through the cemetery to construct other roads to access other portions of the tract.

A witness testified he visited the cemetery during a family reunion, around August 7, 2004, and discovered the bulldozed roadway and the damage to the graves and headstones. Equitable asserts it learned of the damage to the cemetery the day after the damage was done. However, records suggest it was not until late September 2004 that an Equitable project supervisor actually visited the cemetery. Equitable thereafter twice sent employees to backfill, grade, seed, mulch and otherwise “reclaim” the area.

The plaintiffs are fourteen individuals who together have seven next-of-kin decedents buried in Crystal Block Cemetery.² The plaintiffs brought suit claiming that defendant General Pipeline's use of the bulldozer, and defendant Equitable's ensuing reclamation activities, desecrated their seven decedents' graves in the cemetery. The plaintiffs generally asserted that Equitable and General Pipeline failed to do a walk-through of the property prior to construction; that Equitable failed to conduct a survey for the presence of cemeteries on the tract prior to construction; and that Equitable failed to properly supervise General Pipeline's work on the project. The plaintiffs also claimed that after, the defendants learned of the cemetery, they failed to prevent others from using the newly-bulldozed access road through the cemetery for four-wheeling and accessing the cemetery for parties.

In 2009, following the exchange of written discovery, the circuit court certified several questions to this Court regarding a cause of action for desecration of a cemetery. In Hairston v. General Pipeline Construction, Inc., 226 W.Va. 663, 704 S.E.2d 663 (2010) (“Hairston I ”), we examined the historical development of the common law claim for desecration of graves, and identified the elements to prove the cause of action.³ We concluded that a plaintiff who proves that the grave of their next-of-kin has been desecrated may recover “nominal damages; compensatory damages if actual damage has occurred; mental distress; and punitive damages if the defendant's conduct is determined to be willful, wanton, reckless, or malicious.” Syllabus Point 10, Hairston I, supra.

However, we also recognized in Hairston I that the West Virginia Legislature enacted a statute to protect grave sites of historical significance. We concluded that this statute, W.Va.Code § 29–1–8a [1993],⁴ preempts common law grave desecration cases, but only in very limited instances. Specific to this case, the common law claims that are preempted include those that involve an “unmarked grave ... of historical significance.” Syllabus Point 2, Hairston I, supra .⁵ When a person discovers they have disturbed an unmarked grave of historical significance, the statute imposes certain duties. For instance, it requires the person to “[w]ithin forty-eight hours ... notify the county sheriff” and to stop any “further disturbance[.]” W.Va.Code § 29–1–8a(d). An action for damages may be brought under W.Va.Code § 29–1–8a only by the State Director of the Historic Preservation Section, the damages that may be recovered are limited, and the damages are payable only to the State Endangered Historic Properties Fund. W.Va.Code § 29–1–8a(g). Furthermore, the statute imposes criminal penalties for intentionally disturbing an “unmarked grave ... of historical significance,” and for intentionally withholding information about the disturbance. W.Va.Code § 29–1–8a(c)(1).

Following our decision of Hairston I, the case returned to the circuit court for trial. The trial, which ended in October 2013, lasted approximately three weeks. At trial, the plaintiffs established that the graves of their next-of-kin decedents were all marked, and therefore not encompassed by W.Va.Code § 29–1–8a. Still, the circuit court allowed the plaintiffs to present evidence to the jury suggesting that the defendants violated W.Va.Code § 29–1–8a, because upon disturbing graves in the cemetery they failed to notify the county sheriff and did not cease any activity which might have further disturbed the graves. Further, the circuit court instructed the jury on the requirements of W.Va.Code § 29–1–8a and the criminal penalties, and stated that the jury could find the defendants negligent for violating the statute.

The jury returned a verdict finding Equitable and General Pipeline liable to the plaintiffs for desecration of their decedents' graves in the Crystal Block Cemetery. The jury awarded each plaintiff $50,000 in damages for mental distress, and awarded plaintiff Cora Phillips Hairston an additional $14,000 in compensatory damages as “overseer of restoration of cemetery.” The jury also found that both defendants were reckless in their actions, and awarded the plaintiffs $200,000 in punitive damages against Equitable. The jury declined to award punitive damages against General Pipeline.

The circuit court entered judgment on the jury's verdict on November 20, 2012, and entered an order that denied the defendants' motions for a new trial on July 26, 2013. Equitable and General Pipeline filed separate appeals of the circuit court's orders to this Court, and we consolidated the appeals for decision.

II.STANDARD OF REVIEW

The defendants appeal from the circuit court's ruling denying their ...