Stump v. Ashland, Inc.

• Decision Date: 24 November 1997
• Docket Number: No. 23823, No. 23826, No. 23824, No. 23828., No. 23820, No. 23818, No. 23821, No. 23827, No. 23819, No. 23822, No. 23825
• Court: West Virginia Supreme Court
• Parties: Elizabeth Ann STUMP, James Leo Burton, Ronnie Lee McClure, Joel Malcolm McClure, Linda Faye Adkins, Barbara Gay Pennington, Sesco McClure, Jr., Richard Keith McClure, Daniel James Burton, Lena Mae Lovejoy, Marilyn Sue Burton, Appellants, v. ASHLAND, INC., Wiley and Nowlan Ashland Oil Agents, Inc., and Sandra Turner, Administrator of the Estate of Ernest Eugene Marcum, Appellees.

499 S.E.2d 41

201 W.Va. 541

Elizabeth Ann STUMP, James Leo Burton, Ronnie Lee McClure, Joel Malcolm McClure, Linda Faye Adkins, Barbara Gay Pennington, Sesco McClure, Jr., Richard Keith McClure, Daniel James Burton, Lena Mae Lovejoy, Marilyn Sue Burton, Appellants, v. ASHLAND, INC., Wiley and Nowlan Ashland Oil Agents, Inc., and Sandra Turner, Administrator of the Estate of Ernest Eugene Marcum, Appellees.

Nos. 23818, 23819, 23820, 23821, 23822, 23823, 23824, 23825, 23826, .

Supreme Court of Appeals of West Virginia.

Submitted September 16, 1997.

Decided November 24, 1997.

W. Coleman Allen, Jr., Allen, Allen, Allen & Allen, Richmond, VA and Thomas V. Flaherty, Flaherty, Sensabaugh & Bonasso Charleston, for the Appellants.

Marc E. Williams, Robert L. Massie, Huddleston, Bolen, Beatty, Porter & Copen, Huntington, for Ashland.

Anita Casey, Mark A. Eck, Robert P. Martin, Meyer, Darragh, Buckler, Bebenek & Eck, Charleston, for Wiley & Nowlan and Turner. MAYNARD, Justice:

The appellants, eleven family members of decedents Sesco and Lena McClure,¹ appeal the February 9, 1996 order of the Circuit Court of Logan County granting the motion for summary judgment of the appellees, Ashland Inc. (Ashland), Wiley and Nowlan Ashland Oil Agents, Inc. (Wiley and Nowlan), and Sandra Turner, Administrator of the Estate of Ernest Eugene Marcum (Sandra Turner), in negligent infliction of emotional distress claims stemming from the deaths of Sesco and Lena McClure. The decedents were killed when a tanker truck carrying gasoline fuel crashed into their home and ignited a fire. The court dismissed the appellants' claims because it found that the contemporaneous observation requirement of a negligent infliction of emotional harm claim articulated by this Court in Heldreth v. Marrs, 188 W.Va. 481, 425 S.E.2d 157 (1992) was not met.

Ashland cross-assigns as error the court's February 9, 1996 order inasmuch as it denied Ashland's motion for dismissal of the appellant's punitive damages claim. Ashland also cross-assigns as error the court's supplemental order of July 29, 1996, holding that the claims for negligent infliction of emotional distress were not duplicative of the claims asserted in the wrongful death suits.

For the reasons that follow, we reverse the circuit court's February 9, 1996 order dismissing the appellants' claims. We affirm both the February 9, 1996 order inasmuch as it denied Ashland's motion for dismissal of the appellants' punitive damages claim and the July 29, 1996 order.

I. FACTS

The tragic events in this case occurred in the early morning hours of May 11, 1993 when a tanker truck owned by Wiley and Nowlan and driven by Ernest Eugene Marcum² crashed into the home of Sesco and Lena McClure on Dairy Road near West Hamlin, West Virginia. Upon impact, the tanker truck exploded and set fire to the McClure home.³

Three of the appellants, Sue Burton, daughter of Sesco and Lena McClure, her husband, James Leo Burton, and their son, Daniel James Burton, lived next door to the McClure home. Upon being awakened by the tanker truck collision and the fire next door, they fled their home which was also consumed by the fire. Despite desperate attempts, the Burtons were unable to rescue Sesco and Lena McClure due to the terrific heat of the flames.

James Leo Burton subsequently raced to a neighbor's house where he phoned the other eight children of Sesco and Lena McClure who lived nearby. These eight arrived almost immediately at the scene of the fire and were greeted by chaos and confusion as their parents' home continued to burn and firemen battled the blaze. Several of the children made repeated attempts to approach their parents' home, only to be turned back by police and firemen.⁴ Unable to rescue their parents, the children finally huddled together across the road where they were forced to watch helplessly with the awful knowledge that the same heat and flames preventing a rescue were also consuming the flesh of their parents.

Several hours later, the fire now reduced to smoldering embers, a fireman approached the band of family members and informed them that their parents' bodies had been found, and that they were dead. The body of Sesco McClure was found in the front bedroom of their home, lying face down along the back wall of the room. The body of Lena McClure was found at the rear of their home, just outside, facing away from the house.

The eleven family members who were at the scene of the fire filed claims alleging negligent infliction of emotional distress. Appellees Wiley and Nowlan, and Sandra Turner moved for summary judgment alleging, inter alia, that the appellants were not present at the scene of the accident as it occurred, nor did they witness it, and thus failed to state a claim for negligent infliction of emotional distress under Heldreth v. Marrs, 188 W.Va. 481, 425 S.E.2d 157 (1992). Ashland also moved for summary judgment incorporating the motion for summary judgment of Wiley and Nowlan and Sandra Turner. In addition, Ashland contended that the appellants' emotional distress claims were duplicative of two wrongful death actions filed by the appellants.⁵ Further, Ashland moved to have the appellants' claim for punitive damages dismissed, maintaining that punitive damages are not recoverable as a matter of law in West Virginia for claims of infliction of emotional distress.

By order of February 9, 1996, the circuit court denied Ashland's motion for summary judgment finding that the appellants may recover punitive damages subject to appropriate proof. However, the court granted the appellees' motion based on the fact that the appellants did not have a contemporaneous observation of the accident as required by Heldreth, supra.

Specifically, the circuit court found in part:

On the issue of the contemporaneous observation of the accident, sufficient to allow the plaintiffs a recovery under the requirements of Heldreth v. Mars (sic), the Court is of the opinion that the location of the Plaintiffs, at the time of the accident, is controlling. The Court does find that none of the witnesses to the fire could see the injury to their parents and grandparents because of the fire. The Court does further find that eight of the Plaintiffs voluntarily came to the scene after receiving a phone call. The Court does further find that the plaintiffs are attempting to extend the Court's holding in Heldreth v. Mars (sic) further than intended and does specifically find that coming to the scene of an accident, after the fact, is not sufficient to establish a separate cause of action for the negligent infliction of emotional distress.

By supplemental order of July 29, 1996, the circuit court found that the claims for negligent infliction of emotional distress were not duplicative of the claims asserted in the wrongful death suits.

II. DISCUSSION

Standard of Review

Initially, we note that "[a] circuit court's entry of summary judgment is reviewed de novo." Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Further, "[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). Finally, "[s]ummary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove." Syllabus Point 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995). With this in mind, we now review the issues before us.

A. Contemporaneous Sensory Observation

As noted in the circuit court's order, the determinative issue in this case concerns the interpretation of Heldreth v. Marrs, 188 W.Va. 481, 425 S.E.2d 157 (1992), this Court's definitive statement of the necessary elements of a claim of negligent infliction of emotional distress. The underlying facts of Heldreth were as follows. Mr. and Mrs Heldreth were walking to their automobile in a department store parking lot. Mr. Heldreth preceded Mrs. Heldreth to the automobile and was placing a package into the trunk when Mrs. Heldreth was struck by another vehicle. Upon being struck, Mrs. Heldreth screamed, was thrown into the air, and then to the ground. Mr. Heldreth heard his wife scream and then realized that she had been struck by a car. Mr. Heldreth was subsequently hospitalized for suffering a heart attack.

The primary issues in Heldreth were,

whether a plaintiff should be allowed to recover for the negligent infliction of emotional distress from witnessing or having some sensory observation of a person closely related to the plaintiff, suffer critical injury or death as a result of the defendant's negligence, and if so, what factors should be considered in determining whether it was reasonably foreseeable.

Heldreth, 188 W.Va. at 484, 425 S.E.2d at 160.

This Court answered the first question in the affirmative, concluding, in part, in Syllabus Point 1:

A defendant may be held liable for negligently causing a plaintiff to experience serious emotional distress, after the plaintiff witnesses a person closely related to the plaintiff suffer critical injury or death as a result of the defendant's negligent conduct, even though such distress did not result in physical injury, if the serious emotional distress was reasonably foreseeable.

In Syllabus Point 2, the Court stated:

A plaintiff's right to recover for the negligent infliction of emotional distress, after witnessing a person closely related to the plaintiff suffer critical injury or death as a result of defendant's negligent conduct, is premised upon the traditional negligence test of...