Tanner v. Rite Aid of West Virginia, Inc.

• Decision Date: 19 July 1995
• Docket Number: No. 22647,22647
• Citation: 194 W.Va. 643,461 S.E.2d 149
• Court: West Virginia Supreme Court
• Parties: Connie TANNER and Marjorie Legg, Plaintiffs Below, Appellees, v. RITE AID OF WEST VIRGINIA, INC., Defendant Below, Appellant.

Page 149

461 S.E.2d 149

194 W.Va. 643

Connie TANNER and Marjorie Legg, Plaintiffs Below, Appellees, v. RITE AID OF WEST VIRGINIA, INC., Defendant Below, Appellant.

No. 22647.

Supreme Court of Appeals of West Virginia.

Submitted May 10, 1995.

Decided July 19, 1995.

Syllabus by the Court

1. " 'In reviewing a trial court's ruling on a motion for a judgment notwithstanding the verdict, it is not the task of the appellate court reviewing facts to determine how it would have ruled on the evidence presented. Its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, in ruling on a motion for a judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the nonmoving party. If on review, the evidence is shown to be legally insufficient to sustain the verdict, it is the obligation of this Court to reverse the circuit court and to order judgment for the appellant.' Syllabus Point 1, Mildred L.M. v. John O.F., 192 W.Va. 345, 452 S.E.2d 436 (1994)." Syl. Pt. 1, Barefoot v. Sundale Nursing Home, 193 W.Va. 475, 457 S.E.2d 152 (1995).

2. " 'In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.' Syl. pt. 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984)." Syl.Pt. 6, McClung v. Marion County Comm'n, 178 W.Va. 444, 360 S.E.2d 221 (1987).

3. " 'One who by extreme or 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 bodily harm.' Syllabus pt. 6, Harless v. First National Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982)." Syl.Pt. 1, Dzinglski v. Weirton Steel Corp., 191 W.Va. 278, 445 S.E.2d 219 (1994).

4. We do not adopt a bright-line rule that expert testimony is never required to prove the tort of outrage. Although expert testimony may be a helpful and effective method of proving emotional distress and its relationship to the act complained of, it is not always necessary. A determination by the trial court as to whether a plaintiff has presented sufficient evidence, absent expert testimony, such that the jury from its own experience can evaluate the claim, its causal connection to the defendant's conduct and the damages flowing therefrom will not be disturbed unless it is an abuse of discretion.

5. ' " 'Courts must not set aside jury verdicts as excessive unless they are monstrous, enormous, at first blush beyond all measure, unreasonable, outrageous, and manifestly show jury passion, partiality, prejudice or corruption.' Syl.Pt., Addair v. Majestic Petroleum Co., Inc., 160 W.Va. 105, 232 S.E.2d 821 (1977)." Syl. pt. 5, Roberts v. Stevens Clinic Hosp. Inc., 176 W.Va. 492, 345 S.E.2d 791 (1986).' Syl.Pt. 2, Capper v. Gates, 193 W.Va. 9, 454 S.E.2d 54 (1994).

David W. Johnson, Lewis, Friedberg, Glasser, Casey & Rollins, Charleston, for appellant.

Robert A. Taylor, Masters & Taylor, Charleston, for appellees.

WORKMAN, Justice:

The Appellant, Rite Aid of West Virginia, Inc. ("Rite Aid"), appeals from a jury verdict in favor of the Appellees, Connie Tanner and Marjorie Legg. Following the verdict, Rite Aid filed a motion for judgment notwithstanding the verdict, or in the alternative, for a new trial, which the circuit court ultimately denied. We initially denied review in this case, but thereafter granted an appeal solely on the issue of damages. Rite Aid asserts several assignments of error in the proceedings below and asks that judgment be entered in its favor. We discern no error from the record, however, and we hereby affirm the judgment and the circuit court's related rulings in all respects.

I. STANDARD OF REVIEW

In Barefoot v. Sundale Nursing Home, 193 W.Va. 475, 457 S.E.2d 152 (1995), we recently stated as follows:

'In reviewing a trial court's ruling on a motion for a judgment notwithstanding the verdict, it is not the task of the appellate court reviewing facts to determine how it would have ruled on the evidence presented. Its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, in ruling on a motion for a judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the nonmoving party. If on review, the evidence is shown to be legally insufficient to sustain the verdict, it is the obligation of this Court to reverse the circuit court and to order judgment for the appellant.' Syllabus Point 1, Mildred L.M. v. John O.F., 192 W.Va. 345, 452 S.E.2d 436 (1994).

Syl.Pt. 1, Barefoot, 193 W.Va. at 479, 457 S.E.2d at 156.

In performing the required analysis under West Virginia Rule of Civil Procedure 50(b), we do not examine the credibility of the witnesses, conflicts in the testimony, or the weight of the evidence. Rather, the appropriate inquiry is stated in syllabus point six of McClung v. Marion County Commission, 178 W.Va. 444, 360 S.E.2d 221 (1987):

'In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.' Syl. pt. 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984).

Syl.Pt. 6, McClung, 178 W.Va. at 446, 360 S.E.2d at 223.

While our review is limited by these considerations, it is nevertheless de novo. Barefoot, 193 W.Va. at 482, 457 S.E.2d at 159. Having established the legal prism through which we must view this matter, we now set forth the primary evidence adduced by the Appellees at trial. ¹

II. FACTUAL DEVELOPMENT

Connie Tanner was a forty-four-year-old mother of four at the time of the incident which formed the basis for the complaint. Her mother, Appellee Marjorie Legg, was a seventy-five-year-old widow at the time. Neither of the Appellees had ever been accused of any criminal misconduct prior to the events herein.

The incident in question occurred in August 1991. Ms. Tanner, along with her ten-year-old daughter Brandi, had just retrieved Marjorie Legg from the hospital, where she had been undergoing treatment for depression. ^{2 2}. ² The three family members then proceeded immediately to Rite Aid, entered the store, and went straight to the pharmacy to have Ms. Legg's prescription filled. While Ms. Legg sat down and waited for the prescription to be filled, Ms. Tanner found some soap on sale and decided to purchase it. When the prescription was filled, Ms. Tanner asked the pharmacy clerk if the soap could be purchased at the pharmacy register rather than at the check-out line at the front of the store. ³ The clerk rang up the items, and the items were paid for and placed in a single bag. Ms. Tanner took the bag, and the three began to leave the store.

Ms. Legg and Brandi exited the store just a few steps ahead of Ms. Tanner. Before Ms. Tanner could reach the outside of the store, however, a male Rite Aid employee stopped her by "roughly" grabbing her shoulder and ceasing her forward motion. ⁴ The employee informed Ms. Tanner that she would have to step back into the store, stating "[o]ne of you has taken something you haven't paid for, and you're going to have to come back in the store." Ms. Tanner immediately became nervous, and the employee again stated "[g]et your grandmother, get your daughter and get back in the store. Get them back in the store." According to the Appellees, two male Rite Aid employees conducted the ensuing investigation.

Ms. Tanner testified to being both scared and embarrassed and stated that one employee had a "hateful" look on his face and was speaking quite loud. Ms. Tanner stated that she then yelled out to her mother that both she and Brandi would have to return to the store because of the theft allegation. Ms. Legg testified that she knew by the tone of her daughter's voice and the employee's voice that she was required to return to the store. When the three family members re-entered Rite Aid, one employee took them to the front of the store near the check-out counter. Ms. Tanner stated that one of the employees was "angry" and "in a state of rage...."

One employee again accused Ms. Tanner of shoplifting and said "[l]et's have the bag." Ms. Tanner started to remove the bag from her hand and the employee grabbed it from her. The employee searched the bag, noticed the soap, and asked to see the purchase receipt. While Ms. Tanner could not locate the receipt, the pharmacy clerk confirmed that Ms. Tanner had paid for the merchandise. Both Ms. Tanner and Brandi testified, however, that the employee continued to insist in a loud and abusive fashion that one of the three had shoplifted merchandise and that he was "going to find it." ⁵

The employee then placed his hand into Ms. Legg's pocket, who was shaking at the time. Ms. Tanner insisted that he stop, and then turned her mother's pockets inside out so that he could see she had taken no merchandise. Ms. Tanner then patted her own pockets as well. The employee, however, continued to insist that something had indeed been stolen. He then attempted to take Ms....