Weaver v. Union Carbide Corp.

• Decision Date: 17 February 1989
• Docket Number: No. CC981,CC981
• Citation: 378 S.E.2d 105,180 W.Va. 556
• Parties: , 57 USLW 2612 Nancy WEAVER v. UNION CARBIDE CORPORATION and Suzanne Hallenberg.
• Court: West Virginia Supreme Court

Page 105

378 S.E.2d 105

180 W.Va. 556, 57 USLW 2612

Nancy WEAVER v. UNION CARBIDE CORPORATION and Suzanne Hallenberg.

No. CC981.

Supreme Court of Appeals of West Virginia.

Feb. 17, 1989.

Syllabus by the Court

1. It is generally recognized that sexual intimacy with a patient, induced by a marriage or other counselor, is a form of malpractice permitting recovery of damages for emotional distress and other harm resulting from the malpractice. The basis of the malpractice is the trust relationship that arises from such counseling services which are designed to improve the mental and emotional well being of the patient. In such a situation, it is recognized that the patient may become emotionally dependent on the counselor and be easily manipulated by an unscrupulous counselor.

2. A cause of action for alienation of affections consists of three elements: wrongful conduct of defendant, plaintiff's loss of affection or consortium with the other spouse, and causal connection between such conduct and loss. W.Va.Code, 56-3-2a, abolishes all such suits for alienation of affections.

3. A suit against a marriage counselor, based on a claim of malpractice or intentional interference with the marital relationship, by an uncounseled spouse seeking damages arising from the counselor's sexual involvement with the other spouse may not be maintained. The lack of any professional relationship between the counselor and the uncounseled spouse forecloses the malpractice claim. The claim for intentional interference with the marital relationship is, in its essence, one for alienation of affections and is barred by W.Va.Code, 56-3-2a. Rudolph L. DiTrapano, Joshua I. Barrett, Ditrapano & Jackson, Charleston, for appellant.

David D. Johnson, Cheryl Harris Wolfe, Jackson & Kelly, Chester Lovett, Henry R. Glass, III, Lovett, Vaughan & Cooper, Charleston, for appellees.

MILLER, Justice:

This certified case from the United States Fourth Circuit Court of Appeals ¹ presents the question: May a wife maintain suit, based on a claim of malpractice or intentional interference with the marital relationship, against a marriage counselor who in the treatment of her husband engages in sexual relations that lead to the dissolution of the marriage? We conclude that such a suit is, in its essence, one for alienation of affections and is barred by W.Va.Code, 56-3-2a.

The facts of the case are summarized from the complaint. Nancy Weaver, the plaintiff, was at all relevant times married to Robert Greeson, an executive employee of Union Carbide Corporation (Carbide) in Charleston. Suzanne Hallenberg was also employed by Carbide as a counselor and employment relations specialist. Mr. Greeson was counseled by Ms. Hallenberg prior to and after his marriage.

The plaintiff asserts that Ms. Hallenberg abused her relationship as a counselor "by seeking [Mr. Greeson's] attention and affection, pursuing him, and, ultimately, engaging in intimate relations with him." It is further claimed that she informed Mr. Greeson that his wife was in need of psychiatric help and otherwise fostered marital discord. Mr. Greeson ultimately requested that his wife file for a divorce, and soon after cohabited with and married Ms. Hallenberg.

This suit was filed against Carbide and Ms. Hallenberg on October 11, 1985, in Kanawha County Circuit Court. The complaint averred the facts as set out above and pleaded two alternative theories of recovery: malpractice and intentional interference with the marital relationship. The ad damnum requested $2.5 million in damages for the dissolution of the marriage, annoyance and inconvenience, and mental distress.

On petition by Carbide, the case was timely removed to federal district court. Carbide and Ms. Hallenberg then filed motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. By memorandum opinion and order of June 10, 1986, the suit was dismissed. The district court concluded that since the plaintiff was not a patient of Ms. Hallenberg, her suit was within the bar of W.Va.Code, 56-3-2a, which abolishes all suits for alienation of affections. The Fourth Circuit deemed the question presented to be one of first impression in West Virginia, and certified it to us. ²

We begin with the generally recognized proposition that sexual intimacy with a patient, induced by a marriage or other counselor, is a form of malpractice permitting recovery of damages for emotional distress and other harm resulting from the malpractice. ³ The basis of the malpractice is the trust relationship that arises from such counseling services, which are designed to improve the mental and emotional well-being of the patient. In such a situation, it is recognized that the patient may become emotionally dependent on the counselor and be easily manipulated by an unscrupulous counselor.

Some courts make reference to what is termed the "transference phenomenon," which causes the patient to transfer or direct toward the counselor feelings and emotions that are held for another person. The counselor must make proper responses to the transfer in order to avoid emotional involvement with the patient. E.g., Aetna Life & Casualty Co. v. McCabe, 556 F.Supp. 1342 (E.D.Pa.1983); Horak v. Biris, 130 Ill.App.3d 140, 85 Ill.Dec. 599, 474 N.E.2d 13 (1985); see generally Stedman's Medical Dictionary 1473 (5th ed. 1982).

Woven through most of the cases is the basic thread that a counselor is required to exercise the same degree of skill and knowledge as others in the same field. E.g., Andrews v. United States, 732 F.2d 366 (4th Cir.1984); Richard H. v. Larry D., 198 Cal.App.3d 591, 243 Cal.Rptr. 807 (1988); Horak v. Biris, supra; Rowe v. Bennett, 514 A.2d 802 (Me.1986); Roy v. Hartogs, 85 Misc.2d 891, 381 N.Y.S.2d 587 (1976). The California Court of Appeals in Richard H., 198 Cal.App.3d at 595, 243 Cal.Rptr. at 809, made this statement:

"It is his further duty to use the care and skill ordinarily exercised in like cases by reputable members of his profession ..., and to use reasonable diligence and his best judgment in the exercise of his skill and the application of his learning, in an effort to accomplish the purpose for which he is employed.... Breach of that duty gives rise to an action for professional negligence." (Internal quotes and citations omitted). ⁴

Where the case involves one who counsels with both husband and wife, and becomes sexually intimate with one of the spouses, the counselor may be liable to both. The spouse who was not subject to sexual intimacy may recover for loss of consortium. This is because such spouse had a professional counseling relationship and could reasonably expect that the counselor would not act to breach the trust of that relationship. E.g., Andrews v. United States, supra; Richard H. v. Larry D., supra; Destefano v. Grabrian, 763 P.2d 275 (Colo.1988); Horak v. Biris, supra; Lund v. Caple, 100 Wash.2d 739, 675 P.2d 226 (1984) (en banc). The Court of Appeals in Horak, 130 Ill.App.3d at 146-47, 85 Ill.Dec. at 604, 474 N.E.2d at 18, spoke to this issue:

"Here, both the plaintiff and his wife were patients of the defendant, apparently for the common purpose of rehabilitating their marital relationship. Thus, the treatment of each of the spouses would reasonably have an effect upon the other spouse and the prospects of improving the couple's marriage. To this extent, any malpractice committed by the defendant in the treatment of plaintiff's wife would clearly have an impact upon the plaintiff as well."

The plaintiff places considerable reliance on Horak, but it is distinguishable. There, the husband and wife were jointly counseled, and both enjoyed a professional relationship with the counselor. The counselor's malpractice consisted of the violation of his professional trust as to both parties. It is undisputed in the instant case that only Mr. Greeson was counseled. Here, the plaintiff's claim does not rest on any professional relationship that she had with the counselor and the malpractice theory is thus unavailable. Furthermore, as discussed below, her claim for intentional interference with the marital relationship becomes substantially similar to one for alienation of affections.

This cause of action, as developed at common law, has as its wellspring the loss of consortium ⁵ between husband and wife. We summarized the elements of the tort in Kuhn v. Cooper, 141 W.Va. 33, 39, 87 S.E.2d 531, 534 (1955): "A cause of action for alienation of affections consists of three elements: wrongful conduct of defendant, plaintiff's loss of affection or consortium with the other spouse, and causal connection between such conduct and loss." (Citations and interior quotes omitted). See also Restatement (Second) of Torts § 683 (1977); 41 Am.Jur.2d Husband and Wife § 466 (1968).

W.Va.Code, 56-3-2a, abolished all suits for alienation of affections: "Notwithstanding any other provision of law to the contrary, no civil action shall lie or be maintained in this State for breach of promise to marry or for alienation of affections, unless such civil action was instituted prior to the effective date of this section." ⁶

A majority of jurisdictions, like West Virginia, have abolished the tort of alienation of affections either by statute or judicial decision. This movement toward abolition is defended for a variety of reasons. Possibly the most widely cited reason is the potential for blackmail and extortion between spouses. Another is that the court system is ill-equipped to fairly and objectively assess the loss. Finally, alienation of affections is frequently attacked for the reason that it resembles a "forced sale" of one spouse's affections. 1 H. Clark, The Law of Domestic Relations in the United States 659-61 (1987); see also Prosser & Keeton on Torts 929-31 (5th ed. 1984). These reasons reflect the consensus that marital harmony is best served by judicial noninvolvement.

Every jurisdiction that has confronted the...