This appeal is by the plaintiffs, Frances Courtney, individually, and her infant son, Patsy Jo Compaleo, who sues by and through his mother. A final order of the Circuit Court of Taylor County dismissed two counts of their complaint for failure to state a claim upon which relief can be granted. We find this ruling to be erroneous.
Frances Courtney and Denzil Courtney were husband and wife. During their marriage, Denzil allegedly physically abused Frances and her son, Patsy Jo. After the Courtneys were divorced, Frances and Patsy Jo sued Denzil and Maud Courtney, Denzil's mother, for damages they sustained from these attacks. The complaint asserts four counts: (I) that Denzil intentionally assaulted and battered Frances; (II) that Maud was liable for Denzil's tort because she, while aware that Denzil was a manic depressive and an alcoholic, nonetheless supplied him with alcohol and drugs, which she knew would cause him to become abusive; (III) that Denzil intentionally inflicted emotional distress upon Patsy
In Syllabus Point 3 of Chapman v. Kane Transfer Co., 160 W.Va. 530, 236 S.E.2d 207 (1977), we articulated the standard trial courts should employ in determining whether to grant a motion to dismiss:
See also Dunn v. Consolidation Coal Co., 180 W.Va. 681, 379 S.E.2d 485 (1989); Price v. Halstead, 177 W.Va. 592, 355 S.E.2d 380 (1987); Whitehair v. Highland Memory Gardens, Inc., 174 W.Va. 458, 327 S.E.2d 438 (1985); Sticklen v. Kittle, 168 W.Va. 147, 287 S.E.2d 148 (1981). With this standard in mind, we address the merits of each claim dismissed.
We have not had occasion to decide whether a child can recover damages for severe emotional distress in the absence of a physical injury because the child witnessed a third person verbally abusing and physically assaulting his mother.
We addressed a similar issue in Lambert v. Brewster, 97 W.Va. 124, 125 S.E. 244 (1924), where the plaintiff suffered a miscarriage after she saw her father assaulted by the defendant. The critical difference between Lambert and this case is that in Lambert, the plaintiff suffered a physical injury as a result of defendant's conduct. In Syllabus Point 3 of Lambert, we held:
Lambert was our first case to recognize a tort for physical injury "even though there was no physical impact between the body of the person injured and the wrongdoer, or any object set in motion by him." Syllabus Point 2, in part, Lambert v. Brewster, supra.
In Harless v. First National Bank, 169 W.Va. 673, 289 S.E.2d 692 (1982), we recognized that damages could be recovered for the intentional infliction of emotional distress even though the plaintiff suffered no physical injury. This cause of action is often termed the "tort of outrageous conduct" and has been recognized by a number of jurisdictions.
"`[A] cause of action will lie for emotional distress, unaccompanied by physical injury, provided four elements are shown: One, the wrongdoer's conduct was intentional or reckless. This element is satisfied where the wrongdoer had the specific purpose of inflicting emotional distress or where he intended his specific conduct and knew or should have known that emotional distress would likely result. Two, the conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality. This requirement is aimed at limiting frivolous suits and avoiding litigation in situations where only bad manners and mere hurt feelings are involved. Three, there was a causal connection between the wrongdoer's conduct and the emotional distress. Four, the emotional distress was severe.'" 169 W.Va. at 694-95, 289 S.E.2d at 704. (Citations omitted).
Again, there is a factual difference between Harless and the present case. In Harless, the plaintiff who claimed the emotional distress was the person directly subjected to the defendant's tortious conduct. However, both Section 46(2) of the Restatement and a majority of courts that have addressed this question have concluded that a third person may recover emotional distress damages, if the direct victim of the defendant's outrageous conduct is a member of the third person's immediate family, and the third person witnessed the outrageous conduct.
The foregoing authorities generally agree that the following factors must be met for a person to recover for emotional distress caused by outrageous conduct inflicted by the defendant on the plaintiff's immediate family member: (1) the defendant's conduct was "extreme and outrageous"; (2) such conduct was directed at a third party; (3) the plaintiff is a member of the third person's immediate family; (4) the plaintiff was physically present when the extreme and outrageous conduct took place; (5) the plaintiff suffered severe emotional distress as a result of the conduct; and (6) if the emotional distress results in bodily injury, any person who was present at the time of the outrageous conduct may recover.
One of the more frequently litigated questions concerning the tort of intentional infliction of emotional distress is what type of misconduct will create a cognizable claim. In Harless, 169 W.Va. at 695, 289
In several cases, we have determined as a matter of law that a defendant's conduct did not rise to the requisite level of outrageousness. In Keyes v. Keyes, 182 W.Va. 802, 392 S.E.2d 693 (1990), the decedent's brother and mother became involved in a bitter conflict with the decedent's son over the decedent's property shortly after his death. The son was neither listed in his father's funeral obituary nor allowed to ride with the family to the funeral. Finally, he was not permitted to erect the gravestone he had selected. He filed suit for outrageous conduct. We observed that the defendants' conduct was petty, mean-spirited, and a breach of etiquette, but refused to find that it amounted to outrageous conduct.
Likewise, in Kanawha Valley Power Co. v. Justice, 181 W.Va. 509, 383 S.E.2d 313 (1989), we dismissed the plaintiff's contention that he stated a claim for the tort of outrageous conduct against his employer. The plaintiff had received overpayments on his sick leave, which the defendant sought to collect. The plaintiff claimed that the defendant orally demanded payment from him. On another occasion, the employer told the plaintiff that they could discuss alternatives to his refusal to return the overpayments, which the plaintiff understood as a threat to terminate his employment. Finally, the plaintiff alleged that his supervisor treated him like a dog and other employees had implied that he was a thief. In rejecting his claim for intentional infliction of emotional distress, we explained:
We affirmed a summary judgment against the plaintiff in Wayne County Bank v. Hodges, 175 W.Va. 723, 338 S.E.2d 202 (1985). The plaintiff claimed that the bank committed the tort of outrageous conduct when it obtained an attachment on his property. The affidavit that was used to secure the attachment contained a false allegation, which later resulted in the court's quashing of the attachment. We found these facts barren of any outrageous conduct.
Finally, in Yoho v. Triangle PWC, Inc., 175 W.Va. 556, 336 S.E.2d 204 (1985), an employee claimed that her employer committed outrageous conduct when it terminated her employment after she had been off work for more than one year because of a work-related injury. We agreed with the trial court that the claim was groundless.
Thus, conduct that is merely annoying, harmful of one's rights or expectations, uncivil, mean-spirited, or negligent does not constitute outrageous conduct.
Applying the rule permitting a close family member to recover damages for emotional distress arising from the outrageous conduct inflicted on another family member, we find that Patsy Jo's complaint does state a cause of action for intentional infliction of emotional distress. The complaint alleges that Patsy Jo, as a result of witnessing this conduct, has become emotionally disabled in his ability to communicate and socialize with his mother. Moreover, the plaintiffs assert that his emotional distress is so severe that he has had to seek psychiatric care.
The trial court also dismissed the plaintiffs' cause of action against Denzil's mother, Maud Courtney. In the complaint, the plaintiffs assert that Maud was negligent when she gave Valium and alcohol to Denzil. They allege that she knew that he was a manic-depressive and that the alcohol and drugs would cause him to become violent and abusive. The plaintiffs do not assert that Maud's conduct is outrageous, but rather that liability can be imposed under negligence principles.
W.Va.Code, 55-7-9 (1923), expressly authorizes civil liability based on a violation of a statute.
See also Price v. Halstead, 177 W.Va. 592, 355 S.E.2d 380 (1987); Jenkins v. J.C. Penney Casualty Ins. Co., 167 W.Va. 597, 280 S.E.2d 252 (1981); Vandergrift v. Johnson, 157 W.Va. 958, 206 S.E.2d 515 (1974); Kretzer v. Moses Pontiac Sales, Inc., 157 W.Va. 600, 201 S.E.2d 275 (1973); Spurlin v. Nardo, 145 W.Va. 408, 114 S.E.2d 913 (1960); Flanagan v. Mott, 145 W.Va. 220, 114 S.E.2d 331 (1960); Somerville v. Dellosa, 133 W.Va. 435, 56 S.E.2d 756 (1949).
In their complaint, the plaintiffs contend that Maud supplied Denzil with Valium. "Valium" is a brand name for the drug Diazepam,
Thus, if, as the plaintiffs allege, Maud unlawfully delivered Valium to Denzil, then her actions would have violated W.Va. Code, 60A-4-401(a). However, that violation is actionable only if it is a proximate cause of the plaintiffs' injuries. Consequently, the plaintiffs must show that the Valium, in combination with Denzil's mental state and the alcohol, would make it foreseeable to an ordinary person knowing what Maud knew that he would become violent and abusive. The plaintiffs claim that he was abusive when intoxicated or after taking Valium and that Maud was aware of this behavior.
Even if Maud did not violate any statute, her alleged actions might still entitle the plaintiffs to the relief requested. In Syllabus Point 2 of Robertson v. LeMaster, 171 W.Va. 607, 301 S.E.2d 563 (1983), we adopted Section 321(1) of the Restatement (Second) of Torts (1965)
In Robertson, the plaintiff was employed by the Norfolk & Western Railroad Company. On one occasion, the plaintiff was required to work for over twenty-four hours at physical labor without rest, despite his repeated requests that he be permitted to go home because he was tired. The employer finally allowed his employee to leave, but knew that he was driving alone to his home fifty miles away. On his way home, the employee fell asleep while driving and collided with another vehicle. The injured party sued both the employee and his employer. After the plaintiff had presented his case-in-chief, the trial court directed a verdict for the employer. On appeal, we reversed, because we were "unable to say as a matter of law that the appellee's conduct in requiring its employee to work such long hours and then setting him loose upon the highway in an obviously exhausted condition did not create a foreseeable risk of harm to others which the appellee had a duty to guard against." 171 W.Va. at 613, 301 S.E.2d at 569.
In Price v. Halstead, supra, we applied Robertson`s rule to passengers in a motor vehicle to find them jointly liable with the driver for a collision with another vehicle. The driver was intoxicated, and the passengers continued to supply him with beer and marijuana.
When applying Section 321 of the Restatement to the facts of this case, we find that the trial court erred in dismissing Count II. The complaint charged that Maud gave Valium and alcohol to Denzil although she knew that he had violent tendencies when using these drugs. The plaintiffs also allege that Maud knew Denzil was abusive to them. Under these circumstances, Maud could have foreseen that supplying Valium and alcohol would create an unreasonable risk of physical harm to
In Price v. Halstead, supra, we also recognized the rule found in Section 876(b) of the Restatement (Second) of Torts (1979): "`For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he ... (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself.'" 177 W.Va. at 597, 355 S.E.2d at 386. We applied it to affix liability on the passengers in a motor vehicle who had encouraged the driver's negligent operation of the vehicle. The driver was already visibly intoxicated, yet the passengers continued to encourage him to drink and smoke marijuana. Ultimately, he lost control of his vehicle, crossed the centerline, and collided with an oncoming vehicle. The driver of that vehicle was killed, and its passengers were seriously injured. We expressed this rule in Syllabus Point 12 of Price:
Other courts have arrived at this same conclusion under Section 876(b) accomplice liability. See Cobb v. Indian Springs, Inc., 258 Ark. 9, 522 S.W.2d 383 (1975); Smith v. Thompson, 103 Idaho 909, 655 P.2d 116 (1982); Sanke v. Bechina, 216 Ill.App.3d 962, 160 Ill.Dec. 258, 576 N.E.2d 1212 (1991); Aebischer v. Reidt, 74 Or.App. 692, 704 P.2d 531, review denied, 300 Or. 332, 710 P.2d 147 (1985).
Comment d. to Section 876(b) of the Restatement identifies six criteria to use when determining whether a person shall be liable for assisting or encouraging a tort.
We adopt these factors, but conclude that they are not necessarily exhaustive.
In this case, we are unable to determine whether the plaintiffs can establish liability under this theory because the facts are not sufficiently developed. We do believe that the complaint states a claim for accomplice liability, and the plaintiffs should be able through discovery to develop facts to support the claim. Consequently, we find the circuit court erred in granting the motion to dismiss Count II.
In closing, we address a matter of public policy not raised by the parties.
A majority of courts in other jurisdictions have also abolished the common law doctrine of interspousal tort immunity. See Annot., 92 A.L.R.3d 901 (1979).
With regard to a child's right to recover damages for intentional torts inflicted by a parent, we have not had occasion to address this precise issue. In Lee v. Comer, 159 W.Va. 585, 224 S.E.2d 721 (1976), we abolished the doctrine of parental immunity where a child had been injured in an automobile accident while riding as a passenger in a car owned by her father. This was based on a line of cases recognizing that in most instances, there was automobile liability insurance coverage. Consequently, there would be no real disruption of family harmony. We summarized our holding in Syllabus Point 2 of Lee v. Comer:
In the course of discussing some of the cases from other jurisdictions that had made exceptions to the common law doctrine of parental immunity, this statement was made, which found its way into Syllabus Point 1 of Lee v. Comer:
This syllabus point was recently cited in Belcher v. Goins, 184 W.Va. 395, 400 S.E.2d 830 (1990), which might be read to suggest that we have totally abrogated the doctrine of parental immunity. Belcher summarizes the holding of Lee v. Comer as "abrogating parental immunity doctrine, thereby permitting an unemancipated minor child to maintain a negligence action against his or her parent." 184 W.Va. at 406, 400 S.E.2d at 841. (Parentheses omitted). However, Belcher did not deal with parental immunity. Its issue was whether a minor child could sue a tortfeasor, who had caused substantial injuries to the child's parent, on the basis that the child had suffered loss of parental consortium.
As we have pointed out, the abrogation of parental immunity discussed in Lee v. Comer, supra, was confined to automobile accidents. It would appear that most courts have not totally abolished the doctrine of parental immunity for negligent injuries inflicted by a parent upon a child. Rather, they have subjected the doctrine to various exceptions, as we did in Lee v. Comer.
"The strong modern inclination which accords with certain of the older rulings... is to regard the minor's damage action
We intimated in Securo v. Securo, 110 W.Va. 1, 156 S.E. 750 (1931), that we might adopt this rule were an appropriate case before us. In Securo, the child had been injured in an automobile accident as a passenger in her father's car. She sued him for her injuries alleging that he was negligent. We recognized that parental immunity precluded a negligence action;
The New Jersey Supreme Court in Foldi v. Jefferies, 93 N.J. 533, 461 A.2d 1145 (1983), noted that its child abuse and neglect laws did not fully protect children from the wilful, wanton, and intentional acts of their parents. We echo the same statement as to our child neglect and abuse statute. W.Va.Code, 49-6-1, et seq. It is primarily designed to enable the child to be removed from the home.
Courts have recognized that not every physical touching of a child will result in liability. Parents are able to discipline their children by administering reasonable physical punishment. However, when such punishment becomes excessive and results in substantial traumatic injury to the child, liability arises. Several courts have quoted this language from the California Supreme Court in Emery v. Emery, 45 Cal.2d 421, 429-30, 289 P.2d 218, 224 (1955):
Thus, the general rule is that parental immunity is abrogated where the parent causes injury or death to his or her child from intentional or wilful conduct, but liability does not arise from reasonable corporal punishment for disciplinary purposes. In this case, if the plaintiffs can show that Denzil's conduct falls within the above rule, then parental immunity will not bar their action for physical abuse and emotional distress arising therefrom.
Finally, we take no view as to the ultimate liability in this case. All we do say is
For the foregoing reasons, the judgment of the Circuit Court of Taylor County is reversed, and this case is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
"`d. Extreme and outrageous conduct. The cases thus far decided have found liability only where the defendant's conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."