Aikens v. Debow

immediately objection, judge held 541 S.E.2d 576 attorneys The then were bench conference. Inc., and Motel Richard AIKENS potential to discuss reme- given two recesses Martinsburg Econo-Lodge, d/b/a and soul much discussion search- dies. After Plaintiffs, ing, no satisfacto- judge determined question, ry as it was remedy existed. asked, prosecution; if prejudiced the Craig Paving, Robert DEBOW explaining the presented State its evidence Inc., Defendants. acquittal, prior reason the defendant for the cautionary A prejudiced. would instruc- No. 27376. damage tion that was would cure Appeals Supreme Court of done. Virginia. West requested We writ in Porter denied the directly an counsel violated because defense Submitted June 2000. lawyer ruling. tried to im- limine Decided Nov. 2000. peach prosecution asking witness if she anything. had ever arrested Since been Concurring Opinion of Justice convicted, had not been witness defense Jan. 2001. Starcher improper this was counsel was aware question. pursued question anyway. He

He was admonished twice and threatened contempt by persisted the court but

until response. the desired In the he elicited judice,

case sub defense counsel knew

prior solely identity trial was admissible

purposes and outcome of trial was persisted nonetheless

inadmissible. He and,

asking question thereby, his

mistrial. jury jury was sent to room

After the

and again each recess court con- after lengthy possible

ducted discussions about the side

remedies the ramifications each potential

of each of the remedies. After consideration,

careful the court determined necessity existed manifest to declare say

mistrial. cannot the court abused its We precipitately.

discretion or acted Under circumstances,

these we defer to the trial necessity finding

court’s of manifest and find

no appellant’s bar retrial.

III.

CONCLUSION above,

For stated writ of the reasons

prohibition is denied the rule to show

cause is dissolved.

Writ denied. Background

I. Factual and Procedural operates Plaintiff1 Richard Aikens motel Martinsburg and restaurant known as the Econo-Lodge (“Econo-Lodge”), is lo- cated on 901 and can be accessed Route exiting Spring Mills from Interstate 81 overpass Road exit. the Route 901 While shortest, bridge permits the most-convenient accessing Econo-Lodge means 1-81, traveling south-bound travelers through can still establishment be accessed 18, 1996, routing. September alternate On Debow, a truck driver and Defendant Robert Inc., employee Craig Paving, of Defendant driving was a flatbed truck north on 1-81 carrying a Because the trackhoe. traekhoe high pass safely was too under the Route overpass, an accident resulted which damage bridge. It caused substantial days for to make the closed nineteen necessary repairs. underlying

Plaintiff instituted the cause 28, 1997, seeking recovery May action on for experienced the decreased revenues he due overpass. As- to closure of the Route proxi- serting that his reduced revenues were accident, mately by Plaintiff seeks $9,000 recovery of in lost income. Plaintiff Arguing that as a matter of law in could not recover for his economic losses bodily injury proper- or the absence direct ty damage, summary Defendants moved judgment. circuit court denied Defen- summary judgment, ruling dants’ motion for in this case that “there are factual issues foreseeability pertaining to causation and Burke, Schultz, D. Michael Burke & Mar- jury appropriate for determi- which remain tinsburg, for Plaintiffs. that, court further held nation.” The circuit Lorensen, Tracey law, Michael D. A. Rohr- Virginia Plaintiff “under West Love, baugh, Bowles Rice MeDavid Graff & recovering for not be barred from PLLC, Martinsburg, for Defendants. injuries alleged to have been suffered as negligence.”

result of the Defendants’ SCOTT, Justice. court’s Following the circuit denial summary judg of Defendants’ motion question This case arises certified ment, parties requested and the circuit Berkeley County from the Circuit Court following agreed to certification of the presents the issue entitlement re- issue: covery in accompa- tort of economic loss not no by bodily injury property damage, a claimant has sustained

nied a Whether who property previously precision physical damage person to his matter not resolved with against another for this maintain an action Court. 81, Inc., Econo-Lodge. Martinsburg plaintiff 1. An additional named is Motel d/b/a prima “In order to establish case injury to another’s facie Virginia, negligence in it must be West consequentially in which results guilty defendant has been shown to the claimant. loss act or omission violation some question this answered circuit court duty plaintiff. to the No action for owed syllabus point three affirmative. broken.” negligence will lie without Mangum, 189 W.Va. Kincaid Syl. Parsley v. Motors Ac- Pt. General explained: we S.E.2d ceptance 167 W.Va. S.E.2d question framed certified When (1981). fully this is able to address so that Court Fritts, 494, 495, Syl. Pt. Jack v. W.Va. question, law which is involved (1995). Importantly, 457 S.E.2d power to refor- this retains the then Court determination whether defendant to it under both questions certified mulate plaintiff is particular case owes a Questions the Uniform Certification rather, question jury; not a factual for the 51-1A-1, W.Va.Code, et Law Act found of whether a “[t]he determination [1967], W.Va.Code, seq., 58-5-2 must owed a care the defendant questions relating to certified statute as a matter of law the court.” be rendered court of this to this Court. a circuit State Only at 435. Id. S.E.2d Court, addressing Recognizing that care, negligence, questions of due related right questions, has “retained the certified cause, negligence proximate and concurrent flexibility!,]” with some we re- issues, address them explained in present jury as we which question presented in the case frame the sub Realty syllabus point of Hatten v. Mason five (1964): thoroughly encompass 380, judice Co., to more the full 135 148 W.Va. S.E.2d 236 care, question negligence, proximate to be answered. Mil- “Questions breadth of the due Lambert, 63, 69, negligence present 195 464 is- ler v. W.Va. S.E.2d cause and concurrent (1995). 582, question, jury as reformülat- of fact for determination when the 588 sues ed, pertaining is conflict- consequently follows: evidence to such issues is facts, though undisput- ing or where the even pure- May a claimant who has sustained ed, are such that reasonable men draw as a of an inter- ly economic loss result 381, conclusions from them.” Id. at different by negligent

ruption in commerce caused 238, syl. pt. at 5. 135 S.E.2d person injury to the of a third Hatten, our we must Given reliance privity absent recover either misapprehension of that address a recent special relationship contract or some other Martin, Inc., in Harris v. R.A. decision alleged with the tortfeasor? 397, (1998), per cu 513 S.E.2d 170 W.Va. negative. in question this We answer opinion. discussing determina riam genuine fact tion that a issue of material II. Standard Review city injury, regarding employee’s existed recognized syllabus point one We repeatedly that it had this Court asserted Light v. Allstate Insurance W.Va. duty question jury that is a of fact for held (1998), 27, novo stan “[a] 506 S.E.2d de 402, at 175. Id. at 513 S.E.2d determination. applied by addressing dard is this Court however, assertion, support As for this presented by legal issues a certified above-quoted syllabus opinion references the question appellate from federal district Hatten, point from as well as three other requiring This standard de court.” same syllabus Sylla opinions citing point. to that legal applies equally to issues novo review not stand for point bus five of Hatten does by presented circuit courts. duty proposition that the existence of is a contrary, it question of fact. To the declares Duty III. The Existence of a care, “[questions negligence, due cause, any question negligence” of proximate resolution of and concurrent jury. premised upon questions funda of fact for the 148 W.Va. tort must be are 238, syl. pt. duty by at 5. The concepts of owed at 135 S.E.2d mental of the existence of a initial determination tortfeasor. however, duty, continues to be an issue re- S.E.2d Accord Wehner v. 672].” Wein stein, (1994). any solved the trial court. To correct 191 W.Va. S.E.2d misconception anomaly might this Harris person “A is not liable for which generated, we restate the law of this expected result from an event which was State, as follows: The determination of reasonably and could not have been antici particular whether defendant case pated by ordinarily prudent person.” duty plaintiff is owes not a factual Puffer, W.Va. 84 S.E.2d at question jury; for the rather the determina- syl. pt. 6. tion of whether owed a Emphasizing relationship be by a care must defendant be rendered foreseeability duty, tween explained we court as a matter law. syllabus point Gregory, three Sewell v. prior This declaration is in accord with (1988): W.Va. S.E.2d 82 law, Virginia legal West as well as commen- The ultimate test of the existence Whitworth, tators on this issue. Miller v. duty to use care found the foreseeabil- 193 W.Va. 455 S.E.2d 821 ity that harm result if it is not exer- explained Court are “[w]e mindful that is, ordinary cised. The test would the man the determination of whether there is a position, knowing the defendant’s what question is a question of law and not a of fact known, anticipate he knew or should have jury.” for the Id. at 455 S.E.2d at 824. general that harm of the nature of that Likewise, legal agree commentators likely suffered result? any question “[t]he determination of ... has been held be an issue of law for similarly Commentators have evaluated the jury, rather than for the to be duty: critical element body determined reference of stat- obligation particular [T]he refrain utes, rules, principles, precedents conduct is owed to those who are up make the law .” Negli- 57A Am.Jur.2d foreseeably endangered by conduct the . 86, (2d. ed.1989) (footnote § gence at 142 respect with to those risks or omitted). hazards whose likelihood conduct made the unreasonably dangerous. Duty, in other recognized We in Robertson v. Le- words, scope is measured the of risk the Master, 607, 171 W.Va. 301 S.E.2d 563 foreseeably which conduct en- (1983), foreseeability that while of risk is a tails. primary in determining consideration the

scope duty another, an actor owes to James, Harper 2 F. F.& The Law Torts of “[bjeyond question the of foreseeability, the (1956) § 18.2 footnote omitted. duty policy existence of also involves consid IV. Restrictions on underlying erations Limitless the core issue of the scope legal system’s protection^]” Expansion Duty of of the Id. 612, at 301 S.E.2d at 568. “Such consider appropriate application of these funda- ations injury, include the likelihood of the principles mental tort has served as a source

magnitude of guarding against the burden great controversy. Benjamin Justice Car- it, consequences and the placing that bur dozo, Touche, Corp. in Ultramares v. on den the defendant.” Id. 170, (1931), expressed N.Y. 174 N.E. 441 the danger expanding duty in Store, concept the Cigar v. Huh Puffer 327, tort (1954), to include economic interests and conse- W.Va. S.E.2d 145 overruled on in, quent grounds exposure liability of defendants “to other stated Mallet v. Pick- ens, (1999), an 206 W.Va. indeterminate amount for an indetermi- S.E.2d 436 “ syllabus point Court held nate time to an indeterminate class. The five: ‘To actionable, negligence proxi be must hazards of a business be the conducted these injury complained mate cause of the of and terms are so extreme as to enkindle doubt might reasonably must be such as implicat- have been a flaw whether exist the expected produce injury.’ ing duty exposes Point of to these conse- Crede, syllabus, [133, Hartley v. quences.” [140] W.Va. Id. 444. The ascertainment of judicial remedy defining concept the “the braces inviolate formula a universal every conceivable harm encompass abstract has cannot the parameters the wrongdoing.” alleged that can be traced proven evasive. Associated Gen. Contractors California acclaimed declaration Perhaps the most Carpenters, 459 U.S. State Council of duty was announced Jus- concept of the (1983). 74 L.Ed.2d S.Ct. Long Palsgraf Island Rail- tice Cardozo N.Y. 162 N.E. road spatial concept of to restrict the The need quoted to the decision years prior three limits something than the less suc- Palsgraf, Justice Cardozo above. cogently stated as fol- logical connection was reasonably risk to be “The cinctly observed: Valdez, No. A89-0095- lows in In re Exxon obeyed.” to be defines perceived (D.Alaska CV, March 1994 WL 182856 reasoning of frequently cited 100. The Id. at 1994): following premised Palsgraf was Exxon question is no but There carrying a An individual factual scenario: grounding impacted, in one fashion Valdez pushed by Long package of fireworks another, will people far more than ever attempting employee while Railroad Island proceedings. anything in these recover dropped The individual the train. to board public percep- is an understandable There fireworks, resulting package per- harm which is tion that if one suffers explosion caused some shock a result of the conduct ceived to be fall, platform to at the other end scales another, person should harmed at 99. The court plaintiff. Id. striking the compensated. perception does not That plaintiff could not recover that the concluded up institutional always square with the employee’s railroad because the against the law) (statutes guidelines and case under any risk involve foreseeable conduct did not operate. It is the which court must 101. plaintiff. 162 N.E. at of harm to the Congress and the courts function of both unjustifiably conduct was fact that the appeal (principally courts of and su- carrying fire- individual risky toward the courts) preme the extent determine irrelevant. Justice Car- was deemed works relation; respect to public expectations it imports “risk dozo reasoned responsibility within are to be realized. another or to others financial risk to always at 100. “What to all apprehension.” Legal Id. does not extend range of ‘proximate’ [in the word consequences mean of an acci- we do of the foreseeable convenience, that, because body, causation] is In of harm to one’s dent. the area of of justice, rough public policy, sense very is reach of what is recoverable of arbitrarily trace a series declines to law injured, great. property is Where one’s point. is not beyond a certain This considerable, events liability legal is the extent practical politics.” Id. at 103 logic. It is bodily not to the same extent as with but (Andrews, J., supplied) dissenting) (emphasis injury. pure loss is at Where any injury to with issue —not connected Supreme Court has also The United States especially body property, and one’s or prevent to draw a line to recognized the need in a ma- that economic loss occurs where exposure imposition of unlimited unfettered legal liability is setting reach of rine Supreme liability. Court reasoned —the except commercial fish- quite limited as to compo- is a doctrine of remoteness that the cause, in turn ermen.2 proximate em- nent of Circuit, F.Supp. Oppen, 975 Pruitt v. Allied Chemical in Oil Co. v.

2. The Ninth Union Cir.1974), (commercial (9th (E.D.Va.1981) per that the rou- were F.2d 558 found fishermen upon an commercial fishermen tine reliance an ex recover economic as mitted to unpolluted ability foreseeability waters satisfied the fish in general prohibiting ception to the rule justified requirement an award excep damages). this limited The rationale for exception as an of economic general explained in tion for commercial fishermen emphasized that Ninth Circuit rule. The Tamano, (D.Me.1973), F.Supp. Burgess M/V producers commercial have a offshore oil curiam, (1st per Cir. d F.2d 1200 aff ' operations in rea- their to conduct fishermen sonably Tamano, 1977). that while the court reasoned any designed prudent to avoid manner no individual and clammers have fishermen 570; life. Id. at see also diminution in marine fall; line, and to draw the to declare the otherwise, case, “duty,” every existence or form, we would have a absence Were it anarchy organized in which no one temptation as a matter of law. The is to apply rule would could count on what arguments logical accede to connection any given any given time or in situation. every while, resulting instance harm added). (footnote fact, emphasis consequences pure logic Id. at 8-9 would be socially economically ruinous. holding majority in While the Har- ris is not in conflict with our decision Approach V. Traditional Economic —No ease, present reasoning we underscore Damages in the Absence Maynard insightful Justice in his dissent Physical Impact Maynard against Harris. Justice cautioned expansion of the limitless the element of presented The sole issue for our resolution duty, postulating majority that the had “so is whether economic loss from an interrup expanded] duty, the element its exis- tion in commerce in the of damage absence given any now tence becomes almost tort plaintiffs person to a is recover injured party If a conduct of case. in a able tort action. this While Court has another, there must have been issue, directly never addressed this other avoid such conduct.” 204 W.Va. at 513 jurisdictions, exception, almost without dissent, May- S.E.2d at 176. In his Justice concluded economic loss will alone quoted, approval, following nard lan- warrant in the absence of some guage Negligence § from 57A Am.Jur.2d 87: special relationship between the compet- A must line be drawn between the the tortfeasor. In the seminal decision of ing policy providing a considerations of Dry Repair Flint, Robins Dock & Co. v. remedy everyone injured who is and of U.S. S.Ct. L.Ed. 290 extending exposure to tort almost Supreme the United States Court refused to always tempting limit. It without permit recovery dry from the dock owner and, impose concomitantly, new duties lia- when were denied use of a vessel bilities, regardless of the economic and for two of a party’s weeks because third act Thus, gen- social burden. the courts have negligence diming ship’s refurbishing. erally recognized public policy establishing long-standing rule of de considerations, social well as foresee- nying recovery in tort for indirect economic ability, important are in determin- factors injury, Justice Holmes articulated the ratio ing whether will be held to exist in nale, upon English pre particular based and American situation. cedent, justify that continues to the nonexis (empha- 204 W.Va. at 513 S.E.2d at 176 legally cognizable compensable tence supplied). sis injuries claim for such attenuated even to question: obvious draws Who the line day: spread protec “The law does not its Who, demarcating liability? tort in our soci- 309, tion so far.” Id. at 48 134. In S.Ct. ety, defining has the burden of the existence Dock, writing Dry Robins Justice Holmes “duty” of of extent the element tort reasoning upon English relied the of the case necessarily actions? It falls to the courts to Tug of Shipping Elliott Steam Co. v. The competing all consider relevant claims of the Controller, (1922), 1 K.B. 127 in which parties; recov to determine where and whom carrying injury ery negligent of of the burden the risk will was refused for interference Dock, properly rights aquatic Dry the life In to harmed oil 3. Robins the court stated: pollution, the fishermen sue for could tortious rule, least, general person a at a tort to the [A]s public right, having invasion of a suffered dam- property man of one does not make the ages greater degree general public. than the merely tortfeasor liable to another because the F.Supp. recognized 370 The court the oil 250. injured person was under contract with that spill as an interference with the "direct exercise wrong. other unknown to the doer of the public right dig of the to fish and to clams” was, fact, 275 U.S. at 48 S.Ct. 134. special which interest different general public. from that of the Id. 494 rights.4 Misc. Hauling Holt Sun Oil N.J. A.2d 267

with contractual See Ming Joy, (N.J.Sup.1945), remarkably Warehousing Sys., v. a ease similar to Inc. & M/V (E.D.Pa.1985) Court, scrutiny by plain 896 n. 13 the one under P.Supp. Dry sought Dock to argument that Robins tiff business recover “losses (rejecting owners expectant only gains” with economic from from a applies to “interference defendant barge damaged expectancies only negligently to whose generally interference draw stating bridge which as the of with contractual interests” served means Dry plaintiffs’ Dock to the precept the Robins access island on which busi established “ essentially premises Id. at In principle ‘is of disallowance ness were situated. 268. remoteness’”) (quoting granting the motions defendant’s to strike because Struma, Transp. complaints, held that Co. F.2d the the court “[defen Venore M/V Cir.1978)). (4th negligent dant’s] action cause of injury plaintiffs, it but is not the factual involves Where the scenario proximate negli natural and effect of such plaintiffs use right contractual gence and Id. [is] therefore actionable.” tortfeasor, damaged by a courts have invoked The court observed: deny- a basis for the Torts as Restatement The entire assumes doctrine the defen- ing of action dam- causes limited necessarily dant is to be all held for not. Morris, Emerson, ages. Philip In Inc. v. consequences his acts. Professor plain- 368 S.E.2d 268 the Va. McLaughlin, 39 Harvard Article Law Re- recovery profits tiff sought lost his (Dec.1925) It view 149 at 155. is funda- negligent campground business due to the mental must be some there reasonable gases proper- from release of the defendant’s liability limitation of for the commission of ty. Citing well-recognized principle the wrongdoer tort. is not liable in recognizes of Torts5 which Restatement eyes possible all the law for conse- ability with that interference contract quences. responsible He is thus in dam- permit persons with third too remote ages only for probable the natural and recovery, permit refused to recov- consequence of his act. ery profits allegedly sus- inability (citation from his to contract with omitted). tained 41 A.2d at 269 The court overnight stays. campers for 368 S.E.2d at recognized that rule embraces within “[n]o (Second) (citing Restatement Tort scope resulting consequences its all the (1979)). § 766 given act. to impose would be effect liability entirely disproportionate act denying in the ab- perform or to committed failure to impact, physical frequently courts sence duty assumed.” Id. refer to this element remoteness between Love, negligence and the act In Kohl v. 37 N.J.L. 1874 WL 1874), injury. (N.J.Sup. of such Jersey source Rickards v. the New Su- prohibition against obviously distinguishable judice 4. The due to the factu- physical impact apparent tort in the absence of is actions, provoke al and relational scenarios such product in the context of litigation. essentially which the economic losses are con- parties, allocable tractual and in as reflected provides 5. Section 766 as follows: warranties, purchase price or insurance. See Corp. Leasing Motors Negligent Bocre General Interference Contract or Pro- 685, 688, N.Y.2d 621 N.Y.S.2d 645 N.E.2d spective Contractual Relation. One lia- is not (1995). recognized Courts diffi- pecuniary ble to another harm not derived culty transposing underlying the rationale other, if harm to the that harm product economic loss doctrine within the liabili- negligently results from the actor’s ty ordinary negligence framework to cases where (a) causing person perform not to a third contractual, the are commercial elements absent. other, contract the or product We therefore reference the eco- (b) interfering performance with the other’s legal paradigm, rule as a nomic loss similar often making performance the of his contract or reasoning analogous resolved with to that em- burdensome, expensive more or or realm, ployed refrain within this but we from (c) interfering acquiring with the other’s placing emphasis upon relying cases or those person. contractual with a third relation upon resolving their rationales in the case sub

495 everyone States, preme Corp. observed that not who Foods v. Court General United (D.Md.1978), a loss can maintain a suit. 111 F.Supp. plaintiff suffers 448 the sought manufacturer to recover economic of to action- relating The limit the doctrine damages bridge from the defendant owner is, negligence person that occa- able damages allegedly arising economic from sioning duty, arising the loss must owe a closing of the Penn Central Railroad otherwise, person contract or from to the Bridge Chesapeake over and Delaware sustaining such loss. Such a restriction by ship Citing Canal caused wreck. Robins right to for a sue want of care Dry proposition Dock for the that economic employments transaction exercise or the by plaintiff conducting losses suffered business, plainly necessary to restrain business, proven, its if even are not recovera remedy being pushed from to an im- law, damages as a ble matter of the court practicable extreme. There be no would plaintiffs complaint, explaining: dismissed intricacies, litigious bounds actions and ill negligences men if effects of Courts which have addressed this issue be could down the chain results followed repeatedly expressed concern that a to the effect. final contrary open would rule the door to virtu- (emphasis supplied); Id. at 8 see also In re suits, ally highly specu- often of a limitless Carriers, Navigation Sulphur Marine Inc. v. lative and remote nature. Such suits (4th Indus., 700, Lone 638 F.2d 702 Star expose would to a defendant Cir.1981) (affirming district dismissal court’s penalty, produce severe and would serious plaintiffs damages claims for economic problems litigation, particularly in the arising bridge closing noting from and that proof apportionment and areas of of dam- economic, nonphysical alleged “[t]he losses ages. legally compensable”); were too remote F.Supp. 448 at 113. Co., Petition Kinsman Transit 388 F.2d (2d Cir.1968) 821, ease, recovery analogous (denying Innkeep- 825 In an Nebraska ers, plaintiffs who expense Pittsburgh-Des incurred economic due Inc. v. 345 Carp., Moines drifts, (Iowa wrecks, 1984), ship to destructive chain of ice Supreme N.W.2d 124 the Iowa bridge damage observing viability and that “the Court of an action considered negligence brought connection between by defendants’ various business owners to recov- damages claimants’ purely resulting is too tenuous er losses from the permit recovery”).6 bridge repair remote closure certain structur- Co., Roberts, Kingston Shipping by allegedly negligence); 6. See also v. Inc. caused defendant’s (11th Cir.1982), denied, 667 F.2d 34 cert. ABC Util. v. Glass General Public Kitchens Lancas- Co., Kingston Shipping N.V. Containerline v. 458 ter, Inc., (1988) Pa.Super. 542 A.2d 567 U.S. 102 S.Ct. 73 L.Ed.2d 1369 damages (denying corporations loss (1982) (holding that vessel owners could not re Pennsylvania associated with Dutch tourist delayed resulting cover economic losses industry sought damages who for economic loss vessel, passage delays alleg where were such County due to diminution of visitors to Lancaster edly by negligence); caused defendant’s DeVille- incident); after Three Mile Island nuclear Moore Inc., CV920294190S, Quality gas Roofing, No. Inc., Pavex, Pa.Super. A.2d (de (Conn.Super.Ct.1993) WL 515671 at *3 (1986) (ruling that “there could be no nying recovery stating of economic loss case for economic "long that the established common law rule in property in who did not suffer harm to privity this state that in the absence interest”); they proprietary had United defendant, plaintiff contract between the Siegler Seating Corp., Textile v. Lear Workers plaintiff’s person property, of an (Tenn.Ct.App.1990) (holding in- S.W.2d 83 negligence not recover in for a employees park could eco- dustrial not recover loss”); Georgia Willis v. North physical damage nomic without when Railway Ga.App. ern 314 S.E.2d gas allegedly park was closed due to leak caused (1984) (concluding employees could negligence); & defendant’s Coastal Conduit wages employ lost recover due to the closure of Energy Corp., Ditching, Inc. v. Noram 29 S.W.3d plant allegedly negli er’s which was (holding (Tex.App.2000) 2000 WL gence railway company); of defendant Local Stern, that economic loss could not be recovered Joint Executive Board v. 98 Nev. (1982) against gas negligence operator, (ruling employees lines P.2d 637 action hotel duty). wages could not recover lost hotel fire based due to absence Co., Ry. Affirming North Western Wis.2d the lower court’s al defects.7 (1970)). defendants, summary judgment to The court observed grant N.W.2d of “uniform[,]” po- recognized, Enterprises, the that “[i]n as further in the court Leadfree ease, negligence seeking is rejecting actions economic there less a fear sition of the “regardless damages wanting of how pure claims than a sense of economic of fraudulent the flow of point claimant be commerce to stopping vital to the in order to a sensible at interrupted.” Id. 126. Critical to crushing liability that on a preclude open-ended, ruling 808; its conclusion that the court’s F.2d see Dun- tortfeasor.” 711 also general Labs., Inc., to that rule such as “[ejxeeptions dee Cement v. Chemical Co. physical injury Cir.1983) bridge, (7th the or ownership of (discussing F.2d damages property or the claimant’s direct against policy advocating permitting reasons person, a direct contractual relation recovery party third of economic losses [wejre wrongdoer factually not alleged the legitimate fear “conclud[ing] that there is present Id. here.” crushing litigation would that a burden of allowing recovery for economic result from necessity imposing of recognized line this”). damages like of re- of demarcation actionable theories as for covery another rationale the serves Astutely anticipating economic chaos purely damages. denial economic Ste- of permitting result theoreti- would Co., East 73 N.E.2d 200 venson v. Ohio Gas. injury, cally recovery of limitless (Ohio Ct.App.1946), the Ohio court held that court in Aikens v. Baltimore & R.R. Ohio neighboring company employees of could Pa.Super. 501 A.2d 277 wages they lost incurred after recover recovery for losses indirect economic denied explosion were to an evacuated due fire employees wages lost due to incurred who allegedly negli- the defendant’s causing alleged negligence in the defendant’s gence. fol- The Stevenson reasoned as damaged plain- a train which derailment lows: plant. employer’s tiffs’ The court affirmed usually given the reason for While complaint opined: of the dismissal permit recovery in this class of refusal of of for that allowance a cause action damages is that “indirect” or cases are ad- negligent with economic interference opinion is our are “too remote” it vantage would an undue burden create principal reason that has motivated the action, industrial freedom denying courts in in this class of disproportion would create between permit recovery that to eases is dam- might large amount open ages would door in such cases and the extent the defen- recovered litigation might very well mass of dant’s To a cause of action fault. allow long so overwhelm courts that in negligent loss cause injustice might special run while in result open every person would be to the door cases, justice ends are conserved. per- chain of the the economic bring son or a cause of action. business added). (emphasis Id. at 203 clearly in- outstanding burden Such an fashion, Circuit, In similar the Seventh appropriate danger and a to our economic affirming court’s the district dismissal system. seeking damages arising action omitted). (citation Id. at 279 bridge closing, from a that exten- reasoned liability analyzing development legal sion theo- the absence of harm a efficacy permitting person regarding eco- would thrust ries just courts into “a field with no sensible or nomic the absence harm, stopping point.” Appeals Enterprises, Inc. v. the United States Court Leadfree Corp., 711 Louisiana United States Steel F.2d 808 the Fifth Circuit State of (7th Cir.1983) (5th Testbank, Cir.1985), Chicago (citing Hass F.2d & M/V sought recovery ranty purpose. negligence particular 7. Plaintiffs as well fitness for a implied N.W.2d in strict and breach of war- at 125. leading authority minori- for the authority scope and of Rob- nized reexamined departure ty represents had from a Dry Two vessels collided view and ins Dock. Outlet, resulting in and British Mississippi substantial collection of American River Gulf Airlines, spill. Fearing widespread Express con- Inc. v. People a chemical cases. In tamination, to authorities closed the outlet Rail 100 N.J. Consolidated twenty days. approximately navigation Jersey per- for court A.2d 107 the New including Forty-one plaintiffs, commercial recovery where leak mitted economic marinas, fishermen, operators and bait railway from a car forced toxic chemicals shops, cargo operators, terminal tackle air- twelve-hour evacuation of commercial suit, and ac- owners filed those restaurant adjacent to building office the site line In its canvass of tions were consolidated. plaintiff sought Id. at 115. The to leak. law, Testbank court relevant ease the M/V expenses flight incurred for cancella- recover opposition to acknowledged the the exclu- revenue, tions, bookings and certain lost sionary policy prohibiting recovery of eco- operating expenses. permitting the ac- physical damages in the absence of nomic tion, foreseeability applied special the court push to impact “[t]he and noted that delete rule, reasoning that defendant would be recovery on for economic loss the restrictions damages proximately for liable support early 1940’s had lost its requiring that the defendant must have majority Id. at 1023. The of the failed.” special “knowledge or reason to know the interpreta- the traditional reasserted consequences of tortious conduct Dry tion of Robins Dock and concluded persons likely terms of the to be victimized all loss in the absence of claims economic likely of the to be and the nature physical should be excluded: Id. suffered....” oral After extensive additional briefs and Narrowly crafting apply its to a decision unpersuaded argument, we are that we group, particularized the New limited and ought drop physical damage pro- to a Jersey court held: prerequisite prietary interest as recov- contrary, ery for loss. To the economic of care to that a defendant owes history our and cen- reexamination to avoid risk take reasonable measures purpose pragmatic of this restriction tral causing damages, aside from foreseeability heightens the doctrine injury, particular plaintiffs or Ultimately to it. con- our commitment we comprising an class identifiable clude that without this limitation foresee- respect to whom defendant knows ability ability loses much of its to function likely to know are to suffer has reason as a rule of law. A damages from its conduct. defen- such to this of care failing dant to adhere justice concurring A 752 F.2d 1021. ex- for such economic be found liable proxi- pressed reservation the issues damages proximately caused its breach cause, foreseeability, mate and remoteness duty. adequate guide provide could “alone normative, pre-event distinguishing, on a ba- explaining its 495 A.2d at 116. further sis, the classes of cases in which between departure from doc- rationale for established and those in it will be allowed trine, Jersey court noted: the New (Garwood, J.,

will not.” Id. at 1035 concur- proximity of the North Terminal the close ring). People Express Airlines the Conrail Minority Recovery VI. The View: yard; obvious nature of the freight Damages of Economic Under particular plaintiffs operations and fore- Limited Circumstances resulting from seeability of losses evacuation; the defen- an accident and jurisdictions permitted A few recov- knowledge of constructive damage dants’ actual or ery without oxide; ethylene properties of person limited cir- the volatile under certain emergency re- of an Jersey Supreme and the existence cumstances. The New prepared by some of the de- concept recog- sponse plan approach to this Court’s (alluded Express building People in of oral in was rendered un- to the course fendants apparently called for by the of toxic argument), inhabitable the release Thus, to avoid the nearby to be evacuated gases. People Express, area in the New explosion. in of an risk of harm case Jersey could its court have reached decision by reasoning building that to a unin- render test, fashioning its court in 118. In the Id. at by releasing poison gas against it habitable liability that People Express determined physical damage constitutes a direct to that proportion foreseeability in direct to “stand building. particular The more is the another[:] one foreseeability that economic loss will be suf- Analysts People Express of the rationale by plaintiff as a result of defen- fered the ap- have also criticized the wisdom of that just is it that negligence, the more dant’s proach by emphasizing that the “Court itself recovery liability imposed and allowed.” be contradictory the and inconsistent na- noted Id. at 116. reasoning” by acknowledging ture of its the analysis facts An involved the predicating recovery inherent limitations to Express supports the conclu

People decision principle foreseeability. particular on a Jersey court traversed a sion that the New Siegler, People Lear 825 S.W.2d 86. The closely navigat-' akin to that logical path more Express court that will stated “there arise involving physical damage to ed cases many similar cases that cannot be resolved property. Subsequent to the Three Mile Is today.” our decision 495 A.2d at 117. incident, similarly plaintiffs land as nuclear recognized The court further that: temporary loss of serted claims use present some cases will circumstances that property” “damage as a defy categorization cir- the here devised to result of the intrusion of radioactive materi duty, limit cumscribe a defendant’s orbit of resolving air. In through als the ambient otherwise boundless and define an their claims Commonwealth of Pennsylvania plaintiffs may identifiable class of re- Public Utilities General eases, (3rd Cir.1983), cover. these the courts will be F.2d 117 the United States fairness, required upon to draw notions of Appeals for Third Court of the Circuit ac morality common to fix sense the line knowledged complaints did not con that the limiting liability public poli- physical as matter any tain claim of for direct cy, application damage any plaintiffs’ property. rather than an uncritical the principle particular foreseeability. court the Id. at 120-21. While the lower had pure concluded that the losses claimed were 495 A.2d at 116. unrecoverable, ly in nature and the typically In another case referenced as plaintiffs radioac contended “increased supportive minority position on this is- tivity and radioactive materials emitted dur sue, applied “special California the ing permeated the nuclear incident the entire relationship” exception permitted a res- area, public buildings and this rendered the profits allegedly taurant owner to sue for lost time, temporary period unsafe promptly a contractor’s failure physical upon intrusion constituted a install and maintain an air conditioner. plaintiffs’ properties.” Id. at 122. The Corp. Gregory, 24 J’Aire Cal.3d gaseous plaintiffs that the intru maintained (1979). Cal.Rptr. plain- P.2d requirement sion satisfied the tiff introduced evidence that the reliance justify recovery harm to upon conditioning air function was re- plain tort. The Third Circuit found brought peatedly to the defendant’s atten- tiffs’ contentions were sufficient to defeat a concluding tion. that such action could be summary judgment, permitting motion for maintained, explained the court that “a con- prove plaintiffs opportunity an that an tractor owes a of care to the tenant of may still invasion invisible substance building undergoing construction work to physical damage warranting constitute a re covery prosecute in- that work a manner which does of economic loss. Similar injury habitability problems experienced by not cause undue to the tenant’s busi- ness, reasonably plaintiffs, where such fore- Three Mile Island upon obligation, sounding him an Id. at 66. The court’s decision tort seeable.” contract, way and not in to act in such a expressly predicated permit injured. that B special relationship: will not be The incidental existence of fact of contract A special relationship the existence exists between ‘Where negative responsibility does not parties, recover for loss of actor when he enters a course of through expected advantage expected conduct which affirmative negligent performance although of a contract person. to affect the interests another parties privity.” not in the were contractual Id. at 63. Prosser, Torts, (citing at 470 P.2d Law of 93.) Ed., 4th Section frequently support case as another cited minority position, employer sought the VII. Conclusion recovery for economic loss sustained as a thoroughly considering After the injuries employees. of tortious his result to potential permitting of a intricacies rule the Mattingly College, Sheldon Jackson recovery damages physi of economic absent (Alaska 1987). employees P.2d 356 Plaintiffs injury, personal cal or that an we conclude injured dug by a were when trench Sheldon purely individual who sustains economic loss College employees collapsed, Jackson which interruption by from an in commerce caused prevented cleaning drainpipe. them from a negligence may another’s not recover dam sought recovery Plaintiff of economic dam- ages in the absence of harm to that ages result the loss of of his services person property, individual’s or a contractual employees. Supreme Pivotal to the Alaska tortfeasor, relationship with alleged the or permit recovery court’s to decision special relationship some other between the in this was its ease determination that the alleged tortfeasor and the individual who sus plaintiff particular- was “foreseeable purely damages tains sufficient to plaintiff.” Although ized Id. at 361. recov- compel conclusion that had the the tortfeasor ery permitted, of economic the particular plaintiff and that the recovery only court made clear is that such injury complained clearly of was foreseeable permitted where it can be established special to the tortfeasor. of a The existence “particular the defendant to owed relationship largely by will be determined the plaintiffs comprising or an identifi- particular plaintiff extent to which the is respect class with to whom able defendant differently society general. affected likely knows or has reason know to are It be evident from defendant’s the suffer such from its conduct.” Id. knowledge specific to know of reason the (quoting People Express, at 360 495 A.2d at potential consequences wrongdoing, of the 116). persons likely injured, be special relationship plain- The between damages likely special to be suffered. Such alleged tiff and the tortfeasor was also em- relationship may proven through be evidence phasized in frequently another case cited for foreseeability harm of the nature of the minority view. v. Kober Hawthorne particular plaintiff or an suffered Co., Construction Mont. 640 P.2d identifiable class and can arise from contrac had suffered econom- privity tual As ob other close nexus. delay shipment ic losses due to a Maryland served court in L & P acknowledged steel. The court that “[t]he Ailing Cory Converters v. 100 Md. & negligence perfor- action is one for in the (Md.1994), App. 642 A.2d 264 a civil duty.” mance contractual Id. at 470. negligent misrep action which the tort Concluding that such action could be main- asserted, resentation was “Where failure harm, foreseeability tained because of the a risk of eco exercise due care creates the court relied Prosser’s textbook rea- loss, nomic an intimate nexus between the soning: generally require parties required. A, [B]y entering into a with contract the ment of an intimate nexus satisfied may place privity equivalent.” defendant himself such a contractual or its Id. (citations omitted). impose Maryland B relation toward that the law will recovery narrowly tailors to conform continued, of contractual “In the absence scrutiny. facts of the case under has been found and equivalent privity, its sufficiently ‘a close imposed when tort factu under the limited Our decision (quot- Id. relationship’ is shown.” nexus or ques presented in this certified al scenario Connors, Md. ing Weisman prior rulings impact upon has no our tion (1988)). attempt by Any this A.2d dam permitting parame- specifically define to more Court special negligence actions where a ages be held circumstances ters of plaintiff and relationship exists between the relationship” would cre- “special establish holding in alleged Our tortfeasor. clarity. than confusion ate more fact, is, judice sub consistent case underlying rulings, and we rationale such holding upon analy our base our We previous recognition that affirm our where law, area of tort complexities sis narrowly relationship can special defined through evolve both historical demonstrated and a between the tortfeasor be established concerns, our and belief and current ment plaintiff deprived was of an economic who fabricated to hybrid approach must be benefit, that a In can held liable. the tortfeasor nature, claims duty of meritorious authorize exists because cases of simultaneously relationship. special a barrier class providing special The of the while plaintiffs in cases were liability. common of involved those limitless against tortfeasor, and particularly foreseeable analysis po of permeates the thread which proximately were caused the economic losses recovery in the absence of tential economic negligence. by the tortfeasor’s recognition of the un physical harm is the spe concept duty. Absent some derlying of example, For auditors8 have been held of which will relationship, the confines cial in plaintiffs bought who stock reli- liable upon the facts of each rela depending differ upon negligently ance a financial statement duty. simply is no A thor tionship, there surveyors9 prepared corporation; for a comprising of the cases ough examination pur- inspectors10 liable to remote termite minority as the referenced what has been property; engineers11 and archi- chasers 12 ours, reasoning similar to upon who view reveals tects liable to contractors relied recovery only for opportunity plans negligently prepared for provides the contractors; relationship at- showing special of a be owners who later hired the upon a 13 torneys public14 alleged and notaries liable to ben- plaintiff and tortfeasor tween Adler, 324, Rosenblum, recover additional contract Inc. v. 93 N.J. contractor could See H. 8. (1983) (finding independent negligently engineering audi- A.2d 138 firm which 461 costs from negligence in an inaccurate resulted prepared plans). tor whose public held liable to financial statement bought company; subsequent- in stock who stock Fire 12. See Board Educ. v. Van Buren and worthless). ly proved to be stone, Architects, Inc., 140, W.Va. S.E.2d 165 267 (1980) (permitting main 440 board education 9, Gates, Capper W.Va. 454 S.E.2d v. 193 9. See contractor, against engineer, and tained action (1994) (holding finding supported evidence 54 bonding company alleged negligence in site surveyor negligent in connec was that defendant Donnelly project); preparation Constr. for school project.); tion with unsuccessful subdivision Roz Obera/Hunt/Gilleland, 184, v. 139 Ariz. 677 Co. Mamul, 54, (1969) ny 43 Ill.2d 250 N.E.2d 656 v. 1292, architect, (1984) (holding P.2d 1295 hired surveyor (finding negligence in whose resulted by county, cost liable to contractor for increased boundary depicting lot held liable to in error plans specifi to errors in purchaser). of construction due cations). remote 317, Dobson, Stemple v. 184 W.Va. 400 10. See (1990) charged neg (inspectors S.E.2d 561 Talbott, 745, 13. v. 182 W.Va. 391 See Keister failing ligence termite infestation to discover (1990) (examining attorney’s negli S.E.2d 895 Carmichael, Hardy during inspection.); v. termite examining gence certifying real title to 218, (Cal.Ct. Cal.App.2d Cal.Rptr. Hamm, estate); Cal. Lucas v. 56 Cal.2d (termite negligence inspectors whose App.1962) Rptr. cert. denied 368 364 P.2d 685 purchase home liable to of infested resulted (1962) 82 S.Ct. L.Ed.2d 525 U.S. (finding attorney buyers). out-of-privity home negligence deprived in whose Constr., Inc., beneficiary proceeds will Sand, tended Nagel v. 11. National Inc. See (sub- Heyer (1990) beneficiary); Flaig, 70 Cal.2d liable to Mich.App. 451 N.W.2d wills; question public policy. purely it is a prepare real negligently eficiaries defects; damages sought by plaintiff may for failure to disclose brokers estate indistinguishable in terms of companies15 to individu- be societal enti- telegraph liable contract due to the tlement those incurred to secure a als who failed block, message. restaurant owner the next the an- of a negligent transmission town, tique dealer in the next and all the holding of this emphasize We also ripple-effect experienced by “losses” each alleging strictly plaintiffs applies ease employer every and each resident of town interruption from an loss village surrounding location of negligence. another’s commerce negligence. crafting initial act of rule to encompass, opinion does not This therefore damages, address the issue we upon, prior rulings no our and has effect attempted expression to avoid monitoring, negligent in regarding medical judicial permit which would definition cases, distress or nui fliction of emotional of a class action as a maintenance result Westinghouse Elec. Bower v. sance law. See every of almost car wreck and other inconve- (1999) 522 S.E.2d 206 W.Va. citizenry. nience that results to our state’s monitoring in absence (permitting medical Ashland, injury); Stump present determining questions and ex- (1997) Inc., 499 S.E.2d 201 W.Va. particular plaintiffs, tension of to actual (holding that did not have widespread specu- Stevenson echoed injury being ly inflicted recover witness concerning ripple negli- lation effects of distress infliction emotional gence pure claim economic loss based plaintiffs present at of were scene where and observed: event); v. Bill Rich injury-producing Marlin might well occur where a manufac- Cases 635, Constr., Inc., 482 620 198 W.Va. S.E.2d obliged turer would to close his be down (1996) required (finding is not to inability sup- factory because of the of his asserting claim for prove physical plier prompt to due to a fire loss make distress); infliction of emotional deliveries; power company with a con- 578, Corp., 168 W.Va. West v. Nat'l Mines supply factory electricity with tract to a (1981) (finding to entitlement S.E.2d profit it deprived would be of the which injunction mandatory requiring preliminary operation if of would have made coal to abate nuisance where defendants interrupted by factory had not been reason to public on road caused dust truck travel damage; of a man who had a contract fire surrounding plaintiffs’ settle on house building may paint a not be able property). work; a proceed with his salesman who factory products of the of this matter of restric- would have sold the The resolution commissions; ultimately may deprived of his liability is a matter of be tions on tort Palsgraf, neighborhood N.E. at restaurant which relies on “practical polities.” (Andrews, J., factory employees may dissenting). “law arbi- of the the trade of a substantial loss. The claims trarily to trace a series of events suffer declines words, wages for loss of who were em- beyond point.” Id. In other workmen a certain 225, (1969) (at- beneficiary deprived proceeds Cal.Rptr. tended who was of 449 P.2d 161 will). torney failing plaintiff- inform of held liable for testamentary beneficiary’s mother of the conse- Tatum, remarriage, reducing quences planned bene- a Tel. Co. v. 35 Ala. 15. See Western Union denied, estate). ficiary's App. share 49 So.2d 673 cert. (1950) (telegraph Ala.App. 49 So.2d Cinello, delayed Galloway company liable for deliv could be held 188 W.Va. 14. See offer, (1992) (based ery containing Virginia telegram a contract upon West S.E.2d 875 29C-6-101(1999), thereby causing plaintiff notary public to not obtain a con § is lia- a Code tract); Milling Co. v. Western Union Tel. persons proxi- involved for all ble to mately Bluefield (1927) misconduct); (proof notary’s 104 W.Va. 139 S.E. 638 official delay in the transmission Biakanja Irving, 320 P.2d 16 an unreasonable message 49 Cal.2d valid, negligence (1958) presumption (notary public creates a who failed to secure part telegraph company). signature in- of will held liable to witnesses to injustice, society whether ment of will suffer factory and cannot contin- a in such ployed defendant, fire, plaintiff or if there are repre- situated as because to work there ue and no con- no finite boundaries claims fraction of the a small sent rights fines within which if is allowed would arise which accept can be determined. We defendants of cases. this class expressed the wise admonition over centu- at 203-04. 73 N.E.2d ry ago, language simple eloquent, both rights of to focus In an endeavor proven by passage of time and the les- typically consid- parties other innocent no experience: “There would be sons ered, reconstructs Steven- commentator intricacies, litigious if bounds to actions and paradigm, follows: son negligences of could ill of the men effects manu- might occur where a well Cases chain of be followed down the results his obliged to close down facturer would be at 8. final effect.” N.J.L. Kahf employees factory the manufacturer’s [and Question Answered. Certified spend days obliged to idle would be inability of income] without because of the STARCHER concurs files Justice supplier due to a fire manufacturer’s] [the concurring Opinion in which Justice deliveries; prompt [em- to make loss joins. McGRAW con- power company with a ployees a] STARCHER, Justice, concurring. factory electricity supply with tract (Filed 2001) Jan. deprived [their income] would [they] operations would have made if the majority opinion demonstrates interrupted by factory had not been struggle development classic damage; [person] who had of fire reason crafting law: battle between common paint house] a contract to worker’s [the people or businesses that are remedies proceed [the] not be able injured injured people or businesses —even work; agent] who would [travel in a sense —as a direct and packages] [the sold workers vacation proximate of a tortfeasor’s careless- cause commissions; deprived of [her] random, ness, protecting litigants from delivery [teen-age gardener, grocer’s limit. unpredictable without teacher, weekly person, piano and the majority opinion’s step applaud I bold housekeeper who serviced the worker’s forward, recognition its that a tortfeasor family] may a suffer sub- [each] home certain, clearly party may a owe foreseeable stantial loss. causing duty a care to avoid “an due Silverstein, Eileen, Recovery in Tort On in interruption in commerce” which results Loss, 32 Pure Economic U.Mich.J.L.Ref purely separately I economic loss. write (1999). emphasize position in a that this Court is not every predict situation where a tortfea- essentially recognition Tort law is a may a actions have an adverse effect on sor’s expressing finite boundaries of limitations interests, party’s party a with a recovery. absurdity of Using the these relationship” “sufficiently or close nexus examples, purely logical chain-of-reaction but that ac- the tortfeasor such the tortfeasor’s expressed have dis courts and commentators liability. basis for tions form the liability and also cau dain for limitless have applying ruling to such situations the Court’s injustices which against potential tioned future, in circuit courts must use the obligation is to might result. This Court’s legal duty, existing concepts of breach of beyond law will not draw line plain- duty, proximate causation to allow declare, tort, protection its in and to extend losses, remedy for their economic tiffs a law, that no exists be as matter of protecting from tort liabili- while defendants yond It is not a that court-created line. ty almost without limit. class of protection of a certain matter law, defendants; widely champion recognized it is nor is it a matter of common “duty” princi- ing plaintiffs. concept that the is flexible the causes of certain class upon seg- ple dependent is circumstances. question public policy. It Each century ago, “[njegli- physical injury damage. As over a or we stated gence taking way, violation of is the Phrased another a defendant can arbi- trarily given impose circumstances. It is wreak economic havoc and care under the absolute, upon always party but is relative to severe economic losses another some time, impunity, place, per- long party so as that circumstances of manner or other physically injured Syllabus isn’t or doesn’t sustain Liverpool son.” Point Dicken v. Co., property damage. The defendants insist & Coal 23 S.E. 582 Salt W.Va. (1895). apply unchangeable that we are bound to We established a broad test for cir- common law in this “rule” case. As the determining cuit courts to use whether a clear, majority opinion makes this Court dis- plaintiff duty Syllabus defendant owed agrees proposition. with this Point 3 Gregory, of Sewell v. 179 W.Va. (1988)

371 S.E.2d 82 where we stated: point Commentators1 to the numerous in The ultimate test of the existence of a contrary stances where have — duty to use care is found the foreseeabil- Dry progeny Robins its Dock and al —been ity that harm if result it is not exer- purely lowed recover for economic losses is, ordinary cised. The test would man physical proof injury the absence of or position, knowing in the defendant’s what property damage. majority opinion lists known, anticipate he knew or should have exceptions numerous to the “absolute” rule general that harm of the nature of that defendants, suggested where courts likely suffered result? permitted plaintiffs have to recover economic proximately losses a tortfeasor’s reasoning The fundamental behind this test carelessness, all in the absence of “liability that a repa- defendant’s to make property damage. supra, See injury, by negligence, ration for an is found- 8-15, at 500-01 fn. 541 S.E.2d at 590- W.Va. original duty, enjoined ed moral pointedly 91 fn. 8-15. As one court stated upon every himself, person, so to conduct rejecting notions of the of an existence injure rights, exercise his own not to rule, unchanging, common absolute law Syllabus another.”' Point Blaine Chesa- “[tjhese exceptions expose hopeless (1876). arti peake & O.R.R. W.Va. ficiality per against recovery se rule argued The defendants the instant ease purely People Express economic losses.” Flint, Dry Repair Robins Dock & v.Co. Airlines, Inc. v. Rail Consolidated U.S. S.Ct. L.Ed. 290 (1985). 246, 261, 107, 115 495 A.2d N.J. (1927) progeny and its form the basis for a regarding allowing plain- black-letter rule law a defen- courts resisted When caused, plaintiff may negligently dant’s that is no absolute: tiffs to recover for but economic, losses, purely recover for economic losses caused the courts have ex- proof judicial system pressed the defendant the absence of of a concern about the See, Silverstein, e.g., Recovery covery Negligently 1. Eileen "On for Inflicted Economic Loss: Loss,” Reassessment,” (1985); Tort for Pure Economic 32 U.Mich. A 37 Stan.L.Rev. 1513 Bernstein, Comment, (1999); "Negligent J.L.Ref. 403 "Civil Interference with Con- Herbert Liability Recovery," Knowledge for Pure Economic Loss Under Ameri Standard for tract: As a Law,” Note, (1998); (1977); Am.J.Comp.L. can Tort 63 Va.L.Rev. 813 Case "Torts— Contract, Steffey, "Negligence, Occupation Matthew S. Interference with or Business —Com- Loss,” Liability Ky. Architects’ for Economic mercial Fishermen Can Recover Profits Lost as a Lieder, (1994); Negligently Spill,” L.J. 659 Michael Oil 88 Harv. D. "Construct Result Caused (1974); ing Negligent Harvey, a New Action for Infliction of Eco L.Rev. 444 "Economic Losses Coase,” Solution,” Building Negligence, nomic Loss: on Cardozo and the Search for a Just Mulhern, Godwin, (1991); (1972); Pegeen Roger 66 Wash.L.Rev. 937 50 Can.Bar.Rev. 580 B. Pollution, Fishers, "Negligent Expec- "Marine and the Pillars of the Interference with Economic Recovery tancy: Recovery,” Land: A Tort Standard for Pure Eco The Case for 16 Stan.L.Rev. Losses,” Comment, (1990); (1964); "Foreseeability nomic 18 B.C.Env.Aff.L.Rev.85 of Third O’Brien, Recovery Party Analy- Injuries Ann "Limited Rule as a Dam: Economic Problem in —A sis,” (1953). early Preventing Litigation Negligent a Flood of for 20 U.Chi.L.Rev. 283 For an Loss,” suggesting reassessing Infliction Pure Economic 31 Ariz. article the need for the Hnatt, (1989); Kelly “Purely "no-liability” approach, Carpen- L.Rev. 959 M. see Charles E. Eco ter, Relations,” Recovery,” A nomic Loss: Standard for 73 Iowa "Interference with Contractual (1988); Rabin, (1928). L.Rev. 1181 Robert L. "Tort Re- 41 Harv.L.Rev.728 Silverstein, injuries.” Recovery Eileen “On subjected to “administrative over-

being Loss,” ubiquitous ‘flood- Pure opening of the in Tort for Economic U.Mich. load—the (1999). compared O’Brien, “As to litigation.” Ann gates’ to massive J.L.Ref. Recovery pain suffering, a Dam: Prevent- for the loss from “Limited Rule as awards subjective Litigation Negligent injury provable, Inflic- is ing for not or a Flood economic Loss,” SI Id at As one court stat- speculative.” tion of Pure Economic Ariz.L.Rev. 423.2 (1989). holding that should al- ed to recover for losses lowed economic Commentators, however, point out personal injury dam- absence liability grounds allowed to courts have age: expand every of tort law “de- other area huge, allegation to commonplace awards of The answer unchecked spite the now liability judicial not involving physical sums in is obstruction unknowable claims dent, appropriately compensated being 2. One commentator states: Certainly physically injured.” "those car A favorite of the need to illustration limit automobile, though not owner whose involved liability by pure compensating not economic accident, primary $5000 in the ages suffers dam- injury Judge hypothetical is Kaufman’s 1968 negligently attributable to the caused City Buffalo, Kinsman [from Transit Co. repairs compensation will for Cir.1968)] crash receive (2d 388 F.2d 825 n. 8 Similarly, consequent harm. if economic unlucky motorist inadvertence whose causes negligent minor motorist caused Brooklyn Bat- an accident that shuts down the vehicles, damage delaying each to driver tery during Tunnel rush hour: hour, principle an all drivers could recover negligently A driver who such proven consequen- for their economic losses as certainly accident would be held accountable injury property. their tial from physically injured in the to those crash. But Why fortuity minor harm should the we doubt that would be recovera- property entitle to recover these drivers against negligent driver in favor ble loss? what if two tennis economic And stars truckers or carriers who contract suffered way compete on their in the United States provable delay or losses because of the accident, Open are involved in this auto one wage "clock in” earner who was forced to suffering sprain while athlete minor wrist yet surely an hour late. And it was foresee- only delay endures that results in other among many [thousands] able that who players, match? forfeited consequences For both tennis delayed would be would be truckers and identical; are ath- that matter wage earners. singu- with a denied a letes chance at titles are Many mentally readers find themselves themselves, opportunity prove losing lar rankings, nodding agreement Judge Kaufman. described, thousands, prize money, and liability endorsements. As none of sprained But with the physical injury, athlete wrist mere inad- whom suffered compensable injury opportunity and the disproportionate, perhaps has vertence look damages. consequential investigate to claim But let ruinous. response. us this intuitive First, hand, through compared the other viewed the lens On to awards for many suffering, pragmatism, likely wage pain how is it that loss (or provable, subjective specula- pay earners docked a class one hour’s earners) lawyers delay wage engage tive. And even if costs 3000 motorists an will recover (a average generous assumption), earnings negligent $500 each the lost from the driver? pure driver’s looks to be When the unusual claim for about million, sum, occurs, significant hardly ought ques- pau- $1.5 but not the courts face the loss perizing in a dollar of when "the too tenu- world of multi-million tion link has become parties seriously injured consequence awards to one or what is two ous—that only claimed to be fortuity”? noteworthy ignores hypothetical in traffic accidents. Also is the And the grouping third-party and contract carriers with and the benefit of truckers insurance motorists, any wage equally undeserving spreading among earners as the risk one claim- injurer be ants. truckers and contract carriers are whom could the careless Thus, likely unlucky injured. analysis against to be insured on close losses occasioned by delays, wage appeal categorical whereas will denial of recov- earners not be. intuitive Perhaps eligibility ery pure for economic loss should for economic loss in order forestall liability disappears. professional unacceptably widespread in safety exclude drivers and carriers business, just potentially public their course of There instances of ruinous negligently liability officials cannot but those not serve as recover for caused instances do physical general prohibiting performing harm for the incurred while their foundation covery rule re- jobs. why wage-earners? exempt But for economic loss. Silverstein, any spe- Recovery in Tort for Even more curious Eileen “On Pure absence Loss,” liability hypothetical cific reference in 422- Economic U.Mich.J.L.Ref. (1999) (footnotes omitted). damage occasioned the acci- duty, Rather, of that and “legal duty, the breach claim for redress. fairly grounded result,” proximate v. damage as a Sewell application of a more sedulous it must be 371 S.E.2d at Gregory, 179 W.Va. proximate concepts of and traditional remedy protect- a while to allow the facts of each case. to the causation “tort almost ing defendants from courts, fearing It is understandable Martin, Inc., R.A. limit.” Harris v. without deserving plaintiff suffer- if even one 397, 403, 513 S.E.2d 204 W.Va. allowed to ing purely loss were economic J., dissenting). (Maynard, recover, recover, plaintiffs could all such deftly forth a majority opinion sets rulings physical their have anchored responsible for holding basis for defendants the rationale is requirement. harm While actions, simultaneously emphasiz- their while understandable, supports only a limita- it boundary liability. ing for a finite the need of, on, liability. The tion not a denial majority upon a opinion But is based capriciously requirement physical harm question. and a certified Be- limited record along path of compensation showers duty is of a defendant’s cause the existence destruction, regardless of the sta- time, place, to the “circumstances relative of individual claim- tus or circumstances Syllabus Point Dicken person,” manner Purely losses are borne ants. Co., supra, Liverpool & Coal Salt victims, may not who be able innocent partic- in a of whether a defendant evaluation end, the chal- absorb their losses. ques- is a had such a care ular case lenge that limits liabili- is to fashion rule to consider on a tion for the circuit courts adjudication ty of meritorious permits but case-by-case basis. inability crys- fix claims. The asserted respectfully I concur. I am au- therefore recovery on the differ- talline formulae joins MeGRAW thorized to state Justice simply ing facts of future cases does in this concurrence. rejection justify the wholesale in all eases. Airlines,

People Express Inc. v. Consolidated at 111.

Rail 100 N.J. at 495 A.2d provide remedies to Our law exists 541 S.E.2d 595 injured, persons or entities who are those COMMUNICATIONS, INC., GATEWAY sense, as a direct even Below, Corporation, Plaintiff care- proximate and cause of tortfeasor’s Appellant, fairly Courts should not obstruct lessness. seeking an grounded claims to redress eco- wrong, should shield tortfea- HESS, INC., Corporation; nomic In- R. JOHN liability through America, from infinite the “sedu- Company sors of North surance concepts Stieglitz, application Stieglitz, of traditional Corporation; lous Architects/Planners, Tries, P.C., proximate causation to the facts a Cor- Below, poration, People Express, 100 N.J. at Defendants each case.” at 111. an individual can 495 A.2d Where America, Company of North Insurance proxi- an loss show he has suffered Below, Corporation, Defendant anoth- mately the carelessness of Appellee. narrow, er, clearly can show a foresee- No. 27778. relationship “special” between himself able tortfeasor, alleged then the tortfea- and the Appeals Supreme Court responsible for the results sor should be held Virginia. West of his actions. 4, 2000. Oct. Submitted not, cannot, predict I do endeavor to 6, 2000. Nov. Decided every situation where a tortfeasor’s actions Dissenting Opinion of Justice party’s on a adverse effect 11, 2001. Starcher Jan. interests, and when under opinion those actions form the Court’s liability. I trust to the circuit

basis for existing rule

courts the discretion use

Case Details

Case Name: Aikens v. Debow

Court Name: West Virginia Supreme Court

Date Published: Jan 16, 2001

Citation: 541 S.E.2d 576

Docket Number: 27376

Court Abbreviation: W. Va.