Hairston v. Gen. Pipeline Constr. Inc.

226 W.Va. 663

704 S.E.2d 663

Cora Phillips HAIRSTON, et al., Plaintiffs Below, Appellants

v.GENERAL PIPELINE CONSTRUCTION, INC., et al., Defendants/Third–Party Plaintiffs Below

v.Mountain State Insurance Company, Third–Party Defendant Below.

No. 35525.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 22, 2010.Decided Nov. 18, 2010.

[704 S.E.2d 665 , 226 W.Va. 665]

Syllabus by the Court

1. “The appellate standard of review of questions of law answered and certified by a circuit court is de novo.” Syl. Pt. 1, Gallapoo v. Wal–Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996).

2. West Virginia Code § 29–1–8a (1993) preempts common law with respect to the matters specifically addressed in the statute. The statute preempts all common law claims involving “historic or prehistoric ruins, burial grounds, archaeological site, or human skeletal remains, unmarked grave, grave artifact or grave marker of historical significance.” W. Va.Code § 29–1–8a(c)(1).

3. “While strictly considered there is no right of property in a dead body, nevertheless the right to bury a corpse and preserve the remains is a legal right, which in this country is regarded as a quasi right in property, the violation of which is cognizable in and may be redressed at the suit of near relatives by an action on the case against the wrongdoer.” Syl. Pt. 1, England v. Central Pocahontas Coal Co., 86 W.Va. 575, 104 S.E. 46 (1920).

4. “Whether such right of burial exists by deed or by mere license, so long as it exists and is not lawfully revoked or destroyed, it may be ... redressed and protected in our courts[.]” Syl. Pt. 2, in pertinent part, England v. Central Pocahontas Coal Co., 86 W.Va. 575, 104 S.E. 46 (1920).

5. “A cause of action for negligent or intentional mishandling of a dead body does not require a showing of physical injury or pecuniary loss. Mental anguish is a sufficient basis for recovery of damages.” Syl. Pt. 3, Whitehair v. Highland Memory Gardens, Inc., 174 W.Va. 458, 327 S.E.2d 438 (1985).

6. “A cemetery is a place where dead bodies of human beings are buried; an area

[226 W.Va. 666 , 704 S.E.2d 666]

of ground set apart for the burial of the dead, either by public authority or private enterprise. It includes not only lots for depositing the bodies of the dead, but also such avenues, walks and grounds as may be necessary for its use, or for shrubbery and ornamental purposes.” Syl. Pt. 3, In re Hillcrest Memorial Gardens, 146 W.Va. 337, 119 S.E.2d 753 (1961).

7. “ ‘Negligence is the violation of the duty of taking care under the given circumstances. It is not absolute; but is [always] relative to some circumstance of time, place, manner, or person.’ Syllabus Point 1, Dicken v. Liverpool Salt & Coal Co., 41 W.Va. 511, 23 S.E. 582 (1895).” Syl. Pt. 2, Honaker v. Mahon, 210 W.Va. 53, 552 S.E.2d 788 (2001).

8. The elements of a common law cause of action for grave desecration are: (1) the grave site in question must be within a publicly or privately maintained cemetery, clearly marked in a manner which will indicate its use as a cemetery, with identifiable boundaries and limits; (2) dedication of the area to the purpose of providing a place of burial by the owner of the property or that the owner acquiesced in its use for burial; (3) that the area was identifiable as a cemetery by its appearance prior to the defendant's entry or that the defendant had prior knowledge of the existence of the cemetery; (4) that the decedent in question is interred in the cemetery by license or right; (5) that the plaintiff is the next of kin of the decedent with the right to assert a claim for desecration; and (6) that the defendant proximately caused, either directly or indirectly, defacement, damage, or other mistreatment of the physical area of the decedent's grave site or common areas of the cemetery in a manner that a reasonable person knows will outrage the sensibilities of others.

9. The next of kin who possess the right to recover in a common law cause of action for grave desecration shall be the decedent's surviving spouse or, if such spouse is deceased, the person or persons of closest and equal degree of kinship in the order provided by West Virginia Code § 42–1–1, et seq.

10. The damages available in a common law cause of action for grave desecration include nominal damages; compensatory damages if actual damage has occurred; mental distress; and punitive damages if the defendant's conduct is determined to be willful, wanton, reckless, or malicious.

Daniel R. Schuda, Lynnette Simon Marshall, Schuda & Associates PLLC, Charleston, WV, for Defendant/Third–Party Plaintiff.Kevin W. Thompson, David R. Barney, Jr., Thompson Barney, Williamson, WV, for Plaintiffs, Cora Phillips Hairston, et al.Brian R. Swiger, Rodney W. Steiger, Ryan E. Voelker, Jackson Kelly PLLC, Charleston, WV, for Defendant, Equitable Production.Kevin A. Nelson, Patrick T. White, Huddleston Bolen LLP, Charleston, WV, for Third–Party Defendant, Mountain State Insurance.

McHUGH, Justice:

This matter comes before this Court upon a request from the Circuit Court of Logan County to answer five certified questions regarding the law of grave desecration in West Virginia and the effect of West Virginia Code § 29–1–8a (1993) on the common law of grave desecration. Upon thorough review of the briefs, arguments, record, and applicable precedent, this Court answers the certified questions, as reformulated, and remands this matter for further proceedings consistent with this opinion.

I. Factual and Procedural History

In the action underlying these certified questions, Equitable Production Company (hereinafter “Equitable”) hired General Pipeline Company (hereinafter “General Pipeline”) in 2004 to relocate a gas pipeline on a large tract of wooded, unimproved land in Crystal Block Hollow in Logan County, West Virginia. At several different locations along the pipeline, General Pipeline used a small bulldozer to pull a truck loaded with pipe through wooded sections to the pipeline. On August 7, 2004, at the location which has

[226 W.Va. 667 , 704 S.E.2d 667]

become the subject of the underlying litigation, the bulldozer was driven, with its blade raised off the ground, through an area containing grave sites. This wooded area contained graves that allegedly were not indicated on any map, reserved or otherwise identified in a deed, identified by any obvious sign, included on a list of grave sites maintained by any State agency, or otherwise reasonably identifiable as an area containing graves. The defendants contend that the area was significantly overgrown with vegetation and contained mostly unmarked grave sites. Some actual grave markers were buried in forest debris. When the operator of the bulldozer realized that the bulldozer had passed through the grave site area, he immediately blocked off the area and relocated the route to connect with the pipeline at a different location.

The fifteen plaintiffs, as relatives of the decedents buried in the graves, filed complaints in the Circuit Court of Logan County, seeking recovery of damages for grave desecration.¹ General Pipeline and Equitable were the original defendants in this litigation, and General Pipeline later filed a third-party complaint against Mountain State Insurance Agency, Inc., asserting a claim of negligence in the procurement of General Pipeline's insurance policy. Subsequent to the exchange of written discovery, General Pipeline filed a Motion for Summary Judgment. Based upon the issues raised in the litigation, the lower court entered an order on November 16, 2009, certifying the following five questions to this Court.

1. Does W.Va.Code § 29–1–8a preempt a common law cause of action for direct or indirect desecration of a grave?

Answer of the lower court: Yes, except as to claims for the desecration of graves and related items in a publicly or privately maintained cemetery or of graves less than fifty years old.

2. What are the elements of a common law action for desecration of a grave, grave site, cemetery or burial ground?

Answer of the lower court: The elements of a common law cause of action for the desecration of a grave in a publicly or privately maintained cemetery are:

1. that it is shown that a cemetery, with identifiable boundaries and limits, exists at the place alleged;

2. that it is shown that the area was dedicated to the purpose of providing a place of burial by the owner of the property or that the owner acquiesced in its use for burial;

3. that it is shown that the area was identifiable as a cemetery by its appearance prior to the defendant's entry onto the area or it is shown that the defendant had prior knowledge of the existence of the cemetery;

4. that it is shown that the decedent in question is interred in the area;

5. that it is shown that the decedent in question was interred by license or right;

6. that it is shown that the plaintiff is the next of kin of the decedent in question with the right to assert a claim for desecration;

7. that it is shown that the person charged with the desecration defaced, damaged or otherwise mistreated the physical area or the contents of the cemetery in a way that a reasonable person knows will outrage the sensibilities of others.

3. What are the recoverable damages in a common law action for desecration of a

[226 W.Va. 668 , 704 S.E.2d 668]

grave, grave site, cemetery or burial ground?

Answer of the lower court: Nominal damages at least, are awardable, and compensatory damages may be recovered if actual damage is shown; damages for mental distress may be awarded; and punitive damages may be awarded if a plaintiff can prove that the defendants' conduct was willful, wanton, reckless or malicious.

4. Does West Virginia recognize a common law cause of action for indirect desecration of a grave, grave site, cemetery or burial ground? If so, what are the elements of such a cause of action and what are the recoverable damages?

Answer of the...