     IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                      SEPTEMBER 2019 TERM

                                                                FILED
                                                           November 14, 2019
                              No. 19-0415                       released at 3:00 p.m.
                                                            EDYTHE NASH GAISER, CLERK
                                                            SUPREME COURT OF APPEALS
                                                                 OF WEST VIRGINIA


                   STATE OF WEST VIRGINIA ex rel.
                 MAXXIM SHARED SERVICES, LLC,
                a foreign Limited Liability Company, and
                   ANR, INC., a Delaware Corporation
                               Petitioners

                                  V.

             THE HONORABLE WARREN R. MCGRAW,
               JUDGE OF THE CIRCUIT COURT OF
             WYOMING COUNTY, WEST VIRGINIA, and
                   CHARLES BLANKENSHIP,
                         Respondents

      ________________________________________________________

              PETITION FOR WRIT OF PROHIBITION

          WRIT GRANTED IN PART AND DENIED IN PART
     _________________________________________________________

                      Submitted: October 15, 2019
                       Filed: November 14, 2019


Thomas P. Mannion                   Stephen P. New
Tim J. Yianne                       Amanda J. Taylor
Tonya P. Shuler                     The Law Office of Stephen P. New
LEWIS BRISBOIS BISGAARD &           Beckley, West Virginia
SMITH LLP                           Attorneys for Respondent
Charleston, West Virginia
Attorneys for Petitioners
JUSTICE JENKINS delivered the Opinion of the Court.

JUSTICE WORKMAN dissents and reserves the right to file a dissenting opinion.
                             SYLLABUS BY THE COURT

              1.     “A writ of prohibition will not issue to prevent a simple abuse of

discretion by a trial court. It will only issue where the trial court has no jurisdiction or

having such jurisdiction exceeds its legitimate powers. W. Va. Code, 53-1-1.” Syllabus

point 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977).



              2.     “In determining whether to entertain and issue the writ of prohibition

for cases not involving an absence of jurisdiction but only where it is claimed that the lower

tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether

the party seeking the writ has no other adequate means, such as direct appeal, to obtain the

desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not

correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter

of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent

disregard for either procedural or substantive law; and (5) whether the lower tribunal’s

order raises new and important problems or issues of law of first impression. These factors

are general guidelines that serve as a useful starting point for determining whether a

discretionary writ of prohibition should issue. Although all five factors need not be

satisfied, it is clear that the third factor, the existence of clear error as a matter of law,

should be given substantial weight.” Syllabus point 4, State ex rel. Hoover v. Berger, 199

W. Va. 12, 483 S.E.2d 12 (1997).




                                              i
               3.     “A plaintiff’s right to recover for the negligent infliction of emotional

distress, after witnessing a person closely related to the plaintiff suffer critical injury or

death as a result of defendant’s negligent conduct, is premised upon the traditional

negligence test of foreseeability. A plaintiff is required to prove under this test that his or

her serious emotional distress was reasonably foreseeable, that the defendant’s negligent

conduct caused the victim to suffer critical injury or death, and that the plaintiff suffered

serious emotional distress as a direct result of witnessing the victim’s critical injury or

death. In determining whether the serious emotional injury suffered by a plaintiff in a

negligent infliction of emotional distress action was reasonably foreseeable to the

defendant, the following factors must be evaluated: (1) whether the plaintiff was closely

related to the injury victim; (2) whether the plaintiff was located at the scene of the accident

and is aware that it is causing injury to the victim; (3) whether the victim is critically injured

or killed; and (4) whether the plaintiff suffers serious emotional distress.” Syllabus point

2, Heldreth v. Marrs, 188 W. Va. 481, 425 S.E.2d 157 (1992).




               4.     In West Virginia, an employee cannot recover damages for emotional

distress after witnessing an injury to an unrelated co-worker under a claim of negligent

infliction of emotional distress.




                                               ii
Jenkins, Justice:

              This case was brought as a writ of prohibition under the original jurisdiction

of this Court by Petitioners, Maxxim Shared Services, LLC and ANR, Inc. (collectively

“Petitioners”). Respondent, Charles Blankenship (“Mr. Blankenship”), filed his complaint

in June of 2018, in which he alleges that he suffered significant emotional injuries after

witnessing a co-worker sustain injuries due to Petitioners’ negligence. In response,

Petitioners filed a motion to dismiss the complaint under Rule 12(b)(6) of the West Virginia

Rules of Civil Procedure, wherein they argued that Mr. Blankenship failed to state a claim

for emotional distress arising from witnessing injuries to an unrelated co-worker. Judge

Warren R. McGraw, of the Circuit Court of Wyoming County, entered an order on

February 28, 2019, denying the motion.



              Before this Court, Petitioners challenge the circuit court’s ruling, and

contend that the circuit court committed clear legal error in finding: (1) that Mr.

Blankenship’s relationship with his co-worker satisfied the “closely related” requirement

for a claim of negligent infliction of emotional distress; and (2) that Mr. Blankenship is

entitled to proceed on a claim for general negligence. Having considered the briefs

submitted, the appendix record, the parties’ oral arguments, and the applicable legal

authority, we grant the requested writ of prohibition in part, and deny in part.




                                             3
                                              I.

                     FACTUAL AND PROCEDURAL HISTORY

              In July of 2016, Mr. Blankenship was employed at an underground mine

operated by Spartan Mining Company, Inc. at the Road Fork #51 mine located in Wyoming

County, West Virginia. On July 28, 2016, Mr. Blankenship was directed by the mine

foreman to repair the guarding at the No. 3 shaft pump installation. The next morning, Mr.

Blankenship enlisted the help of his co-worker, Donald Workman (“Mr. Workman”), to

assist him in repairing the loose guarding. They travelled to the shaft, and began making

the repairs. While Mr. Workman was still working, Mr. Blankenship stepped away from

the guarding and heard a “jet engine” sound coming from the shaft. Mr. Blankenship

turned toward the shaft, and observed a methane explosion, which propelled Mr. Workman

into the air. Despite attempts to assist Mr. Workman in removing his gloves and gear, Mr.

Workman subsequently died as a result of his injuries.



              On June 21, 2018, Mr. Blankenship filed a complaint alleging two counts

against Petitioners1 in their capacity as entities that “oversee and manage” the subject mine:

(1) negligence and (2) negligent infliction of emotional distress. Then, on August 16, 2018,

Petitioners filed a motion to dismiss the complaint. Therein, Petitioners argued that Mr.

Blankenship failed to state a claim for negligent infliction of emotional distress arising



              1
              Mr. Blankenship also brought suit against Spartan Mining Company, LLC
alleging wrongful termination in contravention of substantial public policies. Spartan
Mining Company is not a part of the current petition for writ of prohibition.
                                             4
from witnessing injuries to an unrelated co-worker. Petitioners also asserted that Mr.

Blankenship’s claim for negligence should be dismissed because it was a restatement of

his claim for negligent infliction of emotional distress, and sought recovery for duplicative

damages.



              On February 28, 2019, the circuit court denied the motion to dismiss. The

circuit court reasoned that “[t]o strictly require a blood or marital relation is overinclusive

in that it allows recovery whether the biologically linked parties are close or not, is

underinclusive in that it arbitrarily denies justice to those that can prove a functionally close

relationship.” The circuit court found Mr. Blankenship’s complaint was sufficient and

adequately pled to survive the motion to dismiss under Rule 12(b)(6) of the West Virginia

Rules of Civil Procedure. Petitioners filed this petition requesting a writ of prohibition on

April 30, 2019, challenging the denial of its motion.



                                              II.

                                STANDARD OF REVIEW

              In Syllabus point 2 of State ex rel. Peacher v. Sencindiver, 160 W. Va. 314,

233 S.E.2d 425 (1977), we held that “[a] writ of prohibition will not issue to prevent a

simple abuse of discretion by a trial court. It will only issue where the trial court has no

jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va. Code, 53-1-

1.” Further, this Court will only grant a writ of prohibition


                                               5
              to correct only substantial, clear-cut, legal errors plainly in
              contravention of a clear statutory, constitutional, or common
              law mandate which may be resolved independently of any
              disputed facts and only in cases where there is a high
              probability that the trial will be completely reversed if the error
              is not corrected in advance.

Syl. pt. 1, in part, Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (1979), superseded by

statute on other grounds as stated in State ex rel. Thornhill Grp., Inc. v. King, 233 W. Va.

564, 759 S.E.2d 795 (2014).



              When considering a writ of prohibition, this Court is guided by the following:

                      In determining whether to entertain and issue the writ of
              prohibition for cases not involving an absence of jurisdiction
              but only where it is claimed that the lower tribunal exceeded
              its legitimate powers, this Court will examine five factors: (1)
              whether the party seeking the writ has no other adequate
              means, such as direct appeal, to obtain the desired relief; (2)
              whether the petitioner will be damaged or prejudiced in a way
              that is not correctable on appeal; (3) whether the lower
              tribunal’s order is clearly erroneous as a matter of law; (4)
              whether the lower tribunal’s order is an oft repeated error or
              manifests persistent disregard for either procedural or
              substantive law; and (5) whether the lower tribunal’s order
              raises new and important problems or issues of law of first
              impression. These factors are general guidelines that serve as a
              useful starting point for determining whether a discretionary
              writ of prohibition should issue. Although all five factors need
              not be satisfied, it is clear that the third factor, the existence of
              clear error as a matter of law, should be given substantial
              weight.

Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1997). “In

determining the third factor, the existence of clear error as a matter of law, we will employ




                                               6
a de novo standard of review, as in matters in which purely legal issues are at issue.” State

ex rel. Gessler v. Mazzone, 212 W. Va. 368, 372, 572 S.E.2d 891, 895 (2002).



              With these standards in mind, we now examine the Petitioners’ request for a

writ of prohibition.



                                             III.

                                       DISCUSSION

              Petitioners seek an extraordinary writ because they contend the circuit court

committed clear legal error in denying their motion to dismiss. First, Petitioners contend

that the circuit court erred in finding that Mr. Blankenship’s relationship with his co-worker

satisfied the “closely related” requirement for a bystander claim of negligent infliction of

emotional distress. Petitioners allege that in doing so, the circuit court exceeded its

authority, usurped this Court’s authority to define the bounds of the common law, and

expanded the scope of liability for emotional distress claims. Second, Petitioners contend

that the circuit court erred in finding that Mr. Blankenship’s complaint was sufficient to

sustain a claim for general negligence. In support, Petitioners argue that Mr. Blankenship’s

negligence claim is a duplicative claim that seeks identical relief as his negligent infliction

of emotional distress claim and for the same alleged conduct. We will address each

assignment of error in turn.




                                              7
                        A. Negligent Infliction of Emotional Distress

               The first issue before this Court is whether the circuit court erred as a matter

of law when it held that a plaintiff who witnesses injury to an unrelated co-worker can

recover for negligent infliction of emotion distress. Petitioners argue that Mr. Blankenship

does not have a legal right under West Virginia law to assert a claim for negligent infliction

of emotional distress arising from witnessing injuries to a co-worker. Notably, the parties

do not dispute that Mr. Blankenship and his co-worker were not related by blood or by

marriage. Rather, the two men were co-workers who worked together at the Road Fork

#51 mine in Wyoming County. Therefore, Petitioners contend that Mr. Blankenship’s

relationship with his co-worker does not satisfy the “closely related” requirement needed

to sustain a claim for negligent infliction of emotional distress. As such, the circuit court’s

holding—that the friendship and shared occupation of Mr. Blankenship and his co-worker

fulfilled the “closely related” requirement—was in direct contravention to the law

established by this Court in Heldreth v. Marrs, 188 W. Va. 481, 425 S.E.2d 157 (1992) and

its progeny.



               Mr. Blankenship responds that the circuit court properly denied Petitioners’

motion to dismiss when it found that the circumstances pled in the complaint demonstrated

that Mr. Blankenship was not a mere bystander with no significant relationship to the

victim. According to Mr. Blankenship, the motion to dismiss was denied on the basis that

the “closely related” requirement was adequately pled because coal miners are more than



                                              8
co-workers, they are “members of a close-knit coal mining ‘family’ that transcends blood

ties.”



              Under this State’s law, “[i]n order to prove actionable negligence there must

be shown a duty on the part of the person charged with negligence and a breach of such

duty.” Syl. pt. 2, Atkinson v. Harman, 151 W. Va. 1025, 158 S.E.2d 169 (1967). The

              elements of duty, breach and injury are essential to actionable
              negligence and in the absence of any of them the action must
              fall. 38 Am. Jur., Negligence, Sec. 11. This proposition is
              succinctly stated in 38 Am. Jur., Negligence, Sec. 12, as
              follows: “An action to recover damages for an injury sustained
              by the plaintiff on the theory that they were caused by the
              negligence of the defendant will not lie unless it appears that
              there existed, at the time and place where the injury was
              inflicted, a duty on the part of the defendant and a
              corresponding right in the plaintiff for the protection of the
              latter.” See Faull v. Abbot, 137 W. Va. 777, 73 S.E.2d 727;
              Morrison v. Roush, 110 W. Va. 398, 158 S.E. 514.

Atkinson, 151 W. Va. at 1031, 158 S.E.2d at 173. In West Virginia, “[d]uty is a question

of whether the defendant is under any obligation for the benefit of the particular plaintiff;

and in negligence cases, the duty is always the same, to conform to the legal standard of

reasonable conduct in light of the apparent risk.” Robertson v. LeMaster, 171 W. Va. 607,

611, 301 S.E.2d 563, 567 (1983) (internal citation omitted).



              This Court first addressed duty and foreseeability in the context of bystander

claims of negligent infliction of emotional distress in the seminal case, Heldreth v. Marrs,

188 W. Va. 481, 425 S.E.2d 157 (1992). In Syllabus point 2 of Heldreth, this Court held:


                                             9
                      A plaintiff’s right to recover for the negligent infliction
              of emotional distress, after witnessing a person closely related
              to the plaintiff suffer critical injury or death as a result of
              defendant’s negligent conduct, is premised upon the traditional
              negligence test of foreseeability. A plaintiff is required to
              prove under this test that his or her serious emotional distress
              was reasonably foreseeable, that the defendant’s negligent
              conduct caused the victim to suffer critical injury or death, and
              that the plaintiff suffered serious emotional distress as a direct
              result of witnessing the victim’s critical injury or death. In
              determining whether the serious emotional injury suffered by
              a plaintiff in a negligent infliction of emotional distress action
              was reasonably foreseeable to the defendant, the following
              factors must be evaluated: (1) whether the plaintiff was closely
              related to the injury victim; (2) whether the plaintiff was
              located at the scene of the accident and is aware that it is
              causing injury to the victim; (3) whether the victim is critically
              injured or killed; and (4) whether the plaintiff suffers serious
              emotional distress.

Here, we are asked to consider the first factor of the foreseeability determination—whether

Mr. Blankenship was “closely related” to the injury victim.



              When the Heldreth Court was tasked with formulating this State’s standard

for negligent infliction of emotional distress claims asserted by bystanders, it reviewed the

law in other jurisdictions, and examined the factors they used for evaluating these claims.

It was determined that when analyzing foreseeability, all courts agreed that an important

factor was “whether the plaintiff has a close relationship with the injury victim. Courts

have recognized that the relationship between the plaintiff and the injury victim is valuable

in determining foreseeability, and therefore is an essential element in establishing liability.”

Id. at 486, 425 S.E.2d at 162. Further, in discussing the importance of being “closely

related,” this Court noted:

                                              10
                     We agree with the Supreme Court of Nebraska and
              other courts which have held that the plaintiff must have a close
              marital or familial relationship with the injury victim. Clearly,
              a plaintiff who witnesses a closely related person severely
              injured or killed by the negligence of another will experience a
              more profound emotional trauma than a plaintiff who has no
              relationship with the injury victim. It is the very nature of the
              relationship between the plaintiff and the victim which makes
              the emotional reaction experienced by the plaintiff so poignant.
              We shall therefore require, as one element of the test, that a
              close marital or familial relationship exist between the plaintiff
              and the victim.

Id. at 487, 425 S.E.2d at 163.



              Under West Virginia law, it is undisputed that a plaintiff can recover—in

limited circumstances—for emotional distress arising from witnessing injury to another

person. See, e.g., Jones v. Sanger, 204 W. Va. 333, 512 S.E.2d 590 (1998); Stump v.

Ashland, Inc., 201 W. Va. 451, 499 S.E.2d 41 (1997); Heldreth v. Marrs, 188 W. Va. 481,

425 S.E.2d 157 (1992). However, bystander recovery is limited to a narrow group of

“closely related” individuals.

              It would be an entirely unreasonable burden on all human
              activity if the defendant who has endangered one person were
              compelled to pay for the lacerated feelings of every other
              person disturbed by reason of it, including every bystander
              shocked at an accident, and every distant relative of the person
              injured, as well as all his friends. And probably the danger of
              fictitious claims, and the necessity of some guarantee of
              genuineness, are even greater here than before. It is no doubt
              such considerations that have made the law extremely cautious
              in extending its protections to the bystander.

W. Prosser and W. Keeton, Prosser and Keeton on Torts, § 54, at 366 (5th ed. 1984).

                                             11
              The limitations set forth above, and the policy reasons for adopting said

limitations, have been echoed not only in this Court, but also in courts across the country.

In surveying how other jurisdictions have approached the “closely related” factor, our

research indicates that the vast majority of courts is steadfast in limiting the phrase “closely

related” to marital and blood relations. See Hislop v. Salt River Project Agric. Improvement

and Power Dist., 5 P.3d 267 (Ariz. Ct. App. 2000) (relationship of co-worker and friend

does not qualify for bystander recovery); Drew v. Drake, 168 Cal. Rptr. 65 (Cal. Ct. App.

1980) (romantic partner who lived with victim as de facto spouse was denied recovery for

negligent infliction of emotional distress); Batista v. Backus, 28 Conn. L. Rptr. 624 (Conn.

Super. Ct. 2000) (relationship of friends did not meet the “closely related” requirement);

Smith v. Toney, 862 N.E.2d 656 (Ind. 2007) (fiancée was not analogous to spouse for

purposes of recovering as a bystander in a negligent infliction of emotional distress claim);

Michaud v. Great N. Nekoosa Corp., 715 A.2d 955 (Me. 1998) (co-worker could not make

a claim for negligent infliction of emotional distress after watching fellow co-worker’s

trapped under water while repairing a dam); Nugent v. Bauermeister, 489 N.W.2d (Mich.

Ct. App. 1992) (minor plaintiff did not meet the “closely related” requirement and could

not recover as a bystander after watching his best friend be fatally struck by an automobile);

Hinojosa v. S. Texas Drilling & Expl., Inc., 727 S.W.2d 320 (Tex. App. 1987) (court held

that an unrelated co-worker could not state a claim in negligence for emotional distress

after witnessing injuries to an unrelated co-worker).




                                              12
              Here, in dismissing the motion to dismiss, the circuit court reasoned that Mr.

Blankenship and his co-worker met the “closely related” requirement because, as coal

miners, they “are not only co-workers, but also members of a close-knit coal mining

‘family’ that transcends blood ties. The functional relationship of the parties is just as, if

not more important than their biological or legal relationship.” However, while this Court

recognizes the close friendship and working relationship of these men, the fact still exists

that Mr. Blankenship has not alleged any familial relationship or marital bond between him

and Mr. Workman other than that of co-worker and friend. This State’s law on bystander

recovery for negligent infliction of emotional distress is consistent with the vast majority

of jurisdictions across the country that interpret “closely related” to mean marital or blood

relations. As such, we hold that in West Virginia, an employee cannot recover damages

for emotional distress after witnessing an injury to an unrelated co-worker under a claim

of negligent infliction of emotional distress.




              In view of the foregoing, and despite Mr. Blankenship’s contentions to the

contrary, we refuse to expand the class of individuals entitled to recover damages for

emotional injuries as a bystander under a claim of negligent infliction of emotional distress.

Rather, we agree with Petitioners that the circuit court’s order denying their motion to

dismiss the complaint—wrongly extending this State’s common law and holding that a co-

worker relationship met the “closely related” requirement for negligent infliction of

emotional distress claims—was clearly erroneous as a matter of law.


                                             13
                                         B. Negligence

              In their second assignment of error, Petitioners contend that the circuit court

erred in finding that Mr. Blankenship’s complaint was sufficiently pled to sustain a claim

for general negligence. In support, Petitioners argue that Mr. Blankenship’s negligence

claim is duplicative of the negligent infliction of emotional distress claim, insofar as it is a

restatement of the legal theory used in his claim for negligent infliction of emotional

distress. More specifically, Petitioners assert that Mr. Blankenship’s negligence claim

arises from the same underlying incident to his co-worker and the causal relationship of

that incident to the resulting alleged emotional distress. Thus, Petitioners argue that the

negligence claim should have been dismissed because courts in West Virginia regularly

dismiss duplicative claims.



              Mr. Blankenship maintains that his negligence claim is not duplicative of his

claim for negligent infliction of emotional distress because the underlying factual scenarios

are different for each claim. For his negligence claim, Mr. Blankenship states that he seeks

compensation for emotional damages and the physical effects that he suffered as a result

of Petitioners’ wrongful actions.      Additionally, he seeks damages for the negligent

infliction of emotional distress caused by witnessing the injuries and death of his co-worker

and friend, Mr. Workman.




                                              14
              In West Virginia,
                      [i]t is generally recognized that there can be only one
              recovery of damages for one wrong or injury. Double recovery
              of damages is not permitted; the law does not permit a double
              satisfaction for a single injury. A plaintiff may not recover
              damages twice for the same injury simply because he has two
              legal theories.

Syl. pt. 7, Harless v. First Nat. Bank in Fairmont, 169 W. Va. 673, 289 S.E.2d 692 (1982).

Although this State’s law on duplicative damages is well established, we do not find that

Mr. Blankenship’s claim for general negligence is duplicative of his claim for negligent

infliction of emotional distress because each claim seeks recovery for separate injuries.

While it is true that Mr. Blankenship seeks to recover damages for emotional distress under

both legal theories, it is clear that each claim arises from a different set of underlying facts.

As evidenced by a close reading of Mr. Blankenship’s complaint, the damages claimed for

negligent infliction of emotional distress arise from witnessing “his friend and fellow coal

miner suffer a critical, gruesome injury that later resulted in Mr. Workman’s death.”

Conversely, the damages sought by Mr. Blankenship for general negligence arise from

“psychiatric injuries—injuries that had physical and bodily effects—resulting from him

having to flee for his very life from a methane explosion that was accompanied by jet-

engine roars and a violent explosion of blue flame.”



              Because these claims arose from different underlying circumstances, we find

that Mr. Blankenship’s claim for negligence is not duplicative of his claim for negligent




                                              15
infliction of emotional distress.   Therefore, the circuit court did not err in denying

Petitioners’ motion to dismiss as to Mr. Blankenship’s claim for general negligence.




                                           IV.

                                    CONCLUSION

              For the reasons set forth above, we conclude that the Circuit Court of

Wyoming County exceeded its legitimate powers and was clearly erroneous when it

refused to dismiss Mr. Blankenship’s claim for negligent infliction of emotional distress.

Therefore, we grant the writ to prohibit enforcement of the circuit court’s February 28,

2019 order denying Petitioners’ motion to dismiss as to the negligent infliction of

emotional distress claim, and we order the circuit court to dismiss this claim. Finally, we

deny the writ of prohibition with respect to the general negligence claim.


                                                   Writ granted in part and denied in part.




                                            16
