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.
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
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.
By order entered March 30, 2010, this Court accepted the certified questions for review.
This Court has consistently held that "[t]he 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); see also Syl. Pt. 1, Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660 (2009); Syl. Pt. 1, Copier Word Processing Supply, Inc. v. WesBanco Bank, Inc., 220 W.Va. 39, 640 S.E.2d 102 (2006). Accordingly, we give plenary consideration to the legal issues to be resolved in answering the questions herein certified.
Prior to addressing the legal issues raised in the certified questions, this Court will reformulate the questions presented. See W. Va.Code § 51-1A-4 (1996) (Repl.Vol. 2008) ("The Supreme Court of Appeals of West Virginia may reformulate a question certified to it."); see also Syl. Pt. 3, Kincaid v. Mangum, 189 W.Va. 404, 432 S.E.2d 74 (1993); Potesta v. United States Fidelity & Guaranty Co., 202 W.Va. 308, 504 S.E.2d 135 (1998). As this Court recognized in City of Fairmont v. Retail, Wholesale, & Department Store Union, 166 W.Va. 1, 283 S.E.2d 589 (1980), this Court needs not address the certified questions in precisely the language through which they were certified. "[U]pon receiving certified questions we retain some flexibility in determining how and to what extent they will be answered." 166 W.Va. at 3-4, 283 S.E.2d at 590. In order to clearly address the legal issues of statutory preemption and common law cause of action presented herein, this Court finds it necessary to reformulate the questions as follows:
West Virginia Code § 29-1-8a (1993),
The legislature provided that the statute was "not intended to interfere with the normal activities of private property owners, farmers, or those engaged in the development, mining or improvement of real property." W. Va.Code § 29-1-8a(a). The prohibitions provided by the statute include, in pertinent part, as follows:
W. Va.Code § 29-1-8a(c)(1) (emphasis supplied).
Of the various definitions provided by the statute, it is necessary to recognize particular attributes which provide the essential framework for an understanding of the scope of the statute. For instance, the definition of an "unmarked grave" is limited and is specified as "any grave or location where a human body or bodies have been buried or deposited for at least fifty years and the grave or location is not in a publicly or privately maintained cemetery or in the care of a cemetery association, or is located within such cemetery or in such care and is not commonly marked[.]" W. Va.Code § 29-1-8a(b)(2) (emphasis supplied). Likewise, the definition of "disturb" is listed as "excavating, removing, exposing, defacing, mutilating, destroying, molesting, or desecrating in any way of human skeletal remains, unmarked graves, grave artifacts or grave markers[.] W. Va.Code § 29-1-8a(b)(6).
The statute also provides certain other penalties for violation, as follows:
W. Va.Code § 29-1-8a(g)(2).
This Court's review of the statute discloses a clear legislative intent to preempt common law desecration claims with respect to the narrowly-defined matters identified and covered by the statutory protection. The statutory language, as referenced above, specifically states the legislature's intention, as follows: "The Legislature finds that there is a real and growing threat to the safety and sanctity of unmarked human graves in West Virginia and the existing laws of the State do not provide equal or adequate protection for all such graves." W. Va.Code § 29-1-8a(a). In State ex rel. Riffle v. Ranson, 195 W.Va. 121, 464 S.E.2d 763 (1995), this Court explained that the proper "approach to any statutory construction issue after the Legislature adopts explicit limitations to a preexisting common law rule must be to decide initially whether the Legislature preempted the field and thereby left any room for judicial discretion." 195 W.Va. at 125, 464 S.E.2d at 767.
The particularized statement of purpose adequately indicates the legislature's intentions, and this Court holds that West Virginia Code § 29-1-8a 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). The statute clearly provides that any unmarked grave, defined as a grave over fifty years old not in a publicly or privately maintained cemetery or a "not commonly marked" grave over fifty years old in a maintained cemetery, will be encompassed within the statutory coverage. Grave markers are included in the statutory protection only if they are "of historical significance." Id.
The preemptive effect of the statute applies only to the narrowly-defined categories of graves and other related items that the statute delineates. Thus, common law is not preempted by the statute where the legislature has not specified statutory protection in West Virginia Code § 29-1-8a. Common law civil remedies remain available in grave desecration cases where the grave is not subject to this statutory protection. Criminal penalties are also available under West Virginia Code § 61-8-14 (2010). Interestingly, West Virginia Code § 61-8-14(b)(3) provides that desecration "means destroying, cutting, mutilating, effacing, injuring, tearing
The common law cause of action available for desecration of those graves not encompassed within West Virginia Code § 29-1-8a remains viable. The parameters of such a common law cause of action have developed in distinct contexts as this Court has addressed specific situations. A primary paradigm for a common law grave desecration cause of action emerges through an analysis of those prior cases.
In Ritter v. Couch, 71 W.Va. 221, 76 S.E. 428 (1912), this Court addressed the issue of a common law action for grave desecration and recognized that an action in equity lies for desecration of a grave which has been dedicated for cemetery purposes. 71 W.Va. at 228, 76 S.E. at 430. The sanctity of a cemetery and the need for a cause of action to recover damages for desecration were succinctly observed by the Ritter Court, as follows:
71 W.Va. at 227, 76 S.E. at 430.
A more specific analysis was accomplished in England v. Central Pocahontas Coal Co., 86 W.Va. 575, 104 S.E. 46 (1920), wherein this Court held that near relatives of a decedent may maintain a cause of action for damages for desecration of a grave or body because the bodily remains are accorded a type of property right.
In pertinent part of syllabus point two of England, this Court explained: "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[.]"
In Whitehair v. Highland Memory Gardens, Inc., 174 W.Va. 458, 327 S.E.2d 438 (1985), this Court addressed a situation in which the defendant had obtained permission to disinter and rebury certain bodies due to highway construction. The defendant was eventually accused of negligence in the handling of the bodies. In syllabus point three of Whitehair, this Court stated that "[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."
In syllabus point three of In re Hillcrest Memorial Gardens, 146 W.Va. 337, 119 S.E.2d 753 (1961), this Court enunciated a defining characteristic of a cemetery as an area "set apart," explaining as follows:
146 W.Va. at 338, 119 S.E.2d at 754, Syl. Pt. 3 (emphasis supplied).
In Bennett v. 3 C Coal Co., 180 W.Va. 665, 379 S.E.2d 388 (1989), the plaintiff had sought damages for surface cracks in grave sites allegedly incurred through mine subsidence. The Bennett Court found that "a cause of action will lie for the unlawful desecration of a grave site even though no disturbance of the body interred therein can be shown." 180 W.Va. at 670, 379 S.E.2d at 393. Further, the Bennett Court found that "damages for mental distress may be recovered by the next of kin for the disturbance or desecration of a relative's grave." Id. at 671, 379 S.E.2d at 394. The Court rejected the contention that damages for mental distress were not available for the unlawful disturbance of a grave site where no physical disturbance of the body could be demonstrated, recognizing that family members will generally suffer mental distress if either the bodies or the grave sites are desecrated. Id. The potential for punitive damages was also discussed, and the Bennett Court applied the traditional rule that punitive damages would be available upon proof that the defendant engaged in "a wilful, wanton, reckless or malicious act." Id. (internal citations omitted).
This Court thereafter addressed allegations of grave desecration in connection with logging and strip mining in Concerned Loved Ones and Lot Owners Association of Beverly Hills Memorial Gardens v. Pence, 181 W.Va. 649, 383 S.E.2d 831 (1989). In Pence, this Court reiterated the established principle that a cemetery is properly characterized as a land set aside and dedicated for the specific purpose of a cemetery. The Pence Court explained that "[t]he intention of the owner of the land to dedicate it for a public cemetery, together with the acceptance and use of the same by the public, or the consent and acquiescence of the owner in the long-continued use of his lands for such purpose" is sufficient to evidence a proper dedication. 181 W.Va. at 654, 383 S.E.2d at 836-37 (quoting 14 Am.Jur.2d Cemeteries § 14 (1964)).
The Pence Court also discussed damages potentially available to the plaintiffs, explaining that the plaintiffs may be entitled to "compensatory or only nominal [damages], depending upon the nature of the harmful acts as the evidence at trial demonstrates." 181 W.Va. at 656, 383 S.E.2d at 838. The Pence Court noted as follows: "It has been held that in this type of action, nominal damages at least, are awardable, and compensatory damages may be recovered if actual damage is shown." Id. As in Bennett, the Pence Court found that "punitive damages may be recovered in this case if the plaintiffs can prove that the defendants' conduct was willful, wanton, reckless, or malicious." Id. The potential for recovery of damages for mental distress for the disturbance or desecration of the graves was again recognized.
In its order certifying questions to this Court in the present case, the lower court accurately recognized that the gradual development of the common law of West Virginia on the issue of grave desecration has not generated precise elements of the tort, focusing instead upon the rights of a plaintiff in a specific factual scenario. In the situation of these certified questions, we are faced with a much broader request than has previously been addressed in more fact-specific inquiries.
Throughout this Court's evaluation of grave desecration matters, certain intrinsic principles have emerged. A prerequisite to common law recovery has consistently been a showing that the land upon which the decedents are buried is an actual cemetery, with identifiable boundaries or limits.
In delineating the elements of a common law cause of action for grave desecration, the lower court identified requirements gleaned from the common law of grave desecration as developed in this state. Upon review, this Court essentially agrees with the lower court's approach to the question regarding the elements of the common law action and alters the lower court's answers only slightly. This Court holds that 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;
As the lower court recognized, this Court has permitted recovery where the act
With regard to damages available in claims of grave desecration, this Court agrees with the answer of the lower court. Such answer is consistent with the prior pronouncements of this Court in grave desecration cases, as discussed above. Thus, 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;
This Court has consistently specified that the next of kin are entitled to recover damages in a common law cause of action for grave desecration. See Pence, 181 W.Va. at 656, 383 S.E.2d at 838; Bennett, 180 W.Va. at 671, 379 S.E.2d at 394. In Whitehair, this Court stated as follows:
174 W.Va. at 463, 327 S.E.2d at 443-44 (citations omitted; emphasis supplied).
West Virginia Code § 42-1-1 (1995) (Repl. Vol.2010), et seq., governs intestate succession and will provide a framework for a determination of the next of kin entitled to recovery in grave desecration claims. However, as the lower court and the parties to the underlying action have emphasized, the individuals entitled to recovery in a grave desecration case must necessarily be limited in some fashion, rather than requiring an exhaustive search of all living relatives and permitting every living descendant of the decedent to maintain or join a cause of action.
This single cause of action principle was explained by this Court in Warner v. Hedrick, 147 W.Va. 262, 126 S.E.2d 371 (1962). In Warner, this Court held that damage to an automobile, damages sustained by Mr. Warner for loss of consortium, and damages for medical expenses incurred as a result of injuries sustained by Mrs. Warner in an automobile accident were the result of a single wrongful act of the defendant and were to be claimed and recovered in one action. The Court explained the concept of a single cause of action rule, as follows: "The Courts in a substantial majority of jurisdictions consistently have held that a single wrongful act causing damage to the property and injury to the person of one individual gives rise to only one cause of action against the wrongdoer." 147 W.Va. at 265, 126 S.E.2d at 373. The Warner Court further held that the "well established single cause of action rule is supported by logic and is well founded in reason. It accurately manifests the principle that a cause of action inheres in the causative aspect of a breach of legal duty, the wrongful act itself, and not in the various forms of injury which flow therefrom." Id. at 268, 126 S.E.2d at 374.
Id. at 268, 126 S.E.2d at 374-75.
Although this Court has not taken the opportunity to apply this single wrongful act concept to a claim of grave desecration, other courts have utilized this principle in explanation for limiting the number of claims available in a grave desecration case. In North East Coal Co. v. Pickelsimer, 253 Ky. 11, 68 S.W.2d 760 (1934), for instance, the court held that "[i]t is universally agreed that the right of action of the `next of kin' is a family right, and daughters and sons or brothers and sisters may maintain one action and not a separate action by each one of them." 68 S.W.2d at 763.
Similarly, in Holleman v. Elmwood Cemetery Corp., 295 Ala. 267, 327 So.2d 716 (1976), the Alabama court found that all persons who occupy the same degree of kinship to the decedent should join in the same suit. To require otherwise "would subject the defendant to numerous suits by different parties for the same cause of action which should be settled in one suit." 327 So.2d at 720. In Hogan v. Woodward Iron Co., 263 Ala. 513, 83 So.2d 248 (1955), the court held that "[i]n the event of damage to the grave of a deceased person, the right of action, if any, accrues first to the surviving spouse, unless, of course, there are special circumstances.... If there is no surviving spouse the right is in the next of kin in the order of their relation to the deceased." 83 So.2d at 249.
Rule 17(a) of the West Virginia Rules of Civil Procedure provides, in pertinent part, as follows: "Every action shall be prosecuted in the name of the real party in interest."
Id. (citations omitted).
Based upon the foregoing analysis, this Court agrees with the answer to the certified question provided by the lower court on the issue of those entitled to recover and holds that 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.
Subsequent to this Court's reformulation of the certified questions from the Circuit Court of Logan County, we respond as follows:
Question No. 1: Does West Virginia Code § 29-1-8a preempt a common law cause of action for direct or indirect desecration of a grave?
This Court's Answer: Yes, to the extent that West Virginia Code § 29-1-8a specifically designates protection for certain narrowly-defined categories of graves and other related items.
Question No. 2: Does a common law cause of action for direct and/or indirect grave desecration exist, and, if so, what are the elements of such actions and the damages recoverable?
This Court's Answer: A common law cause of action for grave desecration does exist, and the elements of such cause of action 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) 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) the decedent in question is interred in the cemetery by license or right; (5) the plaintiff is the next of kin of the decedent with the right to assert a claim for desecration; and (6) 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. A separate and distinct cause of action for indirect grave desecration does not exist; grave desecration accomplished through indirect means is encompassed within the elements of a common law cause of action for grave desecration.
Question No. 3. Who are the "next of kin" who possess the right to recover in a common law cause of action for grave desecration?
This Court's Answer: The "next of kin" who possess the right to recover in a common law cause of action for grave desecration include 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.
Having answered the foregoing certified questions, as reformulated, we remand this matter to the Circuit Court of Logan County for further proceedings consistent with this opinion.
Certified Questions Answered and Case Remanded.
552 N.E.2d at 585-86.
W. Prosser, Handbook of the Law of Torts § 7, at 28-29 (3rd Ed. 1964). Modern jurisprudence has essentially abandoned this artificial distinction between direct and indirect trespass. See Stenberg v. Pacific Power & Light Co., Inc., 104 Wn.2d 710, 709 P.2d 793 (1985).
In addressing "the creative concept of `indirect tort liability'" generally in Alea London Ltd. v. Central Gulf Shipyard, L.L.C., 2006 WL 845752 (W.D.La.2006), the United States District Court for the Western District of Louisiana noted that the litigants had failed to provide a clear definition of the concept. 2006 WL 845752 at *8. Moreover, that court's independent research had failed to unearth any recognition or viability for the elusive concept. Thus, the court declined to adopt any concept of an indirect tort.
