Grafton, West Virginia
Attorney for the Appellants
Jo Marie Pitrolo
George R. Higinbotham
Fairmont, West Virginia
Attorneys for the Appellees
JUSTICE MILLER delivered the Opinion of the Court.
JUSTICE BROTHERTON dissents.
1. In actions for damages to property and for personal
injuries, the appropriate statute of limitations under W. Va. Code,
55-2-12 (1959), is two years. These actions by virtue of W. Va.
Code, 55-7-8a(a) (1959), survive the death of the plaintiff and the
2. Damages for personal injuries arising out of an
assault and battery are controlled by the two-year statute of
limitations contained in W. Va. Code, 55-2-12(b) (1959).
3. "An instruction, given in a personal injury case for
damages for physical pain, mental anguish and impairment of
capacity to enjoy life resulting from an assault on the plaintiff,
which submits to the jury plaintiff's right of recovery, and in the
event of recovery, directs them to assess as damages such as they
may believe plaintiff entitled to under all the evidence in the
case, . . . does not constitute reversible error[.]" Syllabus
Point 2, in part, Ness v. Julian Goldman Stores, 109 W. Va. 329,
154 S.E. 678 (1930).
4. In an action for assault and battery, a plaintiff
can recover damages for emotional distress. This element of
damages is a part of the overall claim for damages in the assault
and battery action.
5. A claim for severe emotional distress arising out of
a defendant's tortious conduct is a personal injury claim and is
governed by a two-year statute of limitations under W. Va. Code,
55-2-12(b) (1959). To the extent that Funeral Services by Gregory
v. Bluefield Hospital, 186 W. Va. 424, 413 S.E.2d 79 (1991),
expresses a contrary view, it is overruled.
The plaintiff, Frances Courtney, instituted this civil
action in the Circuit Court of Taylor County against her former
husband, Denzil Courtney.See footnote 1 The plaintiff's complaint included,
among others, three separate causes of action: (1) that the
defendant willfully, wantonly, and intentionally assaulted and
battered her; (2) that as a result of the defendant willfully,
wantonly, and intentionally physically abusing her, the plaintiff
suffered from the intentional infliction of emotional distress;See footnote 2
and (3) that she suffered emotional distress as a result of her
"bystander's view" of the defendant "willfully, wantonly, and
intentionally battering Patsy Joe Compaleo," her son. Upon a
motion for summary judgment filed by the defendant, the trial court
held that all three causes of action were time barred by a one-year
statute of limitations.
The plaintiff argues that the causes of action in this
case are, or should be, governed by a two-year statute of
limitations, thereby making her complaint timely filed. The
applicable statutory provisions are found in W. Va. Code, 55-2-12
(1959),See footnote 3 and W. Va. Code, 55-7-8a(a) (1959).See footnote 4 Initially, we note
that under W. Va. Code, 55-2-12(a) and -12(b), there is a two-year
period for bringing suits for damages to property and for personal
injuries. Under W. Va. Code, 55-2-12(c), there is a one-year
period for other matters where, under common law, if the party were
to die, the case could not be brought. These provisions and their
historical background were discussed at some length in Snodgrass v.
Sisson's Mobile Home Sales, Inc., 161 W. Va. 588, 244 S.E.2d 321
(1978). There, we pointed out that both of these sections were
enacted in 1959. They were a part of Chapter 3 of the 1959 Acts of
the Legislature and, consequently, according to Snodgrass:
"When W. Va. Code, 55-7-8a, is read in pari materia with W. Va. Code, 55-2-12(a) and (b), relating to the limitation on suit for damage to property and personal injuries, common law survivability of these causes of action is no longer the test. The reason is two-fold. First, these subsections do not contain any requirement as to survivability, but merely express a stated period in which the actions must be brought. Second, the provisions of subsection (a) of W. Va. Code, 55-7-8a, statutorily create survivability by the following language: [citing W. Va. Code, 55-7-8a, see note 4, supra].
"The effect of this subsection is to
create statutory survivability for the causes
of action contained therein to parallel the
same causes of action set out in [W. Va.]
Code, 55-2-12(a) and (b)." 161 W. Va. at 593,
244 S.E.2d at 324-25.
What Snodgrass makes clear is that in actions for damages
to property and for personal injuries, the appropriate statute of
limitations under W. Va. Code, 55-2-12, is two years. These
actions by virtue of W. Va. Code, 55-7-8a(a), survive the death of
the plaintiff and the tortfeasor because it states "causes of
action for injuries to property, real or personal, or injuries to
the person and not resulting in death, or for deceit or fraud, also
shall survive[.]"See footnote 5
We have never directly addressed what statute of limitations applies to a civil action alleging personal injuries resulting from an assault and battery. The defendant argues that the statute of limitations is controlled by State v. Leedy, 141 W. Va. 474, 91 S.E.2d 477 (1956). In that case, a one-year statute of limitations was applied to a suit against a surety whose bond covered assault and battery conduct of a special police officer. The police officer allegedly had beaten and inflicted permanent injuries upon the plaintiff. In finding the action of covenant filed by the victim of the assault time-barred, we implicitly held that the then-applicable W. Va. Code, 55-2-12 (1949), mandated a one-year statute of limitations period. Our decision in Leedy was based upon our earlier case of Town of Clendenin ex rel. Field v. Ledsome, 129 W. Va. 388, 391, 40 S.E.2d 849, 851 (1946), where, in regard to a suit similar to Leedy, we concluded that the "right of action would not survive either the death of the alleged tortfeasor nor that of the plaintiff."
However, Leedy dealt with the 1949 provisions of W. Va.
Code, 55-2-12,See footnote 6 which were markedly different from the current
statute. As we pointed out in Snodgrass, the current statute
enacted in 1959, three years after Leedy, extended the statute of
limitations to two years for personal injuries and, under W. Va.
Code, 55-7-8a(a), gave specific statutory survivability to such
actions. Thus, it is clear that damages for personal injuries
arising out of an assault and battery are controlled by the two-
year statute of limitations contained in W. Va. Code, 55-2-12(b).
In this case, the plaintiff, Mrs. Courtney, seeks to
recover not only damages for the physical injuries from the
battery, but also for the emotional distress injury. Our assault
cases make clear that a victim of an assault and battery is
entitled not only to recover for physical injuries, but also for
emotional distress which is comparable to mental anguish. We
recognized this more than fifty years ago in Nees v. Julian Goldman
Stores, 109 W. Va. 329, 154 S.E. 769 (1930), where we stated in
Syllabus Point 2, in part:
"An instruction, given in a personal
injury case for damages for physical pain,
mental anguish and impairment of capacity to
enjoy life resulting from an assault on the
plaintiff, which submits to the jury
plaintiff's right of recovery, and in the
event of recovery, directs them to assess as
damages such as they may believe plaintiff
entitled to under all the evidence in the
case, . . . does not constitute reversible
Cf. Flannery v. United States, 171 W. Va. 27, 297 S.E.2d 433 (1982)
(Syllabus Point 3: "A plaintiff in a personal injury action who
has been rendered permanently semi-comatose is entitled to recover
for the impairment of his capacity to enjoy life as a measure of
the permanency of his injuries even though he may not be able to
sense his loss of enjoyment of life.").
More recently in Criss v. Criss, 177 W. Va. 749, 356
S.E.2d 620 (1987), an assault case involving a wife who had been
beaten by her husband, we said in Syllabus Point 4:
"Because an action for assault and battery allows for recovery of damages due to resulting emotional distress, a claim for the tort of outrageous conduct is duplicitous of a claim for assault and battery, where both claims arise from the same event."See footnote 7
Thus, it is clear that in an action for assault and battery, Mrs. Courtney can recover damages for emotional distress. This element of damages is a part of her overall claim for damages in the assault and battery action.See footnote 8 Since this cause of action is for personal injuries and takes the two-year statute of limitations, the trial court erred in utilizing the one-year statute of limitations.
In Harless v. First National Bank of Fairmont, 169 W. Va. 673, 289 S.E.2d 692 (1982), where we first recognized the tort of outrageous conduct that causes severe emotional distress, we emphasized in note 20 the nature of actionable extreme emotional distress by quoting from comment (j) of Section 46 of the Restatement (Second) of Torts.See footnote 9 This same Restatement section also contains the right to recover emotional distress arising out of outrageous conduct toward an immediate family member,See footnote 10 which we adopted in Syllabus Point 2 of Courtney I:
"A third person may recover emotional distress damages if the direct victim of the defendant's outrageous conduct is a member of the third person's immediate family, and the third person witnessed the outrageous conduct."
In this type of cause of action, the emotional distress
must be significant and severe and must be an integral part of the
cause of action. It differs from the type of emotional distress
that can be recovered where a physical injury is inflicted on the
plaintiff. This latter type of cause of action is ancillary to the
substantive tort and is only a damage component. Consequently, the
emotional distress need not be as severe to enable some recovery.
However, where the claim is only one for severe emotional distress
from outrageous conduct, the emotional distress forms the basis of
the cause of action. To recover damages for a claim based solely
on emotional distress, such emotional distress must not only be
severe, but must manifest distinct psychological or mental patterns
that are commonly recognized by experts. In some instances,
physical manifestations may occur. The South Carolina Supreme
Court in its discussion of the intentional infliction of emotional
distress in Ford v. Hutson, 276 S.C. 157, ___, 276 S.E.2d 776, 781
(1981), made this point: "[W]e hold today that this tort is one
independent of others not merely an outgrowth of another
traditional tort[.]" In Ford, the plaintiff's extreme emotional
distress resulted in headaches, nausea, cramps, and a spastic
colon.See footnote 11
We discussed the concept of severe emotional distress at
some length in Heldreth v. Marrs, ___ W. Va. ___, 425 S.E.2d 157,
165-67 (1992), where we determined that a plaintiff who had
suffered severe emotional distress and a resultant heart attack
from seeing his wife struck by a car might have a cause of action
against the negligent defendant.See footnote 12 In arriving at our conclusion,
we reviewed a number of cases from other jurisdictions which
discussed the severity of the emotional distress and whether a
physical injury must be shown in order to recover.See footnote 13 We determined
that a physical injury was not required and adopted the modern
"The Supreme Court of Ohio in Paugh v. Hanks, [6 Ohio St. 3d 72, 451 N.E.2d 759 (1983)], however, found that the physical injury rule was too inflexible, and that the standard of 'serious' emotional distress was a more reliable safeguard. The Supreme Court of Ohio explained what it meant by using the term 'serious':
'By the term "serious," we of course
go beyond trifling mental
disturbance, mere upset or hurt
feelings. We believe that serious
emotional distress describes
emotional injury which is both
severe and debilitating. Thus,
serious emotional distress may be
found where a reasonable person,
normally constituted, would be
unable to cope adequately with the
mental distress engendered by the
circumstances of the case.'
[6 Ohio St. 3d at 78,] 451 N.E.2d at 765 (emphasis added).
"The Paugh court further stated that
'a rigid requirement which prevents a
plaintiff from recovering from serious
emotional harm except where a physical injury
manifestation has ensued, completely ignores
the advances made in modern medical and
psychiatric science[.]' [6 Ohio St. 3d at
78,] 451 N.E.2d at 765. The court further
pointed out that '[s]erious emotional distress
can be as severe and debilitating as physical
injury and is no less deserving of redress.'
Id. Finally, the court, relying on Molien v.
Kaiser Foundation Hospitals, 27 Cal. 3d 916,
[933,] 167 Cal. Rptr. 831, 841, 616 P.2d 813,
823 (1980), gave examples of serious emotional
distress such as traumatically induced
neurosis, psychosis, chronic depression, or
phobia. Id." ___ W. Va. at ___, 425 S.E.2d
From the foregoing, it seems clear that an action for
severe emotional distress caused by a defendant's tortious conduct
is a personal injury. Indeed, in some cases, it may give rise to
some physical injury, as happened in Heldreth and Ford v. Hutson,
supra. See also Dahl v. Fed. Land Bank Ass'n of W. Ill., 213 Ill.
App. 3d 867, 157 Ill. Dec. 242, 572 N.E.2d 311 (1991). Certainly,
at the very least, this type of severe emotional distress will
exhibit mental and emotional damages readily recognizable by
The critical point is that W. Va. Code, 55-2-12(b), uses
the term "personal injuries" rather than "physical injuries." It
is too late in the day medically to say that recognizable mental or
emotional injuries that arise from severe emotional distress are
not injuries to the person. A cause of action for such injuries
takes a two-year statute of limitations not because it did or did
not survive at common law, but because it is a species of personal
injury. As we have pointed out in Part I, supra, the two-year
period of limitations for personal injuries found in W. Va. Code,
55-2-12(b), is statutorily independent of any common law and this
independence is reinforced by the language of W. Va. Code, 55-7-
8a(a), which specifically confers survivability on actions for
The trial court granted summary judgment against the
plaintiff on her separate claim for extreme emotional distress
based upon her seeing the defendant physically abuse her son. The
trial court relied on Funeral Services by Gregory v. Bluefield
Hospital, 186 W. Va. 424, 413 S.E.2d 79 (1991). In that case, the
plaintiff had embalmed an AIDS-infected corpse. He claimed that
the hospital which delivered the body failed to inform him of its
condition. He subsequently learned of the AIDS problem and claimed
that this caused him extreme emotional distress.
In Gregory, we indicated that a one-year statute of
limitations applied to an emotional distress claim. We relied on
our earlier case of Rodgers v. Corporation of Harpers Ferry, 179
W. Va. 637, 371 S.E.2d 358 (1988), where we established that civil
rights actions filed pursuant "to 42 U.S.C. § 1983 are personal
injury actions governed by the two-year statute of limitations set
forth in W. Va. Code § 55-2-12(b)[.]" Syllabus, in part, Rodgers.
In the course of setting the two-year period of limitations in
Rodgers, we said by way of dictum in reference to the one-year
statute of limitations in W. Va. Code, 55-2-12(c):
"Consequently, personal tort actions such as libel, defamation, intentional infliction of emotional distress, false arrest, false imprisonment, and malicious prosecution take the one-year statute of limitations because they are excluded from statutory survivability under W. Va. Code § 55-7-8a(a) [(1959)], and not because of a statutory distinction between intentional and unintentional torts." 179 W. Va. at 640-41, 371 S.E.2d 361-62. (Footnotes omitted).
We find Gregory to be anomalous in its statement that a
claim for severe emotional distress did not survive at common law
as it failed to consider whether it was a personal injury under
W. Va. Code, 55-2-12(b). Its reliance on Rodgers' brief dictum was
misplaced. Oddly enough, Rodgers, in finding the two-year statute
of limitations for civil rights actions under 42 U.S.C. § 1983,
would allow all sorts of claims that do not contain any personal
injuries, as illustrated by several cases in our Court. See, e.g.,
Bennett v. Coffman, 178 W. Va. 500, 361 S.E.2d 465 (1987) (42
U.S.C. § 1983 on a claim of false arrest by a police officer); Orr
v. Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983) (42 U.S.C. § 1983
by college librarian discharged after expressing opposition to
remodeling plans); Rissler v. Giardina, 169 W. Va. 558, 289 S.E.2d
180 (1982) (42 U.S.C. § 1983 on conditions of confinement in county
jail); Mitchem v. Melton, 167 W. Va. 21, 277 S.E.2d 895 (1981) (42
U.S.C. § 1983 on conditions of confinement in county jail).
Moreover, Gregory made no attempt to analyze cases from
other jurisdictions to determine how they treat a claim for severe
emotional distress. In those jurisdictions which have a statute of
limitations for "personal injuries" or "injuries to persons,"
courts generally have found a suit for severe emotional distress
arising out of tortious conduct to be a personal injury action.
See, e.g., Mackey v. Judy's Foods, Inc., 867 F.2d 325 (6th Cir.
1989) (interpreting Tennessee law); C & W Constr. Co. v.
Brotherhood of Carpenters & Joiners of Am., Local 745, AFL-CIO, 687
F. Supp. 1453 (D. Hawaii 1988) (construing Hawaii law); Hildebrand
v. Hildebrand, 736 F. Supp. 1512 (S.D. Ind. 1990) (construing
Indiana law); Johnson v. McKee Baking Co., 398 F. Supp. 201 (D. Va.
1975), aff'd 532 F.2d 750 (4th Cir. 1976) (interpreting Virginia
law); Dahl v. Fed. Land Bank Ass'n of W. Ill., supra; Flynn v.
Associated Press, 401 Mass. 776, 519 N.E.2d 1304 (1988); Campos v.
Oldsmobile Div., General Motors Corp., 71 Mich. App. 23, 246 N.W.2d
352 (1976); Fleming v. United Parcel Serv., Inc., 255 N.J. Super.
108, 604 A.2d 657 (Law Div. 1992); Dickens v. Puryear, 302 N.C.
437, 276 S.E.2d 325 (1981); Ford v. Hutson, supra; Fitzgerald v.
Congleton, 155 Vt. 283, 583 A.2d 595 (1990).
For the foregoing reasons, we conclude that a claim for
severe emotional distress arising out of a defendant's tortious
conduct is a personal injury claim and is governed by a two-year
statute of limitations under W. Va. Code, 55-2-12(b). To the
extent that Funeral Services by Gregory v. Bluefield Hospital,
supra, expresses a contrary view, it is overruled.
In conclusion, because the plaintiff brought her claims of battery and intentional infliction of emotional distress resultant from the battery within the two-year statute of limitations period mandated by W. Va. Code, 55-2-12(b), her claims were timely filed and the summary judgment order of the trial court in that regard must be reversed and those claims remanded for further development. Furthermore, because we also hold that the plaintiff's claim for emotional distress resultant from a bystander's view of outrageous conduct towards her child is governed by a two-year statute of limitations by virtue of W. Va. Code, 55-2-12(b), the summary judgment order of the trial court also must be reversed in that regard. The judgment being reversed, this case is remanded.
Reversed and remanded.
Footnote: 1This case originally came before this Court on appeal from the dismissal of two causes of action because the plaintiff failed to state a claim upon which relief could be granted. We reversed the trial court holding that Mrs. Courtney's son could recover for severe emotional distress caused by his witnessing the defendant's outrageous conduct inflicted on Mrs. Courtney. The second theory sanctioned recovery against the defendant's mother who gave substantial assistance in the commission of his outrageous conduct. Courtney v. Courtney, 186 W. Va. 597, 413 S.E.2d 418 (1991). For purposes of this opinion, we refer to our prior decision as Courtney I.
Footnote: 2The trial court, in its September 3, 1992, order dismissing the plaintiff's claim of "intentional infliction of emotional distress of Frances Courtney by Denzil Courtney," cites to "Count II, paragraph 14" of the plaintiff's complaint. Cause of Action II is actually entitled "Negligent Distribution" and does not include paragraph 14. Count (styled "Cause" in the complaint) III, paragraph 14 comes under the heading "Intentional Infliction of Emotional Distress" and lists damages for expenses incurred by Mrs. Courtney as a result of caring for her son's emotional distress resulting from viewing the alleged outrageous conduct of the defendant towards the plaintiff. The paragraph also alleges damages for the plaintiff having "been disabled in her ability to communicate, socialize, advice [sic], comfort and consort with her son; and . . . she has been otherwise injured." The trial court's dismissal order merely refers to "Count II, paragraph 14" of the (amended) complaint as the source of the plaintiff's claim of intentional infliction of emotional distress, although it is clear that most of paragraph 14 deals with damages sustained by the plaintiff in relation to caring for her son's emotional distress.
On the other hand, paragraph 3 of the amended complaint
under the hearing "First Cause - Assault and Battery" outlines
the following damages incurred by the plaintiff "as a result of
Denzil C. Courtney's willfully, wantonly, and intentionally
assaulting and battering Frances Courtney":
"e. she has suffered much pain and
suffering of body and mind (past, present and
* * *
"g. she has suffered much humiliation, great indignities and much embarrassment;
"h. she has experienced a permanent reduction in her capacity to enjoy life and carry out her ordinary physical and mental activities;
"i. she has been inconvenienced (past, present and future); and
"j. she has been otherwise injured."
Both paragraphs 3 and 14 clearly encompass damages incurred as a result of the alleged outrageous conduct of the defendant toward the plaintiff. Although neither paragraph uses the term "emotional distress," it seems clear that the trial court's dismissal order was directed at any claim of the plaintiff in regard to intentional infliction of emotional distress incurred by her as a result of alleged physical violence by the defendant against her, whether that violence be termed "physical abuse," as in paragraph 14 of the complaint, or "assaulting and battering" as in paragraph 3. See also note 6, infra.
Footnote: 3W. Va. Code, 55-2-12, provides:
"Every personal action for which no
limitation is otherwise prescribed shall be
brought: (a) Within two years next after the
right to bring the same shall have accrued,
if it be for damage to property; (b) within
two years next after the right to bring the
same shall have accrued if it be for damages
for personal injuries; and (c) within one
year next after the right to bring the same
shall have accrued if it be for any other
matter of such nature that, in case a party
die, it could not have been brought at common
law by or against his personal
representative." (Emphasis added).
Footnote: 4W. Va. Code, 55-7-8a(a), states:
"In addition to the causes of
action which survive at common law, causes of
action for injuries to property, real or
personal, or injuries to the person and not
resulting in death, or for deceit or fraud,
also shall survive; and such actions may be
brought notwithstanding the death of the
person entitled to recover or the death of
the person liable."
Footnote: 5Actions resulting in death are covered by our wrongful
death statute, W. Va. Code, 55-7-5 (1931). See also W. Va. Code, 55-7-8 (1989); W. Va. Code, 55-7-8a(b) through -8a(d). See note 11, infra.
Footnote: 6W. Va. Code, 55-2-12 (1949), stated:
"Personal Actions Not Otherwise
Provided For.--Every personal action for which no limitation is otherwise prescribed shall be brought (a) within two years next after the right to bring the same shall have accrued, if it be for a matter of such nature that, in case a party die, it can be brought by or against his representative; and (b) if it be for a matter not of such nature, shall be brought within one year next after the right to bring the same shall have accrued, and not after; and (c) every right of action mentioned above in clause (a) heretofore accrued shall be brought within two years hereafter or within five years from the time such action accrued, whichever shall be less." (Emphasis added).
Footnote: 7Although the plaintiff's amended complaint includes elements of emotional distress in its "Cause I - Assault and Battery" and includes "Cause III - Intentional Infliction of Emotional Distress," it is clear that the plaintiff may not make
duplicitous recoveries for emotional distress arising from assault and battery.
See also note 2, supra, and Syllabus Point 7 of Harless v. First National Bank of Fairmont, 169 W. Va. 673, 289 S.E.2d 692 (1982).
Footnote: 8 We also stated in Syllabus Point 3 of Criss: "'In an action to recover for personal injuries alleged to have resulted in an assault, a declaration which alleges that the assault was wilful, intentional, and unlawful will support a recovery of punitive damages.' Syl. Pt. 3, Peck v. Bez, 129 W. Va. 247, 40 S.E.2d 1 (1946)."
Footnote: 9Note 20, in pertinent part, of Harless, 169 W. Va. at 693-94, 289 S.E.2d at 703-04, states:
"The Restatement further defines
the essential elements of this tort as
* * *
'j. Severe emotional distress. The rule stated in this Section applies only where the emotional distress has in fact resulted, and where it is severe. Emotional distress
passes under various names, such as mental
suffering, mental anguish, mental or nervous
shock, or the like. It includes all highly
unpleasant mental reactions, such as fright,
horror, grief, shame, humiliation,
embarrassment, anger, chagrin,
disappointment, worry, and nausea. It is
only where it is extreme that the liability
arises. Complete emotional tranquility is
seldom attainable in this world, and some
degree of transient and trivial emotional
distress is a part of the price of living
among people. The law intervenes only where
the distress inflicted is so severe that no
reasonable man could be expected to endure
it. The intensity and the duration of the
distress are factors to be considered in
determining its severity. Severe distress
must be proved. . . .
'The distress must be reasonable and justified under the circumstances, . . .'"
Footnote: 10Section 46 of the Restatement (Second) of Torts is:
"(1) One who by extreme and
outrageous conduct intentionally or
recklessly causes severe emotional distress
to another is subject to liability for such
emotional distress, and if bodily harm to the
other results from it, for such bodily harm.
"(2) Where such conduct is directed
at a third person, the actor is subject to
liability if he intentionally or recklessly
causes severe emotional distress
"(a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or
"(b) to any other person who is present at the time, if such distress results in bodily harm."
Footnote: 11For this reason, even though a cause of action for defamation may contain a damage component of mental or emotional distress, it is ancillary to the recognized substantive tort of defamation which did not survive at common law and is not within the categories set out in W. Va. Code, 55-7-8a(a). Duffy v. Ogden Newspapers, Inc., 170 W. Va. 318, 294 S.E.2d 121 (1982). See also Snodgrass v. Sisson's Mobile Home Sales, Inc., 161 W. Va. at 594, 244 S.E.2d at 325 (false arrest and imprisonment and malicious prosecution have a one-year statute of limitations).
Footnote: 12In Syllabus Point 1 of Heldreth, we stated:
"A defendant may be held liable for negligently causing a plaintiff to experience serious emotional distress, after the plaintiff witnesses a person closely related to the plaintiff suffer critical injury or death as a result of the defendant's negligent conduct, even though such distress did not result in physical injury, if the serious emotional distress was reasonably foreseeable. To the extent that Montelleone v. Co-Operative Transit Co., 128 W. Va. 340, 36 S.E.2d 475 (1945), is inconsistent with our holding in cases of plaintiff recovery for negligent infliction of emotional distress, it is overruled."
Footnote: 13This general summary was made in Heldreth:
"There is disagreement among courts, however,
as to whether some physical injury must
result from the emotional distress. See,
e.g., Leong v. Takasaki, 55 Haw. 398, [404,]
520 P.2d 758, 762 (1974) (physical injury
requirement is 'artificial' and should be
used only to show degree of emotional
distress); Barnhill v. Davis, 300 N.W.2d
 107-08 [(Iowa 1981)] (physical
manifestations of distress required); Lejeune
v. Rayne Branch Hospital, 556 So.2d 559, 570
(La. 1990) (recovery should be allowed only
where the emotional injury is both severe and
debilitating); Culbert v. Sampson's
Supermarkets Inc., 444 A.2d [433,] 438 [(Me.
1982)] (proof of physical manifestations of
the mental injury is no longer required);
Corso v. Merrill, [119 N.H. 647, 653,] 406
A.2d [300,] 304 [(1979)] (harm for which
plaintiff seeks to recover must be
susceptible to some form of objective medical
determination and proved through qualified
medical witnesses); Folz v. State, 110 N.M. 457, [470,] 797 P.2d
246, 259 (1990) (physical manifestation should not be the sine
qua non by which to establish damages resulting from emotional
trauma); Paugh v. Hanks, 6 Ohio St. 3d 72, [78,] 451 N.E.2d 759,
765 (1983) (examples of serious emotional distress should include
traumatically induced neurosis, psychosis, chronic depression, or
phobia); Reilly v. United States, 547 A.2d 894 (R.I. 1988)
(plaintiff must suffer physical symptomatology to recover for
negligent infliction of emotional distress)." ___ W. Va. at ___,
425 S.E.2d at 165. (Footnote omitted).