Braun A. Hamstead
Brian J. McAuliffe
Hamstead & Associates, L.C.
Charles Town, West Virginia
Attorneys for the Appellants
William R. Kuykendall
Keyser, West Virginia
Attorney for the Appellee,
Samuel H. Beverage, Comm'r
Michael D. Lorensen
Tracy A. Rohrbaugh
Bowles Rice McDavid Graff & Love, P.L.L.C.
Martinsburg, West Virginia
Attorneys for the Appellees,
Earle and Jean Parker
JUSTICE ALBRIGHT delivered the Opinion of the Court.
1. “The standard of review applicable to an
appeal from a motion to alter or amend a judgment, made pursuant to W.Va.
R.Civ.P. 59(e), is the same standard that would apply to the underlying judgment
upon which the motion is based and from which the appeal to this Court is
filed.” Syl. Pt. 1, Wickland v. American Travellers Life Ins. Co.,
204 W.Va. 430, 513 S.E.2d 657 (1998).
2. “A motion for summary judgment should be
granted only when it is clear that there is no genuine issue of fact to be
tried and inquiry concerning the facts is not desirable to clarify the application
of the law.” Syl. Pt. 3, Aetna Cas. and Sur. Co. v. Federal Ins. Co.
of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
3. “If a highway construction or improvement
results in probable damage to private property without an actual taking thereof
and the owners in good faith claim damages, the State Road Commissioner [DOH]
has the statutory duty to institute proceedings within a reasonable time after
completion of the work to ascertain damages, if any, and, if he fails to do
so, after reasonable time, mandamus will lie to require the institution of
such proceedings.” Syl. Pt. 1, State ex rel. Griggs v. Graney,
143 W.Va. 610, 103 S.E.2d 878 (1958).
4. “Whether it is expedient, appropriate, or necessary
to provide for a public service of a particular kind or character is a legislative,
not a judicial, question.” Syl. Pt. 2., Pittsburg Hydro-Electric Co.
v. Liston, 70 W.Va. 83, 73 S.E. 86 (1911).
5. “The right to petition the government found
in Section 16 of Article III of the West Virginia Constitution is comparable
to that found in the First Amendment to the United States Constitution. It
does not provide an absolute privilege for intentional and reckless falsehoods,
but the right is protected by the actual malice standard of New York Times
Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).”
Syllabus, in part, Harris v. Adkins, 189 W.Va. 465, 432 S.E.2d 549
(1993).
6. “ A party who moves for summary judgment
has the burden of showing that there is no genuine issue of fact and any doubt
as to the existence of such issue is resolved against the movant for such
judgment.” Syl. Pt. 6, Aetna Cas. and Sur. Co. v. Federal Ins. Co.
of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
7. “Generally, under the rule of reasonable use, the landowner, in dealing with surface water, is entitled to take only such steps as are reasonable, in light of all the circumstances of relative advantage to the actor and disadvantage to the adjoining landowners, as well as social utility. Ordinarily, the determination of such reasonableness is regarded as
involving factual issues to be determined by the trier of fact.” Syl.
Pt. 2, in part, Morris Associates, Inc. v. Priddy, 181 W.Va. 588, 383
S.E.2d 770 (1989).
8. “When a plaintiff alleges that a defendant
has caused or allowed surface water to damage the plaintiff, the mere fact
that the water does not originate on the land of the defendant, does not,
in and of itself, make the defendant's conduct "reasonable" under
the test established in Morris Assocs., Inc. v. Priddy, 181 W.Va. 588,
383 S.E.2d 770 (1989).” Syl. Pt. 6, Whorton v. Malone, 209 W.Va.
384, 549 S.E.2d 57 (2001).
9. “In the absence of a valid waiver or other
contractual arrangement, altering the natural flow or drainage of surface
water upon one's land such that the water causes damage to another party is
not "reasonable" merely because the person altering the flow of
water sought to protect his or her own property and did not intend to harm
any other party.” Syl. Pt. 7, Whorton v. Malone, 209 W.Va. 384,
549 S.E.2d 57 (2001).
10. “Where a plaintiff sustains a noticeable
injury to property from a traumatic event, the statute of limitations begins
to run and is not tolled because there may also be latent damages arising
from the same traumatic event.” Syl. Pt. 2, Hall's Park Motel, Inc.
v. Rover Construction, Inc., 194 W.Va. 309, 460 S.E.2d 444 (1995).
11. Where a tort involves a continuing or repeated injury, the cause of action accrues at and the statute of limitations begins to run from the date of the last injury or when the tortious overt acts or omissions cease.
Albright, Justice:
Appellants/plaintiffs below, Spencer and Helen Graham,
appeal from separate orders of the Circuit Court of Berkeley County dated
April 5, 2001, from which summary judgment was granted to the appellees/defendants
below Earle and Jean Parker and Samuel H. Beverage, in his capacity as Commissioner
of the Division of Highways within the West Virginia Department of Transportation
(hereinafter “DOH”). The Grahams filed suit against the Parkers
for allegedly causing damage to the Grahams' real and personal property by
the negligent, defective and improper construction of a housing development
storm water management system which altered the flow of surface water onto
the Graham lot. The complaint also alleged that Mr. Parker interfered with
the Grahams' free use and enjoyment of their real estate when he maliciously
acted to influence DOH to change its plans for addressing the excess surface
water problem affecting the Graham property. Additionally, as part of this
same suit the Grahams sought a writ of mandamus to compel DOH to construct
proper ditching in the right-of-way adjacent to the Graham land. The Grahams
contend that the lower court erred by granting summary judgment to the Parkers
and to DOH. Following our review of the record and the arguments of the parties
in this case, we affirm the order granting summary judgment to DOH. Likewise,
we affirm that part of the order granting summary judgment in favor of the
Parkers with regard to the malicious interference claim. However, that portion
of the order granting summary judgment in favor of Earle and Jean Parker with regard to the negligence claim, including the determination that this claim
was time-barred, is reversed.
I. Factual and Procedural Background
The house and residential lot which
is subject to the surface water drainage problems in this case were purchased
by Mrs. Graham and her former husband, John Linton, in 1983.
(See footnote 1) By deed dated October 11, 1991,
Mrs. Graham acquired her ex-husband's interest in the quarter acre parcel.
(See footnote 2)
The east side of the Graham property and the front of the Graham house
faces U.S. Route 11 in the Mill Creek District of Berkeley County at Bunker
Hill, West Virginia. Running adjacent to the Graham lot on its northern boundary
is Parker Drive, from which both the Graham property as well as the housing
development of Earle and Jean Parker known as Southern Cross Estates can be
accessed. Southern Cross Estates is located behind and to the west of the Graham
property.
When the lot and house were purchased in 1983, Parker
Drive was an unpaved gravel road. As part of the development of Southern Cross
Estates, the Parkers paved and raised Parker Drive and subsequently in 1991-1992
installed a storm water management system as required by the Berkeley County Planning Commission. The storm
water management system as described in a report of an engineering firm retained
by the Parkers consisted “of an infiltration trench and a pipe under
Parker Drive.” The Parkers contracted with Paul Burcham to construct
the storm water management system, including the infiltration trench which
runs along the Grahams' side of Parker Drive. The engineers retained by the
Parkers explained further in their report that the “construction of Parker
Drive and Southern Cross Estates directed approximately 2 acres more area
of runoff toward the Graham property,” and that the infiltration trench
was installed to restrict the rate at which the surface water flowed from
the housing development onto the Graham lot so as to reduce the amount of
water ponding in front of the Graham's house. In further explaining how the
infiltration system works, the engineers' report said:
Water will infiltrate into the soil as it flows toward
Route 11. Since the slope of the ditch is very flat, the water moves very
slowly and it has time to infiltrate. For most storms the peak rain period
is short. The constructed trench keeps this peak flow from reaching the Graham
property and give [sic] the water time to infiltrate.
The Grahams said that they first noticed ponding
of water on the property in 1990 and 1991 and that they first experienced
severe flooding in January 1994.
(See footnote 3) The 1994 flood caused water
to fill the crawl space under the residence and rise from there into the family room of the house. The Grahams attempted to rectify or minimize the
water problems by replacing the sump pump in the house's crawl space and trying
to explore alternative solutions with Mr. Parker, Mr. Burcham, the Berkeley
County Planning Commission and DOH.
The Grahams lodged their complaint about the water problems with the DOH supervisor located in Berkeley County apparently in late 1998 or early 1999, since the record shows DOH's first response was by letter dated January 13, 1999. This letter stated that DOH intended to install a culvert across Parker Drive, extend an open ditch running north along U.S. Route 11 and install culverts under driveways where needed. However, in a subsequent letter dated February 4, 1999, a DOH district administrator added the qualification that this work would be done on the condition that DOH received drainage easements from property owners whose land would be affected by the additional water flow the proposed ditching would create. The district administrator wrote two additional letters, dated June 16, 1999, and October 1, 1999, in response to inquiries from the Grahams' attorney. Both of these letters explained that potentially affected property owners refused to provide DOH with drainage easements and further noted that DOH did not create the problem of water runoff collecting on the Graham property, (See footnote 4) since the majority of the water runoff was originating from the housing development behind the Graham residence.
Although the record is not clear, it appears that sometime
after the first DOH letter was sent, a petition was circulated, signed by the
Parkers and other property owners in the area and submitted to DOH. The petition,
in pertinent part, states:
THIS PETITION IS TO THE WEST VIRGINIA DEPARTMENT OF
HIGHWAYS.
THIS PETITION IS PERTAINING TO THE PROPOSED CULVERT
ACROSS PARKER DRIVE AND EXTENDING TO AN OPEN DITCH APPROX 300 FT LONG ACROSS
LOTS AT THIS TIME LOTS 8, 7, 6 AND RUN OFF INTO A CULVERT UNDER RT. 11. SOUTH.
THIS PROPOSED DITCH COULD POSSIBLY ALLEVIATE THE PROBLEM
FOR LOT OWN NO9
(See footnote 5) AND CREATE PROBLEMS FOR SEVERAL OTHER LOTS
ON BOTH SIDES OF RT11 SOUTH. BUNKER HILL. AND CREATE A GREATER WATER PROBLEM
ON THE BUNKER HILL SCHOOL YARD.
THERE ARE OTHER OPTIONS TO ALLEVIATING THE PROBLEM FOR
LOT OWNER NO9.
WE REQUEST A MEETING WITH THE DEPARTMENT OF TRANSPORTATION,
DIVISION OF HIGHWAYS REPRESENTATIVES AND THEIR ENGINEER.
Not being successful in resolving the runoff problem
through DOH, the Grahams initiated legal action against the Parkers, Mr. Burcham
(See footnote 6)
and DOH by filing a “Complaint for Writ of Mandamus and Damages”
in the Berkeley County Circuit Court in mid-November 1999. The complaint alleged that the Parkers were responsible for damage
to the Grahams' real and personal property due to the Parkers' negligence
in constructing an infiltration system which did not adequately restrict the
surface water flowing from the housing development onto the Graham property.
Additionally, the complaint charged Earle Parker with intentionally interfering
with the Grahams' free use and enjoyment of real estate by maliciously initiating
a petition requesting DOH delay implementing plans intended to alleviate the
problem. As part of this same suit, a writ of mandamus was sought against
DOH to compel the agency to perform its duty to maintain the highways of the
state by constructing proper ditching in the right-of-way adjacent to the
Graham land.
The Parkers moved for summary judgment on December
28, 2000. Thereafter on January 17, 2001, DOH moved the lower court to dismiss
the mandamus petition for failure to state a claim upon which relief can be
granted, (See
footnote 7) or for judgment on the pleadings or alternatively
for summary judgment.
(See footnote 8) As previously noted, the circuit court
granted summary judgment for the Parkers and DOH by separate orders dated
April 5, 2001. Subsequently, the Grahams filed motions to amend or alter the
judgment orders pursuant to Rule 59(e) of the Rules of Civil Procedure. The
circuit court denied the motions in both instances: by order dated May 14,
2001, the lower court sustained the summary judgment in favor of the Parkers; by order dated June 12, 2001, summary judgment for the DOH was upheld. This
appeal followed.
[t]he standard of review applicable to an appeal from
a motion to alter or amend a judgment, made pursuant to W.Va.R.Civ.P. 59(e),
is the same standard that would apply to the underlying judgment upon which
the motion is based and from which the appeal to this Court is filed.
Consequently, in the case sub judice we look to the standard of review applicable
to summary judgments.
A de novo standard is applied to our review of summary
judgments. Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d
755 (1994). Our review is guided by the longstanding and often quoted premise
of syllabus point three of Aetna Casualty and Surety Company v. Federal
Insurance Company of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963): “A
motion for summary judgment should be granted only when it is clear that there
is no genuine issue of fact to be tried and inquiry concerning the facts is
not desirable to clarify the application of the law.” Id. at 160,
133 S.E.2d at 771. We further note that in our examination of the circuit
court's determination of whether there is a genuine issue for trial, this Court draws any allowable inference from the facts in the light most
favorable to the losing party. Masinter v. WEBCO, 164 W.Va. 241, 242,
262 S.E.2d 433, 435 (1980).
This case also requires us to examine whether the
dismissal of the petition of mandamus, which resulted from the lower court's
granting summary judgment in favor of DOH, was appropriate. Thus we also set
forth the standard for review of decisions involving writs of mandamus. In
reliance on syllabus point one of Staten v. Dean, 195 W.Va. 57, 464
S.E.2d 576 (1995), we have stated that this Court undertakes de novo review
of a circuit court decision regarding an extraordinary writ of mandamus. State
ex rel. Catron v. Raleigh County Bd. of Educ., 201 W.Va. 302, 303-04,
496 S.E.2d 444, 445-46 (1997). When conducting our review of a mandamus proceeding,
we consider whether the elements which must coexist to issue a writ of mandamus
are present: “(1) a clear legal right in the petitioner to the relief
sought; (2) a legal duty on the part of respondent to do the thing which the
petitioner seeks to compel; and (3) the absence of another adequate remedy.”
Syl. Pt. 2, in part, State ex rel. Kucera v. City of Wheeling, 153
W.Va. 538, 170 S.E.2d 367 (1969).
We have recognized that our common law, statutes
(See footnote 9)
and constitution
(See footnote 10) guarantee that property
will not be taken as a result of state action without just compensation.
State ex rel. Henson v. West Virginia Dept. of Transp., Div. Of Highways,
203 W.Va. 229, 232, 506 S.E.2d 825, 828 (1998). The manner by which the owner
of real property damaged by DOH may seek compensation was summarized in syllabus
point one of State ex rel. Griggs v. Graney, 143 W.Va. 610, 103 S.E.2d
878 (1958) as follows:
If a highway construction
or improvement results in probable damage to private property without an actual
taking thereof and the owners in good faith claim damages, the State Road
Commissioner [DOH] has the statutory duty to institute proceedings within
a reasonable time after completion of the work to ascertain damages, if any,
and, if he fails to do so, after reasonable time, mandamus will lie to require
the institution of such proceedings.
See also W.Va. Code § 54-2-14 (1981) (Repl. Vol. 2000). Consequently,
a writ of mandamus is the proper method by which an owner of real property
damaged by actions of DOH may seek to compel DOH to institute eminent domain
proceedings. In such cases, a writ of mandamus would issue if the three elements
enumerated in Kucera were present.
While mandamus will lie to compel DOH to begin eminent
domain proceedings, the Grahams are seeking a writ of mandamus to compel DOH
to do something entirely different _ to carry out a specific surface water drainage
project. In its April 5, 2001, order, the lower court specifically found that
DOH does not have a clear legal duty to perform the action requested by the
Grahams. (See
footnote 11) We likewise do not find that DOH has a “clear
legal duty” to carry out the Graham request and note furthermore that courts
are not in the position to compel performance of the same. If anything, quite
the contrary is true. As we said in Pittsburg Hydro-Electric Co. v. Liston,
70 W.Va. 83, 73 S.E. 86 (1911), “[w]hether it is expedient, appropriate,
or necessary to provide for a public service of a particular kind or character
is a legislative, not a judicial, question.” Id. at Syl. Pt. 2.
The Legislature has entrusted such responsibility with regard to the state road
system to the commissioner of highways. See W.Va. Code §§ 17-2A-1
to -22 (Repl. Vol. 2000).
Accordingly, we find that the Grahams failed to
meet all Kucera prerequisites for the issuance of a writ of mandamus
and, therefore, we affirm the circuit court's grant of summary judgment involving
DOH. (See
footnote 12) In so finding, we do not reach the questions
of whether the circumstances are such that the Grahams might amend their complaint
to comport with the previously outlined provisions of State ex rel. Griggs
v. Graney or whether such effort would be timely.
This Court initially dealt with the constitutional
right to petition the government in Webb v. Fury, 167 W.Va. 434, 282
S.E.2d 28 (1981). Webb involved a defamation action bought by a coal
company against Webb for sending communications to various federal agencies
claiming that the coal company was in violation of surface mining and clean
water laws. After finding that the right to petition the government is protected
under both federal and state constitutions,
(See footnote 14) we concluded in syllabus
point four of Webb that “[t]he people's right to petition the
government for a redress of grievances is a clear constitutional right and
the exercise of that right does not give rise to a cause of action for damages.”
Id. at 435, 282 S.E.2d at 30. Thereafter, in Harris v. Adkins,
189 W.Va. 465, 432 S.E.2d 549 (1993), this Court clarified the extent of constitutional
protection afforded the right to petition the government when we stated in
the syllabus, in part, that:
[t]he right to petition the
government found in Section 16 of Article III of the West Virginia Constitution
is comparable to that found in the First Amendment to the United States Constitution.
It does not provide an absolute privilege for intentional and reckless falsehoods,
but the right is protected by the actual malice standard of New York Times
Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
The Supreme Court in New York Times found that “actual malice”
is established when a statement is made “with knowledge that it was false
or with reckless disregard of whether it was false or not.” 376 U.S. at
280.
The court below recognized the constitutional protection
afforded the right to petition the government, including the qualification imposed
by Harris regarding actual malice, as evidenced from the sixth enumerated
point in the Parker summary judgment order which reads:
The plaintiffs have offered
no evidence that the Parkers intentionally or recklessly spread falsehoods to
the DOH or other governmental agencies to injure the plaintiffs, or that they
spread any “falsehoods” to DOH whatsoever. Accordingly, without an
intentionally or recklessly false statement, there has been no “actual
malice” proven by the plaintiffs . . . .
The Grahams' contend that the long-standing disputes
between the Grahams and Parkers raised the question of whether the Parkers were
motivated by actual malice when they filed the petition. However, the Grahams
fail to point us to any false statements made by either Mr. or Mrs. Parker to
support such an inference. Without the demonstration of actual malice by a false
or recklessly made statement, the activity of either Mr. or Mrs. Parker with
regard to the petition are constitutionally protected. We find that the lower
court correctly applied the law to reach its conclusion that no actual malice
was demonstrated by the Grahams in the statements contained in the petition
or otherwise. As a result, we agree with the circuit court's conclusion that there was no genuine issue as to any material fact regarding
this claim. Accordingly, we affirm the circuit court's dismissal of the tortious
interference claim.
Turning our attention to the negligence claim, we
note that the lower court's summary judgment order included the finding that
the Grahams provided no evidence that the storm water management system caused
or contributed to the flooding problems the Grahams experienced. As we held
in syllabus point six of Aetna Casualty and Surety Co. v. Federal Insurance
Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963),
[a] party who moves for summary
judgment has the burden of showing that there is no genuine issue of fact
and any doubt as to the existence of such issue is resolved against the movant
for such judgment.
It is not until this initial burden is met that the burden of production
shifts to the nonmoving party. Syl. Pt. 3, Jividen v. Law, 194 W.Va.
705, 461 S.E.2d 451 (1995). Consequently, our first question in reviewing
the summary judgment determination is whether the Parkers met their burden
of demonstrating the absence of a genuine issue of material fact.
To address this question, we return to the summary
judgment order which contains the following additional findings regarding
the negligence claim:
7. A storm water management
system was installed on property adjacent to the plaintiffs' property in 1991
or 1992.
8. The plaintiff Helen Graham
first observed ponding on her property in 1990 or 1991. Further, she experienced
severe flooding on her property in January 1994, following a severe storm, which caused water to back up under the house and rise into the family
room.
We do not agree with the lower courts conclusion that these findings establish
that no genuine issue of material fact exists as to the negligence of the
Parkers with regard to the storm water management system. More than one reasonable
conclusion can be drawn from these findings, including that the storm water
management system, which the Parkers installed to alter the drainage of surface
water flowing from their housing development, contributed to the flooding
in 1994 of the Graham's property.
Also relevant to our discussion here is this Court's
adoption in Morris Associates, Inc. v. Priddy, 181 W.Va. 588, 383 S.E.2d
770 (1989), of the rule of reasonable use in cases involving diversion of
surface water onto another's property. We defined this rule and its application
in syllabus point two, in part, of Morris Associates in the following
manner:
Generally, under the rule
of reasonable use, the landowner, in dealing with surface water, is entitled
to take only such steps as are reasonable, in light of all the circumstances
of relative advantage to the actor and disadvantage to the adjoining landowners,
as well as social utility. Ordinarily, the determination of such reasonableness
is regarded as involving factual issues to be determined by the trier of fact.
We elaborated on the reasonable use standard as applied to changes made to
the natural flow or drainage of surface water in syllabus points six and seven
of Whorton v. Malone, 209 W.Va. 384, 549 S.E.2d 57 (2001) in which
we said:
6. When a plaintiff alleges
that a defendant has caused or allowed surface water to damage the plaintiff,
the mere fact that the water does not originate on the land of the defendant, does not, in
and of itself, make the defendant's conduct “reasonable” under the
test established in Morris Assocs., Inc. v. Priddy, 181 W.Va. 588,
383 S.E.2d 770 (1989).
7. In the absence of a valid
waiver or other contractual arrangement, altering the natural flow or drainage
of surface water upon one's land such that the water causes damage to another
party is not “reasonable” merely because the person altering the
flow of water sought to protect his or her own property and did not intend
to harm any other party.
While there may be instances when the determination
of reasonableness may be made at the summary judgment stage, this is not such
a case. As with questions of negligence generally,
(See footnote 15) questions of reasonable
use present issues of fact for jury determination when the evidence pertaining
to reasonable use is conflicting, or even undisputed, as long as reasonable
persons may draw different conclusions from that evidence.
(See footnote 16)
Based upon the foregoing, we find that the circuit
court erred as a matter of law not only in shifting the burden of persuasion
to the Grahams but also in dismissing the negligence claim based on the lack
of any genuine issue of a material fact. Nonetheless, remand of the negligence
claim for further proceedings is dependent upon our review of the final error assigned: whether the court below correctly concluded that the
negligence claim was time-barred by the relevant statute of limitations.
The statute of limitations applicable to a cause
of action involving tort liability is West Virginia Code § 55-2-12.
(See footnote 17)
Syl. Pt. 1, Family Savings and Loan, Inc. v. Ciccarello, 157 W.Va.
983, 207 S.E.2d 157 (1974). The statutory limitation for filing claims involving
damage to property is two years. W.Va. Code § 55-2-12(a); State ex
rel. Ashworth v. Road Commission, 147 W.Va. 430, 128 S.E.2d 471 (1962).
Generally, the time period within which a cause
of action for tort begins is when the injury occurs. Cart v. Marcum,
188 W.Va. 241, 423 S.E.2d 644 (1992). However, there are numerous exceptions
to this general rule. The Grahams assert that one of these exceptions support
their claim that the statute of limitations has not expired in the case sub
judice. Relying on the principles set forth in Handley v. Town of Shinnston,
169 W.Va. 617, 289 S.E.2d 201 (1982), the Grahams argue that because the negligence
of the Parkers is a continuing breach of duty causing a continuing or repeated injury the statute
of limitations does not begin to run until the date of the last injury.
In the Town of Shinnston case, the Town had
installed a water transmission line on the Handley property. When the Handleys
noticed that the water line was leaking they notified the Town. The Town's
efforts to repair the leak were inadequate and the leaking continued, as did
the damage to the Handley property. This Court concluded in Town of Shinnston
that “'[w]here a tort involves a continuing or repeated injury, the cause
of action accrues at, and limitations begin to run from the date of the last
injury, or when the tortious overt acts cease.” Id. at 619, 289
S.E.2d at 202 (quoting 54 C.J.S. Limitations of Actions § 169).
Countering this argument, the Parkers contend that
this Court's holding in Hall's Park Motel, Inc. v. Rover Construction,
Inc., 194 W.Va. 309, 460 S.E.2d 444 (1995), fully supports the lower court's
conclusion that the statute of limitations had expired on the negligence claim
because the action first accrued with the construction of the infiltration
system. In Hall's Park Motel, the plaintiff complained about the negligent
construction of a lift station, which caused damage to the plaintiff's real
property. This Court determined in Hall's Park Motel that although
the construction caused continuous, increased injuries to the plaintiff's
property, the cause of the injuries was a “discrete and completed act
of negligent commission, not [] a continuing negligent act of omission . .
. .” Id. at 313, 460 S.E.2d at 448.
We subsequently held in syllabus point two of Hall's Park Motel that
“[w]here a plaintiff sustains a noticeable injury to property from a
traumatic event, the statute of limitations begins to run and is not tolled
because there may also be latent damages arising from the same traumatic event.”
Id. at 310, 460 S.E.2d at 445. The Parkers maintain that the noticeable
injury in the instant case occurred at least as early as 1991when the storm
water management system was constructed. Because this construction involved
a singular and complete act which is alleged to be causing continuing damage
to the Graham property, the Parkers argue that no exception to the two-year
statute of limitations is applicable.
A fair reading of the complaint and the other documents
in this case reveals that the Grahams are not complaining solely about the
“traumatic event” of the construction of the infiltration system.
Rather, the thrust of the Grahams' complaint is that the construction of the
infiltration system as well as the continuing wrongful conduct of the Parkers
in negligently failing to take action with regard to correcting the alleged
inadequacies of that system is causing continuing injuries to their real and
personal property. As such, we find that the present case presents a much
more comparable situation to that found in the Town of Shinnston case.
We recognize that Town of Shinnston was a per curiam opinion which
may raise doubt in some minds as to the validity in this jurisdiction of the
continuing tort exception to the statute of limitations. To dispel any such
doubts, we hereby hold that where a tort involves a continuing or repeated
injury, the cause of action accrues at and the statute of limitations begins to run from the date of the last injury or when the tortious
overt acts or omissions cease.
Applying this holding to the instant case, we do
not find the negligence claim time-barred because the alleged negligence of
the Parkers complained of by the Grahams constitutes continuing wrongful conduct
from which continuing injuries emanate. Accordingly, we reverse the decision
of the lower court regarding the statute of limitations.