No. 27376 --    Richard Aikens and Motel 81, Inc., d/b/a Martinsburg Econo-Lodge v. Robert Debow and              Craig                            Paving, Inc.

Starcher, J., concurring:

        The majority opinion demonstrates a classic struggle in the development of the common law: the battle between crafting remedies for people or businesses that are injured -- even people or businesses injured in a purely economic sense -- as a direct and proximate cause of a tortfeasor's carelessness, and protecting litigants from random, unpredictable liability without limit.

        I applaud the majority opinion's bold step forward, and its recognition that a tortfeasor may owe a certain, clearly foreseeable party a duty of due care to avoid causing “an interruption in commerce” which results in purely economic loss. I write separately to emphasize that this Court is not in a position to predict every situation where a tortfeasor's actions may have an adverse effect on a party's economic interests, a party with a “sufficiently close nexus or relationship” to the tortfeasor such that the tortfeasor's actions may form the basis for liability. In applying the Court's ruling to such situations in the future, circuit courts must use the existing concepts of legal duty, breach of that duty, and proximate causation to allow plaintiffs a remedy for their economic losses, while protecting defendants from tort liability almost without limit.

        In the common law, it is widely recognized that the concept of “duty” is a flexible principle that is dependent upon circumstances. As we stated over a century ago, “[n]egligence is the violation of the duty of taking care under the given circumstances. It is not absolute, but is always relative to some circumstances of time, place, manner or person.” Syllabus Point 1, Dicken v. Liverpool Salt & Coal Co., 41 W.Va. 511, 23 S.E. 582 (1895). We established a broad test for circuit courts to use in determining whether a defendant owed a plaintiff a duty in Syllabus Point 3 of Sewell v. Gregory, 179 W.Va. 585, 371 S.E.2d 82 (1988) where we stated:

         The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. The test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?

The fundamental reasoning behind this test is that a defendant's “liability to make reparation for an injury, by negligence, is founded upon an original moral duty, enjoined upon every person, so to conduct himself, or exercise his own rights, as not to injure another.” Syllabus Point 8, Blaine v. Chesapeake & O.R.R. Co., 9 W.Va. 252 (1876).

        The defendants in the instant case argued that Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303 (1927) and its progeny form the basis for a black-letter rule of law regarding a defendant's duty that is absolute: no plaintiff may recover for purely economic losses caused by the defendant in the absence of proof of a physical injury or property damage. Phrased another way, a defendant can arbitrarily wreak economic havoc and impose severe economic losses upon another party with impunity, so long as that other party isn't physically injured or doesn't sustain property damage. The defendants insist that we are bound to apply this unchangeable common law “rule” in this case. As the majority opinion makes clear, this Court disagrees with this proposition.

        Commentators See footnote 1 ¹ point to the numerous instances where plaintiffs have -- contrary to Robins Dry Dock and its progeny -- been allowed to recover for purely economic losses in the absence of proof of a physical injury or property damage. The majority opinion lists numerous exceptions to the “absolute” rule suggested by the defendants, where courts have permitted plaintiffs to recover economic losses proximately caused by a tortfeasor's carelessness, all in the absence of physical injury or property damage. See supra, ___ W.Va. at ___ fn. 8-15, ___ S.E.2d at ___ fn. 8-15 (Slip Op. at 30-32 fn. 8-15). As one court pointedly stated in rejecting notions of the existence of an unchanging, absolute common law rule, “[t]hese exceptions expose the hopeless artificiality of the per se rule against recovery for purely economic losses.” People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 261, 495 A.2d 107, 115 (1985).

        When courts have resisted allowing plaintiffs to recover for negligently caused, but purely economic, losses, the courts have expressed concern about the judicial system being subjected to “administrative overload -- the opening of the ubiquitous 'floodgates' to massive litigation.” Ann O'Brien, “Limited Recovery Rule as a Dam: Preventing a Flood of Litigation for Negligent Infliction of Pure Economic Loss,” 31 Ariz.L.Rev. 959, 966 (1989).

        Commentators, however, point out that courts have allowed the grounds of liability to expand in every other area of tort law “despite the now commonplace awards of huge, unknowable sums in claims involving physical injuries.” Eileen Silverstein, “On Recovery in Tort for Pure Economic Loss,” 32 U.Mich.J.L.Ref. 403, 409 (1999). “As compared to awards for pain and suffering, the loss from economic injury is provable, not subjective or speculative.” Id at 423.See footnote 2 ² As one court stated in holding that a plaintiff  should be allowed to recover for economic losses in the absence of personal injury or property damage:

        The answer to the allegation of unchecked liability is not the judicial obstruction of a fairly grounded claim for redress. Rather, it must be a more sedulous application of traditional concepts of duty and proximate causation to the facts of each case.

         It is understandable that courts, fearing that if even one deserving plaintiff suffering purely economic loss were allowed to recover, all such plaintiffs could recover, have anchored their rulings to the physical harm requirement. While the rationale is understandable, it supports only a limitation on, not a denial of, liability. The physical harm requirement capriciously showers compensation along the path of physical destruction, regardless of the status or circumstances of individual claimants. Purely economic losses are borne by innocent victims, who may not be able to absorb their losses. In the end, the challenge is to fashion a rule that limits liability but permits adjudication of meritorious claims. The asserted inability to fix crystalline formulae for recovery on the differing facts of future cases simply does not justify the wholesale rejection of recovery in all cases.
People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. at 254, 495 A.2d at 111.

         Our law exists to provide remedies to those persons or entities who are injured, even in a purely economic sense, as a direct and proximate cause of a tortfeasor's carelessness. Courts should not obstruct fairly grounded claims seeking to redress an economic wrong, and should only shield tortfeasors from infinite liability through the “sedulous application of traditional concepts of duty and proximate causation to the facts of each case.” People Express, 100 N.J. at 254, 495 A.2d at 111. Where an individual can show he has suffered an economic loss proximately caused by the carelessness of another, and can show a narrow, clearly foreseeable “special” relationship between himself and the alleged tortfeasor, then the tortfeasor should be held responsible for the results of his actions.

        I do not, and cannot, endeavor to predict every situation where a tortfeasor's actions may have an adverse effect on a party's economic interests, and when under the Court's opinion those actions may form the basis for liability. I trust to the circuit courts the discretion to use the existing rule of “legal duty, the breach of that duty, and damage as a proximate result,” Sewell v. Gregory, 179 W.Va. at 587, 371 S.E.2d at 84, to allow the plaintiffs a remedy while protecting the defendants from “tort liability almost without limit.” Harris v. R.A. Martin, Inc., 204 W.Va. 397, 403, 513 S.E.2d 170, 176 (Maynard, J., dissenting).

        The majority opinion deftly sets forth a basis for holding defendants responsible for their actions, while simultaneously emphasizing the need for a finite boundary on liability. But the majority opinion is based upon a limited record and a certified question. Because the existence of a defendant's duty is relative to the “circumstances of time, place, manner or person,” Syllabus Point 1, Dicken v. Liverpool Salt & Coal Co., supra, the evaluation of whether a defendant in a particular case had such a duty of care is a question for the circuit courts to consider on a case-by-case basis.

        I therefore respectfully concur. I am authorized to state that Justice McGraw joins in this concurrence.

widespread liability disappears. There may be instances of potentially ruinous liability but those instances do not serve as the foundation for the general rule prohibiting recovery for economic loss.
Eileen Silverstein, “On Recovery in Tort for Pure Economic Loss,” 32 U.Mich.J.L.Ref. 403, 422-425 (1999) (footnotes omitted).