STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

Dorothy Manning, 

Melinda Bailey and FILED 

Taylor Bailey, by her next friend October 12, 2018

and guardian/natural mother, Melinda Bailey, EDYTHE NASH GAISER, CLERK 

Plaintiffs Below, Petitioners SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 17-0798 (Mercer County 14-C-406) 

Don Meadows, individually and in his 

Capacity as the Sheriff of Mercer County, and 

The Mercer County Commission, 

Defendants Below, Respondents 

MEMORANDUM DECISION 

Petitioners Dorothy Manning, Melinda Bailey, and Taylor Bailey, by her next friend and 

guardian/natural mother, Melinda Bailey, by counsel Anthony M. Salvatore, appeal the Circuit 

Court of Mercer County’s August 18, 2017, order granting respondents’ motion for summary 

judgment. Respondents Don Meadows, individually and in his capacity as the Sheriff of Mercer 

County, and the Mercer County Commission, by counsel James C. Stebbins and Spencer D. 

Elliott, filed a response. On appeal, petitioners argue that the circuit court erred in granting 

respondents’ motion for summary judgment. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

On March 18, 2014, petitioners attended a magistrate court hearing at the Mercer County 

Courthouse. The hearing involved a dispute between petitioner Taylor Bailey and another high 

school student. Petitioners alleged that following the hearing, Sheriff Meadows became irate, 

screaming and yelling at them in a violent and threatening manner. Sheriff Meadows admitted 

that he issued a verbal warning to petitioners, but denied screaming or yelling in a threatening 

manner. Following the incident, petitioners filed a complaint against respondents alleging 

intentional infliction of emotional distress. In regard to damages, petitioners claimed that they 

suffered from severe emotional distress and anxiety as a result of the incident with Sheriff 

Meadows. 

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Thereafter, respondents filed a motion for summary judgment pursuant to Rule 56 of the 

West Virginia Rules of Civil Procedure. Respondents argued that Sheriff Meadows’s alleged 

conduct did not rise to the level required to prove the tort of intentional infliction of emotional 

distress. Respondents requested that the circuit court grant summary judgment if the circuit court 

found no genuine issues of material fact. Petitioners filed a response in opposition arguing that 

there were genuine issues for trial and that the actions of Sheriff Meadows caused them to suffer 

severe emotional distress and anxiety. 

During the August 16, 2017, hearing on respondents’ motion for summary judgment, the 

circuit court found that petitioners did not meet the elements of intentional infliction of 

emotional distress necessary to recover damages. In its order granting summary judgment, the 

circuit court explained that 

[f]irst, as a matter of law, the conduct reported by [petitioners] was not so extreme 

and outrageous that it would go beyond all possible bounds of decency. This is an 

absolute requirement for the first element of the tort of [intentional infliction of 

emotional distress] to be met. This [c]ourt, as gatekeeper for frivolous claims, has 

a duty to dismiss an action when as a matter of law the conduct complained of is 

not outrageous; rather, it was only an incident where someone was inconsiderate 

and unkind. As the West Virginia Supreme Court has explained, society is 

expected to be hardened to a certain amount of rough language and it is certainly 

not this [c]ourt’s duty to intervene every time someone’s feelings are hurt. 

The circuit court further noted in its order that petitioners had not been diagnosed with posttraumatic stress disorder, nor had they incurred any medical expenses as a result of the incident 

with Sheriff Meadows. In their complaint, petitioners did not allege any physical threats by 

Sheriff Meadows or any physical injury. While Taylor Bailey stated that she experienced one 

episode of sleep paralysis, nightmares, a fear of being pulled over by a police officer, and high 

blood pressure, she was on high blood pressure medication prior to the incident and failed to 

seek any medical treatment as a result of this incident. Additionally, Melinda Bailey complained 

of high blood pressure, sleep-loss, nightmares, and diagnosed herself with post-traumatic stress 

disorder. However, she admitted that she was previously prescribed Xanax and Lexapro before 

the incident occurred, and also admitted that she did not go to a psychologist or psychiatrist 

following the incident. Lastly, Dorothy Manning claimed to have post-traumatic stress disorder 

and complained of nightmares, hair loss, diabetes, and high blood pressure, but admitted to 

taking three Xanaxes a day prior to the incident and further admitted that none of her medication 

changed following the incident with Sheriff Meadows. 

The circuit court also noted that in petitioners’ response to the motion for summary 

judgment, “there was merely a bare recitation of the facts with the depositions included. There 

was no argument or evidence presented that would lead this [c]ourt to believe this claim should 

not be dismissed.” Ultimately, the circuit court found that there were no material factual issues in 

dispute which could lead a reasonable jury to find respondents liable. Accordingly, respondents’ 

motion for summary judgment was granted and the case was dismissed. It is from the circuit 

court’s August 18, 2017, order granting summary judgment that petitioners appeal. 

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Our standards of review for cases concerning summary judgment are well settled. “A 

circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 

W.Va. 189, 451 S.E.2d 755 (1994). In conducting our de novo review, we apply the same 

standard for granting summary judgment that is applied by the circuit court. Under that standard, 

“‘[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.’ Syllabus Point 3, Aetna 

Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 

133 S.E.2d 770 (1963).” Syllabus Point 1, Andrick v. Town of Buckhannon, 187 

W.Va. 706, 421 S.E.2d 247 (1992). 

Painter, 192 W.Va. at 190, 451 S.E.2d at 756, Syl. Pt. 2. In other words, 

[s]ummary judgment is appropriate where the record taken as a whole 

could not lead a rational trier of fact to find for the nonmoving party, such as 

where the nonmoving party has failed to make a sufficient showing on an 

essential element of the case that it has the burden to prove. 

Id. at 190, 451 S.E.2d at 756, Syl. Pt. 4. We have held that “[t]he circuit court’s function at the 

summary judgment stage is not to weigh the evidence and determine the truth of the matter, but 

is to determine whether there is a genuine issue for trial.” Id. at 190, 451 S.E.2d at 756, Syl. Pt. 

3. 

On appeal, petitioners argue that the circuit court erred in granting summary judgment in 

favor of respondents. Petitioners acknowledge that, pursuant to Rule 56(e) of the West Virginia 

Rules of Civil Procedure, the party responding to a motion for summary judgment “must set 

forth specific facts showing that there is a genuine issue for trial.” However, the circuit court 

noted that in their response to the motion for summary judgment, petitioners failed to provide an 

“argument or evidence . . . that would lead th[e] [c]ourt to believe this claim should not be 

dismissed.” Further, while petitioners argue on appeal that “depositions made the record replete 

with evidence from which a jury could have concluded in [petitioners’] favor,” petitioners fail to 

cite to this evidence or explain to what evidence they are referring. Moreover, the record is 

devoid of any issues of material fact raised by petitioners that would need to be brought to trial. 

Therefore, the circuit court determined that there were no material issues for trial, and we agree. 

Next, petitioners argue that the circuit court erred in granting summary judgment in 

regard to their claim of intentional infliction of emotional distress because a jury may have 

“concluded in [petitioners’] favor.” However, as discussed above, the circuit court correctly 

concluded that there were no issues for trial. Nevertheless, we have held that 

[i]n order for a plaintiff to prevail on a claim for intentional or reckless 

infliction of emotional distress, four elements must be established. It must be 

shown: (1) that the defendant’s conduct was atrocious, intolerable, and so extreme 

and outrageous as to exceed the bounds of decency; (2) that the defendant acted 

with the intent to inflict emotional distress, or acted recklessly when it was certain 

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or substantially certain emotional distress would result from his conduct; (3) that 

the actions of the defendant caused the plaintiff to suffer emotional distress; and, 

(4) that the emotional distress suffered by the plaintiff was so severe that no 

reasonable person could be expected to endure it. 

Syl. Pt. 3, Travis v. Alcon Labs., Inc., 202 W.Va. 369, 504 S.E.2d 419 (1998). Further, we have 

also held that 

[i]n evaluating a defendant’s conduct in an intentional or reckless 

infliction of emotional distress claim, the role of the trial court is to first 

determine whether the defendant’s conduct may reasonably be regarded as so 

extreme and outrageous as to constitute the intentional or reckless infliction of 

emotional distress. Whether conduct may reasonably be considered outrageous is 

a legal question, and whether conduct is in fact outrageous is a question for jury 

determination. 

Id. at 371, 504 S.E.2d at 421, Syl. Pt. 4. Whether Sheriff Meadows’s conduct may reasonably be 

considered outrageous was a question of law for the circuit court to decide. Petitioners failed to 

provide sufficient evidence to show that Sheriff Meadows’s conduct was extreme and 

outrageous. While it is undisputed that words were exchanged between Sheriff Meadows and 

petitioners, we have held that 

[l]iability [for intentional infliction of emotional distress] has been found only 

where the conduct has been so outrageous in character, and so extreme in degree, 

as to go beyond all possible bounds of decency, and to be regarded as atrocious, 

and utterly intolerable in a civilized community. Generally, the case is one in 

which the recitation of the facts to an average member of the community would 

arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” 

Id. at 375, 504 S.E.2d at 425. We have also held that “plaintiffs must necessarily be expected and 

required to be hardened to a certain amount of rough language, and to occasional acts that are 

definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case 

where some one’s feelings are hurt.” Tanner v. Rite Aid of W.Va., Inc., 194 W.Va. 643, 651, 461 

S.E.2d 149, 157 (1995) (citations omitted). Based upon the evidence in the record regarding 

Sheriff Meadows’s conduct, it is clear that his actions may not reasonably be considered to be 

outrageous. 

Petitioners were also required to prove that they suffered severe and unendurable 

emotional distress as a result of Sheriff Meadows’s conduct. Travis, 202 W.Va. at 371, 504 

S.E.2d at 421, Syl. Pt. 4. While petitioners complained of severe emotional distress, anxiety, high 

blood pressure, and other issues as a result of the incident, petitioners admitted that they did not 

seek any medical attention following the exchange with Sheriff Meadows. Furthermore, 

evidence indicated that petitioners were prescribed medications for issues such as anxiety and 

high blood pressure prior to the incident and that their medications did not change after the 

incident. Petitioners presented no evidence below or on appeal to demonstrate that they were 

entitled to relief for a claim of intentional infliction of emotional distress. Therefore, we find no 

error in the circuit court’s decision to grant summary judgment in favor of respondents. 

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For the foregoing reasons, we find no error in the decision of the circuit court, and its 

August 18, 2017, order is hereby affirmed. 

Affirmed. 

ISSUED: October 12, 2018 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Elizabeth D. Walker 

Justice Paul T. Farrell sitting by temporary assignment 

Justice Tim Armstead 

Justice Evan H. Jenkins 

Justice Allen H. Loughry II, suspended and therefore not participating 

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