750 S.E.2d 263
W. Va.2013Background
- On Nov. 27, 2009, Lowell Bowden was fatally mauled by several pit bulls allegedly known to run at large in the community.
- Petitioner (administratrix of decedent’s estate) sued Monroe County Commission and Patricia Green (county dog warden), alleging they knew of complaints, issued a citation but failed to impound the dogs, and were negligent in enforcing dog-registration/tax/impoundment statutes.
- Petitioner sought to amend her complaint to add that Green personally visited petitioner and promised to “take care of” the dogs (basis for alleged special relationship).
- Respondents moved to dismiss under W. Va. R. Civ. P. 12(b)(6), invoking statutory immunities in the West Virginia Tort Claims Act (W. Va. Code § 29-12A-5(a) — e.g., failure to provide law enforcement; taxation/licensing/inspection functions).
- The circuit court granted the motion to dismiss without ruling on petitioner’s motion to amend; petitioner appealed.
- The Supreme Court of Appeals reversed, holding dismissal was error and the court should have allowed amendment so petitioner could plead the special-relationship exception to public-duty immunity and pursue discovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Tort Claims Act immunities (esp. failure to provide law enforcement) | Bowden alleged facts (and sought to amend to add promise by dog warden) sufficient to invoke the special-relationship exception to public-duty immunity | The complaint falls within enumerated immunities (failure to provide police; taxation/licensing/inspection) and amendment would be futile or prejudicial | Court held statutory immunity under §29-12A-5(a)(5) incorporates common-law public-duty rule but does not bar suits where special relationship is plausibly alleged; dismissal was improper on 12(b)(6) grounds and amendment should have been allowed |
| Denial of leave to amend complaint | Amendment would plead that Green assured petitioner she would “take care of” the dogs, establishing affirmative undertaking, direct contact, knowledge of harm, and reliance | Amendment is opportunistic and prejudicial; proposed facts would be futile | Court held Rule 15 favors liberal amendment; no prejudice shown; circuit court erred by not ruling on and granting the motion to amend |
| Whether specific enumerated immunities (tax/ license/inspection) bar suit | Allegations describe enforcement failures (failure to impound despite citation), not activities that fit licensing/tax/inspection immunity categories | Immunities for assessment/collection, licensing powers, and inspection powers subsume claimant’s theory | Court held on the limited record those enumerated immunities did not clearly bar the claim; further discovery needed to determine scope and applicability |
| Personal liability of dog warden (Green) | Allegations included willful, wanton, or reckless conduct such that employee immunity would not apply | Employee immunity under §29-12A-5(b) shields county employees unless acts were malicious/bad faith/wanton or reckless | Court held allegations of willful/wanton/reckless conduct in complaint were sufficient at pleading stage to defeat dismissal as to Green personally and to permit amendment and discovery |
Key Cases Cited
- State ex rel. McGraw v. Scott Runyan Pontiac–Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (W. Va. 1995) (de novo review of Rule 12(b)(6) dismissal)
- Wiggins v. Eastern Associated Coal Corp., 178 W. Va. 63, 357 S.E.2d 745 (W. Va. 1987) (allegations in complaint taken as true on 12(b)(6))
- Chapman v. Kane Transfer Co., 160 W. Va. 530, 236 S.E.2d 207 (W. Va. 1977) (complaint should not be dismissed unless no set of facts would entitle plaintiff to relief)
- Randall v. Fairmont City Police Dept., 186 W. Va. 336, 412 S.E.2d 737 (W. Va. 1991) (§29-12A-5(a)(5) codifies public-duty doctrine but preserves special-duty exception)
- Wolfe v. City of Wheeling, 182 W. Va. 253, 387 S.E.2d 307 (W. Va. 1989) (elements of special-relationship/special-duty exception)
- Rosier v. Garron, Inc., 156 W. Va. 861, 199 S.E.2d 50 (W. Va. 1973) (Rule 15 liberal amendment standard)
- John W. Lodge Distributing Co., Inc. v. Texaco, Inc., 161 W. Va. 603, 245 S.E.2d 157 (W. Va. 1978) (12(b)(6) motions viewed with disfavor)
- McCormick v. Walmart Stores, Inc., 215 W. Va. 679, 600 S.E.2d 576 (W. Va. 2004) (licensing immunity relates to harms caused by private party’s licensed conduct)