Dreama BOWDEN, as Administratrix of the Estate of Lowell Bowden v. MONROE COUNTY COMMISSION, a political subdivision and Patricia Green, individually and in her official capacity
No. 12-0614
Supreme Court of Appeals of West Virginia
Decided Sept. 27, 2013
750 S.E.2d 263
Submitted Sept. 4, 2013.
IV.
CONCLUSION
Based on the foregoing, the circuit court‘s order dated February 21, 2012, sentencing Mr. Horn following his jury convictions for the offenses of “Murder in the First Degree” and “Arson in the First Degree” is affirmed.
Affirmed.
Therefore, the circuit court did not err in denying the motions for a new trial.
Wendy E. Greve, Esq., Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Charleston, WV, for Respondents.
PER CURIAM:
Petitioner/plaintiff below, Dreama Bowden, Administratrix of the Estate of Lowell Bowden (hereinafter “petitioner“), appeals the Circuit Court of Monroe County‘s March 29, 2012, order dismissing the case pursuant to
I. FACTS AND PROCEDURAL HISTORY
On November 27, 2009, petitioner‘s decedent, Lowell Bowden (hereinafter “Mr. Bowden“), was taking his customary walk along Broyles Cemetery Road near Landside, West Virginia, when he was attacked by several American Pit Bull Terriers (hereinafter “pit bulls“) owned by Justin Blankenship,
Petitioner filed the subject action against respondents, as well as Justin Blankenship, Anna Hughes, Mose Christian, Kim Blankenship, and American Modern Insurance Company.2 Respondent Patricia Green was sued both individually and in her official capacity as dog warden. As to the respondents, petitioner alleged that they 1) failed to impose and collect personal property tax on the pit bulls as required by
Respondents moved to dismiss the complaint pursuant to
II. STANDARD OF REVIEW
“Appellate review of a circuit court‘s order granting a motion to dismiss a
III. DISCUSSION
Petitioner asserts four separate assignments of error, which are largely redundant, and will therefore be combined into two.5 In sum, petitioner asserts that the circuit court erred in finding that the respondents were statutorily immune from liability for the allegations set forth in her complaint and that the circuit court erred in failing to rule on the pending motion to amend the subject complaint before dismissing the action. We agree on both counts and further find that the latter error occasioned the first.
The immunity of political subdivisions and their employees, such as the Monroe County Commission and Ms. Green, is governed exclusively by the West Virginia Tort Claims and Insurance Reform Act set forth in
A political subdivision is immune from liability if a loss or claim results from:
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(5) Civil disobedience, riot, insurrection or rebellion or the failure to provide, or the method of providing, police, law enforcement or fire protection;
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(8) Assessment or collection of taxes lawfully imposed or special assessments, license or registration fees or other fees or charges imposed by law;
(9) Licensing powers or functions including, but not limited to, the issuance, denial, suspension or revocation of or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authority;
(10) Inspection powers or functions, including failure to make an inspection, or making an inadequate inspection, of any property, real or personal, to determine whether the property complies with or vio-
lates any law or contains a hazard to health or safety;
Petitioner claims that her case involves the negligence of a government official, liability for which is expressly countenanced in
Respondents, on the other hand, contend that the main thrust of the case, as pled in the original complaint, involves taxation, licensing, and inspection functions for which they have immunity pursuant to
We first address petitioner‘s claim for respondents’ failure to provide law enforcement. This Court has held that
W. Va. Code, 29-12A-5(a)(5) [1986], which provides, in relevant part, that a political subdivision is immune from tort liability for “the failure to provide, or the method of providing, police, law enforcement or fire protection[,]” is coextensive with the common-law rule not recognizing a cause of action for the breach of a general duty to provide, or the method of providing, such protection owed to the public as a whole. Lacking a clear expression to the contrary, that statute incorporates the common-law special duty rule and does not immunize a breach of a special duty to provide, or the method of providing, such protection to a particular individual.
Syl. Pt. 8, Randall v. Fairmont City Police Dept., 186 W.Va. 336, 412 S.E.2d 737 (1991). With respect to the “special relationship” or “special duty” exception, this Court has held that
[t]o establish that a special relationship exists between a local governmental entity and an individual, which is the basis for a special duty of care owed to such individual, the following elements must be shown: (1) an assumption by the local governmental entity, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the local governmental entity‘s agents that inaction could lead to harm; (3) some form of direct contact between the local governmental entity‘s agents and the injured party; and (4) that party‘s justifiable reliance on the local governmental entity‘s affirmative undertaking.
Syl. Pt. 2, Wolfe v. City of Wheeling, 182 W.Va. 253, 387 S.E.2d 307 (1989). Moreover, “[t]he question of whether a special duty arises to protect an individual from a local governmental entity‘s negligence in the performance of a nondiscretionary ... function is ordinarily a question of fact for the trier of the facts.” Syl. Pt. 3, in part, Wolfe.
As previously noted, subsequent to the filing of respondents’ motion to dismiss, petitioner moved to amend her complaint to allege that Ms. Green came to her house and specifically assured her and her decedent that she was going to “take care of” the subject pit bulls.6 However, when petition-
er‘s counsel appeared at the hearing on petitioner‘s motion to amend the complaint to include these additional facts, he was provided with a copy of the circuit court‘s order granting respondents’ motion to dismiss, which had been entered four days earlier. Petitioner therefore maintains that the circuit court erred in failing to first rule on the motion to amend prior to dismissing the complaint, which would allow her to survive a
The purpose of the words “and leave [to amend] shall be freely given when justice so requires” in Rule 15(a) W. Va. R. Civ. P., is to secure an adjudication on the merits of the controversy as would be secured under identical factual situations in the absence of procedural impediments; therefore, motions to amend should always be granted under Rule 15 when: (1) the amendment permits the presentation of the merits of the action; (2) the adverse party is not prejudiced by the sudden assertion of the subject of the amendment; and (3) the adverse party can be given ample opportunity to meet the issue.
Syl. Pt. 3, Rosier v. Garron, Inc., 156 W.Va. 861, 199 S.E.2d 50 (1973), overruled on other grounds by Bradshaw v. Soulsby, 210 W.Va. 682, 558 S.E.2d 681 (2001). Petitioner argues that no scheduling order had been entered and only minimal written discovery had occurred; therefore, respondents would in no way be prejudiced by the amendment. Respondents, characterizing the proposed amendment as “suspicious,” but without demonstrable evidence, summarily contend they would be “overly prejudice[d]” by the amendment.
As this Court has previously noted, motions to dismiss under Rule 12(b)(6) are “viewed with disfavor and [should be] rarely granted.” John W. Lodge Distributing Co., Inc. v. Texaco, Inc., 161 W.Va. 603, 606, 245 S.E.2d 157, 159 (1978). More specifically, “[t]he trial court should not dismiss a complaint merely because it doubts that the plaintiff will prevail in the action, and whether the plaintiff can prevail is a matter properly determined on the basis of proof and not merely on the pleadings.” Id. (citing Wright & Miller, Federal Practice and Procedure: Civil § 1216 (1969).) In light of
Petitioner unquestionably sought to allege facts pursuant to her amendment which may potentially draw her action outside of the ambit of statutory immunity—for both the Monroe County Commission and Ms. Green. While employees of political subdivisions are generally immune for their negligence as provided by
Respondents argue, alternatively, that the immunities for taxation, licensing, and inspection functions contained in West Virginia Code § 29-12A-5(a)(8) through (10) essentially “subsumed” any actionable aspect of petitioner‘s case. We disagree. Without question, the complaint references specifically the statutory licensing, registration, and taxation functions of counties and their dog wardens, as well as the respondents’ failures to fulfill their duties in that regard.8 However, on their face, fairly read, these allegations would appear to simply describe circumstances giving rise to the “law enforcement” functions which petitioner claims the respondents negligently failed to provide.
More importantly, none of the allegations pertaining to these functions, based upon the necessarily limited record before us, appear to conform to the type of immunity granted in these statutes. First, petitioner does not allege that her decedent‘s death arises out of the “[a]ssessment or collection of taxes special assessments, license or registration fees or other fees or charges imposed by law[.]” Rather, she alleges that defendants failed to impose the statutory penalty of impoundment as a result of the dog owners’ failure to pay taxes on and register their dogs, i.e. respondents failed to enforce these laws. Next, with respect to licensing immunity, this Court has held that this immunity concerns injuries that are “caused by the conduct of a private party who obtains a permit or license for that conduct from the political subdivision.” McCormick v. Walmart Stores, Inc., 215 W.Va. 679, 684, 600 S.E.2d 576, 581 (2004). Petitioner‘s claim centers around the dog owners’ failure to obtain a proper dog license and the respondents’ negligent failure to enforce penalties for such failure by impounding the dogs. Finally, petitioner does not allege that re-spondents “fail[ed] to make an inspection, or ma[de] an inadequate inspection, of any property, real or personal, to determine whether the property complies with or violates
This Court has historically read these enumerated immunities in a very limited fashion. See Randall, 186 W.Va. at 347, 412 S.E.2d at 748 (applying “general rule of construction in governmental tort legislation cases favoring liability, not immunity: unless the legislature has clearly provided for immunity ... the general common-law goal of compensating injured parties for damages caused by negligent acts must prevail[]” (emphasis added)); see also Hose v. Berkeley Co. Planning Comm‘n, 194 W.Va. 515, 522, 460 S.E.2d 761, 768 (1995) (same). There is nothing in the bare complaint or amended complaint with which we are presented which would lead this Court to construe them as broadly as respondents urge. At a minimum, further discovery is necessary to determine precisely what the county policies were with regard to taxation, licensing, and registration and whether Ms. Green failed in any of her ministerial duties in that regard.
Accordingly, we find that the circuit court erred in granting respondents’ motion to dismiss on the basis of the statutory immunities contained in
IV. CONCLUSION
For the foregoing reasons, the March 29, 2012, order of the Circuit Court of Monroe County is reversed and we remand for further proceedings.
Reversed and remanded.