Drеama BOWDEN, as Administratrix of the Estate of Lowell Bowden, Plaintiff Below, Petitioner v. MONROE COUNTY COMMISSION, a Political Subdivision; and Patricia Green, Individually and in Her Official Capacity, Defendants Below, Respondents
No. 16-0597
Supreme Court of Appeals of West Virginia.
May 18, 2017
800 S.E.2d 252
Davis, Justice:
Submitted: April 19, 2017
be imposed for second and subsequent convictions. On appeal, this Court concluded that the indictment had failed to adequately set forth that the defendant was charged with a subsequent offense of the crime. Palmer at 378, 557 S.E.2d at 785. Accordingly, the Court remanded the case “for purposes of resentencing the defendant in accord with the punishment for first-offense driving while suspended or revoked for DUI[.]” Id. at 379, 557 S.E.2d at 786. In State v. Hulbert, 209 W. Va. 217, 544 S.E.2d 919 (2001), a defendant appealed his conviction for, inter alia, third offense domestic assault. See
The petitioner‘s indictment alerted her to the fact she was being charged as a repeat offender, and she acknowledged her two prior convictions as part of her conditional guilty plea to third offense soliciting. Critically, there is no сhallenge to the validity of the first or second offense penalty provisions set forth in
By ignoring the plain and unambiguous statutory language, the majority of this Court has exceeded its authority, inserted itself into the Legislature‘s bailiwick of establishing crimes and setting the correspondent penalties, and improperly overturned a valid conviction. Accordingly, I respeсtfully dissent.
and petitioner herein. Mrs. Bowden appeals two orders entered by the Circuit Court of Monroe County. The first order granted summary judgement in favor of respondents herein and defendants below, Patricia Green and the Monroe County Commission (hereinafter collectively “the County“), based upon the circuit court‘s conclusion that the evidence presented by Mrs. Bowden was insufficient to establish a disputed issue of material fact in relation to the special relationship exception to the public duty doctrine. In its second order, the circuit court, sua sponte, summarily dismissed all of Mrs. Bowden‘s remaining claims against all defendants. We find the circuit court‘s rulings in both orders to be erroneous. Accordingly, we reverse the orders and remand this сase for further proceedings.
Michael A. Olivio, Stephanie H. D. Mullett, Olivio Law Firm, PLLC, Charleston, West Virginia, Attorneys for the Petitioner
J. Victor Flanagan, Daniel J. Burns, Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Beckley, West Virginia, Attorneys for the Respondents
Davis, Justice:
The instant matter is before this Court on appeal by Mrs. Dreama Bowden (hereinafter “Mrs. Bowden“), as administratrix of the estate of her late husband, Lowell Bowden (hereinafter “Mr. Bowden“), plaintiff below
I.
FACTUAL AND PROCEDURAL HISTORY
It is undisputed that, on November 27, 2009, petitioner‘s decedent, Mr. Bowden, who was seventy years old at the time, was viciously attacked by four or five American Pit Bull Terriers (hereinafter “pit bulls“) while he was taking a walk near Landside, Monroe County, West Virginia, an area in which he resided. Mr. Bowden later died from his injuries. The pit bulls involved in the attack were kеpt at the home of Kim Blankenship.1 Four of the dogs apparently were owned by her son, Justin Blankenship, who resided in her home.2 The remaining dog, a black-and-white pit bull named Echo, was in the care of Justin Blankenship and was allegedly owned by Anna Hughes and Mose Christian.3 At the time of the attack, Patricia Green (hereinafter “Dog Warden Green“), a defendant below and a respondent herein, served as the Monroe County Dog Warden.
Mrs. Bowden, as administratrix of her husband‘s estate, filed a complaint against the County and others4 alleging, in relevant part, negligence in performing statutory duties imposed by
The County filed a motion to dismiss the complaint pursuant to
Thereafter, the County filed a motion seeking summary judgment again based, in relevant part, upon the public duty doctrine. After receiving Mrs. Bowden‘s response and conducting a hearing, the circuit court granted summary judgment in favor of the County, by order entered on May 5, 2016. In doing so, the circuit court found that Mrs. Bowden had failed to produce facts sufficient to establish the special relationship exception. The parties asked the circuit court for a certification that the summary judgment ruling was final as to the parties and issues addressed therein pursuant to
II.
STANDARD OF REVIEW
With respect to our consideration on appeal of a circuit court‘s summary judgment ruling, it is well established that “[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). It is equally clear that,
[i]n reviewing a circuit court‘s order granting summary judgment this Court, like all reviewing courts, engages in the same type of analysis as the circuit court. That is “we apply the same standard as a circuit court,’ reviewing all facts and reasonable inferenсes in the light most favorable to the nonmoving party.” Powderidge Unit Owners Ass‘n v. Highland Properties, Ltd., 196 W.Va. 692, 698, 474 S.E.2d 872, 878 (1996), quoting Williams v. Precision Coil, Inc., 194 W.Va. 52, 58, 459 S.E.2d 329, 335-36 (1995), citing Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538, 553 (1986).
Fayette Cty. Nat‘l Bank v. Lilly, 199 W.Va. 349, 353 n.8, 484 S.E.2d 232, 236 n.8 (1997), overruled on other grounds by Sostaric v. Marshall, 234 W.Va. 449, 766 S.E.2d 396 (2014). See also Painter, 192 W.Va. at 192, 451 S.E.2d at 758 (observing that, in deciding motion for summary judgment, this Court “must draw any permissible inference from the underlying facts in the light most favorable to the party opposing the motion” (citations omitted)).
We also are cognizant that “[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 clari- fy the application of the law.” Syl. pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). In other words, summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
[i]f the moving party makes a properly supported motion for summary judgment and can show by affirmative evidence that there is no genuine issue of a material fact, the burden of production shifts to the nonmoving party who must either (1) rehabilitate the evidence attacked by the moving party, (2) produce additional evidence showing the existence of a genuine issue for trial, or (3) submit an affidavit explaining why further discovery is necessary as provided in
Rule 56(f) of the West Virginia Rules of Civil Procedure .
With the foregoing standards in mind, we address the dispositive issues herein raised.
III.
DISCUSSION
Mrs. Bowden raises seven assignments of error that present two dispositive issues to this Court: (1) whether the circuit court erred in its application of the special relationship exception to the public duty doctrine;5 and (2) whether the circuit court erred by sua sponte entering a dismissal order disposing of the entire case when issues remained that were not addressed in the summary judgment order. We address these issues in turn.
A. Special Relationship Exception to the Public Duty Doctrine
The circuit court bаsed its award of summary judgment on its conclusion that Mrs. Bowden failed to satisfactorily prove the elements of the special relationship exception6 to the public duty doctrine. In other words, the circuit court ruled that Mrs. Bowden had failed to establish any genuine issue of material fact with respect to the existence of a special relationship so as to overcome a mo-
tion for summary judgment. Mrs. Bowden claims the circuit court erred. We agree.
Recently, this Court succinctly explained the public duty doctrine in this way:
Under the public duty doctrine, a government entity or officer cannot be held liable for breaching a general, non-discretionary duty owed to the public as a whole. “Often referred to as the ‘duty to all, duty to no one’ doctrine, the public duty doctrine provides that since government owes a duty to the public in general, it does not owe a duty to any individual citizen.” [John Cameron McMillan, Jr., “Government Liability and the Public Duty Doctrine,” 32 Vill. L. Rev. 505, 509 (1987) (footnotes omitted)]. For example, under the public duty doctrine, “the duty to fight fires or to provide police’ protection runs to all citizens and is to protect the safety and well-being of the public at large[.]” [Wolfe v. City of Wheeling, 182 W.Va. 253, 256, 387 S.E.2d 307, 310 (1989)]. Generally, no private liability attaches when a fire department or police department fails to provide adequate protection to an individual. The public duty doctrine is restricted to “liability for non-discretionary (or ‘ministerial’ or ‘operational‘) functions[.]” [Parkulo v. West Virginia Bd. of Prob. & Parole, 199 W.Va. 161, 174, 483 S.E.2d 507, 520 (1996) (quoting Randall v. Fairmоnt City Police Dep‘t, 186 W.Va. 336, 346, 412 S.E.2d 737, 747 (1991))].
West Virginia State Police v. Hughes, 238 W.Va. 406, 412, 796 S.E.2d 193, 199 (2017) (footnotes omitted).7
An exception to the public duty doctrine, which Mrs. Bowden seeks to apply in this case, “arises when a ‘special relationship’ exists between the government entity and a specific individual. The state may be liable where it has taken on a special duty to a specific person beyond that extended to the general public.” Id. (quoting: Barry A. Lindahl, 2 Modern Tort Law: Liability and Litigation § 16:20 (2d ed. 2008)) (footnote omitted).
Although this Court in Hughes was addressing liability of the State, this Court has made clear that the special relationship exception to the public duty doctrine applies to political
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 thе 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 aclear 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 Dep‘t, 186 W.Va. 336, 412 S.E.2d 737 (1991) (emphasis added).
The elements required to establish the special relationship exception to the public duty
Tо establish that a special relationship exists between a local governmental entity and an individual, which is the basis for a
Syl. pt. 2, Wolfe v. City of Wheeling, 182 W.Va. 253, 387 S.E.2d 307 (1989). Accord Syl. pt. 5, Bowden v. Monroe Cty. Comm‘n, 232 W.Va. 47, 750 S.E.2d 263. The foregoing elements for establishing a special relationship are joined with the conjunctive “and,” signifying that all elements are required. See, e.g., Browning v. Hickman, 235 W.Va. 640, 652, 776 S.E.2d 142, 154 (2015) (“The three factors ... are joined with the conjunctive ‘and,’ meaning they all must be present....“).8 Thus, we examine the evidence relating to each factor to see if it was sufficient to establish a genuine issue of material fact. In examining this evidence, we are mindful that “[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 v. City of Wheeling, 182 W.Va. 253, 387 S.E.2d 307 (1989). Syl. pt. 6, Bowden, 232 W.Va. 47, 750 S.E.2d 263.
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. To support her assertion that the County had assumed a duty to Mr. and Mrs. Bowden, Mrs. Bowden provided deposition testimony that she had called 911 to complain about the pit bulls, was connected to Dog Warden Green to discuss her complaint, and, thereafter, Dog Warden Green visited the Bowden home. According to Mrs. Bowden‘s testimony, she shared with Mrs. Green her belief that the dogs were dangerous and explained her fear of them. She further testified that, in response, Dog Warden Green assured Mrs. Bowden that the “county would take care of it.”9
In support of its motion for summary judgment, the County attempted to show the absence of a question of fact by tendering the deposition testimony of Dog Wardеn Green, wherein she denied receiving a complaint from Mrs. Bowden, visiting the Bowden home, or making any assurances in relation to any pit bulls.
The circuit court concluded that Mrs. Bowden “failed to meet her burden of providing more than a scintilla of evidence that the defendants ever assumed an affirmative duty to act on behalf of [Mr. and Mrs. Bowden], by making a promise or assumption.” The circuit court additionally concluded that,
assuming, arguendo, that [Dog Warden Green] did go to [Mrs. Bowden‘s] home in response to her 911 complaint, the conversation alleged to have occurred between the two would not amount to an assumption of an affirmative duty to act on [Mrs. Bowden‘s] behalf in a manner that would have prevented attack on the Plaintiff‘s decedent.
2. Knowledge on the part of the local governmental entity‘s agents that inaction could lead to harm. In support of this second element of the special relationship exception to the public duty doctrine, Mrs. Bowden points to the evidence of Dog Warden Green‘s own personal experience with one of the pit bulls on November 8, 2009, the same month as the fatal attack on Mr. Bowden. Dog Warden Green testified that, on that day, she received a complaint from Mr. Mark Crook about the pit bull named Echo jumping aggressively on his car. Dog Warden Green related that, while she and her husband were in their vehicle at the Crook residence,11 the pit bull named Echo appeared and jumped up on the side of her vehicle while growling and barking. She stated that the dog scared her and her husband, and she would not exit the vehicle. That same evening, she wеnt to Justin Blankenship‘s home, issued him a citation for harboring a vicious dog, and instructed him to keep the dog chained and fenced.12 Mrs. Bowden submits that a reasonable jury could find that a first-hand attack of this nature, coupled with Dog Warden Green‘s years of experience as an animal control officer and the numerous complaints that had been made about the pit bulls, was sufficient to establish knowledge that inaction could lead to harm.
The County does not dispute this event, but, rather, disputes the inferences to be drawn therefrom. According to the County‘s reasoning, Dog Warden Green‘s experience with a single aggressive pit bull, along with reports of one or more pit bulls acting aggressively in the neighborhood, is insufficient to establish knowledge that inаction could result in a multi-dog attack such as that suffered by Mr. Bowden, especially when no one had been physically injured by any pit bull.
The circuit court similarly found that Ms. Bowden did “not meet her burden of providing substantial evidence that would allow a jury to find in her favor that Defendants knew inaction would lead to harm.” To support its conclusion, the circuit court reasoned that the evidence established that Dog Warden Green had knowledge of only one pit bull in the neighborhood. With respect to the complaint by Mr. Crook, the circuit court commented that “the dog, Echo, did not attack or harm Mr. Crook.” In addition, the circuit court incorrectly found that, when Dog Warden Green went to Justin Blankenship‘s home and issued a citation for harboring a vicious dog, she “confirmed that no
We find that the circuit court erred in concluding that Mrs. Bowden failed to establish that facts related to the knowledge factor of the special relationship test were in dispute. Contrary to the circuit court‘s findings and the County‘s arguments, the record on appeal contains numerous statements from neighbors living in the same rural community as the Bowdens detailing encounters with one or more of the pit bulls where the dogs were running loose and acting aggressively. For example, Philip Hunt, who characterized the dogs as running loose constantly, testified at the criminal trial of Kimberly Blankenship and described four incidents involving the pit bulls. One incident in 2009 occurred on Easter Sunday, when the dogs “came up after [his] kids” who were playing in the yard. Mr. Hunt and his brothers-in-law had to chase the dogs away. During another incident in 2009,13 Mr. Hunt‘s son was chased by one of the dogs when he went to get trash cans at the bottom of the driveway. The boy shot at the dog with his BB gun and was able to run into the house. On a third occasion the dogs chased Mr. Hunt‘s truck and prevented him and his wife from exiting the vehicle without first pulling into the garage. Finally, once when he was unable to pull into his garage, one of the pit bulls was in his driveway growling and barking at Mr. Hunt‘s vehicle so that he could not exit until the dog left. Mr. Hunt testified that he “called animal control” and “nothing was done.”14
The various complaints, combined with Dog Warden Green‘s own experience with one of the dogs where she was too afraid to exit her vehicle, were sufficient to establish a question of faсt with respect to the County‘s knowledge that its inaction could lead to harm. The rationale adopted by the circuit court and the County, that the absence of any actual physical harm prior to the attack on Mr. Bowden was sufficient to dispel such knowledge, improperly draws inferences in favor of the County and not Mrs. Bowden. See Painter, 192 W.Va. at 192, 451 S.E.2d at 758 (observing that, in deciding motion for summary judgment, a court “must draw any permissible inference from the underlying facts in the light most favorable to the party opposing the motion” (citations omitted)). Indeed, a reasonable interpretation of the facts, properly viewed in the light most favorable to Mrs. Bowden, is that the lack of injury was fortuitous in that the victims of the aggressive dogs were either able to get away, оr were safely inside their vehicles and refused to exit the same in the presence of the vicious dog or dogs.
3. Some form of direct contact between the local governmental entity‘s agents and the injured party. This Court has explained that “the requirement of direct contact serves as a basis for rationally limiting the class of individuals to whom the local governmental entity‘s ‘special’ duty extends.” Wolfe, 182 W.Va. at 257-58, 387 S.E.2d at 311-12 (citing Cuffy v. City of New York, 69 N.Y.2d 255, 261, 505 N.E.2d 937, 940, 513 N.Y.S.2d 372, 375 (1987)).
On the issue of direct contact, Mrs. Bowden again relies on her deposition testimony that, within a month prior to the attack on Mr. Bowden, she spoke to Dog Warden Green on the phone when making
The County responds by arguing that the evidence relied upon by Mrs. Bowden amounts to self-serving statements and conjecture, which are insufficient to overcome a motion for summary judgment. The County asserts that the “Animal Control Expense Sheet” simply evidences that Dog Warden Green called Mr. Blankenship on November 4, 2009, and provides nothing whatsoever to indicate any reason for the call. The County then submits that the following evidence demonstrates the absence of a disputed material fact: (1) the testimony of Dog Warden Green wherein she denied having ever visited the Bowden home or speaking to Mrs. Bowden by phone; (2) the absence of any office records documenting a visit to the Bowden home; and (3) testimony by Robert and Linda Ludwig that they had never seen animal control at the Bowden home.
In granting summary judgment, the circuit court found that Mrs. Bowden‘s testimony was insufficient to satisfy her burden of overcoming the County‘s motion for summary judgment insofar as it was disputed by at least three other people (Dog Warden Green, Robert Ludwig, and Linda Ludwig). The circuit court‘s ruling is erroneous.
The County is correct that self-serving statements and conjecture are insufficient to overcome a motion for summary judgment.
[T]he party opposing summary judgment must satisfy the burden of proof by offering more than a mere “scintilla оf evidence” and must produce evidence sufficient for a reasonable jury to find in a nonmoving party‘s favor.... The evidence illustrating the factual controversy cannot
be conjectural or problematic. It must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve. The evidence must contradict the showing of the moving party by pointing to specific facts demonstrating that, indeed, there is a “trialworthy” issue.
Williams, 194 W.Va. at 60, 459 S.E.2d at 337 (internal citation and footnote omitted). However, the County and the circuit court fail to recognize that, before any burden is imposed upon Mrs. Bowden to overcome summary judgment, the County had to make a properly supported motion demonstrating that there was no material question of faсt in dispute. In other words, “the initial burden of production and persuasion is upon the party moving for a summary judgment.” Id. With respect to the moving party‘s burden, this Court has held that, “[i]f the moving party makes a properly supported motion for summary judgment and can show by affirmative evidence that there is no genuine issue of material fact, the burden of production shifts to the nonmoving party....” Syl. pt. 3, in part, Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995) (emphasis added). The evidence relied upon by the County simply fails to “show by affirmative evidence that there is no genuine issue of material fact.” Id. Rather, the testimony of Mrs. Bowden and Dog Warden Green was directly contradictory as to whether a meeting between them had occurred. The additional evidence relied upon by the parties doеs not favor one party over the other on its own, but instead requires drawing inferences and making credibility determinations, which functions are not available to a circuit court ruling on a motion for summary judgment. See Syl. pt. 3, Painter, 192 W.Va. 189, 451 S.E.2d 755 (“The 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.“). Accord Williams, 194 W.Va. at 59, 459 S.E.2d at 336.
4. Mrs. Bowden‘s justifiable reliance on the local governmental entity‘s affirmative undertaking. This Court has recognized that
[t]he injured party‘s reliance is as critical in establishing the existence of a “special relationship” as is the local governmental entity‘s voluntary affirmative undertaking of a duty to act toward the injured party. The element of reliance provides the essential cаusative link between the special duty assumed by the local governmental entity and the injury. Cuffy [v. City of New York], 69 N.Y.2d at 261, 505 N.E.2d at 940, 513 N.Y.S.2d at 375.
Wolfe, 182 W.Va. at 257, 387 S.E.2d at 311. We find the controverted evidence related to whether Dog Warden Green visited the Bowden home and gave assurances that “the county would take care of” making sure the dogs were not roaming around in the neighborhood17 is sufficient to establish a question for the jury as to whether Mr. and Mrs. Bowden‘s reliance on those assurances was justifiable.
Because we find disputed evidence on each of the factors required to establish the special relationship exception to the public duty doctrine, we find the circuit court erred by granting summary judgment to the County. Indeed, this Court has emphasized that
the question of whether a special duty arises to protect an individual from a local governmental entity‘s negligence in the performance of a nondiscretionary governmental function is ordinarily a question of fact for the trier of the facts. Estate of Tanasijevich v. City of Hammond, 178 Ind.App. 669, 675, 383 N.E.2d 1081, 1085 (1978); De Long v. County of Erie, 60 N.Y.2d 296, 306, 457 N.E.2d 717, 722, 469 N.Y.S.2d 611, 616 (1983).
Wolfe, 182 W.Va. at 258, 387 S.E.2d at 312.
B. Dismissal Order
Mrs. Bowden submits that counsel for all parties to this appeal requested a certification from the circuit court pursuant to
On this day the Court reviewed the file, and it appearing proper to [do] so, and nothing remaining to be done, it is hereby ORDERED and ADJUDGED as follows:
1. The above styled action is hereby DISMISSED. The Clerk is directed to remove it from the docket and to provide a copy of this order to any pro se party, and counsel, not registered for electronic notification[.]
Mrs. Bowden contends that, insofar as the circuit court‘s summary judgment order did not address certain claims contained in her complaint,18 it was error for the circuit court to dismiss those claims.
The County agrees that the summary judgment order did not address some of Mrs. Bowden‘s claims that were subsequently dismissed by the circuit court and, in addition, notes that the dismissal of some defendants is not relevant to the County. Nevertheless, the County contends that some of the dismissed issues were rendered moot by the summary judgment order and, therefore, dismissal of those issues was proper.
Because we have reversed the circuit court‘s summary judgment order, upon which the dismissal order apparently was based, we likewise summarily vacate the circuit court‘s dismissal order. See, e.g., Napier v. Napier, 211 W.Va. 208, 214 n.12, 564 S.E.2d 418, 424 n.12 (2002) (“Because the circuit court based its decision to dismiss Ms. Napier‘s counterclaim on the fact that summary judgment was granted to Mr. Napier, we summarily reverse the dismissal of the counterclaim and remand that claim for further proceedings.“).
IV.
CONCLUSION
Based upon the reasoning set out above, we reverse the May 5, 2016, and June 2, 2016, orders entered by the Circuit Court of Monroe County and remanding this case for further proceedings.
Reversed and Remanded.
Davis, Justice:
Notes
In addition, Mrs. Bowden contends that the circuit court erred by misapplying the standards for granting summary judgment as follows: (1) performing credibility determinations and weighing evidence; (2) failing to consider the totality of the evidence presented in the light most favorable to the non-moving party; (3) holding that the meeting between Mr. and Mrs. Bowden and Dog Warden Green “would not amount to an assumption of a duty to act on behalf of Plaintiff” because such is a question of fact for the jury; (4) finding that Mrs. Bowden failed to present evidence to support that Respondents had knowledge that inaction would lead to harm; (5) erroneously finding that “[t]he only evidence presented by the Plaintiff is her own testimony, and under the standard for summary judgment established in Gooch v. W. Va. Dep‘t of Pub. Safety [195 W.Va. 357, 465 S.E.2d 628 (1995)], this mere scintilla of evidence is not sufficient.“; and (7) finding that “Plaintiff has not proven direct contact between the Defendants and the decedent prior to the attack on the decedent.”
Finally, Ms. Bowen argues that the circuit court erred in entering a Dismissal Order on June 2, 2016, after finding that there was “nothing remaining to be done” because the Order granting summary judgment did not adjudicate all counts against Respondents.[t]he public duty doctrine is separate and distinct from the principle of immunity. It “does not rest squarely on the principle of governmental immunity, but rests on the principle that recovery may be had for negligence only if a duty has been breached which was owed to the particular person seeking recovery.” Parkulo v. West Virginia Board of Probation and Parole, 199 W.Va. 161, 172, 483 S.E.2d 507, 518 (1996). In other words, the public duty doctrine “is not based upon immunity from existing liability. Instead, it is based on absence of duty in the first instance.” Holsten v. Massey, 200 W.Va. 775, 782, 490 S.E.2d 864, 871 (1997). Where the public duty doctrine would apply, there is simply no duty and therefore no need to inquire as to the existence of immunity. The public duty doctrine is not a “doctrine of governmental immunity but one of tort, based on the initial question applicable to any negligence action, that is, whether the defendant owes the plaintiff any judicially cognizable duty.” Reno v. Chung, 220 Mich.App. 102, 559 N.W.2d 308, 311 (1996) (Ludington, Judge, dissenting). Walker v. Meadows, 206 W.Va. 78, 83, 521 S.E.2d 801, 806 (1999) (per curiam).
Q. ... [W]hen you spoke to [Dog Warden Green] about the dogs, what did you understand or believe that she was going to do about the dogs, if anything?
A. That they would no longer be roaming around in my yard.
Q. Did she tell you how she planned on accomplishing that?
A. No.
Q. Did she specifically tell you that she would make sure that they weren‘t roaming around in the neighborhood?
A. She said—she assured me that the County would take care of it.