The appellant herein and the plaintiff below, Steven P. Holsten, individually and as the administrator of the estate of Angela Ethelmae Holsten, appeals the October 23, 1995 order of the Circuit Court of Boone County which granted summary judgment in favor of the appellees herein and the defendants below, the County Commission of Boone County and L.L. Greene, a Deputy Sheriff for the Boone County Sheriffs Department. 1 For reasons explained below, we affirm the October 23, 1995 order of the circuit court.
I.
This case arose after Angela Holsten, the appellant’s wife, was killed in a ear accident in Boone County on April 26, 1993. The car accident occurred when Russell Massey, who had a reported blood alcohol content of .284, crossed the center line and drove his car head-on into a car driven by Angela Holsten.
Approximately four months prior to the April 26, 1993 car accident which killed Angela Holsten, Massey had operated another vehicle while allegedly under the influence of alcohol wherein his only passenger, Patricia Perdue, was killed. 2 It is the appellant’s contention that had appellee Deputy Greene properly investigated the prior car accident, Massey’s license would have been revoked and/or he would have been incarcerated and, therefore, would not have been behind the wheel of the car that killed Angela Holsten on April 26,1993.
The facts surrounding the investigation of the December 26, 1992 ear accident which killed Patricia Perdue (hereinafter the “Per- *779 due accident”) are disputed. Apparently, the roadways in Boone County were slick and icy on December 26, 1992. In fact, Deputy Greene asserts that he had investigated at least two other single car accidents prior to the Perdue accident. When Deputy Greene arrived at the Perdue accident scene, at least two other law enforcement officers and various medical personnel were already there. Deputy Greene only spoke with Massey for a few moments before Massey was transported by ambulance from the scene of the accident to an area hospital.
At the hospital Deputy Greene spoke with Massey on at least three occasions. While in the hospital Massey told Deputy Greene that he had been drinking prior to the accident. The appellees state that Massey specifically told Deputy Greene that he and another person split a six pack of beer. Moreover, the appellant notes that a few days after the accident another officer who had been on the scene of the Perdue car accident told Deputy Greene that he smelled alcohol on Massey at the accident scene. Deputy Greene noted this information in his police report.
Additionally, the. appellant asserts that Deputy Greene recklessly failed to obtain the blood alcohol test results from the hospital even though he was informed on the day of the Perdue accident that those results were available. Conversely, the appellees state that Deputy Greene went to great lengths to obtain the test results; however, the hospital misplaced or ignored his subpoenas requesting the test results. 3 Thus, it was the hospital’s actions, according to Deputy Greene, that prevented him from timely obtaining the blood alcohol test results. The appellant maintains that certain hospital employees denied that Deputy Greene had asked for the results. Deputy Greene maintains that those employees actually stated that they did not remember him asking for the test results. Moreover, the appellant asserts that when Perdue’s family inquired as to why charges were not being brought against Massey for Perdue’s death, Deputy Greene allegedly told them that “the ‘reason Russell Massey would not be prosecuted’ for [Perdue’s] death was because the .blood alcohol content results of Massey had been ‘misplaced or lost by hospital personnel’ at [the area hospital][.]” Regardless of why the test results were not readily available, the fact is that it was not until April 21, 1998, five days after Angela Holsten died in the 1993 car accident and almost four months after the Perdue accident, that the Boone County Grand Jury returned a four-count indictment against Massey relating to Perdue’s death in the 1992 ear accident.
Thus, the appellant filed a complaint against the appellees asserting that it was appellee Deputy Greene’s reckless and careless investigation of the December 26, 1992 car accident that led to his wife’s death in the 1993 ear accident. Additionally, the complaint alleged that the County Commission of Boone County was hable for damages caused by the negligent acts of Deputy Greene pursuant to the Governmental Tort Claims and Insurance Reform Act set forth in W. Va. Code, 29-12A-1 et seq. The premise of the appellant’s argument is that had the 1992 car accident been properly investigated by appel-lee Deputy Greene, then Massey would have lost his driver’s license and/or been incarcerated and, thus, would not have caused the 1993 car accident which killed his wife.
In an October 23, 1995 order the circuit court granted summary judgment for the appellees after determining that the appel-lees were “not hable for their mere failure to provide adequate pohce protection ...” and that the appellant failed to allege any facts to support his allegation that the appellees breached a special duty owed to his deceased wife. Additionally, the circuit court determined that even if the appellant had alleged facts'to support his argument that the .appel-lees breached a special duty, the appellees are immune pursuant to the Governmental Tort Claims and Insurance Reform Act.
II.
A. Standard of Review
At the outset, we note that “[a] circuit court’s entry of summary judgment is
*780
reviewed
de
novo.” Syl. pt. 1,
Painter v. Peavy,
‘ “ ‘[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).’ Syl. pt. 1, Williams v. Precision Coil, Inc.,194 W.Va. 52 ,459 S.E.2d 329 (1995).
Syl. pt. 3,
Mallamo v. Town of Rivesville,
‘[sjummary judgment is appropriate if, from the totality of the evidence presented, the record 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.’ Syl. pt. 2, Williams v. Precision Coil, Inc.,194 W.Va. 52 ,459 S.E.2d 329 (1995).
Syl. pt. 4,
Mallamo, supra. See also
syl. pt. 3,
Cannelton Industries, Inc. v. Aetna Casualty & Surety Co. of America,
B. Public Duty Doctrine
Initially, we must determine whether the circuit court correctly concluded that summary judgment should be entered against the appellant because he “failed to present any evidence that the law enforcement [ap-pellees] breached any legal duty owed to the [appellant] or the [appellant’s] decedent in this case.” The appellant’s case against the appellees is based on the alleged failure of Deputy Greene to adequately protect Angela Holsten by properly investigating the Perdue accident. As noted above, the appellant asserts that if the Perdue accident had been properly investigated, then Massey would have had his license revoked and/or would have been incarcerated, and, thus, would not have been behind the wheel of the car which killed Angela Holsten.
Obviously, one of the primary elements of a negligence action is the existence of a legal duty.
See Sewell v. Gregory,
[t]he public duty doctrine is that a local governmental entity’s liability ... may not be predicated upon the breach of a general duty owed to the public as a whole; instead, only the breach of a duty owed to the particular person injured is actionable. As a specific example of the public duty doctrine, the duty to fight fires or to provide police protection runs ordinarily to all citizens and is to protect the safety and well-being of the public at large; therefore, absent a special duty to the plaintiffs), no liability attaches to a municipal fire or police department’s failure to provide adequate fire or police protection.
Randall,
However, there is a “special relationship” exception to the public duty doctrine. As its name implies, this exception gives rise to a cause of action in certain situations when there is a special relationship between an
*781
individual and a governmental entity.
Benson,
This Court set forth the following test for determining when the “special relationship” exception to the public duty doctrine gives rise to a cause of action:
To 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, supra 4 Generally, whether a special relationship exists between an individual and a governmental entity so as to give rise to a special duty is “ordinarily a question of fact for the trier of the facts.” Syl. pt. 3, in part, Wolfe, supra.
In the ease presently before us, however, the appellant does not argue that there are any facts supporting the existence of a “special relationship” between Angela Holsten and Deputy Greene which would give rise to a special duty. Indeed, there is no evidence in the record before us (1) that Deputy Greene, through promises or actions, assumed an affirmative duty to protect Angela Holsten; (2) that Deputy Greene knew Angela Holsten would be harmed by Massey; (3) that Deputy Greene had any contact with Angela Holsten prior to her death; or (4) that Angela Holsten justifiably relied on Deputy Greene to protect her from Massey. Thus, pursuant to the four-part test set forth in syllabus point 2 of Wolfe, supra, there is no evidence supporting the existence of a “special relationship” exception to the public duty doctrine.
Although the appellant’s argument is somewhat unclear, he does not specifically assert that the issue is whether a “special relationship” exists. Instead, he apparently asserts that the legislature’s enactment of the Governmental Tort Claims and Insurance Reform Act set forth in W. Va.Code, 29-12A-1, et seq. “prohibit/)s] municipalities and county commissions from perpetuating sovereign immunity in the guise of the public duty doctrine.” (emphasis provided). The appellant’s assertion confuses the public duty doctrine with immunity.
We have made clear that “[t]he public duty doctrine is a principle independent of the doctrine of governmental immunity, although [we have recognized that] in practice it achieves much the same result.”
Benson,
In
Benson,
In 1986 the legislature responded by enacting the Governmental Tort Claims and Insurance Reform Act which was to “
‘limit
[tort] liability of political subdivisions
and
[to] provide [tort]
immunity
to political subdivisions in
certain
instances
and
to
regulate
the costs and coverage of
insurance
available to political subdivisions for such liability.’”
Randall,
The history in West Virginia of the qualified immunity, from tort liability, available to municipalities and certain other political subdivisions of the state is consistent with the typical pattern in most of the other jurisdictions: a broad, often total, abrogation by the judiciary of the state common-law local governmental tort immunity, followed soon thereafter by the enactment of governmental tort claims legislation, typically providing in substance for a broad reinstatement of local governmental immunity from tort liability.
Id.
at 342,
The public duty doctrine, however, is not based on immunity from existing liability. Instead, it is based on the absence of duty in the first instance.
See Parkulo,
We recognize, however, that the public duty doctrine must be applied in a manner consistent with the provisions of the Governmental Tort Claims and Insurance Reform Act given the legislature’s authority to alter the common law: “By virtue of the authority of Article VIII, Section 21 of the Constitution of West Virginia
6
and of Code 1931, 2-1-1
7
it is within the province of the Legislature to enact statutes which abrogate the common law.” Syllabus,
Perry v. Twentieth Street Bank,
More specifically, in
Randall
the issue was whether the plaintiffs could maintain a
*783
wrongful death/negligence action brought on behalf of Sandra C. Johnson’s estate against the Police Department of the City of Fair-mont, its chief of police and dispatcher. The plaintiffs alleged that Johnson had informed the police on several occasions that “Zachary Curtis Lewis had harassed and threatened her and that she feared for her safety and life.”
Id.
at 339,
We concluded that these facts sufficiently alleged the existence of a special relationship to survive a dismissal for failure to state a claim under the public duty doctrine. The question in Randall was whether the Governmental Tort Claims and Insurance Act, which states, 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!,]” W. Va.Code, 29-12A-5(a)(5) [1986], immunized a breach of a special duty to provide protection to a particular person, and, thus, protected the police department, chief of police and dispatcher from liability. We concluded that W. Va.Code, 29-12A-5(a)(5) [1986] incorporated the common-law special relationship exception and thus, did not immunize the police department, chief of police and dispatcher from a breach of a special duty:
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 proteetion[,]’ is coextensive unth 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, supra (emphasis added).
Thus, we have made clear that the enactment of the Governmental Tort Claims and Insurance Reform Act did not abrogate the public duty doctrine in the context of “the failure to provide, or the method of providing, police, law enforcement or fire protection.” W. Va.Code, 29-12A-5(a)(5) [1986], in relevant part. Accordingly, we find the appellant’s assertion that he “is not required to establish a special duty owed by the county commission and Deputy Greene in order to establish liability” to be incorrect. '
Indeed, other courts which have addressed whether the public duty doctrine has been abrogated in their jurisdictions with the enactment of governmental tort liability acts have concluded that the public duty doctrine remains viable. As the Supreme Court of Tennessee has explained,
[a] number of public policy considerations have been advanced to explain and support adoption of the public duty doctrine. One policy consideration frequently expressed is that individuals, juries and courts are ill-equipped to judge governmental decisions as to how particular community resources should be or should have been allocated to protect individual members of the public. Some courts have theorized that severe depletion of those resources could well result if every oversight or omission of a police official resulted in civil liability. They have also observed that such a rule would place police officials in the untenable position of insuring the personal safety of every member of the public, or facing a civil suit for damages, and that the public duty doctrine eliminates that dilemma....
Another policy consideration justifying recognition of the public duty doctrine is that police officials often act and react in the milieu of criminal activity where every decision is fraught with uncertainty....
*784 Finally, many courts subscribing to the public duty doctrine have emphasized that mechanisms, other than civil negligence actions, exist wherein individual officials may be held accountable for dereliction of duty, for instance, internal disciplinary proceedings or formal criminal prosecutions.
Ezell v. Cockrell,
The court recognized that the public policy reasons relied upon to support the retention of the public duty doctrine apply equally to support the doctrine of immunity. Id. at 398. Moreover, the court acknowledged that with the enactment of statutes which abolished or modified governmental immunity “the public duty doctrine has come under criticism from some commentators who view the doctrine as governmental immunity under another guise. Moreover, some courts have abandoned the doctrine, citing, among other things, its inconsistency with statutes modifying or abolishing governmental immunity.” Id. at 398 (footnotes omitted). Courts have also abandoned the public duty doctrine because they find it produces inconsistent, unpredictable and unfair results. Id. at 398 n. 4. 8 However, the Supreme Court of Tennessee in concluding that the public duty doctrine was necessary and had not been abolished by the enactment of the Tennessee Governmental Tort Liability Act noted that “a clear majority of jurisdictions continue to adhere to the public duty doctrine, despite the passage of statutes modifying or abolishing the doctrine of governmental immunity, concluding that, in both law and policy, the rule is sound and necessary.” Id. at 399 (footnote omitted). 9 We find the Supreme Court of Tennessee’s discussion persuasive and consistent with our discussion of the public duty doctrine in Randall, supra.
Moreover, the cause of action alleged by the appellant, that Deputy Greene’s failure to ensure that Massey’s driver’s license was revoked and/or that he was incarcerated for driving while under the influence of alcohol caused Angela Holsten’s death, is the type of situation which pursuant to the public duty doctrine does not give rise to liability. As previously explained, “[t]he public duty doctrine is that a local governmental entity’s liability ... may not be predicated upon the breach of a general duty owed to the public as a whole[.]”
Randall,
Indeed, other jurisdictions have concluded that under the public duty doctrine liability may not be imposed for a police officer’s failure to restrain a drunk driver unless there are circumstances creating a “special relationship” with the injured party. For example, in
Shore v. Town of Stonington,
In a case analogous to the one presently before us, the Appellate Division of the Supreme Court of New York in
Evers v. Westerberg,
The plaintiff brought an action against the Village alleging that the Village’s police officers’s failure to provide adequate police protection caused her husband’s death. In concluding that the plaintiff could not maintain a cause of action against the Village, the Appellate Division of the Supreme Court stated that
[i]t is well settled that a municipality, acting in its governmental capacity for the protection of the general public, cannot be cast in damages for a mere failure to furnish adequate protection to a particular individual to whom it has assumed no special duty. The Village’s alleged failure to enforce its regulations and the Vehicle and Traffic Law by arresting [the driver] for intoxication, taking his ear keys or impounding his automobile falls squarely within this rule of nonliability. It owed no special duty to [the plaintiff or her husband] and through its officers, did not take any affirmative action which resulted in injury to a member of the public.
Id.
Indeed, as noted above, most courts have declined to hold a governmental entity liable for the failure to restrain an intoxicated driver who subsequently injures another person:
Although the waiver of government immunity in most jurisdictions has made possible actions based on police negligence, most courts, in balancing a government entity’s right to carry out essential functions free of the threat of litigation with the citizen’s right to redress of wrongs, have been reluctant to impose liability for failure to provide police protection, such as by failing to restrain a drunk driver who *786 subsequently injures another, expressing the fear that holding police liable to private citizens for failure to make arrest would paralyze an essential government function by forcing police to eho[o]se between potential liability on one hand for making a false arrest and on the other hand for failure to make an arrest.
James L. Isham, Annotation,
Failure to Restrain Drunk Driver as Ground of Liability of State or Local Government Unit or Officer,
We conclude that without evidence showing that a special relationship exception to the public duty doctrine exists giving rise to a special duty to a particular individual, neither a local governmental entity’s liability nor a police officer’s liability to that particular individual may be predicated upon the police officer’s failure to restrain a tortfeasor who is driving while intoxicated or under the influence of alcohol and subsequently causes an injury to the particular individual who asserts the cause of action against the local governmental entity or police officer. In the present case, as previously noted, the appellant does not offer any evidence supporting the existence of a “special relationship” between his wife and Deputy Greene. 10 Thus, the circuit court correctly entered summary judgment for the appellees based on the public duty doctrine. 11
C. The Tort Claims and Insurance Reform Act
However, regardless of whether the public duty doctrine gives rise to a cause of action, we conclude that the appellees would be immune under the Governmental Tort Claims and Insurance Reform Act. Because different provisions of the Act apply to the County Commission and to Deputy Greene, we will address each of the appellees separately.
Before we begin our analysis, we emphasize again that the public duty doctrine must be applied in a manner consistent with provisions of the Governmental Tort Claims and Insurance Reform Act given the legislature’s authority to alter the common law.
See
syl.,
Perry, supra.
However, we are mindful that “[o]ne of the axioms of statutory construction is that a statute will be read in context with the common law unless it clearly appears from the statute that the purpose of the statute was to change the common law.” Syl. pt. 2,
Smith v. West Virginia State Board of Education,
*787 i. Deputy Greene
W. Va.Code, 29-12A-5(b) [1986] of the Governmental Tort Claims and Insurance Reform Act states:
(b) An employee of a political subdivision is immune from liability unless one of the following applies:
(1) His or her acts or omissions were manifestly outside the scope of employment or official responsibilities;
(2) His or her acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; or
(3) Liability is expressly imposed upon the employee by a provision of this code. 12
(emphasis and footnote added).
See also
syl. pt. 1,
Beckley v. Crabtree,
At the outset, we note that the wanton or reckless conduct of an employee exception to immunity found in W. Va.Code, 29-12A-5(b)(2) [1986] is in addition to the special relationship exception to the public duty doctrine. Given that the legislature has authority to abrogate the common law, see syllabus, Perry, supra, the only way to reconcile the legislature’s express removal of immunity from an employee whose conduct is wanton or reckless with the public duty doctrine is to conclude that W. Va.Code, 29-12A-5(b)(2) [1986] is another exception to the public duty doctrine separate and distinct from the common-law special relationship exception to the public duty doctrine.
In
Randall,
when concluding that
W. Va. Code,
29-12A-5(a)(5) [1986] of the Governmental Tort Claims and Insurance Reform Act incorporates the special relationship exception because the Act is coextensive with the common law public duty doctrine, we were guided by “the general rule of construction in governmental tort legislation cases favoring liability, not immunity: unless the legislature has clearly provided for immunity under the circumstances, the general common-law goal of compensating injured parties for damages caused by negligent acts must prevail.”
Randall,
The Supreme Court of Illinois came to a similar conclusion when construing its Tort Immunity Act which provides, in pertinent part, that “ ‘[a] public employee is not liable for his act or omission in the execution or enforcement of any law
unless such act or omission constitutes willful and wanton conduct.’
”
Doe v. Calumet City,
Accordingly, we hold that the wanton or reckless conduct exception to an employee’s (as the term “employee” is defined in the Governmental Tort Claims and Insurance *788 Reform Act) 14 immunity under W. Va.Code, 29-12A-5(b)(2) [1986] of the Governmental Tort Claims and Insurance Reform Act is an exception to the public duty doctrine separate and distinct from the common-law special relationship exception to the public duty doctrine. With the above in mind, we now address whether Deputy Greene’s “acts or omissions were ... wanton or reckless[.]”
The appellant relies on
Mallamo v. Town of Rivesville,
[t]he officers falsely portrayed [the plaintiff| as the aggressor, despite the physical evidence to the contrary. Specifically, Wilson [one of the police officers] told the investigating officer that ‘the door [of the closet door where plaintiff was hiding] flew open and someone was in the doorwayt,]’ while Van Pelt [the other police officer] stated that ‘[t]he subject behind the door pushed it open with his left hand and arm, he was lunging towards me.’ Defendants’ expert, Gerald Styers, indicated, however, that, based upon the path of the bullet as described to him, and the location of the entry of the bullet through the door and in plaintiffs body, plaintiff was in some kind of sitting position when he was shot.
Id.
at 623,
As noted by the appellees, in
Cline v. Joy Manufacturing Co.,
‘The usual meaning assigned to “willful,” “wanton” or “reckless,” according to taste as to the word used, is that the actor has intentionally done an act of an unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to the consequences, amounting almost to willingness that they shall follow; and it has been said that this is indispensable.’
(emphasis provided).
Although the appellant attempts to characterize Deputy Greene’s conduct as wanton or reckless, there is no evidence in the record before us which suggests that Deputy Greene intentionally did not pursue his investigation of the Perdue accident knowing that Massey would obviously cause a second accident, or that he was so consciously indifferent to the consequences of failing to quickly pursue his investigation of the Perdue accident that he should have been certain that Massey would be involved in the second accident. Indeed, based on the facts before *789 us, there is no evidence that any person could have known that four months later Massey would have been in the second ear accident which killed appellant’s wife. While the record indicates that the investigation of the Perdue accident took over three months, it does not indicate that Deputy Greene was wantonly or recklessly ignoring the investigation.
Accordingly, we conclude in the case before us that based on “the totality of the evidence presented, the record could not lead a rational trier of fact to find for the” appellant. Syl. pt. 4, Mallamo, swpra. Therefore, we affirm the circuit court’s entry of summary judgment for Deputy Greene pursuant to the Governmental Tort Claims and Insurance Reform Act.
ii. The County Commission of Boone County
The appellant relies on the following language in the Governmental Tort Claims and Insurance Reform Act to support his assertion that the County Commission
15
is not immune from liability: “Political subdivisions are liable for injury, death, or loss to persons or property caused by the negligent performance of acts by their employees while acting within the scope of employment.”
W. Va.Code,
29-12A-4(c)(2) [1986], Although the appellant recognizes that the Act goes on to state that “[a] political subdivision is immune from liability if a loss or claim results from: ... the method of providing police, law enforcement or fire protection!,]” W.
Va. Code,
29-12A-5(a)(5) [1986] in relevant part, he asserts that this language is inapplicable to the facts in his case based on this Court’s holding in
Beckley v. Crabtree,
More specifically, the appellant relies on the language in syllabus points 3 and 4 of Beckley, supra, which state:
3. The phrase ‘the method of providing police, law enforcement or fire protection’ contained in W. Va.Code, § 29-12A-5(a)(5) refers to the formulation and implementation of policy related to how police, law enforcement or fire protection is to be provided.
4. Resolution of the issue of whether a loss or claim occurs as a result of ‘the method of providing police, law enforcement or fire protection’ requires determining whether the allegedly negligent act resulted from the manner in which a formulated policy regarding such protection was implemented.
The appellant argues that
the ease at bar does not center upon policy decisions made by the defendants nor does it center upon whether or not sufficient police ears and/or personnel were available to prevent crime. As such, the specific immunity set forth in West Virginia Code 29-12A-5-(a)(5) is not applicable to the facts of the instant case and cannot be used as a shield to liability for the negligent acts of the defendants.
We disagree with the appellant’s focus. The appellant’s argument overlooks key language in
W. Va.Code,
29-12A-5(a)(5) [1986] which states in full: “A political subdivision is immune from liability if a loss or claim results from: ... [e]ivil disobedience, riot, insurrection or rebellion or
the failure to provide,
or the method of providing,
police,
law enforcement or fire
protection.”
(emphasis added). Clearly, “the failure to provide ... police [or] law enforcement ... protection” is something different than “the method of providing[ ] police ... protection.” Indeed, because the express language of
W. Va.Code,
29-12A-5(a)(5) [1986] clearly states that “[a] political subdivision is immune from liability if a loss or claim results from: ... the failure to provide ... police [or] law enforcement ... protection[,]” we must give effect to that language. As we have held previously, “‘“[wjhere the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.” Syllabus Point 2[,]
State v. Elder,
Although we need not resort to the rules of interpretation because the phrase “failure to provide ... police [or] law enforcement ... protection” in
W.Va.Code,
29-12A-5(a)(5) [1986] is clear and without ambiguity, we note that the word “or” is “a conjunction which indicated] the various objects with which it is associated are to be treated separately.”
State v. Carter,
Our focus in Beckley, supra, was on the “method of providing police ... protection.” More specifically, in Beckley this Court concluded that the Wayne County Commission was not immune pursuant to the Governmental Tort Claims and Insurance Reform Act from the negligent acts of its employee, the Sheriff of Wayne County, Bernie R. Crab-tree. Trooper Beckley, who was assisted by Sheriff Crabtree, had arrested Thomas Wayne Graham on charges of brandishing a weapon and discharging a firearm and had placed Graham in the back seat of a sheriff department’s vehicle when Sheriff Crabtree, while attempting to place a shotgun in the trunk of the vehicle, accidentally shot and injured Trooper Beckley.
This Court concluded that the county commission was not immune from liability because “[although this incidental action occurred within the scope of employment, it was not so closely related or necessary to effectuating the arrest as to be considered a component of ‘the method of providing law enforcement protection.’ ” '
Id.
at 98,
Likewise, the appellant’s reliance on
Mal-lamo, supra,
is misplaced. In
Mallamo
this Court concluded that the Town of Rivesville was immune from liability even though its police officers, who had a warrant to arrest the plaintiff, shot and injured the plaintiff who was hiding behind a closet door, because the officers were in the process of executing a lawful court order when the gun discharged.
See W. Va.Code,
29-12A-5(a)(3) [1986] (A political subdivision is immune from liability if a claim results from the execution or enforcement of the lawful orders of any court regardless of whether such claim is caused by the negligent performance of acts by a political subdivision employee acting within the scope of employment). However, this Court in dicta explained that had the police officers not been executing a lawful order of a court, then the City of Rivesville would not be immune from liability under the
*791
Governmental Tort Claim and Insurance Reform Act because although “the officers acted pursuant to formulated policy when they un-holstered their weapons upon observing a high-powered rifle in a bedroom of plaintiffs home ... the discharge of [one of the officer’s] weapon[s] was not the result of implementing such policy.”
Id.
at 626,
‘is aimed at such basic matters as the type and number of fire trucks and police cars considered necessary for the operation of the respective departments; how many personnel might be required; how many and where police patrol ears are to operate; the placement and supply of fire hydrants; and the selection of equipment options.’
Id. (quoting Jackson v. City of Kansas City,
In that we have concluded that the premise of the appellant’s argument is that Deputy Greene “failed to provide police protection” to Angela Holsten by not arresting or incarcerating Massey, we conclude that the County Commission is immune pursuant to the express language of W. Va.Code, 29-12A-5(a)(5) [1986] for “failpkig] to provide ... police ... protection.” 17 Accordingly, we hold that the circuit court properly entered summary judgment against the appellant on this issue.
III.
In summary, for reasons stated above, the appellant cannot sustain a cause of action against the appellees pursuant to the public duty doctrine. Moreover, we conclude that the appellees are immune pursuant to the Governmental Tort Claims and Insurance Reform Act. 18 Based on all of the above, we affirm the October 23, 1995 order of the Circuit Court of Boone County.
Affirmed.
Notes
. The appellant asserts that Massey's blood alcohol level was .158 when the Perdue accident occurred.
. The appellees note that the "returns of service on the subpoenas served by Deputy Greene to [the area hospital] on December 29, 1992, and April 5, 1993, are on file with the clerk of the Grand Juty and with the prosecuting attorney’s office.”
. This "special relationship” concept is recognized in Restatement (Second) of Torts § 315 (1965):
There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.
. We note that the State’s immunity from suit, unlike the common-law municipal governmental immunity or immunity provided under the Governmental Tort Claims and Insurance Reform Act, is constitutionally created.
W. Va. Const.
art. VI, § 35.
See also Benson,
. W.Va. Const. art. VIII, § 21 has been renumbered and is now W.Va. Const, art. VIII, § 13 which states:
Except as otherwise provided in this article, such parts of the common law, and of the laws of this State as are in force on the effective dale of this article and are not repugnant thereto, shall be and continue the law of this State until altered or repealed by the legislature.
.W. Va.Code, 2-1-1 [1923] states:
The common law of England, so far as it is not repugnant to the principles of the constitution of this state, shall continue in force within the same, except in those respects wherein it was altered by the general assembly of Virginia before the twentieth day of June, eighteen hundred and sixty-three, or has been, or shall be, altered by the Legislature of this state.
. The following cases and law review support the abandonment of the public duty doctrine:
Adams
v.
State,
. The following are a few of the cases the Supreme Court of Tennessee cited to support the above conclusion in
Ezell: Shearer v. Town of Gulf Shores,
. We recognize that the public duty doctrine does not apply when the allegations against a police officer involve the police officer's willful, wanton and reckless behavior.
See, e.g., Doe v. Calumet City,
. It appears that appellant also maintains that Deputy Greene's knowledge of a violation of a statute (regarding the police officer's authority to take a driver’s license if he or she suspects that person is driving while under the influence of alcohol) creates a duty to any person who comes within the risk created by his "reckless conduct” in not following the terms of the statute. As noted by the appellees, the statutes which authorize police officers to take action when they suspect a person is driving while under the influence of alcohol give the officers discretion in determining how to investigate the situation. See, e.g., W. Va.Code, 17C-5-4 [1994] (Preliminary breath analysis may be administered); W. Va.Code, 17C-5-5 [1983] (Police officer may require a person to submit to preliminary breath analysis); W. Va.Code, 17C-5-6 [1981] (Medical personnel, at request of the police officer, may withdraw blood for the purpose of determining the alcohol content thereof). While the statutes cited by the parties authorize police officers to investigate a person whom they suspect is driving while under the influence of alcohol, we are not aware of nor has the appellant cited to any statute which expressly states that a police officer’s knowledge of a violation of a statute gives rise to a higher duty when providing police protection in the context of removing from the highway a person who is driving while under the influence of alcohol than that provided by the public duty doctrine or its recognized exceptions.
. We note that W. Va.Code, 29-12A-5(c) [1986] makes clear that “[t]he immunity conferred upon an employee by subsection (b) of this section does not affect or limit any liability of a political subdivision for an act or omission of the employee."
. No one disputes that Deputy Greene is an "employee” as that term is defined in W. Va. Code, 29-12A-3(a) [1986], and thus, subject to the provisions of the Governmental Tort Claims and Insurance Reform Act.
. W. Va.Code, 29-12A-3(a) [1986] defines "employee” as
an officer, agent, employee, or servant, whether compensated or not, whether full-time or not, who is authorized to act and is acting within the scope of his or her employment for a political subdivision. ‘Employee’ includes any elected or appointed official of a political subdivision. ‘Employee’ does not include an independent contractor of a political subdivision.
. The County Commission is subject to the provisions of the Governmental Tort Claims and Insurance Reform Act because it is a "political subdivision” as that term is defined in W. Va. Code, 29-12A-3(c) [1986].
. In
Beckley, supra,
we relied on
State v. Terrell,
. Moreover, as noted by the appellees,
W. Va. Code,
29-12A-5(a)(9) [1986] provides that a political subdivision is immune from liability if a loss or claim results from the failure or refusal to suspend or revoke any license. Thus, to the extent that the appellant's argument is based on Deputy Greene's failure to ensure that Massey’s driver’s license was suspended or revoked, the County Commission is immune pursuant to
W. Va.Code,
29-12A-5(a)(9) [1986],
See also
syl. pt. 4,
Hose v. Berkeley County Planning Comm’n,
. We have given effect to the legislature’s intent when applying the Governmental Tort Claims and Insurance Reform Act to the facts in the case before us as we recognize that ”[i]t is not the province of the courts to make or supervise legislation, and a statute may not, under the guise of interpretation, be modified, revised, amended, distorted, remodeled, or rewritten[.]”
State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars of the United States,