J.H., Plaintiff Below, Appellant, v. WEST VIRGINIA DIVISION OF REHABILITATION SERVICES, a State Agency, Defendant Below, Appellee.
No. 33918.
Supreme Court of Appeals of West Virginia.
Submitted Jan. 14, 2009. Decided June 23, 2009.
680 S.E.2d 392
Concurring Opinion of Justice Benjamin July 27, 2009.
der entered June 28, 2007, is reversed, and this case is remanded to the Circuit Court of Cabell County with directions to enter an order remanding this case to the Family Court of Cabell County for entry of a Qualified Domestic Relations Order that distributes only the marital share of the Husband‘s pension and retirement benefits.
Reversed and Remanded with Directions.
Ancil G. Ramey, Esq., Hannah B. Curry, Esq., Jan L. Fox, Esq., Steptoe & Johnson, Charleston, WV, for Appellee.
The Opinion was delivered PER CURIAM.
The Appellant, J. H.,1 appeals an Order entered June 4, 2007, by the Circuit Court of Kanawha County concluding that the public duty doctrine was applicable to the Appellee, the West Virginia Division of Rehabilitation Services (also referred to as “the Division“) аnd dismissing the Appellant‘s negligence action against the Division. Specifically, the circuit court determined that
the Public Duty Doctrine is applicable to the defendant, a State agency charged with the safety of its residents in general. The Court FINDS that Plaintiff‘s reading of the relevant duty associated with the Public Duty Doctrine is overly narrow. Further, the Court FINDS that the applicable policy of insurance does not expressly waive qualified immunity or other statutory or constitutional immunity.2
The Appellant asks the Court to reverse the circuit court‘s determination that the special duty exception to the public duty doctrine was not applicable in this сase. After thorough consideration of the public duty doctrine, as well as sovereign immunity and qualified immunity, we find that sufficient allegations were pleaded by the Appellant regarding the existence of the special duty exception to the public duty doctrine to survive the Appellee‘s Motion to Dismiss. We further find pursuant to Parkulo v. West Virginia Bd. of Prob. and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996), that the existence of a special duty is a question of fact to be determined by the trier of fact under proper instruction of law. Id. at 164, 483 S.E.2d at 510, Syl. Pt. 11. Accordingly, the Court reverses and remands this case to the circuit court for further proceedings on the question of whether a special duty existed to defeat the Division‘s reliance оn the public duty doctrine.
I. Factual and Procedural Background
The Appellant, J. H., filed the instant action3 in Kanawha County, West Virginia,
According to the allegations contained in the Plaintiff‘s Amended Complaint, the Appellee advised its clients who would become residents at the West Virginia Rehabilitation Center, that it is a location with a “safe environment[.]” Additionally, the Appellant pleaded that:
- The defendant, by its promises of a “safe” environment for residents of its Rehabilitation Center and its actions to impose rules and codes of conduct on such residents and its employees and staff fоr safety reasons, creates an affirmative duty on the defendant to provide a safe environment of its Center;
- The defendant is knowledgeable that its failure to enforce its own rules and codes of conduct relating to safety can lead to harm to its residents;
- The defendant had prior knowledge in this instance that resident/client Jeff Bell‘s conduct at the Center did not comply with rules of the Center-additionally, the defendant had knowledge that Bell had previously attempted similar conduct with another client at the Center-the defendant had knowledge of these prior incidences and still failed to take action regarding Bell necessary to prevent harm to the plaintiff and other residents of the Center;
- The defendant had direct contact with the plaintiff, knew the plaintiff‘s physical limitations, and advised him that he would be in a safe environment at the Center;
- Defendant‘s relationship to the plaintiff was direct and individual and therefore vastly different than defendant‘s relationship with the public at large;
- Plaintiff justifiably relied on the defendant to provide a safe environment at its Center and an environment where the defendant would at least enforce its own rules and codes of conduct implemented to provide a safe environment[.]
As to the specific allegations of negligenсe, the Appellant alleged that the Appellee was negligent in: 1) the failure to properly supervise unauthorized persons, including Jeff Bell, in the “Attendant Care Unit“; 2) the failure to provide proper security to J. H.; 3) the failure to enforce rules at the Rehabilitation Center concerning curfews, bed checks, “lights out“, etc.; 4) the failure to cease Jeff Bell‘s status as student/client resident and employee status5 after receiving complaints
The Appellee filed a second Motion to Dismiss the Amended Complaint pursuant to the provisions of
II. Standard of Review
In the case sub judice, the Appellant filed a Motion for Reconsideration in accordance with the prоvisions of
The standard of review applicable to an appeal from a motion to alter or amend a judgment, made pursuant to
III. Discussion
The Appellant argues that: 1) the circuit court erred by applying the public duty doctrine to immunize the Division from liability when the Division owed a special duty to the Appellant; and, 2) the circuit court erred by granting the Motion to Dismiss. The Appellee asserts that: 1) the Division cannot be held liable under the insurance exception to sovereign immunity where the State‘s liability policy does not provide coverage for sexual misconduct by a third party where the Division is not legally responsible for the third party; 2) the doctrine of qualified immunity bars a claim of mere negligence against the Division as a State agency; and, 3) the public duty doctrine and its special relationship exception do not apply to the Division to avoid dismissal of a claim of mere negligence against the Division under the doctrine of qualified immunity.
The only issue that needs resolution in this matter is whether the circuit court erred in dismissing the action due to the application of the public duty doctrine. However, because there remains a great deal of confusion as to sovereign immunity, qualified immunity, and the public duty doctrine, a general discussion of the analytical framework for these doctrines, as well as the public duty doctrine may be helpful.
A. Sovereign Immunity
Subsequently, in Eggleston v. West Virginia Department of Highways, 189 W.Va. 230, 429 S.E.2d 636 (1993), the Court held in syllabus point one that
W. Va.Code, 29-12-5(a) (1986) , provides an exception for the State‘s constitutional immunity found inSection 35 of Article VI of the West Virginia Constitution . It requires the State Board of Risk and Insurance Management to purchase or contract for insurance and requires that such insurance policy “shall provide that the insurer shall be barred and estopped from relying upon the constitutional immunity of the State of West Virginia against claims or suits.”
Eggleston, 189 W.Va. at 230-31, 429 S.E.2d at 636-37, Syl. Pt. 1. The West Virginia Supreme Court, therefore, has been clear that it will review law suits against the State pursuant to
In the case sub judice, the Appellant, in his Amended Complaint, does make the requisite allegation that the Appellant only seeks recovery under аnd up to the limits of the State‘s liability insurance coverage. Further, the allegations against the Division are not predicated upon an intentional act but are grounded in negligence. Thus, this is not a case in which sovereign immunity should be applied. Yet the Division engages in a lengthy discussion in its brief regarding the applicability of sovereign immunity. The Division‘s Motion to Dismiss the original Complaint
Moreover, the Division‘s argument regarding sovereign immunity before this Court is predicated upon the Division‘s assertion that the sexual misconduct of a third party, Mr. Bell, was nоt covered by the State‘s liability insurance policy either because the Division was not legally responsible for the actions of Mr. Bell, or because the alleged action of the perpetrator, Mr. Bell, was an intentional act and did not constitute an occurrence. The Division relies upon this Court‘s decision in Smith v. Animal Urgent Care, Inc., 208 W.Va. 664, 542 S.E.2d 827(2000), as support for its argument that “[t]he Appellant‘s negligence claims based on allegations of sexual misconduct by a third party, Jeff Bell, are not ‘accidental’ so as to constitute an ‘occurrence’ covered under ‘Coverage A-Comprehensive General Liability Insurance.’ ” Id. at 665, 542 S.E.2d at 828, Syl. Pt. 2 (“In an insurance liability policy, a claim based on sexual harassment does not come within the definition of ‘occurrence,’ which is defined as an ‘accident, including continuous or repeated exposure to substantially the same general harmful conditions.’ “). The Division failed, however, to discuss the case that is controlling on the issue of whether the alleged assault constituted intentional conduct under the applicable liability insurance policy. In Columbia Casualty Co. v. Westfield Insurance Co., 217 W.Va. 250, 617 S.E.2d 797 (2005), the United States Court of Appeals for the Fourth Circuit, on a certified question of law, asked whether jail inmate suicides were “occurrences” under a liability insurance policy issued to the Randolph County Commission. Id. at 251, 617 S.E.2d at 798. This question arose out of an insurer‘s declaratory judgment action against another insurer seeking a determination of one insurer‘s duty to defend and provide liability coverage for two separate suicides that had occurred in the Randolph County jail. Id. The estates of the decedents had brought actions against the Randolph County Commission and the Randolph County Sheriff claiming that the defendants were legally required to pay wrongful death damages as a result of their alleged wrongful acts and omissions causing the deaths. Id.
In analyzing the relevant language defining the term “accident” as found within the liability insurance policy9 at issue in Columbia Casualty, we made it clear in our holding that
[i]n determining whether under a liability insurance policy an occurrence was or was not an “accident“-or was or was not deliberate, intentional, expected, desired, or foreseen-primary consideration, relevance, and weight should ordinarily be given to the perspective or standpoint of the insured whose coverage under the policy is at issue.
Id. at 250, 617 S.E.2d at 797, Syllabus. In so holding, the Court explained that to adopt the argument that whether the actor‘s conduct was intentional or accidental should be determined from the perspective of the actor and not the insured would
preclude liability insurance coverage for insureds in many cases involving allegedly
intentional or non-accidental conduct by actors who had a substantial and material role in causing an injury, but where the insured seeking coverage cannot be fairly “tarred with the same brush” of that actor‘s coverage-defeating conduct.... We see no intent in our cases interpreting and applying general liability coverage to deny liability coverage to insureds in a wide range of cases where an insured was allegedly negligent but did not (actually or constructively) intend to cause a specific injury. The purpose of insurance liability policies is to provide a defense and indemnification to an insured for claims arising from the insured‘s own negligent acts or omissions. Erie Ins. Prop. & Cas. Co. v. Pioneer Home Improvement, 206 W.Va. 506, 511, 526 S.E.2d 28, 33 (1999).
Columbia Cas., 217 W.Va. at 254, 617 S.E.2d at 801 n. 5.
In the instant case, it is undeniable that from the viewpoint of the insured, the Division, the alleged molestation of the Appellant was not expected or intended by the Division.10 Instead, the allegations in the Appellant‘s Amended Complaint focus on the alleged negligent conduct of the Division in failing: 1) to supervise Mr. Bell; 2) to provide proper security to the Appellant; 3) to enforce rules at the Rehabilitation Center; 4) to allow Mr. Bell to continue in a student/client resident and employee status after receiving complaints of similar conduct; and 5) to coordinate rules and responsibilities of staff at the Rehabilitation Center. Consequently, pursuant to Columbia Casualty, the alleged conduct which formed the basis for the underlying action falls within policy definition of an occurrence and, therefore, sovereign immunity is not applicable to preclude the Appellant‘s action against the Division.
B. Qualified Immunity
We next examine whether the doctrine of qualified immunity bars the Appellant‘s negligence claim. There are no allegations in the Amended Complaint that a violation of a clearly established constitutional or statutory right occurred. The Division argues that because qualified immunity protects governmental entities from tort liability for alleged negligence in the exercise of “discretionary” functions, the Appellant‘s Amended Complaint alleging mere negligence rather than a violation of any clearly established law failed to state a claim against the Division for which relief could be granted.
Regarding qualified immunity, in Parkulo, the Court held in syllabus points eight and nine that:
“A public executive official who is acting within the scope of his authority and is not covered by the provisions of
W. Va.Code, 29-12A-1, et seq. ,11 is entitled to qualified immunity from personal liability for official acts if the involved conduct did not violate clearly established laws of which a reasonable official would have known. There is no immunity for an executive official whose acts are fraudulent, malicious, or otherwise oppressive. Tо the extent that State ex rel. Boone National Bank of Madison v. Manns, 126 W.Va. 643, 29 S.E.2d 621 (1944), is contrary, it is overruled.” Syllabus, State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992).12
Subsequently, in Clark v. Dunn, 195 W.Va. 272, 465 S.E.2d 374 (1995), the Court held in syllabus point four and six that:
If a public officer is either authorized or required, in the exercise of his judgment and discretion, to make a decision and to perform аcts in the making of that decision, and the decision and acts are within the scope of his duty, authority, and jurisdiction, he is not liable for negligence or other error in the making of that decision, at the suit of a private individual claiming to have been damaged thereby.
...
In the absence of an insurance contract waiving the defense, the doctrine of qualified or official immunity bars a claim of mere negligence against a State agency not within the purview of the West Virginia Governmental Tort Claims and Insurance Reform Act,
W. Va.Code § 29-12A-1, et seq. , and against an officer of that department acting within the scope of his or her employment, with respect to the discrеtionary judgments, decisions, and actions of the officer.
195 W.Va. at 273-74, 465 S.E.2d at 375-76, Syl. Pts. 4 and 6.
Further, in the context of a State agency, like the Division, this Court held in Parkulo that:
Unless the applicable insurance policy otherwise expressly provides, a State agency or instrumentality, as an entity, is immune under common-law principles from tort liability in
W. Va.Code § 29-12-5 actions for acts or omissions in the exercise of a legislative or judicial function and for the exercise of an administrative function involving the determination of fundamental governmental policy.
199 W.Va. at 163-64, 483 S.E.2d at 509–10, Syl. Pt. 6.
Consequently, the first issue that must be determined in analyzing the issue of qualified immunity and the applicability of this immunity to a State agency is whether the State‘s insurance policy expressly waives common-law immunity for tort liability. In the instant matter, no such waiver exists. Thus, the second inquiry is whether the State entity was exercising a legislative or judicial function or an administrative function involving the determination of a fundamental governmental policy. There are no allegations made by the Appellant of any type of legislative, judicial, or administrative functions involving the determination of a fundamental governmental policy, which are the types of functions susceptible to the application of qualified immunity. Pittsburgh Elevator Co., 172 W.Va. at 744, 310 S.E.2d at 676, Syl. Pt. 2. Thus, the doctrine of qualified immunity does not preclude this claim.
Having disposed of both sovereign immunity and qualified immunity, we direct our attention to the pivotal issue in this matter, which is the public duty doctrine and whether the special relationship exception applies in this case. Generally, “[t]he duty imposed upon a governmental entity is one owed to the general public, and unless the injured party can demonstrate that some special relationship existed between the injured person and the allegedly negligent entity, the claim is barred.” Jeffrey v. West Virginia Dep‘t of Pub. Safety, Div. of Cor., 198 W.Va. 609, 614, 482 S.E.2d 226, 231 (1996). As the Court has previously recognized “the public duty doctrine is a principle independent of the doctrine of governmental immunity, although in practice it achieves much the same result.” Benson v. Kutsch, 181 W.Va. 1, 2, 380 S.E.2d 36, 37 (1989). The Apрellant maintains that as a resident of the attendant care unit at the Rehabilitation Center, he had a special relationship with the Division beyond the relationship with the general public. The Appellant maintains that the Division had full knowledge of the Appellant‘s compromised mobility and had knowledge of Jeff Bell‘s prior sexual predator acts at the Rehabilitation Center. The Appellant also maintains that at the time of the alleged molestation, the Division allowed Mr. Bell private access to the Appellant‘s bedroom.
Contrariwise, the Division argues that the public duty doctrine only applies to “an alleged breach of a nondiscretionary duty to provide fire or police or other public safety protection to an individual[,]” see Randall v. Fairmont City Police Department, 186 W.Va. 336, 346-47, 412 S.E.2d 737, 747-48 (1991), and the Division maintains that it has no nondiscretionary statutory duty to provide police, fire, or other public safety protection to disabled individuals or the general public. The Division, therefore, asserts that the Appellant failed to allege operative facts that would support the application of the public duty doctrine or its special relationship exception to avoid dismissal of his negligence claims under the doctrine of qualified immunity.
First, it is important to note that the public duty doctrine is not an 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, 199 W.Va. at 172, 483 S.E.2d at 518. Hence,
“[t]he public duty doctrine states that a governmental entity‘s liability for nondiscretionary governmental functions 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.” Wolfe v. City of Wheeling, 182 W.Va. 253, 256, 387 S.E.2d 307, 310 (1989). The linchpin of the “public duty doctrine” is that some governmental acts create duties owed to the public as a whole and not to the particular private person or private citizen who may be harmed by such acts. Parkulo v. West Virginia Bd. of Probation and Parole, 199 W.Va. 161, 172, 483 S.E.2d 507, 518 (1996).
McCormick v. West Virginia Dep‘t of Pub. Safety, 202 W.Va. 189, 194, 503 S.E.2d 502, 507 (1998).
In Parkulo, the Court held in syllabus point ten that “[t]he public duty doctrine and its ‘special relationship’ exception apply to
[t]he four requirements for the application of the “special relationship” exception to
W. Va.Code § 29-12-5 cases are as follows: (1) An assumption by the state 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 state governmental entity‘s agents that inaction could lead to harm; (3) some form of direct contract between the state governmental entity‘s agents and the injured party; and (4) that party‘s justifiable reliance on the state governmental entity‘s affirmative undertaking.
199 W.Va. at 164, 483 S.E.2d at 510, Syl. Pt. 12. Finally, this Court previously held that “[i]n cases arising under
In the instant case, the Court concludes that the circuit court erred in granting the Division‘s Motion to Dismiss. A de novo review of the allegations contained in the Appellаnt‘s Amended Complaint reflects that sufficient allegations are present to allow the Appellant‘s claims to go forward against the Division. It is for a jury to determine, under appropriate instruction of law, whether a special duty arises to protect the Appellant from the Division‘s alleged negligence. Id. We, therefore, reverse the decision of the circuit court and remand this case for reinstatement of the Appellant‘s claims based upon the allegations of a special relationship and a special duty.
IV. Conclusion
Based on foregoing, we reverse the decision of the circuit court dismissing the Appellant‘s actiоn and remand this case for further proceedings consistent with this opinion.
Reversed and remanded.
Chief Justice BENJAMIN concurs and reserves the right to file a separate opinion.
BENJAMIN, Chief Justice, concurring.
(Filed July 27, 2009)
I concur with the holding of the Court. I write separately to again question the jurisprudence of this Court‘s holding in Pittsburgh Elevator Co. v. West Virginia Board of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983). The majority incorporates as Syllabus Point 2 herein, the second syllabus point of Pittsburgh Elevator, in which this Court held that “[s]uits which seek no recovery from state funds, but rather allege that recovery is sought under and up to the limits of the State‘s liability insurance coverage, fall outside the traditional constitutional bar to suits against the State.”
As set forth in my concurring opinion in Blessing v. National Engineering & Contracting Co., 222 W.Va. 267, 664 S.E.2d 152 (2008), I believe the constitutionality of the Pittsburgh Elevator decision should be reconsidered by this Court in view of the clear and unambiguous mandatе of sovereign immunity set forth in our Constitution.
I further believe that this Court should also make inquiry into how payments in a claim such as this would be made to one making a claim against a State agency. Should payments be made directly or indirectly from a state agency and not from a separate bona fide insurance policy purchased by the State, Pittsburgh Elevator, in my opinion, would not, by its own terms, apply.
I do not dissent herein, however, because the constitutional viability of Pittsburgh Elevator was not properly raised as error herein. The issue not being properly being before the Court, I do not fault my colleagues for not addressing the issues of sovereign immunity and coverage and concur in the majority opinion.
Notes
The Company will pay on behalf of the “insured” all sums which the “insured” shall become legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “occurrence“, and the Company shall have the right and duty to defend any suit against the “insured” seeking damages on account of such “bodily injury” or “property damage“, even if any of the allegations of the suit are groundless, false оr fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the Company‘s liability has been exhausted by payment of judgments or settlements.
Further, an “occurrence,” is further defined within the policy as “an accident, including continuous or repeated exposure to conditions, which results in ‘bodily injury’ or ‘property damage’ neither expected nor intended from the standpoint of the ‘insured.’ ”Qualified immunity, when found to apply, bars § 1983 suits against government officers in their individual capacity. Brandon v. Holt, 469 U.S. 464, 472-73 & 473 n. 24, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985); Owen v. City of Independence, 445 U.S. 622, 638 & n. 18, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). Qualified immunity provides “an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); accord Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009). Because the doctrine seeks to protect government officials from the burdens of trial and preparing for trial, the Supreme Court has “repeatedly stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)(per curiam). Unless the plaintiff‘s allegations state a claim of violation of clearly established law, a defendant pleading immunity is entitled to dismissal before the commencement of discovery.” Mitchell, 472 U.S. at 526, 105 S.Ct. 2806.
Cloaninger, 555 F.3d at 330; see Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660 (2009)(discussing qualified immunity in context of allegations of unreasonable search and seizure, unlawful detention and excessive force against police officer).