Riffe v. Armstrong

injury have been liable for the grants immunity resulting from of Rivesville would negligence, any, employee, police if of its Wilson. providing pro- fire of “the method tection,” V. type aimed at such basic matters as above, For the cir- the reasons discussed police number of fire trucks and cars and 21,1994 dismissing cuit court’s October necessary operation for the of considered Police reversed and this case Chief Wilson is departments; many respective how the issue of whether is remanded on Wilson required; might many

personnel how conspired conceal distort the facts police patrol oper- and/or where cars are shooting incident. surrounding the The De- ate; hy- placement supply fire dismissing the cember 1994 order Town of drants; equipment and the selection of hereby affirmed. Rivesville is Accordingly, city immunized options. burglary claims as a could have

from such reversed, Affirmed, part, part; police ears prevented additional been remanded. patrol, or a on house could have had been equip- if more or fire been saved better purchased. had been do not

ment We applicable broad

believe is so [the statute] city every aspect to immunize a police department oper- and fire

negligent negligently go to

ations. Should firemen wrong chop house and a hole 477 S.E.2d 535 thereof, city has we do not believe the roof Below, RIFFE, Appellant, Ruth Plaintiff negli- immunity therefor on the basis the v. part gent act was a method of fire protection. ARMSTRONG; Nolley; Deborah William Robertson; Phillip Springhaven, Dr. City Id. P.2d at 890. See Forbus Inc., Corporation; Virginia A West Denton, (Tex.Civ.App. 595 S.W.2d Community Hospital Princeton Associa- 1980) provide (Deciding mattress whether tion, Virginia Inc., Corporation, A West policy inmates was formulation for Below, Appellees. Defendants immune; governmental entity would be how- No. 22980. ever, type to what particular the decision as provide policy implemen- mattress Appeals Supreme Court of exempt claim of tation and was Virginia. West negligence.) 5, 1996. Submitted March find the above discussion to be instruc- July 1996. Decided us, case before evidence tive. pursuant the officers reveals that acted Rehearing Sept. Refused 1996. policy they when unholstered formulated high-pow- weapons observing their plaintiffs home. rifle in a bedroom

ered

However, discharge weapon of Van Pelt’s poli- implementing the result of

was not Thus, injuries

cy. plaintiff because sus- not the result the method of

tained were pro- fire

providing police, law enforcement or Code,

tection, meaning within W. Va.

29-12A-5(a)(5) [1986],the Town of Rivesville liability have been immune from

would not Consequently, under W. Va.

thereunder. 29-12A-4(c)(2)

Code, [1986], supra, the Town summary granted

remaining appellees were August judgment by order entered 1994. 5, 1994, August the court After motion made judgments appellant relief fi’omthose denied Ap- 1994. order entered November pellant appeal her on March 1995. filed summary judgment Appellant contends that proper genuine issues of was not because Griffith, Bell, Mary E. Belle & Rebecca M. agree material fact remain unresolved. We Griffith, L.C., Princeton, Appellant. for and reverse and remand to the circuit court Bibb, III, Knopf, Edgar proceedings E. Kenneth E. further consistent with this Wilcox, Metzger, opinion. R. Timbera C. Melissa Fowler, Charleston, Cleek, Pullin, Knopf & Armstrong, Deborah Appellees, William FACTUAL AND PROCEDURAL Nolley, Springhaven, Inc. SUMMARY Foster, II, Cooper, F. J. William William 2, 1992, January arrived On Kalur, Jacobson, Maynard, & Tuschman Community Hospital, ambulance Princeton Charleston, Phillip Appellee, Dr. Robert- son, Riffe, her Robert who was to be son. admitted to the Behavioral Medicine Unit Martin, Givens, David S. Flah- Edward C. (BMU) treatment, following hospi- there for Bonasso, Charleston, erty, Sensabaugh & Emergency Hospital for a talization at Welch Community Hospital

Appellee, Princeton As- attempt involving an suicide overdose sociation, Inc. drugs. Appellant and her son were discover- Span- nurse Linda ed outside BMU ALBRIGHT, Justice: gler Appellant as she returned from lunch. distraught crying. attempting After brought action was in the Circuit This civil appellant, Spangler to console Ms. sum- County, Virginia, for Court of Mercer West appellee Nolley, a moned Deborah clinical money arising attempted damages out of the psychologist who was familiar with Robert appellant, involuntary commitment of Ruth Appellee Nolley inquired Riffe’s ease. as to W.Va.Code, Riffe, provisions under distress, appellant’s appel- the cause of 27-5-1, Appellant seq. et claims she replied lant kill her that she would husband falsely imprisoned by appellees Arm- William then kill herself her fine. and so son would be Inc., Nolley, Springhaven, strong, Deborah mentally Appellant appeared to be confused Community Hospital and Princeton when she slept and claimed she had not eaten or for against Behavioral was held her will days. three Community Princeton Hos- Medicine Unit at when, will, pital against her she was and Appellant and her son moved into the subsequently placed in restraints and trans- parties give conflicting The accounts BMU. Beekley Appalachian ported to and held at why Appellant this occurred. claims she ap- Regional Hospital. She also claims that was enticed into the unit with an offer of a pellee Phillip Robertson committed Doctor coffee, cup appellees appellant while claim providing physi- a malpractice medical unit a entered the result her son’s involuntary for the commit- cian’s certificate Nonetheless, encouragement. shortly after Finally, appellant claims proceedings. ment appellant unit her entered the and behavior intentionally appellees that all inflicted emo- observed, Nolley appellee prepared was a actions. tional distress on her their (or petition application) involuntary for com- § sought granted pursuant mitment 27-5- Doctor Robertson and was W.Va.Code 2(a)(2) (1983).1 summary judgment 1994. The on June 27-5-2(a)(2) (1983) (a) application involuntary custody Virginia § When 1. West Code for may Any per- adult examination states: for made.— involuntary application son make for hos- commitment, Armstrong petition chief The Appellee William Nolley, appellee was oath Springhaven, made appellee officer of executive County in the of Mercer filed Circuit Court Inc., operates nonprofit corporation that a certificate. reli- with Doctor Robertson’s under with Princeton the BMU contract petition, court ance on the entered Community Hospital. Appellee Nolley con- directing Mercer “that the Sheriff of order they jointly appellee Armstrong and sulted County, Virginia, apprehend [appel- West agitated, appellant delu- determined Highlands and take her to Southern lant] sional, suffering sleep depriva- and food Community Health Center Mental tion, possibly homicidal and suicidal. and (SHCMHC) facility designated by or a them efforts to calm her failed and offers When The order for an immediate examination.” rejected, Armstrong food housing and were Respondent medically “if directed Nolley approached Phillip Rob- and Doctor probable hearing a cause shall be certified ertson, psychiatrist practicing the unit. a at following said examination be- held forthwith complete a Robertson was asked Doctor Hygiene Commissioner fore a Court Mental attesting fact certificate to the designated by at said Magistrate place a mentally danger ill herself and was a coun- also directed that official.” Following his conversation others. and/or appears appointed appellant. It sel be Nolley Armstrong, Doctor appellees authority court under the that the acted personally appellant, Robertson observed 27-5-2(b)(4) which, (1983), W.Va.Code then at distance from his who was some pertinent part, stated: However, vantage point. Doctor Robertson (4) may thereupon court ... circuit actually physical psychi- did not conduct named in an order for the individual enter appellant at time. atric examination of into action to and taken such be detained appellant, Doc- Following his observation holding prob- custody, purpose signed physician’s tor certifi- Robertson hearing in subdivision described able cate, which, part, reads as follows: (5)of purpose subsection Robertson, I, certify Phillip B. do by a of the individual of an examination follows: state as psychologist. or a exami- physician Such (1) personally ex- I have observed and arranged by a provided nation shall date, Ruth on this which is amined Riffe designat- community mental health center o’clock, Jan., 1992, day 3:30 the 2nd health to serve the by the director of ed Community Hospital, pm, at Princeton place. action takes county which the Virginia.... West specify that such shall The said order appoint (2) hearing be forthwith shall mentally held patient to be I find the Provided, That for the individual: counsel ill.... per- physician psychologist has where (3) likely to patient I further find the examination, community formed or others.... cause harm himself re- waive this health center mental finding: Based on this examina- approving such quirement (a) following treat- I recommend the tion. for Involuntary Commitment ASAP ment: into Although appellant was to be taken Psychiatric inpt. Treatment custody by provisions under the the Sheriff (b) re- Does this course of treatment transported and to court order of the circuit Yes.... hospitalization? immediate quire designated Highlands facility or a Southern BMU, in it, at the specific appellant anecdo- by also remained The certificate contained there, no custody personnel specific diagnoses supporting actual tal facts was con- us that Southern just before quoted. evidence the conclusions pitalization when retarded The individual is said sfc and, person for ^[*] because of mental examination has sfc mentally reason to believe his ^[*] of an individual ^[*] ill or illness or mentally # that: psychologist. mental allowed examination cause serious harm retardation, to remain at and certification the individual is liberty to himself or others while by physician or awaiting likely to an if designated tacted or that it the BMU as the appellant “medically court below that be cer- Instead, place for prose- examination. probable hearing tified” before a cause was cuting attorney, State, representing held, thought to be or whether it was appointed represent appellant, counsel original jus- Doctor Robertson’s certification hygiene the mental commissioner were con- waiving “medically tified certified” re- tacted and came the BMU for the conduct quirement authority under the of the statuto- probable hearing. of a cause ry procedure § contained in W.Va.Code 27- 2(b)(4), quoted event, In above. preparing hearing, the course of 5— appears attorneys that the and the mental it was learned that signed by the certificate hygiene fully commissioner were advised of person- Doctor Robertson was not based on a original the circumstances under which the appellant. al examination of After some dis- prepared certificate was and considered and cussion, attorneys and the commissioner fully were advised of Doctor Robertson’s sub- agreed proceed that Doctor Robertson would sequent change opinion, reflected his appellant to examine determine anew progress note. mentally danger she was ill and a to herself proceeded or others. Doctor Robertson Appellant present hearing was at the psychiatric conduct a appel- examination of person counsel. Doctor Robertson lant progress reflecting and wrote a note his Rather, testify. was not parties called to findings. On that occasion Doctor Robertson stipulated testimony that the doctor’s would concluded: be progress consistent with his note. Fol- pt. clearly mentally Altho ill at this time evidence, lowing taking the commis- above, appear as noted she does to be probable sioner ruled that cause existed to an danger immediate to self or others. appellant “likely believe that injure considerably She has calmed since the ini- or others because of mental himselfiherself tial assessment several BMC clinicians signed illness” and stating. order so At a pm today. around 2:00 Recommend that deposition action, taken later this the com- petition Involuntary Commitment be missioner testified that finding his at the dropped on the condition that a reliable probable hearing appel- cause was based on family responsibility member assumes during lant’s demeanor and manner her testi- patient evening and will take her mony and was not based on Doctor Robert- Psychiatric home. treatment is recom- original signed sons’s statement. mended. 5—2(b)(5)(1983)2, § Doctor Under W.Va.Code progress Robertson’s note was 27— signed by the order attorneys hygiene made available to the the mental com- and the com- Appellant’s requested person missioner. missioner contains no counsel direction that a appellant probable whom hy- released. The mental cause is found be held or commissioner, giene Harmon, authority David otherwise restrained. That denied arises proceeded the motion and prob- provisions § to conduct a under the of W.Va.Code 27-5- 3(a) hearing, though (1979), able cause provides even the circuit for admission to a required court order mental facility following probable “medi- health cally prior probable certified” to a cause hearing, and W.Va.Code 27-5-10 hearing. (1974), It cannot be ascertained from the which authorizes pro- the Sheriff to record whether Doctor transportation Robertson’s earlier vide appropriate to an mental certification, based on his facility observation but not health when the need arises. The appellant, his thought examination of authority for admission to a mental health fulfill requirement facility the order of only upon compliance arises with both 27-5-2(b)(5) (1983), Virginia § 2. West Code hearing ... At the conclusion of the the ... pertinent part, gave following additional di- hygiene mental commissioner ... shall find probable hearing: rections for a cause stating and enter an order whether or not probable probable hearing A there is cause to cause believe that such shall be held illness, hygiene before ... the mental individual as result of commissioner mental mental county likely ... of the of which the individual retardation or addiction is cause seri- resident or where he was found.... ous harm to himself or others. 27-5-3(a) (1979), compliance requirements both for ad- with prongs of W.Va.Code mission, i.e., hygiene mental commission- as follows: which reads probable finding of cause and Doctor er’s (a) health Admission to a mental facili- original, inaccurate certificate Robertson’s Any individual ty examination. — personal appellant. Follow- examination of facility for to a mental health be admitted BAR-H, ing appellant admission entry finding upon of an order examination corpus petition her counsel filed habeas probable ... and certification cause court, seeking appellant’s with the circuit physician psychologist that by one or one her at BAR-H was that he release because detention has examined the individual and he 6, January mentally petition unlawful. The was heard opinion the individual is is of 1992, corpus writ of habeas was ... and of his mental illness and the ill because immediately likely granted. Appellant harm to him- re- ... to cause serious was immediately facility. if not Beckley or others re- from the self leased ... strained. Thereafter, appellant filed this action seek- hearing, appel- probable cause After damages alleging ing money medical arrange- BMU lant was held at the while Robertson, by im- malpractice Doctor false transport made to her to a men- ments were infliction of prisonment, and intentional facility. following tal At some time health outrage. tort of emotional distress hearing, Nolley probable appellee cause a motion for sum- Doctor Robertson filed Beckley Appalachian Regional telephoned by mary judgment, granted which (BAR-H) that a Hospital to ascertain bed 1994, 28, ground that it entered June on the packet was available and also assembled a Doctor had been shown that Robertson’s documents, original involuntary including the proximate acts omissions were petition, Doctor Robertson’s injuries appellant complained. of which certificate, original probable sworn cause Appellant apparently no action took further Transporta- finding, “Application and an For respect summary to Doctor Robertson’s with tion”, by signed appellee Nolley, in which she judgment, except appeal on file this March qualified being to make certified herself as 29,1995.3 remaining appellees mo- The filed application to the of Mercer such an Sheriff summary judgment, which were tions County. packet also con- of documents 1, August granted by 1994. order entered BAR-H, handwritten note to which tained a August Appellant filed a motion on explained the absence of medical records for summary judgments seeking relief appellant but did not mention Doctor Robert- 1,1994, August was denied entered which stating opin- revised progress son’s note his Appel- 1994. order entered November Nolley that she tried Appellee ion. testified appeal from that order of lant then filed this progress note to include locate 29,1995. on denial March packet, that it could not be found. but and trans- Appellant put restraints TO HEAR JURISDICTION County depu- ported BAR-H a Mercer THE APPEAL sheriff, request ty pursuant to written urge ap Appellees us to dismiss this Nolley. packet documents appellee granted. They assert peal improvidently Al- as appellant. with to BAR-H was taken jurisdiction to hear point, that this is without not clear Court though the record is sought relief appeal appellant because that BAR-H was “mental health appears granted by an summary judgments meaning from the the statute. facility” within the 1, 1994, August below on appellant, having received order entered admitted BAR-H in the of a for relief is nature that the motion packet evidence sent just noted, no reason summary that there is determination delay" 3. Dr. Robertson's motion As express entry of for the granted judg- "an direction That judgment was June 1994. 54(b), judgment”, permitted Rule W.Va. No mo- not conclude the case below. ment did R.Civ.Proc., provides guidance for dis- judgment with- was filed for relief from that tion parties than all than or fewer entry. granting missal of fewer all days The order of its in ten express summary judgment "an claims. does not contain 636 60(b) by motion (1996); authorized Rule Syl. 5, of West 468 pt. S.E.2d 318 M.B. James

Virginia Rules They M., of Civil Procedure. fur- Carolyn 289, v. 193 W.Va. 456 S.E.2d 16 period ther appeal (1995); claim that the 1, is not Syl. pt. Lieving Hadley, v. 188 60(b) motion, by tolled a Rule but runs from 197, (1992). W.Va. 423 S.E.2d 600 entry the date of the of the order from which Appellant’s 5, August 1994 motion case, relief sought, August 1, in this asked the court below to “reconsider” the 1994, appeal and that this was not filed in the ruling 1,1994, and, therefore, August entered 29,1995, circuit court until March more than being filed days and served within ten of that entry four months summary after the 59(e) judgment, is to be treated as a Rule judgments by appellant’s addressed motion. 59(e) motion. A Rule proper motion is the joins Doctor Robertson in the assertions of motion summary judgment may which a appellees the other in regard appeal to this timely attacked. See M.B. James v. Car being untimely. Doctor ap- Robertson does M., olyn 289, (1995). 193 W.Va. 456 S.E.2d 16 that, pear to concede appeal timely, Moreover, suspend Rule 59 motions the run entry summary judgment in his favor ning appeal, of the time for and that 28, time 1994, on June was not a final order begin does not to run entry until the of an precluding part its review appeal. as a of this deciding order the issues raised the mo applicable We will review the rules to ascer- Syl. 7, pt. tion. Carolyn James M.B. v. M. jurisdiction tain whether we have here. 289, (1995); 193 W.Va. 456 S.E.2d 16 Rule First, 60(b)4 agree we that a Rule 72, W.Va.R.Civ.Proc.; 4, Syl. pt. McCormick running motion does not toll the of the time Co., 82, v. Allstate Insurance 194 W.Va. 459 2, appeal. Syl. pt. Drainer, v. Gaines (1995); Barton, S.E.2d Mooney v. 547, (1982) W.Va. (per 289 S.E.2d 184 cu 329, 184 (1971). W.Va. S.E.2d 322 . riam); 1, Syl. pt. Shelton, Toler v. 157 W.Va. 778, (1974); 72, 204 S.E.2d 85 denying appellant’s 5, Rule August W.Va. note, however, motion, 59(e) R.Civ.Proc. here treated as a Rule motion, filed her motion for relief summary from the was not entered until November judgments 1, 1994, August entered appeal on Au 29, 1995, 1994. The was filed March 5, 1994, gust days entry within ten of within —if barely peri- four-month —the judgment. We have held that ordinarily a motion de od appeals allowed for to this “reconsider”, “vacate”, nominated a motion (1990). Court. W.Va.Code 58-5-4 Ac- 59(e)5 “set “reargue” aside” or is a Rule cordingly, clearly jurisdiction this Court has motion if days filed and served within ten appeal to hear this and has before it for entry judgment. Syl. pt. Powder consideration summary both the judgments idge Highland Unit Owners 1,1994, Association v. August rendered deny- and the order Ltd., Properties, 196 W.Va. ing 474 S.E.2d judgments, relief from those entered No- (1996); Booth, Savage 29,1994. 196 W.Va. vember 60(b) Virginia vacated, 4. Rule of the West Rules longer of Civil or equita- otherwise or it is no Procedure, pertinent part, states: judgment ble that the prospective should have (b) Mistakes; inadvertence; (6) application; excusable ne- justifying other reason cause; glect; newly unavoidable operation discoveredevi- judgment. relief from the of the dence; fraud, upon etc.—On motion and motion shall be made within a reasonable just, party terms as are the court time, relieve a (1), (2), (3), (6) and for reasons legal representative judg- or his from a final eight more than order, judgment, months after the ment, order, proceeding following for the proceeding was entered or taken. A (1) Mistake, inadvertence, surprise, reasons: (b) motion under this subdivision does not cause; (2) neglect, excusable or unavoidable finality judgment affect the suspend of a its newly discovered evidence which due dili- added.) operation.... (Emphasis gence could not have been discovered in time 59(b); (3) to move for a new trial under Rule 59(e) Virginia 5. Rule of the West Rules of Civil (whether fraud heretofore denominated intrin- Procedure states: extrinsic), misrepresentation, sic or or other (e) party; judg- judgment. misconduct of an adverse Motion to alter or amend a —-A void; (5) judgment ment judgment has been satis- motion to alter or amend the shall be fied, released, discharged, prior judg- days or a served entry not later than 10 after ment judgment. which it is based has been reversed

637 5, Syl. ex rel. prior pt. it orders. State summary judgment in favor of all early Co., 46, 106 ques- Mining presents v. 144 additional Davis Iman W.Va. Doctor Robertson (1958) pt. 2, Lloyd (quoting syl. 97 v. Although Doctor Robertson concedes tions. S.E.2d issue, (1885)); Harper produce doubt. v. South Kyle, some of our cases 26 W.Va. 534 held, hand, Co., 294, that the one 77 87 483 have Oil W.Va. S.E. Penn Cowden, language 600, set (1915); of the out presence or absence v. 60 W.Va. 55 Kelner 54(b)6 finality (1906); an give Philippi Rule order 649 v. S.E. Stout Manufac- 339, Co., dismissing parties fewer all or claims 41 turing than Mercantile W.Va. 23 partial (1895); Wigginton, whether such a dismissal 28 determines 571 v. S.E. Watson Co., (1886); final parties or claims is indeed a order of v. Railroad W.Va. 533 Steenrod parties (1884); respect Haymond, to the claims dis- v. 9 with 133 Camden 25 W.Va. 3, Buege, (1876). pt. v. 182 Syl. missed. Smith 680 W.Va. (1989); Wheeling 204, 387 S.E.2d 109

W.Va. hand, Singer, Savings Co. v. 162 On the we have said Dollar and Trust other 59(e) 502, (1978); Syllabus, only if some 250 369 a Rule addresses W.Va. S.E.2d motion Co., 501, all, claims, appeal not then the time for is v. Riverton Coal 156 W.Va. but Wilcher (1973); 660 ex rel. Bank for the claims addressed 194 S.E.2d State extended of 183, 59(e) 4, Syl. pt. Kentucky 139 Ripley Thompson, 149 W.Va. Rule motion. v. hand, (1964). Morgantown, we Inc. v. Sella 267 On the other Fried Chicken S.E.2d of (1975) 708, ro, 214 language of 823

have held that the absence 158 W.Va. S.E.2d 54(b) 6, required syl. pt. not a bar to Dixon v. American Indus. (quoting Rule will be Co., 735, finality final- 205 4 Leasing can determine that 157 S.E.2d if this Court W.Va. (1974)). 1, Syl. pt. v. Seneca have devel ity was intended. Sisson All of these rules been Council, appel general that an oped Retardation within the rubric Mental Health/Mental (1991), Inc., 33, usually ought 404 425 have before all 185 W.Va. S.E.2d late court Heck’s, Inc., 2, brought to the Syl. pt. controversy Durm v. 184 that was (quoting of the (1991)); Dept. 562, Taylor 401 908 v. below. Gooch v. W.Va. S.E.2d court W.Va. Cf. (1978). 357, Miller, Safety, 195 249 S.E.2d 191 Public W.Va. S.E.2d 162 W.Va. (1995) Hollywood (quoting if also said that we can determine United States We have Co., Inc., intended, finality although not ex- 102 S.Ct. Motor Car U.S. (1982)) (rule 54(b), 3081, finality in the words Rule 73 L.Ed.2d 754 pressly stated then, immediately ap- piecemeal appellate review of although prohibit the order is is to entry, appeal which do terminate pealable upon its need not trial court decisions Co., taken, any litigation); until v. Riverton Coal taken at time Wilcher but (1973) (this entry period by S.E.2d 660 jurisdictional established 156 W.Va. piecemeal). terminating the action will not decide cases order entire Court last Banker Residen- expires. Eblin v. Coldwell now reconcile appropriate It is Affiliates, 455 S.E.2d 774 193 W.Va.

tial can, recognizing curiam). as as we Lastly, sug- have these cases best we (per practice may our hand, appeal we also have said that is an gested, on one practice depart from the federal properly is the last order from what indeed taken because, jurisdic discretionary a court of as to the last of all claims disposing of the tion, appeal an that earlier brings may later hear appeal we then the parties, last of all judgment. of such 54(b) entry In the absence Virginia West Rules Civil Rule 6. direction, any oth- states: Procedure determination decision, designated, (b) multiple Judgment upon or involv- claims however er form of than ing multiple parties.- more one adjudicates all the claims or fewer than —When action, presented in an for relief claim all rights fewer than and liabilities of cross-claim, claim, counterclaim, as a whether any as to parties the action shall not terminate claim, parties multiple third-party when parties, the order or other claims involved, entry direct the are the court subject to revision form of decision but judgment as to one or more fewer a final adjudicating entry judgment before the time only upon parties an of the claims or than all rights and liabilities of all the claims and just express there is no rea- determination that parties. all delay express direction for son Inc.,, Heck’s, appeal appeal we declined to hear. Durm v. the until an is taken from the 562, (1991); terminating 184 W.Va. 401 908 order the entire action the S.E.2d Par or Supply Corp., appeal terminating sons v. Gas time for the of the order Consolidated 163 (1979). 464, expires. W.Va. 256 758 In S.E.2d dis issues, cussing these we note that we do not dismissing 4. an Whether order requirements address or disturb the of Rule parties fewer than all the all of fewer than 59(a)7 regarding motions for trial new and action, the in claims a civil which does not requirement upon for such motion express contain the forth determinations set appeal trial of a case an is to be taken. 54(b) in Rule of Virginia of the West Rules 585, Bragg, State v. 140 87 W.Va. S.E.2d 689 Procedure, Civil was intended to be final and (1955). finally, Nor will we answer and we appealable therefore before the ac entire again day just “leave for another what limits by tion is will be this terminated determined 54(b) place we on Rule where there is no Court from all the circumstances and express by the certification circuit court and practice terms of the for order. better continuing vitality trilogy of our of cases the circuit to follow expressly courts is to ([State Runyan ex Scott rel] [v. McGraw negate respect state or their intentions with

Pontiac-Buick, Inc., 194 W.Va. 461 finality of such an order within Sisson, (1995)], Durm)”, S.E.2d 516 and body of the order. Province, reserved Province v. 196 W.Va. (1996). However, 473 give S.E.2d 894 dismissing 5. An than order fewer guidance some on the issues left in flux parties all of the or fewer than all the claims cited, array of cases we hold: in a civil action which contains a determina tion a circuit court that the order not 1. In an dismissing fewer than will considered final be reviewed this parties all or fewer than all the claims application Court for a writ action, in a civil language the inclusion of the prohibition. party seeking such writ 54(b) required by Virginia Rule the West any clearly must show such abuse con and Rules of Civil Procedure makes that order vincingly, greatly this because Court favors appealable immediately respect to the having controversy before it all matters in parties dismissed claims. and when reviewing the issues it. raised before Upon 2. appeal of an order sum appeal 6. an properly ‘“Where marily dismissing fewer than all of par appealable obtained from an decree either ties or fewer than all the claims in a civil interlocutory, final appeal bring will action, the trial court’s decision to include the with preceding it for all non-appeal- review 54(b) language required by Rule finality for orders, able decrees or from which aris have will be reviewed under abuse of discretion any en complained of the errors of in Wright, 10 Alan standard. Charles Arthur from, appealed decree long no matter how Kane, Mary Kay R. Miller & Federal Prac they may have been rendered before (1983). tice & Procedure at 43 2655 appeal 2, syllabus, Lloyd was taken.’ Point Kyle, Syl. pt. 534 [1885].” W.Va. Upon appeal 3. of a final order Co., State ex rel. v. Iman Mining Davis dismissing parties fewer all of than (1958). 46, 106 W.Va. S.E.2d action, fewer than all the a civil claims Court, any party on the motion 7. “A sua motion for reconsideration may sponte, days elect judgment to defer consideration of filed within being ten en- 59(a) Virginia rehearings 7. Rule granted of the West Rules of Civil have heretofore been Procedure states: equity. suits in aOn motion for a new trial (a) granted trial Grounds.—A new jury, an action tried without the court any parties all part on all or entered, open judgment if one has been (1) the issues in an action in which there has testimony, findings take additional amend by jury, any been a trial of the reasons for fact and of law or conclusions make new find- granted which new trials heretofore have been conclusions, ings entry of a direct the law; actions in an action tried judgment. new jury, without a reasons for which determining on wheth judgment review finality of suspends the tered fact genuine issue material unripe appeal. er there is judgment and makes the extended, parties, construe this Court will its between appeal is so When the time light facts in a most favorable to the length begins to run from the date of full losing party. Alpine Property Owners Asso entry disposing of the motion.” of the order ciation, Mountaintop Development M., Inc. v. Syl. Carolyn pt. M.B. v. James (1987). Co., 12, “A (1995). 179 365 S.E.2d 57 289, 456 W.Va. 16 S.E.2d W.Va. summary judgment party has who moves from a appeal may 8. An be taken showing genu is no the burden of that there disposing of motion under Rule final order any as the ine issue of fact and doubt 59(e) Virginia of of the West Rules Civil against such issue is resolved the existence of any appeal time Procedure at within the 6, Syl. pt. judgment.” such Aet movant for order, by entry period provided the of the Casualty Surety v. na & Co. Federal Insur any appeal of proper within the extension York, 160, 148 W.Va. 133 ance Co. New of period. (1963). S.E.2d 770 guidelines, In accord with these APPELLEES’ RELATIONSHIP summary judgment Doctor granting record, only Doctor As we understand by brought is here before us Robertson employees agents of Robertson and the summary judg granting appeal of the order Inc., actively were involved Springhaven, appellees, appeal since the ment to the other giving appeal. this The the facts rise to appeal period pro within the here was filed Community Hospi- of Princeton involvement entry denying by the final order vided of us, tal, appears to pleadings under the before 59(e) respect with appellant’s Rule motion appel- passive. consequence, As wholly summary judgment granted the other appears Community Hospital lee Princeton appellees. liability in derivative to have such its status as matter as be created SCOPE OF REVIEW contracting party with Doctor Robertson ap controlling The issue in this Inc., operation and of the Springhaven, peal appropriately the trial court part is whether integral of Springhaven as an BMU “A summary judgment appellees. granted hospital, Doctor Robertson staff. with summary judgment Inc., is entry court’s of Likewise, liability Springhaven, circuit any 1, Syl. pt. Painter v. novo.” its reviewed de of the actions of appears to arise out (1994). 189, Nolley, 755 Peavy, Armstrong 192 W.Va. S.E.2d and employees, appellees BMU, Rule Summary judgment proper any is under relation- operation of and its 56(e) Virginia the West Rules Civil with Doctor Robertson. ship have therefore, moving party We, any liability Princeton shows where the treat Procedure being wholly any Community as deriva- genuine Hospital issue as material there is no judg of Doctor Robertson he she is entitled tive from the actions fact and that Inc., liability Sprin- and Springhaven, a matter of law. standard ment as relationships summary ghaven arising as its judgment is stated fol as granting “ ‘ liability Any such is appellees. summary judgment the other “A motion lows: treated, turn, dependent upon proof only when it is clear that granted should principles relied ultimately legal and adduced fact tried genuine issue of to be is no there liability. derivative upon to establish concerning facts is not desir inquiry and convenience, collective- we will hereafter For clarify application of law.” able to appellees other than all ly refer to Surety Casualty & Syllabus Point Aetna appel- “Springhaven York, as the Doctor Robertson Co. New Co. v. Federal Insurance (1963).’ lees”. 160, 133 Sylla S.E.2d 770 148 W.Va. Buckhan Andrick Town bus Point ISSUES IMPRISONMENT FALSE (1992).” non, 706, 421 S.E.2d 187 W.Va. summary judgment argues Appellant Syl. Peavy, 192 W.Va. pt. Painter v. on her (1994). appellees Springhaven of the favor S.E.2d imprisonment inappropri- purpose having “lunacy claim of false com- inquire sanity ate. can plain- Her contentions be summarized mission” into the of the (1) arrested, points: plaintiff four That her detention for two and tiff. a hear- pe- ing hours plaintiff while the was held. The was released being processed justifiable tition was he was when determined sane the com- (2) actionable; Thereafter, prob- brought restraint mission. he an action unlawful, hearing, being provides able alleging imprisonment both false and mali- appellees protection judica- prosecution, alleging no and is not res cious count the latter time; ta as to her mental condition purpose at the that the defendant malicious had a procuring once Doctor Robertson his reversed the warrant arrest of the note, judgment prepared progress plaintiff. his This Court affirmed dismissal remaining appellees count, imprisonment are liable for her below false be- continued to BAR-H pur- detention transfer cause the arrest and detention occurred restraints; physical under process, that the suant to lawful but reversed the hygiene prosecution mental commissioner not order did dismissal a count malicious her further at the properly pleaded, detention conclusion of the since it otherwise averred probable hearing, Springhaven procuring cause and the that the of the warrant and arrest appellees authority no purpose. had to cause her fur- was achieved for a malicious In its detention, physical restraint, transporta- ther opinion, adopted following the Court the defi- tion, and admission BAR-H. of the nition distinction between the two actions: Springhaven appellees respond

The that imprisonment may “An action for false appellant clearly their initial detention of was imprisonment maintained where the justified is by statutory plan involuntary the legal But, authority. without where there judicial process, ap- commitments and valid apparently power is a valid pellant’s justified initial detention was to en- arrest, by remedy an action for judicial process commence, able the prosecution. malicious The want of lawful probable justified cause determination authority is an essential element in an appellant’s good continued detention in faith imprisonment. action false judicial orders, Malice and compliance with and that the probable want are the cause essentials Springhaven appellees enjoy quasi-judicial prosecution.” in action an for malicious immunity give for their efforts to effect to hygiene decision of the mental commis- Vorholt, 199, 160 v. 111 Vorholt W.Va. at S.E. Springhaven appellees sioner. The contend Thomas, (citing 63, Ky. 918 Roberts v. 135 appellant their initial detention of was (1909)). 121 962 S.W. justified by upset her condition and that the However, every not warrant for finding hearing in probable cause —that arrest, though even apparently valid on its by appellant reason of mental illness was a face, instigate will insulate those who danger to fur- herself others —forecloses issuance from an warrant action for inquiry ther propriety into the her deten- imprisonment resulting false from the execu- tion after that time. Murdock, tion v.Ogg warrant. In 25 (1884), first

We turn to a review of authori lawyer pro- W.Va. 139 a defendant’s imprisonment. ties on false This Court has cured a warrant for the arrest of a debtor. gist said that of the action for false regular The warrant was its face and was imprisonment illegal person a authority detention of of a issued under statute autho- process by rizing without lawful unlawful the arrest of a debtor under certain process. execution of Vorholt v. Vo circumstances. defendant was held lia- rholt, (1931); 111 imprisonment W.Va. 160 S.E. 916 false ble for when it was that, Finney Zingale, v. 95 although W.Va. S.E. shown the statute authorized (1918). Vorholt, lunacy warrant, a proceeding the issuance of the there was no suit brought was County. against Kanawha Under the pending the debtor at the time the procedure place, issued, pro and, then defendant warrant absence of a suit, plaintiff cured a warrant for the pending operate arrest of the not statute did Also, had ex- representing that Doctor Robertson the issuance of the warrant. authorize Co., appel- appellant. Springhaven 72 amined v. Alum Coal in Williamson Glen they (1913), everything did contend that since company a lees coal W.Va. S.E. 94 appellant’s time to the time of of a procured the trial which arrested a of habeas from BAR-H under writ “misdemeanor”, release man for a conduct involuntary in aid corpus was done crime, liable was held did constitute statute, forth procedure set resulting imprisonment from the for false acting damages as they are immune from trial, though judicial even arrest and the capacity. They rely quasi-judicial a on the officer, justice peace, who a of the conducted filing petition of the initial trial, duly public officer was a constituted commitment, by the circuit court the issuance try persons for entitled to arrest and accused directing of Mercer of its order the Sheriff a a warrant. More misdemeanor without County custody, into appellant to take recently, Campbell, 148 W.Va. Winters hearing, finding by probable and the 710, 137 (1964), party insti who S.E.2d probable hygiene mental commissioner “Mary gated Doe” warrant an arrest under likely cause to believe that justice peace that did not issued others reason of mental harm herself or legally description sufficient contain illness. alleged held liable for false defendant was imprisonment. raised, To address the issues thus we must immunity quasi-judicial consider law principles the in With enunciated privilege in to commit- relation mind, in look first to the claim these eases we proceedings. Our discussion will nec- ment early Springhaven appellees that their of the essarily potential liability touch on the appellant, from the time of her detention charge negligence the Doctor Robertson to BMU, justified. The evi arrival at complaint appellant’s in under another count that, suggests in the record dence available fully count will discuss that more below. We BMU, appellant at the was ex upon arrival noting only opinion, in here later this tremely upset appellees and that feared for charge did not Doctor Robertson she safety were even concerned that her and imprisonment count. under the false psychiatric in might harm to others do immunity quasi-judicial has The defense no material unit. note that there is as follows: been described regarding appellant’s ap dispute of the facts judges to that of exemption An similar parent general and condition state of mind judicial liability personal for their BMU, regard at the and we when she arrived officers in the other acts is extended to testimony divergences in before few government they departments of whenever inconsequential. In those circum as us of discre- exercise are entrusted stances, justification appli the doctrine of tionary power and their determinations long provided law has The common cable. are, judicial.... by their nature decisions justification temporary and reason for the immunity only where the offi- This exists persons, with of insane even able restraints jurisdiction particular case of the cer has danger they legal proceedings, when are out it; if the authorized to determine and is or others. 32 Am.Jur.2d ous to themselves authority transcends limits officer (1995). § 72 Accord Imprisonment False case, ceases, particular in the the officer early appellant, ingly, detention responsible for all the judge, and is act as prevent protect harm her from harm consequences.... document, prepare, properly others and to involuntary commit petition Imprisonment and file a 109 False 32 Am.Jur.2d ment, good omitted). in faith (footnotes as acts taken can seen reason, justified fully in all law. good view, suggested the cases There is a Annotation, Chase, Liabili- by R.F. Difficulty point where the collected arises at Upon Imprisonment Predicated Nolley ty False Armstrong and appellees Springhaven Connection of, or Conduct in Institution proceeded to inform Doctor Robertson unth, 30 A.L.R 3d Insanity Proceedings, from him a certificate and take situation 642 (1970 Supp.), “[e]xamining & physi- imprisonment among action false is not testify give

cians who or otherwise evidence custody pur- them. Where one is in held sanity in proceedings to ... [are] determine physician’s suant a void or defective liability imprisonment immune from for false certificate, there a viable claim for false ...” applying principle even where imprisonment, but if the certificate physician statutory failed follow di- “good not in issued faith.” Where ... rections or made false statements. The detention is evidenced some supporting appear cases that view to rest on objective compliance by form of physi- theory that, necessary participants applicable procedural process cian with all procedure, physicians the commitment requirements, is a there viable claim for judicial are officers are therefore im- imprisonment. false mune. (emphasis Id. at 348 S.E.2d at 54 In a few cases cited and others decided original). recently, applied more view has been Smith, Williams v. with its reliance on involving cases statutory failure follow faith, good appears to be in accord with exhaustively reviewing directions. Without expressed more modern view 32 Am. cases, In Hurley those we touch three. Jur.2d, (1995), Imprisonment § False Towne, (1959), 155 Me. 156 A.2d 377 where a distinction is drawn between cases case, physician, falsely inas certified physician falsely has certified that an examining in fact plaintiff. without examination has been conducted and cases upheld immunity physician, court for the al faulty where the examination is or inade- though it is noted that the actual incarcera quate. emerging general rule seems to tion occurred on an order entered suggest that all such cases turn on their Boland, hearing tribunal. In Niven v. respective recovery merits and that can be (1900), Mass. N.E. the court had usually on a false certificate but will result, emphasizing the same reached of immunity privilege denied on basis quasi-judicial physician’s nature the certifi- grounds where the simply examination is cate, though In even it was false. Carter v. faulty Sale, inadequate. In or v. McLean 38 Landy, 163 Ga.App. 295 S.E.2d 177 (1978), N.C.App. 248 S.E.2d 372 a sum (1982), required physician’s the statute a ex- mary judgment in amination, physician favor of the was physician merely but the “ob- reversed and the cause remanded for trial in person. served” the On the facts of that imprisonment a case, false case. court said a grant the court affirmed the of sum- material issue mary judgment of fact existed in as whether favor the doctor in a case, intentionally the negligently doctor imprisonment false violat saying that the is- duty ed his presented sue make examination was to be determined before on medi- standards, signing cal a legal not ones. In certificate commitment and Williams v. that Smith, Ga.App. (1986), 348 such violation is not S.E.2d 50 covered immuni Georgia ty. Thegen, the In court overruled the v. “medical 256 A.2d 162 Sukeforth test, (Me.1969), saying: standards” the court squarely held that a physician certification that a has made an Landy, [T]o the extent that Carter v. su- hygiene in proceeding, examination a mental pra, could be establishing construed as a made, when imprison none has been is false negligence medical determin- standard for However, ment. ing the court recited that “unlawfulness” ob- involuntary the of an servation lieu of pursuant examination would meet detention to OCGA 37-3^10 et statutory requirement, the seq., must where the be overruled. hold condi- tion ill following applicable person prevented and actions of the legal princi- to be ples: fledged full is examination. A custody Where one taken into similar result pursuant Genovese, procedurally to a v. obtained Delatte valid certificate So.2d physician authorizing (La.App.1969). of a Hospital Fair men- Oaks v. treatment, Pocrass, tal resulting N.J.Super. detention is 628 A.2d 829 Although (1993), not “unlawful.” such detention immunity confronts the issue of claims, give physician rise to other cause of in a misconduct case where unlawful, v.Ogg Murdock and Winters not but no statute was followed commitment employed restrain the Campbell, though was v. the detention false certificate even Oaks, physi- In allegedly person. or, ill Fair authority facially valid carried out under mentally allegedly ill transported cian Co., Alum Coal as in Williamson Glen facility. person mental health Under to a validly constituted au- the assistance with statute, applicable such a recently enacted We, acting beyond authority. thority, to a person either be first taken had therefore, quasi- that conclude the defense physicians’ certifi- screening or two service judicial immunity generally privilege court order presented cates had to be and a participating in the involun- to one available to the patient obtained. The not taken process good faith. tary commitment men- screening was admitted to a service but However, immu- quasi-judicial the defense of doctor, facility say tal on the of this health so it is does where nity privilege apply not certificate, who the second furnished one but (1) materially that a false medical shown: and the order not obtained certificate were employed or continue certificate was to effect ap- It until admission was achieved. after (2) plaintiff, that the detention of prior proce- pears under the that statute necessary to the certificate was false medical employed appropriate. have dure would been (3) plaintiff, continued detention The court said that failure follow made the false person employed that presented statutory an issue of procedure certificate, such cer- employed jury. medical reasoned negligence court that, having know charged knowing with reason to while the doctor was tificate jury knowledge procedure, materially of the new it was false.

might negligence find the doctor not because However, was familiar with the old statute. us, Springha the ease before physician ruled that court also Robertson, appellees, as well as Doctor ven patient imprisonment liable to false clearly should have known that the knew or issue, the ele- because motive was not an originally signed Doc certificate medical imprisonment being the intent ments false representation Robertson contained the tor pro- imprison and absence of lawful knew he had examined the cess. representa have known or should Although Virgi we find no West appears That representation was false. tion dealing specifically the em nia cases material, crucial, to execut but to be ployment medical that fail of false certificates temporary involuntary ing statutory comport requirements to with against procedure employed appellant. Un commitments, that the involuntary we believe developed, may thus it evidence far der the finding permit a of eases which reviewed that employment the of concluded that be liability is false are the certificate where stages at in the events various certificate directly principles with the enunci consistent action, particular the giving to this in rise Virginia imprisonment in ated the West false case, in this resulted the circumstances of in opinion. As the cases reviewed we time of the appellant from the detention in Glen Alum Court stated Williamson v. appel making time of the certificate to the Co., impris supra, the elements of false Coal The evi released from BAR-H. lant was (1) person, the detention of the onment are dence, appears, support will the con it also and unlawfulness the detention and the Springhaven appellees the clusion that Vorholt, And, suggested su restraint. causing participated in that deten caused or pra, may be on the un an sustained action certificate was the false medical tion and that process, of otherwise lawful lawful execution appel the continued detention crucial to probable nor and malice want neither deten stages distinct the at several lant prove plaintiff must the cause are elements review proceed will to process. We tion v. prevail in action. Johnson to the See bear, particular to circumstances that Co., Railway 82 W.Va. & Western Norfolk extent, matter at greater on the (1918). or lesser Moreover, the de S.E. may shown be issue. restraint be tention and

Appellees not in requirements temporary are fact officers of the with the involun- commitment, enjoy government tary but would limited immuni- circuit the order ty privilege required appellant because the delicate nature court be examined at involuntary Highlands Community commitment and mental Southern Mental facility designated by problems, par- health in which their faithful Health or a it. Center ticipation appel- Alternatively, is critical and welcome. Neverthe- statute less, right rely detain another must be lees authorized the use of examina- elsewhere, regard with provisions exercised due to the tion done if the examination was permitting compliance approved by Highlands. of law it and faithful Southern The rec- legal requirements. reviewing When ord does not indicate that BMU we, summary judgment, designated by Highlands motion for like the Southern to con- below, pleadings, court examine must duct the examination and not indicate does depositions, file, together any appellant ap- and admissions on other examination of affidavits, any, proved by with the determine if In Southern was ever conducted. short, genuine concluded, any there is a issue as to it relying material be so, doing alone, fact. we view the evidence false medical that appellees certificate valid, light available in the most to the no approved favorable made effort to obtain a non-moving party and conforming must decide whether examination medical to the re- moving party judgment quirements entitled as a of the circuit order. court genuine matter of law. If there is a issue for Finally, it is noted that the circuit court trial, judgment sought will be not ren- provided probable order further for a cause Peavy, dered. See Painter 192 W.Va. hearing appellant if—and if—the (1994). 451 S.E.2d 755 nowWe review the “medically certified”. The evidence would appearing circumstances in this case under support a Springhaven conclusion that standards, leaving jury those the actual having appellees, comply no made effort to determination of the facts. precise with the terms of the circuit court Preparing filing provide approved the substitute petition. Appellant’s by statute, evidence examination allowed next caused support finding appellees convened, would probable hearing Rob- cause to be ertson, Armstrong, Nolley, prosecuting appellant’s deri- with the attorney, ap- appellee Springhaven, fully vation participat- pointed hygiene counsel and the mental com- in obtaining original ed Doctor coming pur- Robertson’s missioner to the for that BMU pose. time, concluded, medical certificate and that certificate All that beginning unlawfully was known false remained detained BMU, misleading. above, custody As discussed Springhaven, set resulting off a chain of in appellant’s events the Sheriff.

continued detention. probable hearing. Appellees cause order, that, event, pending after the

Detention court finding contend probable hearing. cause probable hearing circuit commissioner justified court’s in the the appellant. continued detention of proceeding, Nolley appellee They suggest issued after com- that finding the commissioner’s petition pleted pre- liability her and caused it be appellant to absolves them of because court, appellant’s sented to the authorized ill mentally likely was indeed found to be by County. detention the Sheriff of Mercer to harm or herself others. It noted that by suggested The evidence the finding record before the commissioner that made based on that, after us the issuance of the circuit his own observation and not on Doctor Rob- order, Springhaven appellees, the original court rath- ertson’s subsequent certificate or Sheriff, appellant progress er than the detained the note. being arrangements BMU while were made However, appears probable it the that probable hearing.

for a cause law, hearing was cause not authorized in Further, apparent provide apparently in an being effort to there no valid examination compliance for medical certification full and medical required by certificate as appellant custody. applicable into It is reasonable to circuit court order and the statute. order, Moreover, Sheriff, appel- transporting the commissioner’s stand- infer BAR-H, alone, ing no to did not act under the author- makes reference to continued lant ity may appellant provides no of the circuit court One detention of the order. custody authority and restrain her. In a conclude that took of to hold Sheriff hygiene proceed- probable properly appellant conducted mental after the cause hear- ing, necessarily ing purported authority appellees would have had under the conferred psychologist’s by request transportation a physician’s before them executed by they reasonably by appellee Nolley, supported finding certifícate which believed meeting probable by hygiene of cause mental constituted “examination” Here, fair, statutory requirements. original a rea- and the certificate commissioner signed by Again, sonable can be drawn that Doctor Robertson. inference Springhaven appellees Springhaven appellees implicated knew or should have are finding a known otherwise. The existence of inferences. validly probable of the mental made appellant The admission of to BAR-H can hygiene can be seen in these commissioner employment to flow from of also seen circumstances to be more or less irrelevant. false The evidence is that certificate. finding probable cause serves one Springhaven along sent to BAR-H Doctor office, physician’s certificate an- serves certificate, original facially suffi- Robertson’s other, employment by Springha- and the gain appellant’s cient to admission to BAR- appellees physician’s

ven a false certificate H, explaining and a handwritten note perpetuated appellant’s confinement. appellant. absence of medical records for Springhaven appel- The record discloses that may An inference also be drawn that the time, claim at that Doctor Robert- lees Springhaven appellees disregarded progress report son’s later had been mis- Robertson, and, changed opinion of Doctor lost, placed though to effort was made attorneys cooperation with the and mental along locate it and send it to BAR-H with commissioner, hygiene facilitated an unlawful however, note, appellant. appears that it hearing. a probable cause We believe that specific that no mention Doctor Robert- jury properly appellant’s could conclude that note, progress it mis- son’s or that had been throughout probable cause detention lost, placed was contained the handwrit- hearing Springhaven because of the occurred explaining ten note BAR-H the absence appellees’ employment the false medical Moreover, appellee Nolley records. medical or, comply certificate and their failure to called BAR-H to be certain bed avail- instances, attempt comply even some did BAR-H apparently able but not advise statutory requirements. misplaced progress had been that the note Appellant’s transportation and admis- negated large it measure the lost sion to BAR-H. Doubt be raised as findings appearing on the face Doctor authority Springhaven authorities Lastly, original certificate. we Robertson’s arrange transportation for the have, note, might bearing what that the sure, To be there is mimeo- BAR-H. disclose that BAR-H is record does not form, signed by appellee Nolley, graphed facility” health authorized statute “mental transport appel- requesting that the Sheriff involuntarily person to receive committed the form lant BAR-H. We assume legal requirements all the are met. We be- frequently in commitment was one used inferences, contrary to lieve that adverse cases. It be concluded that the use appellees, may properly assertions simply the form evidences the continued de- drawn from these factors. appellee’s appellant tention of under asserted authority again note that the lawful tem authority, than the of law. We rather mentally before, allegedly porary in commitment of an As we do not find the record noted person facility ill a mental health under County ever had that the Sheriff of Mercer 27-5-1, et provisions of of W.Va.Code custody appellant of under the order seq., may steps directing occur when two have court the Sheriff to take circuit (1) facially a accomplished: type requirement been certifi- is a valid critical commit- examining physician an psycholo- cate of or Appellant prove ment. is entitled her gist case, expressing judgment exists that such Springhaven to show to what extent the person mentally likely is ill and to harm appellees employed such a certificate to re- others, or facially himself herself or a freedom, knowing having her strain or rea- finding probable valid of cause has been false, son to know was and to have such short, made In same effect. the medi- recovery therefor as law and the evi- psychological discipline legal cal or and the permit in imprisonment. dence of false cases discipline in judgment. must concur In procedure, confirming our is there no court DOCTOR ROBERTSON’S SUMMARY committing expressly alleg- made JUDGMENT edly mentally person ill to the mental health Appellant claims that it was error to may facility. It appellant’s concluded that grant summary judgment to Doctor Robert admission to incarceration at BAR-H ground on son that Doctor Robertson’s directly employment flowed alleged malpractice proximate was not a Springhaven appellees original of the medical injuries. cause her She claims there had certificate, knowing having or reason to know developed been place sufficient evidence it to be false. jury. the issue before the Doctor Robertson Summary. jury, conclude that a responds appellant has failed to show proper on instruction of the elements false conduct, negligent, that his proxi was the imprisonment, could that Springha- conclude appellant’s injury mate cause because the possessed authority ven no legal to detain hygiene rely mental on commissioner did not appellant, at least from the time the Sheriff opinions finding proba Doctor Robertson’s in apprehend was first ordered appellant. appellant’s ble pro cause confinements jury may Springha- also conclude finding probable ceeded from the cause ven, through employees, its intentionally involving other factors not Doctor Robertson. falsely imprisoned appellant time from question proximate We find that the cause original and after the Robertson certificate presents jury and, in this claim a issue ac was solicited until she was released from cordingly, summary judgment reverse the light BAR-H. In appel most favorable to favor Doctor Robertson. lant, developed sup the evidence thus far ports appellant the conclusion that simply First, apply negligence we to the was a probable not candidate for a cause against count Doctor Robertson ap the rule or hearing for admission to a mental health plied appellees although to the other facility legal procedure and that quasi-judicial defense of immunity privi the Springhaven employees attempted to em lege generally participat available to one there, gain ploy to her admission seen ing in the process commitment light, simply applicable cir to her faith, good it is not available in the defense analysis, cumstances. Under such an negligence charge to one who makes and Springhaven appellees are liable to employs materially knowingly employs damages as the evidence show false medical certificate. jury may and a find. regards As the claim of We move to the consideration of the

immunity privilege, persuaded by we are summary judgment basis which the grants immunity that line of cases which granted, asserted proximate lack of privilege necessary participants those considering cause. whether an temporary process, event is even in error, proximate injury, simple cause of the the event of bellweath but denies immuni foreseeability. ty injury er If the privilege respect test occur to the natural ring reasonably consequences making could have been employment foreseen to omission, materially alleg negligent false flow from a certificate that an act or absent edly cause, mentally person examined, intervening negligent ill has then that been act occurred, proximate when fact no such examination or omission bewell facially injuries. because a valid certificate of that Thrasher v. Amere Gas Util-

647 166, (1953), proceed Co., hygiene commissioner would mental 75 S.E.2d 376 ities 138 W.Va. receiving doctor’s 910, 478, hearing dismissed, with a after 347 74 S.Ct. appeal U.S. contrary expressing opinions progress note (1954); v. Director Gen L.Ed. 1067 Fields 98 certificate, expressed original in the 707, to those Railroads, 767 86 W.Va. 104 S.E. eral of argued that it could not Co., and it could also be (1920); Long Branch 86 Donald v. Coal appellant (1920). been foreseen that would be have 249, 103 55 W.Va. S.E. BAR-H without both of Doctor taken to Here, forcefully argued that the However, opinions.8 expressed Robertson’s certificate, represent- medical making on the say, we as a matter of law and cannot falsely ing appellant had been examined that us, that either of these events record before Robertson, easily could have been Doctor cause, to the level of a new effective rise of an invol- to result in initiation foreseen which, independently Doctor operating proceeding, appellant’s untary commitment examination, make an Robertson’s failure to hearing, apprehension probable a cause proximate appel- became the sole cause restraint, subsequent trans- appellant’s alleged injury. Costoplos v. Pied- lant’s See BAR-H, to, portation and admission to Aviation, Inc., 72, 399 mont 184 W.Va. psy- will. Doctor Robertson is against her curiam); v. (per Evans S.E.2d 654 unit, chiatrist, practicing a mental health Farmer, 142, S.E.2d 710 148 W.Va. 133 Armstrong by appellees consulted who was Service, Inc., (1963); v. Penn Line 145 Smith obtaining Nolley about certificate (1960); Hartley v. .2d 505 113 S.E W.Va. involuntary proceed- use in an Crede, (1954); 672 82 S.E.2d W.Va. particular expertise ing. Doctor Robertson’s Edwards, 613, 77 S.E.2d v. 138 W.Va. Wilson hygiene of mental matters in the matter “ (1953). has committed a who ‘One strongly suggested the record. duty is liable for its natural breach Moreover, filing that the order we note effects, proximate be immediate petition expressly involuntary commitment through subsequent media of natural hearing only required probable cause that a Point forces or other innocent causes.’ “medically certified.” be held Indemnity Insurance Syllabus, Mills v. 27-5-3(a) addition, autho- W.Va.Code America, 114 W.Va. 263 Company North appellant to a mental rizes admission of 7, Frye McGrory Syl. pt. [171 532].” S.E. facility only upon certification health 123, 107 Corporation, 144 W.Va. Stores by physician psychologist. One patient (1959). say toit S.E.2d 378 Suffice reasonably might infer from the evi- well judgment Robertson’s summary Doctor probable cause hear- was, that neither the dence proximate cause favor for lack of BAR-H could have ing the admission to nor best, premature inappropriate. original Doctor Robertson’s occurred but for jury, under believe that that he could reason- medical certificate and instruction, may that Doctor proper conclude sig- fully ably expected appreciate proximate negligence was Robertson’s filing of nificance of his certificate. injuries, from alleged appellant’s cause commitment, involuntary petition for original his certif of her after time detention probable holding appellant for a cause prepared until her release. The icate in- subsequent hearing, hearing, and the consider the jury may upon called also be appellant at BAR-H could be carceration by the mental later actions assertion naturally flowing reasonably as foreseen Springhaven or the hygiene commissioner delivery of Doctor Rob- making and from the both, supervening constitute a appellees, certificate. ertson’s cause, relieving liability him of intervening occurring thereafter. We events argued Doctor It can be intervening as follows: cause defined foreseen that the have could not have Robertson Chase, (1995); Imprisonment § R.F. malpractice alleged False appears medical It 8. Annotation, Liability Imprisonment False processing of preparation for and of, Conduct in Con- recognized Institution Predicated has been commitment cases with, Proceedings, Insanity A.L.R.3d nection separate from a claim false of action (1970). imprisonment See 32 Am.Jur.2d in such cases. 648

“ ‘ cause, intervening fairly “An in order to tificate. One conclusion drawn person charged negligence in present relieve with record is that Doctor Robertson’s injury, an negli- connection be a with must is proximate any conduct cause of subse- act, gent omission, quent However, constitutes a injury appellant. operates new indepen- that, effective cause and pro- stage be concluded at some act, dently any making other it and it cess, other causes intervened so as to end only, proximate injury.” cause of the Doctor responsibility Robertson’s for events 16, Syllabus Rose, Lester Point v. 147 subsequent point. to that leave that for We (1963) 575, W.Va. 130 S.E.2d 80 and, [modified court appropriate, jury below if grounds, on other State ex rel. Sutton v. to resolve. 376, Spillers, 181 382 570 W.Va. S.E.2d 1, Syllabus Perry ].’ Point v. Mel- TORT OF OUTRAGE ton, (1982).” 397, 8 W.Va. 299 S.E.2d The tort of intentional infliction 3, Weinstein, Syl. pt. Wehner v. 191 W.Va. outrage of emotional distress been has 149, (1994). 444 S.E.2d 27 “ by defined this Court as follows: ‘One who not We do decide that Doctor Rob outrageous extreme or conduct intention ertson would to an be entitled instruction ally recklessly causes severe emotional invoking intervening the defense of but subject distress to another liability is leave the matter for further consideration distress, bodily such emotional if harm to the trial court when the evidence is in. We it, bodily the other results from for harm.’ do note that spoken, Court has in a Syllabus 6, pt. v. First Harless National context, somewhat different about the con Fairmont, 673, Bank in 169 W.Va. cept duty to act where one’s affirma (1982).” Syl. pt. 1, Dzinglski S.E.2d 692 v. possibility tive conduct has raised 278, Corporation, Weirton Steel 191 W.Va. harm to another: (1994). 445 S.E.2d 219 recognized have conduct, engages One who in affirmative subject outrage the tort of is thereafter realizes should realize qualified privilege, defense of which we de that such conduct has created an unreason- fined “A as follows: defendant’s conduct is another, able risk of harm to is under subject qualified privilege to a when he acts duty prevent to exercise reasonable care to protect or legitimate his in advance own harm. threatened terests, legitimate interests other 2, Syl. pt. LeMaster, v. Robertson W.Va. legitimate Syl. public.” interests of the 607, (1983). 301 S.E.2d 563 5, pt. Dzinglski Corporation, v. Weirton Steel Robertson, supra. the Court further recognized noted that also We have that dam determining scope duty, eases, ages awarded in such where there is foreseeability being trauma, proof physical the risk essentially considered no are important thus, punitive damages, consideration. 171 W.Va. punitive further 610-11, at at damages S.E.2d cited addition to those assessed as approval Whitworth, v. compensatory awarded, Miller 193 W.Va. not to are but (1995). Here, 455 S.E.2d 821 there award of compensatory damages in such little doubt that Doctor original Robertson’s policy cases serves the same of deterrence set in certificate motion the chain of underlying events punitive allowance of dam appellant’s that culminated in ages. Dzinglski confinement Corpora Weirton Steel tion, BAR-H. supra. record, When Doctor Robertson set oiit to weAs understand the statement, original correct his physical he did so placed restraints way of progress note transportation but did not recall or her to BAR-H. We do possession original what, reclaim of his any, physical certificate. know harm that original That played certificate a role in the have caused are likewise unadvised toas subsequent events, right up appellant’s to the time whether incarceration at BAR-H appellant’s release under a writ habeas was uneventful in terms of whether corpus. reality clearly That physical connects all of trauma occurred there. On the rec subsequent original us, those events to the cer- ord it is before difficult to find sufficient ment, not if the certificate was support outrage, of we but facts the claim to “good issued in faith.” it have limited and defined in the recent Likewise, very it is doubt- cases cited above. 348 S.E.2d 54. Id. discovery and trial will ful that further even standard, physi- Williams a Under the claim to develop sufficient evidence for involun- executes a certificate cian who But, go jury. given to state of the the the to tary that is later determined imprisonment false record on the claim of only if the void defective is liable development necessity of further of and the good not issued in faith. certificate was claim, say, on we cannot as a the record that of instant at 54. While the facts S.E.2d law, intentional of that the claim of matter may equivalent those not be the case properly infliction of emotional distress was full-fledged a examination instances when dismissed below. possible mental due to the individual’s not state, nonetheless, are physical there psychiatric when a full foreseeable instances CONCLUSION possible prior to the not be examination conclude that there remain unresolved permit- issuance of an order circuit court’s questions preclude a material fact that custody into ting the individual to be taken summary judgment. We further conclude holding probable purpose negli- that the issues Doctor Robertson’s 5—2(b)(4). hearing. See W. Va.Code 27— gence proximate issue of cause are instances, appear not fair to the would jury, impris- for the as is the matter of false physician hold him or her liable for false to onment, assuming the re- evidence we have event individual is imprisonment Likewise, is admitted. the evidence viewed ultimately psychiatric not need determined to outrage may regarding the tort of be further physician unless the issued treatment grant- summary developed. judgments The Yet, majority’s in bad faith. certificate therefore, we, improper, and ed were below recovery ex- that when an distinction allows this cause for further reverse remand certified, falsely not has been but amination opinion. proceedings consistent with this faulty or the examination has been when appear to include this inadequate, does not and remanded. Reversed Indeed, the good faith. critical defense importance of majority obscure seems Justice, WORKMAN, dissenting, such defense. majority appears eliminate Because apply- majority goes askew in further exception for false good faith claim law. Under ing of this case to the the facts arising imprisonment a void or defec- decision, applied, properly the Williams certificate, respectful- I physician’s must tive category of void defective second —that accurately ly The law this area is dissent. what seems have physician’s certificate —is Smith, Ga.App. Williams stated Appellant turns in this case. occurred (1986), opinion relied S.E.2d 50 lan- imprisonment on the claim for false her by majority. physician’s certificate guage within personally “ha[s] Dr. custody pursuant Robertson taken into states one is Where Be- Riffe.” examined Ruth phy- of a certificate observed proeedurally to a valid admitted examination physician’s authorizing involuntary mental cause the sician certificate was treatment, Appellant at the time the resulting detention is of her his limited to observations issued was Although such detention “unlawful.” station, Appellant ar- claims, nurse’s from the give a cause action rise other the certificate among that his statement within gues them. imprisonment is not for false false. Given he her was custody pursuant to a “examined” held in Where one is exami- certificate, a mental status definition physician’s void or defective “objee- in terms of imprison- generally stated nation is a viable claim false there liability leged from the issuance Presumably, arises extend to indi- the standard would 1. physician’s certificate. physician al- to the whose in addition viduals subject’s appearance apeutic Appellant’s tive solution for the own best observations presentation^]” I and manner of would dis- interests. agree with the conclusion reached I out point wish further that even under majority physician’s that the certificate was majority’s justifica- theory, the defense of complete lack of false because of the exami- Appellees tion that the raised below remains Binder, Psychiatry Every- M. in the nation. a valid this com- defense remand. Under ed.1992). (3rd day Practice Law 3.3 theory, provided Appellees mon acted in law

While Dr. Robertson’s examination was limit- good protect Appellant harming faith from Appellant, ed to his observations of nonethe- in herself or others connection with restrain- less, an I would still conclude that examina- ing Appellant instituting involuntary tion, accepted psychiatric meaning within the proceedings, commitment their actions term, of that occurred. justified. be as viewed ways part I majority’s further with the unnecessary Much confusion results analysis procedural protec- because all approach by majority. taken For procedures at the of statutory tions heart instance, loosely employs the majority governing involuntary commitment were fol- “falsely terms “false” and What certified.” procedurally lowed. It not a invalid majority referring to as “false” is the physician’s Appellant certificate that caused physi- use of the term “examined” on the committed, arguably to be but rather an accompanying cian’s certificate without certificate, defective void under above, explained full examination. I As de- standard, due Williams to the lack of an part from the conclusion shared the ma- procedural actual examination. Since the jority a full necessarily examination is steps obtaining involuntary commitment required. Notwithstanding difference, this letter, were followed to the case this should however, appears improper it still to refer to analyzed majority’s under own two- the instant case as one which the certifi- pronged faulty inadequate standard as a cate is false when is not the certificate majority clearly examination case.2 As the majority about truly complains, which the states, quasi-judicial immunity should be ex- but the of a full nonexistence examination. Only faulty tended cases. if the or Moreover, upon analysis, categories the two inadequate examination performed majority purposes creates for quasi-judicial immunity bad faith should analysis falsely faulty certified or or inade- — be extended to necessary participants those quate appear to be one and the examination — procedure. Otherwise, in the commitment as same. Community observed the Princeton Hos- Lastly, I majority opinion find the ram- “[ejntities Association, pital and individuals bling and difficult to understand. The result providing health public care will no[ ] gives created one of those cases that longer willing liability to risk the associat- judicial system reputation having no initiating ed commit- common sense whatsoever. Mental health process.” ment professionals out in real world know the irony Appellees of this case is that the aggravated kinds of mental distress human trying help she, were When woman. into, beings get especially family settings. succession, in rapid threatened both homicide They, helping professionals, frequently are suicide; jerked hospital’s phone out help They called and intervention. wall; the door kicked and otherwise probably will be much more cautious acted out in a rather dramatic and threaten- trying help people. future in fashion, ing personnel what were the in the behavioral medicine unit to they do? While arrested, Appellant have they

could had the clearly trying humanely

were to act and at time, appropriate same to select the ther- I 2. While do not opportunity Ap- believe that the examination initiated due his to observe state, pellant's conducted quate Dr. Robertson was inade- proceed indeed mental I nonetheless purposes determining faulty whether in- discuss this case in terms inade- voluntary procedures quate purposes should be examination for of this dissent.

Case Details

Case Name: Riffe v. Armstrong

Court Name: West Virginia Supreme Court

Date Published: Sep 5, 1996

Citation: 477 S.E.2d 535

Docket Number: 22980

Court Abbreviation: W. Va.