Lead Opinion
Thе West Virginia Regional Jail and Correctional Facility Authority (hereinafter “the WVRJCFA”) appeals the December 3, 2012, order of the Circuit Court of Kanawha County denying its motion for summary judgment on qualified immunity grounds. The circuit court found that the WVRJCFA was not entitled to qualified immunity because 1) disputed issues of material fact precluded a determination as to whether the WVRJCFA is vicariously liable for the alleged sexual assaults committed by its employee; and 2) respondent’s claims of negligent supervision, training, and retention do not encompass discretionary decisions in the administration of fundamental government policy. The WVRJCFA appealed and this Court reversed and remanded for entry of an order granting it summary judgment, finding that it was entitled to qualified immunity. Following review of respondent’s petition for rehearing, along with the amicus curiae’s brief in support of rehearing,
Upon further review of the briefs, the appendix record, the arguments of the parties, the amicus curiae, and the applicable legal authority, we again find that the WVRJCFA is entitled to immunity under the circumstances here present; therefore,, we reverse the order of the circuit court and remand the case for entry of an order granting summary judgment and dismissing the action against it.
I. FACTS AND PROCEDURAL HISTORY
Respondent/plaintiff below, AB. (hereinafter “respondent”), was convicted in 2006 of two counts of third degree sexual assault for having intercourse with her boyfriend’s fourteen-year-old son; she was sentenced to one to five years for each count, to run consecutively. Respondent was paroled in August 2008, but violated her parole and was recon-fined. She was booked into the Southern Regional Jail in September, 2009. Respondent alleges that beginning in October, 2009 while housed at the Southern Regional Jail, she was vaginally and orally raped seventeen times by Correctional Officer D.H. (a nonparticipant in this appeal), who denies all allegations of sexual contact with respondent. In particular, respondent alleges that D.H. raped her in various commonly accessible areas of the jail including the video arraignment room and prоperty room. On Novem
On November 23, 2009, a fellow inmate in transit to a court hearing advised Sgt. Michael Francis and Correctional Officer Brian Ewing that respondent and others had assaulted her in the pod, resulting in a black eye; she further advised that respondent and Correctional Officer D.H. were having a sexual relationship. Sgt. Francis and C.O. Ewing each filed incident reports with their superior, Lt. Bunting. Lt. Bunting convened a meeting between Sgt. Francis, C.O. Ewing, and D. H., to advise D.H. of the allegations. C.O. Ewing testified in his deposition that D.H. responded to the allegations with “a snicker, you know, like, you know I can’t believe that” and that Francis responded, “I knew when I heard it was your name, it wasn’t you.” No further investigation was conducted and respondent was never questioned about the allegations of sexual contact between her and D. H.
Respondent filed suit against D.H. and the WVRJCFA. As against D. H., individually, respondent alleged 1) violation of 42 U.S.C. § .1988
As against the WVRJCFA, respondent alleged only vicarious liability and negligence-based claims; specifically respondent alleged negligent hiring, retention, supervision, staffing, and training. It is important to note that the complaint expressly asserted that it was making no claims against the WVRJCFA under Section 1983 or for intentional infliction of emotional distress. Furthermore, during the pendency of the matter, respondent agreed to voluntarily dismiss her claims against the WVRJCFA for negligent hiring, invasion of privacy, and violation оf the Tort Claims Act.
At the close of discovery, the WVRJCFA moved for summary judgment on the basis of qualified immunity, arguing 1) that it could not be held vicariously liable for the intentional, illegal acts of its employee and respondent had not demonstrated a “clearly established” right which the WVRJCFA violated; and 2) respondent’s negligence claims were barred because they involved the discretionary decisions involving the administration of a fundamental government policy. Respondent contended that 1) the WVRJCFA was vicariously liable for the acts of D.H. because the sexual assaults were within the scope of his employment; 2) the WVRJCFA, through its employee, violated West Virginia Code § 61-8B-10 (Repl. Vol. 2014)
II. STANDARD OF REVIEW
It is well-established that “[t]his Court reviews de novo the denial of a motion for summary judgment, where such a ruling is properly reviewable by this Court.” Syl. Pt. 1, Findley v. State Farm Mut. Auto. Ins. Co.,
[t]he ultimate determination of whether qualified or statutory immunity bars a civil action is one of law for the court to determine. Therefore, unless there is a bona fide dispute as to the foundational or historical facts that underlie the immunity determination, the ultimate questions of statutory or qualified immunity are ripe for summary disposition.
Syl. Pt. 1, Hutchison v. City of Huntington,
III. DISCUSSION
We take this opportunity on rehearing to make plain our concern over the seriousness of the allegations contained herein. To whatever extent this opinion or our prior opinion is characterized as suggesting that this Court is not mindful of the pervasiveness and gravity of the issue of prison sexual assault, such a characterization is at best patently incorrect. However, this Court is constrained to the faithful application of the law.
The sole issue before this Court is whether the WVRJCFA is immune from liability in this matter. Respondent attempts to establish the WVRJCFA’s liability in two ways: 1) through use of the doctrine of respondeat
A.
Immunity and the Vicarious Liability of the State and Its Ayencies
In the instant ease, the WVRJCFA argues that it is not vicariously liable for the alleged acts of its employee, D.H., because the sexual assaults alleged herein were outside the scope of his duties as a correctional officer and therefore, it is entitled to immunity. Respondent, on the other hand, suggеsts that the following portion of Syllabus Point 9 of Parkulo v. W. Va. Bd. of Probation and Parole,
The circuit court, relying primarily on common-law master-servant principles, found that a jury question existed as to whether D.H. was acting within the scope of his employment. In so finding, the court relied on a case from the Eastern District of Virginia, Heckenlaible v. Va. Peninsula Regional Jail Authority,
1. The “Coterminous” Immunity of the State and its officials or employees
We begin our analysis by addressing respondent’s position that Syllabus Point 9 of Parkulo stands for the proposition that where a State employee is not entitled to qualified immunity, the State is likewise not immune. In point of fact, it is precisely the remainder of this syllabus point which militates squarely against respondent’s position:
*502 ... However, on occasion, the State will be entitled to immunity when the official is not entitled to the same immunity; in others, the official will be entitled to immunity when the State is not. The existence of the [ ] immunity of the State must be determined on a case-by-case basis.
Syl. Pt. 9, in part, Parkulo. See also Restatement (Second) of Torts § 895B cmt. h (1979) (“The existence of immunity on the part of the State or its agencies does' not necessarily imply immunity on the part of its public officers, or vice versa.”). In fact, Par-kulo further specifically notes that “the vicarious liability of the State for its officer’s conduct is not to be presumed merely from the absence of qualified immunity to protect the public executive official from personal liability for that conduct.”
The paucity of guidance on the vicarious liability of the State and its agencies, both in West Virginia and other jurisdictions, is occasioned almost entirely by the fact most other jurisdictions have enacted some form of tort claims act which governs actions against the state and its agencies. In West Virginia, however, the Governmental Tort Claims and Insurance Reform Act, West Virginia Code § 29-12A-1 et seq., is limited to political subdivisions and their employees and does not cover claims made against the State or its agencies. See n. 4, supra.
As one commentator noted many years ago,
the relationship between governmental and officer liability remains to a large extent ill-defined. The failure of legislatures to resolve many of the problems that flow from the coexistence of these two bodies of law has had the effect both of transferring basic policy decisions to the courts and of greatly complicating governmental tort claims litigation. Furthermore, if there is any substance to the notion that the prospect of personal liability instills an unhealthy insecurity in public officials, uncertainty over the relationship between governmental and officer liability probably only aggravates the situation.
George A. Bermann, Integrating Governmental and Officer Tort Liability, 77 Colum. L.Rev. 1175, 1213 (1977).
2. The Evolution of Immunity in West Virginia
In the absence of any action by our Legislature to enact a statutory scheme which would outline the scope of the State’s liability in tort, we are left to examine the state of our law with respect to the immunity of the State, its agencies, officials, and employees, as well as the policy implications attendant to governmental immunity, in an attempt to formulate a workable rule for State-level governmental and employee immunities.
As Professor Bermann noted, “[b]ecause the doctrines of sovereign and officer immunity spring from distinct, if related, concerns, each has evolved independently.” Bermann, supra at 1181. This independent evolution has unquestionably occurred in West Virginia, as evidenced by the following brief history. Our modern immunity law began to take a more clearly identifiable form in 1992 with State v. Chase Securities,
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. 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....
Syllabus, in part, Chase Securities. In formulating its initial statements on governmental immunity, this Court encouraged the use of federal precedent to guide our immunity analysis because “it would seem appropriate to construct, if possible, an immunity stаndard that would not conflict with the federal standard.” Chase Securities,
The Chase Securities standard was thereafter extended to cover the discretionary judgments of “rank-and-file” employees in 1995 in Clark v. Dunn,
If a public officer is either authorized or required, in the exercise of his judgment and discretion, to make a decision and to perform acts 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.
Syl. Pt. 4, Clark,
In the absence of an insurance contract waiving the defense, the doctrine of quali-*505 fled 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 seg., and against an officer of that department acting utithin the scope of his or her employment, with respect to the discretionary judgments, decisions, and actions of the officer.
Syl. Pt. 6, Clark,
The following year (in our only reported case to discuss in any meaningful fashion the immunity of the State and its agencies), the Court in Parkulo set out to recast a “reasoned statement” of the current posturе of common law immunities.
3. Respondeat Superior and the Immunity of the State
Turning now to the specific issues presented in the instant case, the WVRJCFA maintains that because any alleged sexual assault by D.H. would fall well outside of the scope of his duties as a correctional officer, the WVRJCFA is entitled to immunity. As previously noted, rather than exploring the issue of the scope of the State’s immunity relative to that of its public officials and employees, the parties and lower court relegated this issue to ordinary respondeat superior principles. While we reject a blind application of common-law master-servant principles which fail to accommodate the policy interests at play with respect to the immunity of the State and its agencies,
[a] public officer acting within the general scope of his authority is immune from tort liability for an act or omission involving the exercise of a judicial or legislative function ... [or] administrative act or omission if ... he is ... еngaged in the exercise of a discretionary function....
(emphasis added). Comment g to the Restatement notes that when an officer goes “entirely beyond [the general scope of his official authority] and does an act that is not permitted at all by that duty, he is not acting in his capacity as a public officer or employee and he has no more immunity than a private citizen.” Id.
The rationale for stripping a public official of his immunity informs the issue of whether the State should likewise lose its immunity for and be vicariously liable for acts of its officials or employees when they act outside of the scope of their authority. Most tort
First, the harm resulting from such conduct is probably more easily avoided than the harm caused by simple negligence and is therefore a poorer candidate for consideration as an ordinary cost of government. Second, if the threat of personal liability serves some deterrent purpose, its imposition would seem particularly useful where willful or wanton misconduct is concerned. Finally, even if such conduct cannot readily be eliminated, it does not follow that the public should have to pay for its consequences. On the contrary, retributive justice would seem to demand that public officials answer personally for egregious conduct.
Id. at 1197 (emphasis added). We can perceive no stated public policy which is justifiably advanced by allocating to the citizens of West Virginia the cost of wanton official or employee misconduct by making the State and its agencies vicariously liable for such acts which are found to be manifestly outside of the scope of his authority or employment.
Such a conclusion, however, necessarily implies that where a public official or employee’s conduct which properly gives rise to a cause of action is found to be within the scope of his authority or employment, neither the public official nor the State is entitled to immunity and the State may therefore be liable under the principles of respondeat superior. We find that this approach is consistent with the modern view that “the cost of compensating for many such losses is regarded as an ordinary expense of government to be borne indirectly by all who benefit from the services that government provides.” Bermann, supra at 1176. Much like the negligent performance of ministerial duties for which the State enjoys no immunity, we believe that situations wherein State actors violate clearly established rights while acting within the scope of their authority and/or employment, are reasonably borne by the State.
4. Reconciliation of Existing Immunity Principles to Determine Coextensiveness of Immunity
We therefore take this opportunity to harmonize our existing syllabus points with respect to the immunity of the State, its agencies, officials and employees, and furthеr elaborate on the procedural analysis required to determine whether immunity flows to an individual employee or official defendant, the State and its agencies, neither, or both. To determine whether the State, its agencies, officials, and/or employees are entitled to immunity, a reviewing court must first identify the nature of the governmental acts or omissions which give rise to the suit for purposes of determining whether such acts or omissions constitute legislative, judicial, executive or administrative policy-making acts or otherwise involve discretionary governmental functions. This critical first step may be evident from the nature of the allegations themselves or may be effectively accomplished by identifying the official or employee whose acts or omissions give rise to the cause of action. This individual identification may more easily permit a proper examination of that particular official or employee’s duties and responsibilities and any statutes, regulations, or other “clearly established” laws which are applicable to his or her duties. This approach is compelled by the well-settled precept that “[governmental entities can act only through their officers, agents, and employees.” 57 Am.Jur.2d Municipal, County, School, and State Tort Liability § 145.
We recognize, however, that
some losses occasioned by governmental activity may not be traceable to any particular official. For example, legislation may impose duties upon the government that the .latter simply fails to implement_ More generally, however, a governmental operation may suffer from inefficiency, delay or other systemic disorders that cannot be laid at the feet of any particular official yet still cause injury that warrants compensation.
Bermann, supra at 1187. Moreover, “duties or obligations may be placed on the government that are not imposed on the officer, and statutes sometime make the government liable when its employees are immune.” Par-kulo,
However, to the extent that governmental acts or omissions which give rise to a cause of action fall within the category of discretionary functions, a reviewing court must further determine whether the plaintiff has demonstrated that such acts or omissions are in violation of clearly established statutory or constitutional rights or laws of which a reasonable person would have known or are otherwise fraudulent, malicious, or oppressive in accordance with State v. Chase Securities, Inc.,
To the extent that such official or employee is determined to have been acting outside of the scope of his duties, authority, and/or emрloyment, the State and/or its agencies are immune from vicarious liability, but the public employee or official is not entitled to immunity in accordance with State v. Chase Securities, Inc.,
5. Application of Immunity Paradigm to Case Sub Judice
Turning now to the application of the foregoing to the facts of this particular
The amici argue strenuously that this determination is necessarily and without exception an issue which must be submitted to the jury. In that regard, this Court has held in Syllabus Point four of Griffith v. George Transfer and Rigging, Inc.,
Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when “the facts are undisputed and no conflicting inferences are possible.” In some cases, the relationship between an employee’s work and wrongful conduct is so attenuated that- a jury could not reasonably conclude that the act was within the scope of employment.
Given that this Court is in no way precluded from making a determination, as a matter of law, as to “scope of employment” where there are no disputed facts, we turn then to the guiding principles in that regard. In Syllabus Point six of Courtless v. Jolliffe,
The “purpose” of the act is of critical importance and this element echoes throughout our jurisprudence. Moreover, the Restatement (Second) of Agency §. 228 (1958) states that a servant is within scope of employment if the conduct is 1) of the kind he is employed to perform; 2) occurs within the authorized time and space limits; 3) it is actuated, at least in part, by a purpose to serve the master, and; 4) if force is used, the use of force is not unexpectable by the master.
Respondent has failed to adduce any evidence bringing these alleged criminal acts within the ambit of D.H.’s employment beyond merely suggesting that his job gave him the opportunity to commit them. Equally importantly, there are no disputed material facts which require a jury’s determination. We recognize that by virtue of his position as a correctional officer, D.H. was unquestionably in a particularly unique position to perpetrate such acts, if any. However, the mere proximity and opportunity that his job provided to commit such acts do not, alone, bring them within the scope of his employment. Moreover, not only were D.H.’s alleged acts criminal in nature, they were specifically criminalized by statute for all jail or correctional facility employees. Therefore, D.H. did not just allegedly commit acts which also “happened” to be a crime; he allegedly committed acts which were so divergent from the scope of his duties they were made expressly felonious if committed by him in that context. While the amici boldly (and incorrectly) state that the Court’s determination that D.H. was outside the scope of his employment is “unprecedented,” we find, quite to the contrary, that the weight of authority nationwide accords with our conclusion. There is overwhelming majority support in other jurisdictions concluding that sexual assaults committed on the job are not within
As noted above, while fact questions may on occasion in other eases preclude summary determination of this prong, we find that D.H.’s alleged acts fall manifestly outside the scope of his authority and duties as a correctional officer. When taken as true for purposes of the motion for summary judgment, there can be no question that these acts, as alleged, are in no way an “ordinary and natural incident” of the duties with which he was charged by the 'WVRJCFA and in no way furthered the purposes of the WVRJCFA. As such, we conclude that the WVRJCFA is entitled to immunity for respondent’s claims based on vicarious liability for D.H.’s acts.
B.
Negligent Training, Supervision, and Retention
With the foregoing framework in mind, we turn now to the WVRJCFA’s claim of immunity for respondent’s negligent training, supervision, and retention allegations. The WVRJCFA contends that training, supervision, and retention are inherently discretionary acts for which the State enjoys immunity and that respondent has failed to identify a “clearly established” right or law which the WVRJCFA violated in its supervision, training, and retention of D.H. Respondent counters that if employee training, supervision, and retention are found to be discretionary functions, then the State will have a de facto absolute immunity from suit. Respondent further argues that West Virginia expressly recognizes a claim of negligent hiring/supervision/retention against a State agency.
We begin by observing that it is of no consequence to our analysis that the parties characterize this as a “direct” claim against the WVRJCFA; in fact, this claim too is based on vicarious liability despite the absence of specifically named “bad actor(s)” who allegedly negligently supervised, trained, and retained D.H. See n. 2, supra. This claim does not present a scenario where some general duty was statutorily or otherwise imposed upon the State
Having clarified that this claim likewise derives from the alleged negligence of some public offieer(s) or employee(s) responsible for the training, supervision, and retention of D. H., we are again guided by the principle first enunciated in Clark:
If a public officer is either authorized or required, in the exercise of his judgment and discretion, to make a decision and to perform acts 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.
Syl. Pt. 4, Clark,
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*514 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 discretionary judgments, decisions, and actions of the officer.
Syl. Pt. 6, Id. (emphasis added). However, as this Court noted last year in Payne and as we have clarified herein:
[O]nce the “judgments, decisions, and actions” of a governmental official are determined to be discretionary, the analysis does not end. Rather, even if the complained-of actions fall within the discretionary functions of an agency or an official’s duty, they are not immune if the discretionary actions violate “clearly established laws of which a reasonable official would have known[J”
In Payne, we noted further that “certain governmental actions or functions may involve both discretionary and non-discretionary or ministerial aspects, the latter of which may constitute a ‘clearly established law of which a reasonable public official would have known.’ ” Id. at 574 n. 26,
Moreover, we disagree with respondent that this Court has previously held that negligent hiring, supervision, and retention claims are per se viable causes of action against the State or its agencies. In the cases relied upon by respondent, State ex rel. W. Va. State Police v. Taylor,
The PREA became effective September 4, 2003; as such, it appears that the WVRJCFA is actually asserting that the “national standards” to be developed by the Commission created under the PREA were not yet in effect. 42 U.S.C. § 15607 (“Adoption and effect of national standards”). The final rule was published in the federal register on June 20, 2012, and became effective on August 20, 2012. 77 Fed.Reg. -37106-01 (June 20, 2012) (to be codified at 28 C.F.R. pt. 115). Certain standards do not go into effect until a later date. The acts alleged in the underlying suit occurred in 2009 through 2010. We find, however, that the PREA merely “authorizes grant money, and creates a commission to study the [prison rape] issue .... The statute does not grant prisoners any specific rights.” De’lonta v. Clarke, No. 7:11-cv-00483,
There are, nevertheless, existing state regulations which govern certain aspects of the training, supervision, and retention of jail employees as set forth in the “West Virginia Minimum Standards for Construction, Operation, and Maintenance of Jails,” West Virginia C.S.R. § 95-1-1 et seq. In the instant case, however, respondent has failed to identify a single regulation which the WVRJCFA has violated as pertains to training, supervision, or retention, which proximately caused D.H.’s alleged actions.
Before leaving this issue, we would be remiss if we did not take this opportunity to clarify what this opinion does and does not suggest. It does not suggest that the WVRJCFA has no duty to prevent prison rape; any suggestion to the contrary is not simply disingenuous, but irresponsible and frankly ludicrous. The undisputed facts demonstrate that the WVRJCFA has policies and training in effect designed to prevent and address such issues. The undisputed facts demonstrate that D.H. was trained annually on PREA and unquestionably understood that sexual contact with inmates was prohibited. Even the most well-understood prohibitions are insufficient to prevent bad actors intent on acting for their own purposеs from doing so. “Rape, of course, is no accident. It results from an individual’s conscious decision to commit the outrageous act despite all moral and legal sanctions. Hence, it cannot be prevented in the way a city might train its officers in safe driving.” Mary M.,
Moreover, the foregoing should not be misread to suggest that the WVRJCFA is immune because it did not have rules and regulations forbidding prison rape. Obviously, it did have such rules and D.H. allegedly violated them. The issue presented by A.B.’s direct claim against the WVRJCFA is what did the WVRJCFA fail to do that it was specifically required to do under a clearly established law or right? What respondent’s scant evidence failed to establish was that
This issue likewise is not aided by both respondent and the amici’s vague incantations that respondent’s right to be free from prison rape is a “clearly established” right under the United States Constitution. Such an argument grossly oversimplifies, and frankly nullifies, this requirement. As this Court has stated and as has been the subject of a plethora of federal jurisprudence on this particular issue:
To prove that a clearly established right has been infringed upon, a plaintiff must do more than allege that an abstract right has been violated. Instead, the plaintiff must make a “particularized showing” that a “reasonable official would understand that what he is doing violated that right” or that “in the light of preexisting law the unlawfulness” of the action was “apparent.” Anderson v. Creighton,483 U.S. 635 , 640,107 S.Ct. 3034 , 3039,97 L.Ed.2d 523 (1987).
Hutchison v. City of Huntington,
To that end, there is no question that D.H. allegedly violated all manner of clearly established rights — constitutional and otherwise — it is not his conduct which is the focus of this aspect of the appeal. Rather, it is whether the WVRJCFA, in the course of its supervision and retention of D. H., violated a clearly established right; a right is “clearly established” when its contours are “sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Hope v. Pelzer,
C.
Respondent’s “Special Relationship” with the WVRJCFA
Before dispensing with this matter altogether, we pause briefly to address respondent’s contention that, as an inmate at a correctional facility, respondent was owed a “special duty” by the State entitling her to escape the immunity shield of the WVRJCFA Respondent haphazardly tosses around the phrase “special duty” in an attempt to bolster her claim of the WVRJCFA’s negligence, without ever stopping to place the concept into its proper legal context. This failure has resulted in an error we have had repeated occasion to mention in our immunity cases which involve the related issue of the “public duty doctrine.” In sum, the “special relationship” or “special duty” doctrine is an exception to the liability defense known as the public duty doctrine; it is neither an immunity concept, nor a standalone basis of liability.
[qualified immunity is, quite simply, immunity from suit. The public duty doctrine is a defense to negligence-based liability, i.e. an absence of duty. See Holsten v. Massey,200 W.Va. 775 , 782,490 S.E.2d 864 , 871 (1997) (“The public duty doctrine, however, is not based on immunity from existing liability. Instead, it is based on the absence of duty in the first instance.”). This Court dedicated an extensive discussion to the similarities, yet fundamental difference, between the two concepts in Parkulo v. West Virginia Bd. Of Probation and Parole,199 W.Va. 161 , 172,483 S.E.2d 507 , 518 (1996): “[The public duty doctrine] is not a theory of governmental immunity, ‘although in practice it achieves much the same result’ ” (quoting Syl. Pt. 1, Benson v. Kutsch,181 W.Va. 1 ,380 S.E.2d 36 (1989)). Although both defenses are frequently raised, as in this case, only qualified immunity, if disposed of by way of summary judgment, is subject to interlocutory appeal. All other issues are reviewable only after they are subject to a final order[.]
Payne,
Accordingly, we find that the WVRJCFA is entitled to immunity for respondent’s claims of negligent training, supervision, and retention, and therefore, the circuit court erred in failing to grant summary judgment to the WVRJCFA.
D.
Arguments Asserted by Respondent in Petition for Rehearing
The petition for rehearing feverishly assembles a collection of legislative rules, pur
Rule 25 of the West Virginia Rules of Appellate Procedure states that a petition for rehearing “shall state with particularity the points of law or fact which in the opinion of the petitioner the Court has overlooked or misapprehended[.]” (emphasis added). This Court has recognized that “well settled principles of appellate procedure indicate that ‘a rehearing on an appeal can be granted only for purposes of correcting errors that the court has made, and the party seeking a rehearing cannot assign as error points or arguments that could have been raised before the appeal was resolved.’” Perrine v. E.I. du Pont de Nemours and Co.,
Moreover, respondent’s attempt to supplement her deficient discovery, briefing, and appendix recоrd for purposes of rehearing with hastily attached newspaper articles and scattershot rules and regulations (which may or may not be of any import to the issues herein) is wholly improper. “[A]n appellate court must accept the record as it was originally presented and cannot consider previously unpresented or substituted items of evidence. The court will not consider a document attached to a petition for a rehearing that was not part of the record.” 5 C.J.S. Appeal and Error § 802. We save the analysis of these items for a case where these matters have been properly discovered and presented to the Court as supporting the viability of a claim.
IV. CONCLUSION
For the foregoing reasons, the December 3, 2012, order denying summary judgment is reversed, and we remand for the entry of an order granting the WVRJCFA’s motion for summary judgment and dismissing the action against it.
Reversed and remanded.
Notes
. We wish to acknowledge and thank the amicus curiae American Civil Liberties Union of West Virginia Foundation, National Association for Women, National Association Of Social Workers, West Virginia Division, West Virginia Council of Churches, West Virginia Employment Lawyers Association, WV Free, and West Virginia Association for Justice for their briefing on these most important issues.
. As discussed more fully infra, respondent did not make any allegations against Lt. Bunting or any other WVRJCFA official pursuant to Section 1983 as a result of their investigation. See n. 33, infra.
. 42 U.S.C.§ 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law ... In short, "[t]o state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins,487 U.S. 42 , 48,108 S.Ct. 2250 ,101 L.Ed.2d 40 (1988).
. The West Virginia Governmental Tort Claims and Insurance Reform Act, West Virginia Code § 29-12A-1 et seq„ obviously however, does not apply to claims against the State. See W. Va. Code § 29-12A-3(c) and (e); Hess v. W. Va. Div. of Corr.,
. The negligent staffing claim was likewise apparently abandoned.
.West Virginia Code § 61-8B-10(a) provides, in pertinent part, that
Any person employed by ... a jail or by the Regional Jail and Correctional Facility Authority ... who engages in sexual intercourse, sexual intrusion or sexual contact with a person who is incarcerated in this state is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility under the control of the Commissioner of Corrections for not less than one nor more than five years or fined not more than $5,000.
. 42 U.S.C. § ¡5601 et seq. (hereinafter "PREA”).
. Although respondent's claims are accepted as true for purposes of our review, in light of the fact that the claims against D.H. remain pending, nothing herein is to be construed as this Court’s opinion on the truth or falsity of the allegations.
. There was no discussion of the issue of qualified immunity in that case because, Virginia expressly allows actions against the State for the negligence of its employees committed within the scope of their employment pursuant to its State Tort Claims Act. Va.Code Ann. § 8.01-195.3 (2007).
Moreover, Heckenlaible is a case from the Eastern District of Virginia and is a minority position within Virginia federal districts (including its own district) and the 4th Circuit. See Blair v. Defender Servs., Inc.,
. The Court in Parkulo stated that "[b]ecause we do not have before us a factual situation requiring further development of this approach to the scope of qualified immunity for the governmental entities represented by public officials entitled to its benefit, we leave the full development of that approach to another day.” Id. at 178,
. Professor Bermann’s law review article is quoted liberally throughout this opinion аnd represents a particularly thorough treatment of this subject, more recent discussion of which has been largely obviated by the passage of statutory tort claims acts throughout the country. In fact, this article was commended for use in further development of the principles herein by the Court in Parkulo: "A guideline for use in the case-by-case approach to the problem of the interplay of governmental and public officer personal tort liability ... has been well-stated in [Professor Bermann’s] article!.]”
. Without question, "the task of balancing the interests relevant to governmental tort litigation is legislative in character.” Bermann, supra at 1189. Nearly twenty-two years ago, Justice Miller first raised the specter of legislative enactment which would obviate the necessity for such issues to be foisted upon this Court by the Legislature’s silence. See Chase Securities,
. With respect to the interplay between the immunity of the State and its public official and employees, federal caselaw provides little assistance for several reasons. Factually similar cases addressing immunity found in federal case-law are cases brought pursuant to 42 U.S.C. § 1983, which actions do not lie against the State. See Will v. Mich. Dept. of State Police,
. The Court summarily concluded that "Officer Dunn is properly considered a public officer" without discussion as to whether the immunity of the “public official" described in Chase Securities (which involved the Governor, the Treasurer, and the Auditor — all high-ranking elected officials) perhaps differed in character from the type of immunity afforded a rank-and-file employee such as Officer Dunn. Clark,
.This type of immunity is characterized by the Restatement (Second) of Torts as somewhat "derivative” of the executive or administrative immunity: "A public officer acting within the general scope of his authority is not subject to tort liability for an administrative act or omission if [ ] he is immune because engaged in the exercise of a discretionary function[.]” § 895D. However, in West Virginia, the type of immunity afforded by the discretionary acts immunity, which is a qualified immunity, should not be conceptually commingled with the executive/administrative act immunity for policy-making acts which is absolute. Syl. Pt. 7, Parkulo, 199 W.Va. 161,
This is the trap into which respondent and the circuit court fell as evidenced by their rejection of WVRJCFA’s "discretionary acts” immunity argument by concluding that training, supervision, and retention were not acts which involved the "determination of fundamental governmental policy.” It is clear that this Court has established, akin to the federal courts, a distinct immunity for “discretionary” acts or functions of governmental actors from the highest level down to the rank-and-file; it is wholly at odds with the goal of this immunity to require that these discretionary acts must also rise to the level of "policy-making” before such immunity may be invoked. See, e.g., Clark,
. "The deсision whether to impose liability requires a delicate balancing of competing interests, particularly when the defendant at law is a public entity and the defendants in fact are the taxpayers.” Mary M.,
.To that end, we agree with the California Law Revision Commission's statement that
The problems involved in drawing standards for governmental liability and governmental immunity are of immense difficulty. Government cannot merely be made liable as private persons are, for public entities are fundamentally different from private persons. Private persons do not prosecute and incarcerate violators of the law or administer prison systems.... Unlike many private persons, a public entity often cannot reduce its risk of potential liability by refusing to engage in a particular activity, for government must continue to govern and is required to furnish services that cannot be adequately provided by any other agency.
Recommendation Relating to Sovereign Immunity, No. 1, Tort Liability of Public Entities and Public Employees (Jan. 1963) 4 Cal. Law Revision Com. Rep. (1963), p. 810. See n. 12, supra.
. See discussion, infra.
. The mere fact that liability hinges upon the violation of a "clearly established” right does not, in itself, suggest that the acts which give rise to a case are within the realm of "fraudulent, malicious, or oppressive" acts for which a public official loses his immunity. Rather, violations of clearly established rights frequently occur in the absence of any ill-intent which might militate against the imposition of vicarious liability.
. In its brief in support of rehearing, the amici argue that certain of this Court's precedent on the issue of qualified immunity is "inconsistent,” "irreconcilable,” "outliers," and "confusfing.]” To that end, the amici, who took no position during the original briefing of this matter, appear to be seizing this opportunity to urge the Court to revisit not its decision in this case, but rather more than two decades of existing jurisprudence. Not only is such a position well outside of the bounds of rehearing, but is a particularly disingenuous basis upon which to urge that this Court "misapprehended” or “overlooked” law in its initial decision. "Mere disagreement as to how a case was decided is not a sufficient reason to deviate from a judicial policy promoting certainty, stability and uniformity in the law.” Dailey v. Bechtel Corp.,
More specifically, to whatever extent respоndent and the amici disagree merely with the policy implications of our application of existing law, they are free to lobby the Legislature for a tort claim act which would satisfy their concerns; in fact, the absence of Legislative enactment to reflect the policy judgments of the citizens of this state is bemoaned throughout this opinion. However, this particular case, and in particular this rehearing, is not the proper forum in which to do so. See Taxpayers for Public Education v. Douglas County School District, — P.3d -, -,
. Nor do our holdings expressly affect the liability of the State, its agencies, officials, and employees for actions based upon breach of so-called "ministerial” duties, which have been historically exempted from the realm of governmental functions for which the State, its officials, and employees are entitled to immunity. See Clark,
. Roszkowski, Mark E. and Christie L., "Making Sense Of Respondeat Superior: An Integrated Approach For Both Negligent And Intentional Conduct,” 14 S. Cal. Rev. L. & Women’s Stud. 235 (Spring 2005).
. See Doe v. Sipper,
. In this case, the conduct was specifically criminalized by statute. See infra.
. See Doe v. United States,
. This is potentially the basis for a scenario where a public official or employee may enjoy immunity, but the State would not — the sole configuration not otherwise developed and analyzed herein. Given the clarification which we endeavor to provide herein, we are loathe to leave this aspect of the public official/govemmental immunity paradigm untouched; however, such a scenario has seldom presented itself before this Court and we resign ourselves to review of that issue at a later date.
. A number of federal courts are likewise in . accord that hiring, training, supervision, and retention are discretionary acts. See Doe v. Holy See,
. We likewise find the West Virginia federal court cases cited by respondent in support of this proposition inapposite inasmuch as they were filed against political subdivisions, the liability of which is governed by the West Virginia Tort Claims and Insurance Reform Act. See e.g., Woods v. Town of Danville, W. Va.,
. The WVRJCFA does not claim that any such alleged negligence with respect to training, supervision, or retention would fall outside of the scope of the authority of any official or employee charged with such responsibilities.
. In her briefing before this Court in a further attempt to identify a "clearly established law,” respondent argues that the WVRJCFA was obliged and failed to conduct an annual psychological examination of .D.H., pursuant to Harrah v. Leverette,
However, West Virginia Code of State Regulations § 95-1-4.2, effective June 3, 1996, provides that psychological testing is only required prior to employment and "when a justifiable need exists during their employment.” This Court has held that "[a] regulation that is proposed by an agency and approved by the Legislature is a ‘legislative rule’ as defined by the State Administrative Procedures Act, W. Va.Code, 29A-1-2(d) [1982], and such a legislative rule has the force and effect of law.” Syl. Pt. 5, Smith v. West Virginia Human Rights Comm'n,
. Respondent suggests that "Judge Webster’s ‘dismissal’ of [the constitutional claims] ...” may have caused confusion. However, the order entered below plainly reflects that respondent's attorney prepared the order which states the "parties have stipulated to dismissal of Plaintiff's claims against the WVRJA for violation of the West Virginia Constitution ... [and] Plaintiff's claims under 42 U.S.C. Section 1983[.]”.
. That said, however, we note that our research indicates that inmate rape cases are almost exclusively brought pursuant to Section 1983, in
The Supreme Court of South Dakota was faced with a nearly identical scenario wherein an inmate pled only negligence-based claims against the State after she alleged that a correctional officer raped her. Casazza v. State,
. Also, like Payne, in discovery, respondent made the skeletal assertion that if D.H. were properly trained and supervised, the rape would not have occurred. This illusory and languid contention is no more sufficient to overcome the State's immunity in this case than in Payne: "Respondents seem to argue simply that if the DHHR defendants were doing their job properly, this incident would not have occurred. Although this overly simplistic analysis máy be appealing in light of these tragic events, qualified immunity insulates the State and its agencies from liability based on vague or principled notions [of government responsibility].” Id. at 574,
. Respondent urges that J.H. v. West Virginia Div. of Rehabilitation Svcs.,
[A]t the heart of most of these "special duty” cases is the unfairness that the courts have perceived in precluding recovery when a municipality’s voluntary undertaking has lulled the injured party into a false sense of security and has thereby induced him either to relax his own vigilance or to forego other available avenues of protection.
Walker v. Meadows,
. To the extent, however, that respondent is attempting to use the "special duty" concept to evade the scope of immunity by suggesting that she is owed, a heightened duty of care by virtue of her placement in a correctional facility, we find it unnecessary to carve out an exception for prison inmates and create a special rule of liability for them. While respondent is correct that she stands in a different relation to the State as a confined inmate, to whatever extent she is entitled to different or "heightened” standards of care, such standards exist in countless forms not the least of which are the United States and West Virginia Constitutional prohibitions against cruel and unusual punishment and the plentiful administrative regulations governing сorrectional facilities. As noted before, respondent has established no violation of any clearly established law, asserted no civil rights claim pursuant to Section 1983 except as against D. H., and expressly dismissed her West Virginia constitutional claims as against the WVRJCFA.
. Respondent apparently obtained new counsel following this Court’s initial opinion for purposes of rehearing.
Dissenting Opinion
dissenting:
While confined at the Southern Regional Jail, the plaintiff alleged that she was raped on seventeen (17) different occasions by a correctional officer. The plaintiff sued the rapist and his employer, the West Virginia Regional Jail and Correctional Facility Authority (“the Regional Jail”). The Regional Jail moved for summary judgment on the grounds of qualified immunity. The trial court denied the motion, and the Regional Jail appealed. The majority opinion reversed after determining, in essence, that the Regional Jail does not have a duty to protect female prisoners from being raped by the correctional officers it employs. The majority opinion also tersely rejected the circuit court’s determination that the special relationship doctrine precluded summary judgment. For the reasons set out below, I dissent.
A. Continued Denial of Justice on Rehearing
“I have noted on several occasions that ‘[w]isdom too often never comes, and so one ought not to reject it merely because it comes late.’ ” Savilla v. Speedway Superamerica, LLC,
The basic issue in this ease and the reason for my dissent has not changed. This case is not about whether the correctional officer who raped the plaintiff was acting outside the scope of his employment. Common sense dictates that the Regional Jail did not hire the correction officer to rape the plaintiff and other inmates as part of his job duties. The focus of this case was on what the Regional Jail did to assure the reasonable safety of the plaintiff from being raped. If one reads the majority opinion line by line, and even in between the lines, you will find no discussion of what practical measures the Regional Jail used to monitor the interaction between male correctional officers and female" prisoners. The basis for liability against the Regional Jail is its failure to provide even the most basic monitoring procedures. Thus, the majority’s failure to discuss the same is simply inexcusable.
In a recent newspaper article it was reported that the Regional Jail began compiling reports of sexual assault in 2013, after the new federal Prison Rape Elimination Act standards took effect.
Other than this new section, the remainder of my dissent is unchanged from the its previous filing. The new majority opinion has added nothing to alter the basic principles of my dissent.
B. Qualified Immunity
In order to find that the Regional Jail is immune from liability when female inmates are raped with impunity by correctional officials, the majority opinion recast our law on qualified immunity in such a manner as to make it now virtually impossible for any state agency, not just the Regional Jail, to ever be held accountable for tortious conduct committed by employees within the scope of their employment. I do not make this accusation lightly. The decision in Heckenlaible v. Virginia Peninsula Regional Jail Authority,
Before examining Heckenlaible, it is appropriate to review the constitutionally recognized “liberty interest in the integrity of the human body.” Farrell, ex rel. Farrell v. Transylvania Cnty. Bd. of Educ.,
[Citizens have] the right to be free of state intrusions into realms of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience of a court. The existence of this right to ultimate bodily security the most fundamental aspect of personal privacy is unmistakably established in our constitutional decisions as an attribute of the ordered liberty that is the concern of substantive due process. Numerous eases in a variety of contexts recognize it as a last line of defense against those literally outrageous abuses of official power whose very variety makes formulation of a more precise standard impossible. Clearly recognized in persons charged with or suspected of crime and in the custody of police offieers[.]
Hall,
The plaintiff in Heckenlaible sued a correctional officer and his employer, Virginia Peninsula Regional Jail Authority, for sexual assault while she was confined in jail. The defendant, Peninsula Regional Jail, moved for summary judgment on several grounds, including the contention that it could not be held liable under the theory of respondent superior.
[A] jury issue may exist as to whether an employee’s -wrongful act occurred within the scope of employment nоtwithstanding the fact that the employee’s act violated an employer’s rules or directives. Ultimately, the issue for the court to resolve is whether the service itself, in which the tortious act was done, was within the ordinary course of [the employer’s] business.
[T]his was not a ease where a wrongful act occurred in the workplace merely because an employee was in a particular location at a particular time as a result of his employment. Steele’s duties as a correctional officer required him to observe inmates in the shower, and the alleged sexual assault occurred after he observed Heckenlaible showering and during a “cell search” thereafter. Steele’s impulse to have sexual contact with Heckenlaible may well have arisen, at least in part, from the fact that he was required to view Heckenlaible while she was unclothed in the shower. In light of these circumstances, a reasonable juror could conclude that the alleged sexual assault arose out of Steele’s performance of his duties.
Moreover, viewing the facts in the light most favorable to Heckenlaible, Steele was actively engaged in the performance of his job duties, which included supervising Heckenlaible and the other inmates in the medical unit, when the wrongful act occurred. Steele was supervising Heekenlai-ble when he accompanied her to the shower, looked at her while she showered, and returned her to her cell afterwards. In addition, he ultimately entered her cell on the pretense of conducting a cell search, and cell searches are also among the duties*522 of a correctional officer. It follows that a reasonable juror could conclude that when the wrongful act occurred, Steele was engaged in a service, namely, the supervision of Heckenlaible, that was within the ordinary course of the Jail Authority’s business. A reasonable juror could reach this conclusion notwithstanding the fact that Steele violated the Jail Authority’s policies when he had a sexual encounter with Heckenlaible.
Furthermore, the instant case reflects a situation where special circumstances related to emрloyment facilitated the alleged intentional tort. Steele could not have reached Heckenlaible within the confines of her cell were it not for his employment with the Jail Authority. Also, in announcing that he was entering her cell to conduct a search, Steele arguably used the authority of his office to accomplish the wrongful act. Such facts weigh strongly against resolving the scope of employment issue, as a matter of law, in favor of the Jail Authority. In sum, having carefully reviewed the relevant case law and studied the arguments set forth by the parties, this court concludes, for the several reasons discussed above, that whether Steele was acting within the scope of his employment when he allegedly assaulted Heckenlaible is an issue for the jury to resolve.
Heckenlaible,
The majority opinion summarily rejected Heckenlaible on the grounds that Virginia did not extend qualified immunity to itself. The majority opinion’s rejection of-Hecken-laible is misguided. The fact that Virginia did not extend qualified immunity under the facts of Heckenlaible was irrelevant. The most important issue addressed in Hecken-laible and completely omitted from the majority opinion was an understanding of how to analyze “scope of employment.” In other words, both Virginia and West Virginia require that a state employee’s conduct fall within the scope of employment in order to extend liability to the State.
Under Heckenlaible, the mere fact that an employee’s wrongful conduct violated an employer’s rules or directives does not automatically mean that the employee’s wrongful act occurred outside the scope of his/her employment. Instead, Heckenlaible requires the fact finder to determine “whether the service itself, in which the tortious act was done, was within the ordinary course of [the employer’s] business.” Heckenlaible,
Although the majority opinion repeatedly mentions that proof is required to show that the wrongful conduct was committed during the scope of employment, the opinion totally failed to provide any analysis of how to apply the phrase “scope of employment.” It is the absence of such analysis that makes the majority opinion dangerous. The majority opinion stands for the proposition that any wrongful act not authorized by a Stаte agency will immunize the State from liability. This new standard can never be overcome by a plaintiff, because no State agency ever authorizes wrongful conduct.
To add insult to injury, the majority opinion also has concluded specifically that liability cannot be imposed on the Regional Jail merely because it did not have any regulations designed to protect female inmates from being raped. According to the majority opinion, such regulations “easily fall within the category of ‘discretionary’ governmental functions.” The majority opinion requires a rape victim to specifically point to “a ‘clearly established’ right or law with respect to ... supervision[.]” In the final analysis, under the majority opinion, the Regional Jail simply has to bury its head in the sand and never promulgate any regulation designed to protect the bodily integrity of female inmates to ensure its continued impunity from liability-
“Although mere failure to supervise is not a basis for liability under [the law], liability will result if delinquent supervision is so severe as to amount to gross negligence or deliberate indifference to constitutional violations.” Holland v. Breen,
Finally, I wish to point out that the decision in J.H. v. West Virginia Division of Rehabilitation Services,
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.
[T]he 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. Thus, the doctrine of qualified immunity does not preclude this claim.
J.H.,
C. Special Relationship Exception to the Public Duty Doctrine
The final issue I wish to address involves the majority opinion’s terse treatment of the special relationship exception to the public duty doctrine.
To establish that a special relationship exists between a local governmental entity and an individual, which is the basis for a special duty of care owed to such individual, the following elements must be shown: (1) an assumption by the local governmental entity, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the pai’t of the local governmental entity’s agents that inaction could lead to harm; (3) some form of direct contact between the local governmental entity’s agents and the injured party; and. (4) that party’s justifiable reliance on the local governmental entity’s affirmative undertaking.
Syl. pt. 2, Wolfe v. City of Wheeling,
Turning now to the instant case, the first matter I am compelled to address involves the majority opinion’s assertion that the plaintiff injected the issue of the public duty doctrine and special relationship exception into this appeal. The record clearly shows that the Regional Jail injected this issue as a specific assignment of error.
The second issue I must address concerns the majority opinion’s unsupported assertion that the special relationship exception cannot be invoked until a government entity raises the public duty doctrine as a defense. Specifically, the majority opinion states that the record does not show that the Regional Jail “assert[ed] the public duty doctrine as a defense to liability, to which respondent could then properly invoke the special duty exception.” This erroneous limitation on the invocation of the special relationship exception was compounded by the majority opinion’s unsupported assertion that the special relationship exception is not “a stand-alone basis of liability.”
Our prior eases have clearly held that the special relationship “exception gives rise to a cause of action in certain situations when there is a special relationship between an individual and a governmental entity.” Holsten v. Massey,
As previously pointed out, the plaintiff in J.H. was a resident in a State rehabilitation center when he was raped by another resident living at the facility. After the plaintiff filed the action, the State moved to dismiss the action under several defenses that included the public duty doctrine. The circuit court found that the public duty doctrine prevented imposition of liability against the State. This Court reversed the circuit court’s ruling and reasoned as follows:
[W]e direct our attention to the pivotal issue in this matter, which is the public duty doctrine and whether the special re*525 lationship exception applies in this case. Generally, the 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. As the Court has previously recognized the public duty doctrine is a principle independеnt of the doctrine of governmental immunity, although in practice it achieves much the same result. The Appellant 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 nondiseretionary duty to provide fire or police or other public safety protection to an individual, and the Division maintains that it has no nondis-eretionary 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.
Finally, this Court previously held that ... the question of whether a special duty arises to protect an individual from a State governmental entity’s negligence is ordinarily a question of fact for the trier of facts.
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 Appellant’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 allegеd negligence. 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.
J.H.,
Clearly the decision in J.H. recognizes a claim may be maintained against the State under the special relationship exception. Therefore it was legally wrong for the majority opinion to suggest otherwise. See McCormick v. West Virginia Dep’t of Pub. Safety,
Based upon the foregoing, I dissent.
. The Prison Rape Elimination Act "is intended to address the problem of rape in prison, authorizes grant money, and creates a commission to study the issue.” Moorman v. Herrington,
. This article may be found online at: http:// www.wvgazette.com/articlel20141026/GZ01/ 141029446/1101.
. Other issues were raised that are not relevant.
. The State also sought dismissal under the public duty doctrine, which I will discuss in the next section of my dissent.
. The special relationship exception is also called the special duty doctrine.
. The Regional Jail entitled the assignment of error as follows: "The Trial Court Erred By Finding A Special Duty Existed Between Petitioner And Respondent.”
. I will note that "[i]f immunity exists ... no inquiry into the public duty doctrine and its special relationship exception is necessary." Moats v. Preston Cnty. Comm'n,
Concurrence Opinion
concurring:
(Filed Nov. 18, 2014)
While the result in the majority opinion undoubtedly is less than ideal, I join the majority opinion because I am convinced that the result is compelled by this Court’s application of established government immunity concepts to the specific facts of this case. I write separately to emphasize two points made in the majority opinion.
First, I wish to emphasize the limited nature of the majority opinion. As the opinion makes clear, D.H. voluntarily dismissed all West Virginia Constitutional violations and any Section 1983 claims which left only negligence-based claims for supervision, training,
Second, as noted above, the majority opinion is based on long-standing concepts of government immunity in West Virginia’s jurisprudence. The Legislature and the Governor certainly have the authority to enact a statutory scheme regarding the State’s liability in tort which would mandate a different result in cases like the instant one. I encourage our sister branches to give consideration to such a change.
Thus, having concluded that the majority opinion is faithful to the established law of this Court and West Virginia, I concur.