McCormick v. WV. Dept. of Public Safety, et al.
Annotate this Case IN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA
January 1998 Term
___________
No. 24446
___________
ROBERT W. McCORMICK, as
Personal Representative of the
Estate of Alicia A. McCormick,
Plaintiff below, Appellant,
v.
WEST VIRGINIA DEPARTMENT OF PUBLIC SAFETY,
DIVISION OF CORRECTIONS,
JOSEPH SKAFF,
Individually and in his Official Capacity as
Secretary of the Department of Public Safety,
RON GREGORY, Individually and in his Official
Capacity as Past Commissioner of the
West Virginia Division of Corrections,
KAREN SCHUMAKER, Individually and in her
Official Capacity as former Chief of Community Services
with the Division of Corrections,
DONALD SMITH and
HAROLD D. GUNNOE,
Defendants below, Appellees.
________________________________________________________
Appeal from the Circuit Court of Kanawha County
Hon. Herman G. Canady, Jr., Judge
Civil Action No. 93-C-4868
AFFIRMED, IN PART; REVERSED, IN PART; AND
REMANDED
________________________________________________________
Submitted: January 20, 1998
Filed: May 8, 1998
Mike Kelly,
Esq. David
P. Cleek, Esq.
Charleston, West
Virginia Marilyn
T. McClure, Esq.
Lonnie C. Simmons,
Esq. Lou
Ann S. Cassell, Esq.
DiTrapano &
Jackson McQueen,
Harmon, Potter &
Charleston, West
Virginia
Cleek, L.C.
Attorneys for
Appellant Charleston,
West Virginia
Attorneys
for State Appellees
John R. Fowler, Esq.
Mary Sanders,
Esq. Marc
P. Turgeon, Esq.
Kathleen H. Jones,
Esq. Charleston,
West Virginia
Huddleston, Bolen,
Beatty, Attorney
for Appellee Gunnoe
Porter & Copen
Charleston, West Virginia
Attorneys for Appellee Smith
The Opinion of the Court was delivered PER CURIAM.
JUSTICE STARCHER filed a separate opinion concurring in part
and dissenting in part.
JUSTICE WORKMAN, deeming herself disqualified, did not
participate in the decision.
JUDGE ALAN MOATS, sitting by temporary assignment.
SYLLABUS BY THE COURT
1. "The
public duty doctrine and its 'special relationship' exception
apply to W.Va. Code § 29-12-5 actions against the State and its
instrumentalities, unless the doctrine is expressly waived or
altered by the terms of the applicable insurance contract."
Syllabus Point 10, Parkulo v. West Virginia Bd. of Probation
and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996).
2. "
In cases arising under W.Va. Code § 29-12-5, 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 the facts." Syllabus Point 11, Parkulo
v. West Virginia Bd. of Probation and Parole, 199 W.Va. 161,
483 S.E.2d 507 (1996).
3. "The
four requirements for the application of the 'special
relationship' exception to W.Va. Code § 29-12-5 cases are as
follows: (1) An assumption by the state governmental entity,
through promises or actions, of an affirmative duty to act on
behalf of the party who was injured; (2) knowledge on the part of
the state governmental entity's agents that inaction could lead
to harm; (3) some form of direct contact between the state
governmental entity's agents and the injured party; and (4) that
party's justifiable reliance on the state governmental entity's
affirmative undertaking." Syllabus Point 12, Parkulo v.
West Virginia Bd. of Probation and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996).
Per Curiam:See footnote 1
1
This case arises
from the July, 1991 murder of Alicia McCormick, a Charleston,
West Virginia social worker. Ms. McCormick was stabbed to death
in her apartment by Harold D. Gunnoe ("Gunnoe"), an
inmate at the Charleston Work Release Center ("CWRC"),
operated by the appellee West Virginia Department of Public
Safety, Division of Corrections ("DOC"), a state
agency. At the time of Ms. McCormick's murder, she was living in
an apartment building owned by the appellee, Donald Smith
("Smith").
On July 16, 1993,
the appellant Robert McCormick, as administrator of Alicia
McCormick's estate, filed a wrongful death suit in the Circuit
Court of Kanawha County against (a) the DOC and several of its
officials; (b) Donald Smith; and (c) Harold Gunnoe -- claiming
that these defendants' wrongful conduct proximately caused or
contributed to Ms. McCormick's death.
On August 25,
1994 the circuit court dismissed the DOC officials in their
individual capacities and dismissed the appellant's request for
punitive damages against the DOC and its officials. On January 3,
1997 the circuit court granted summary judgment against the
appellant on his claim against Smith. Finally, on May 8, 1997 the
circuit court granted a motion for summary judgment made by the
DOC and its officials in their official capacities. The appellant
appeals all of these rulings, which dismiss all of the
appellant's claims against the DOC, its officials, and Smith.See footnote 2 2
We reverse the
May 8, 1997 grant of summary judgment for the DOC and its
officials in their official capacities, but we affirm the circuit
court's other rulings.
I.
Facts and Background
In
1991, Gunnoe was serving a five-to-18 year imprisonment sentence
for second-degree murder. Gunnoe had stabbed to death Veronica
Blanton, a counselor whom Gunnoe met in a substance abuse
program. Gunnoe pled guilty to second-degree murder after his
first-degree murder conviction for Ms. Blanton's death was
overturned on the grounds that an illegally obtained confession
was used as evidence at his trial. See State v. Gunnoe,
179 W.Va. 808, 374 S.E.2d 716 (1988).
In addition to
the murder of Ms. Blanton, Gunnoe had a substantial record of
involvement with the criminal justice system. In over 15-plus
years, in addition to the Blanton murder, Gunnoe had been
arrested and charged with forgery, worthless checks, uttering,
burglary, breaking and entering, assault with a deadly weapon,
grand larceny, resisting arrest, escape and parole violation. In
a number of instances, however, no convictions followed the
arrests or charges.
On
March 28, 1990, after serving about three and one-half years in
prison for Ms. Blanton's murder, Gunnoe was transferred by the
DOC from the medium security prison at Huttonsville, West
Virginia, to the unsecured Charleston Work Release Center.
Gunnoe's conduct
at the CWRC was poor. He was removed from his first
"inside" job at the CWRC, a maintenance position, for
inadequate work. He quit or was fired from his first
"outside" job. He broke CWRC rules by cashing his first
paycheck instead of turning it in. He was fired from a second
outside job.
In September,
1990 Gunnoe pled guilty to 16 CWRC disciplinary charges of
fraudulent misrepresentation and failure to proceed or return,
before a DOC magistrate. Gunnoe was sentenced to return to
Huttonsville, but the sentence was suspended and Gunnoe was given
a punishment of "lost privileges" for 30 days.
Gunnoe continued
to perform poorly. He failed to attend counseling, failed to turn
in his paycheck, and he unlawfully operated a motor vehicle
without insurance. He was fired from a third outside job, and
lied about another job. In May, 1991 he was fired from a fourth
outside job -- for poor work habits, bad attitude, and refusal to
work.
In June 1991,
Gunnoe was discharged from a fifth outside job, because he
"constantly mouthed off, refused work details, refused to
work, made inappropriate comments to females, and had a bad
attitude with the supervisor." On June 5, 1991, DOC staff
summarized Gunnoe's history at the CWRC in a memo urging his
return to Huttonsville, as a "program failure."
Meanwhile,
in March of 1991, Gunnoe and his then-wife had moved into an
apartment in Charleston, next door to an apartment building owned
by the appellee Smith. (Apparently the CWRC allowed some inmates
who were assigned to the CWRC to reside away from the CWRC, on
"furlough" status.) Smith and Gunnoe spoke, and this
conversation led to Gunnoe beginning to perform part-time
maintenance work for Smith on several rental properties owned by
Smith.
Gunnoe and his
wife thereafter moved into one of Smith's apartment buildings,
agreeing that any work they performed for Smith would go toward
their rent. Gunnoe's wife cleaned some of Smith's vacant
apartments, and Gunnoe and his father constructed a retaining
wall for Smith.
At some point
after Smith met and employed Gunnoe, Smith learned that Gunnoe
was an inmate at the CWRC, that Gunnoe had been in prison, and
that Gunnoe had been convicted of murder.See footnote 3 3 According to Smith,
Gunnoe told Smith that Gunnoe had killed a man who raped Gunnoe's
sister.See footnote 4 4
Alicia McCormick was employed as a domestic violence counselor
and program director for the YWCA in Charleston. She ran an anger
control group that was frequented by work release inmates. On
about June 7, 1991, Ms. McCormick moved into an apartment at
Smith's Green Meadow apartments. (Green Meadow was not the
building where Gunnoe lived.)
In the latter
part of June, 1991, Gunnoe informed DOC employee Becky Jordan at
the CWRC that Gunnoe had met Ms. McCormick "by doing work at
her apartment." In Ms. Jordan's presence, Gunnoe referred to
Ms. McCormick as a "looker."
On about July 2,
1991, Ms. McCormick came to the CWRC to discuss with inmates the
relationship between alcohol and violence. Gunnoe was
"hanging out" in the yard, according to Ms. Jordan, and
Ms. Jordan and Ms. McCormick stopped to speak with Gunnoe.
According to Ms.
Jordan, Ms. McCormick thanked Gunnoe for hanging blinds for Ms.
McCormick at her apartment, and asked Gunnoe if he could locate
an air conditioner for Ms. McCormick's use. Ms. Jordan described
Gunnoe as "flirting" with Ms. McCormick, because he
thought "she was good looking." Ms. Jordan believed
that Gunnoe was deliberately present at the CWRC on that occasion
because he knew that Ms. McCormick would be there.
On about July 18,
1991, Gunnoe and Smith were at the apartment building where Ms.
McCormick lived, and Gunnoe whistled at Ms. McCormick as she came
down the stairs. Smith admonished Gunnoe.
On or about July
20, 1991, Gunnoe murdered Ms. McCormick in her apartment, by
stabbing her to death with a knife. Smith had changed the
McCormick apartment locks when Ms. McCormick moved in, and she
had the only key. The Charleston police concluded that Gunnoe's
entry to the McCormick apartment was not forcible.
II.
Standard of Review
A circuit court's entry of summary judgment is reviewed de novo. Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law. Syllabus Point 3, Aetna Casualty and Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
III.
Discussion
A.
Smith's Liability
The circuit court
determined that the appellee Donald Smith could not be liable to
the appellant under the appellant's theory of negligent hiring or
negligent retention. We agree.
There can be no
doubt that this court has recognized a cause of action based upon
a claim of negligent hiring (or negligent retention) -- as we
recently stated in State ex rel. Taylor v. Mills, ___
W.Va. ___, ___ n. 7, ___ S.E.2d ___, ___ n. 7, (No. 24150, Nov.
20, 1997.)See footnote 5 5
Paraphrasing
slightly a portion of our statement in Taylor, we will
assume for the purposes of the instant case that a fair
formulation of the inquiry upon which liability for negligent
hiring or retention should be determined is: "when the
employee was hired or retained, did the employer conduct a
reasonable investigation into the employee's background vis a vis
the job for which the employee was hired and the possible
risk of harm or injury to co-workers or third parties that could
result from the conduct of an unfit employee? Should the employer
have reasonably foreseen the risk caused by hiring or
retaining an unfit person?" Id.
The appellant
claims that Smith, when he learned that Gunnoe was a convicted
murderer, should have further investigated Gunnoe's background,
assessed whether Gunnoe posed a risk to third persons, and taken
appropriate steps to eliminate or minimize any risk -- presumably
by discharging Gunnoe, circumscribing his activities, more
closely supervising him, and/or warning Smith's tenants.
Upon a review of
the authorities referenced in Taylor, supra, it appears
that a primary question in determining whether an employer may be
held liable, based on a theory of negligent hiring or retention,
is the nature of the employee's job assignment, duties and
responsibilities -- with the employer's duty with repect to
hiring or retaining an employee increasing, as the risks to third
persons associated with a particular job increase. See
Ponticas v. K.M.S. Investments, 331 N.W.2d 907, 913 (Minn.
1983); see also note 4, supra.
In the instant
case, the circuit court, in granting summary judgment for Smith,
determined that the undisputed facts showed that: (1) Smith did
not give Gunnoe a key or other means of access to McCormick's
apartment; (2) Smith did not give Gunnoe duties which involved
contact with McCormick; (3) Smith did not give Gunnoe authority
or status which would lead Ms. McCormick to believe that he was
trustworthy or reliable; and (4) Smith did not condone or permit
any conduct by Gunnoe which was inconsistent with his limited,
non-tenant-related duties. (It is true that Gunnoe apparently
helped Ms. McCormick with window blinds, but there was no
evidence showing that Smith knew of this.)
Additionally,
there was no evidence that Smith had knowledge of any current
propensity for violence by Gunnoe, despite Gunnoe's murder
conviction. The fact that Gunnoe was on work release justifiably
gave Smith some degree of assurance that Gunnoe was not viewed by
the authorities as an actively dangerous person. Work release
personnel did not advise Smith of Gunnoe's poor record as an
inmate at the CWRC.
Under these
circumstances, we agree with the circuit court that Smith could
not be held liable under a theory of negligent hiring or
retention. Consequently, we affirm the grant of summary judgment
for Smith.
B.
The DOC's Liability
In the instant
case, any liability of the DOCSee footnote 6 6 is subject to and
controlled by the application of the "public duty"
doctrine -- and the "special duty" or "special
relationship" exception to that doctrine. See Parkulo v.
West Virginia Bd. of Probation and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996).
The public duty
doctrine states that a governmental entity's liability for
nondiscretionary governmental functions may not be predicated
upon the breach of a general duty owed to the public as a whole;
instead, only the breach of a duty owed to the particular person
injured is actionable. Wolfe v. City of Wheeling, 182
W.Va. 253, 256, 387 S.E.2d 307, 310 (1989).
The linchpin of
the "public duty doctrine" is that some governmental
acts create duties owed to the public as a whole and not to the
particular private person or private citizen who may be harmed by
such acts. Parkulo v. West Virginia Bd. of Probation and
Parole, 199 W.Va. 161, 172, 483 S.E.2d 507, 518 (1996).
The "special
relationship" or "special duty" exception to the
public duty doctrine states that if a special relationship exists
between a governmental entity and an individual which gives rise
to a duty to such individual, and the duty is breached causing
injuries, then a suit may be maintained against such entity. Syllabus
Point 3, Benson v. Kutsch, 181 W.Va. 1, 380 S.E.2d 36
(1989).
The public
duty doctrine and its 'special relationship' exception apply to
W.Va. Code § 29-12-5 actions against the State and its
instrumentalities, unless the doctrine is expressly waived or
altered by the terms of the applicable insurance contract.
Syllabus Point 10, Parkulo.See footnote 7 7
In cases arising under W.Va. Code § 29-12-5, 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 the facts.
Syllabus Point 11, Parkulo.
The four
requirements for the application of the "special
relationship" exception to W.Va. Code § 29-12-5 cases are
as follows: (1) An assumption by the state governmental entity,
through promises or actions, of an affirmative duty to act on
behalf of the party who was injured; (2) knowledge on the part of
the state governmental entity's agents that inaction could lead
to harm; (3) some form of direct contact between the state
governmental entity's agents and the injured party; and (4) that
party's justifiable reliance on the state governmental entity's
affirmative undertaking.
Syllabus Point 12, Parkulo.
This Court has
applied the public duty and special relationship doctrines in
cases involving persons who claim to have been injured as a
result of conduct by state agencies and state officials
supervising inmates and prisoners like Gunnoe. Jeffrey v.
W.Va. Dept. of Public Safety, 198 W.Va. 609, 482 S.E.2d 226
(1996) (per curiam); Parkulo, supra.
In the instant
case, the circuit court determined that there was no evidence
from which a fact finder could conclude that there was any
special relationship between the DOC and Ms. McCormick that would
give rise to a special duty on the part of the DOC to Ms.
McCormick -- and therefore, that summary judgment for the DOC
should be awarded.
We have carefully
reviewed the record, and although the evidence of such a special
relationship is not overwhelming, upon our de novo review,
we disagree with the circuit court's conclusion. We conclude that
such evidence is present to a sufficient degree to allow the
appellant's claims against the DOC and its officials in their
official capacities to survive a motion for summary judgment.
Specifically,
assuming as true and adopting all permissible inferences from the
record before the circuit court in favor of the appellant, a jury
could find that the DOC, by its invitation to Ms. McCormick and
by utilizing her services as a counselor, assumed an affirmative
duty to take reasonable actions to protect Ms. McCormick by
giving her cautionary information about Gunnoe, who had taken an
inappropriate personal interest in Ms. McCormick, and who the DOC
had reason to believe might have contact with her in
non-institutional settings.
The DOC argues
that the circuit court's granting of summary judgment for the DOC
is in accord with this Court's holdings in Parkulo, supra
and Jeffrey, supra, both of which involved persons injured
or killed by inmates on parole or some sort of work release.
However, in both of those cases, this Court agreed that there
were no facts that would permit finding a special relationship
between the governmental entity and the persons who were the
victims of the inmates' misconduct. That is not the situation in
the instant case.
A case which is
more analogous to the instant case is Randall v. Fairmont City
Police Department, 186 W.Va. 336, 412 S.E.2d 737 (1991). In Randall,
as in the instant case, there was an established
interconnectedness among the victim, her assailant and the public
safety agency. And in Randall, this Court found the
connections to be sufficient to raise a factual question to be
resolved by a jury as to whether the defendants breached a
special duty owed to the decedent -- even though there was no
allegation that the police had explicitly promised to protect the
victim -- because the police apparently did nothing to protect
the victim, after arguably gaining sufficient knowledge about her
and a particular individual so that a jury could find that a
reasonable law enforcement agency would have undertaken some
action to attempt to protect her.
In
the instant case, we follow the approach taken in Randall,
and we conclude that the circuit court's order granting summary
judgment against the DOC (and against the DOC officials in their
official capacities only) should be reversed, and the appellant's
claims based upon allegations of a special relationship and a
special duty should be reinstated.
C.
Other Issues
We have reviewed
the other assignments of error made by the appellant, including
the contention that the circuit court erred in dismissing the DOC
officials in their individual capacities and in dismissing the
appellant's claims for punitive damages. We do not disturb these
rulings by the circuit court.
IV.
Conclusion
The May 8, 1997
order of the circuit court granting summary judgment on behalf of
the DOC and the DOC officials in their official capacities is
reversed; the August 25, 1994 and January 3, 1997 orders of the
circuit court are affirmed. This case is remanded for further
proceedings in conformance with this opinion.
Affirmed
in part; reversed in part; and remanded.
Footnote: 1 1 We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W.Va. 197, 201 n.4, 423 S.E.2d 500, 604 n.4 (1992).
Footnote: 2 2 The circuit court also granted partial summary judgment for the appellant as to liability against Gunnoe; the issue of for what damages Gunnoe is liable is still before the circuit court. However, because the circuit court's rulings regarding Smith and the DOC and its officials dispose of their interest in the case, all of the parties agree -- as do we -- that this appeal of those rulings is properly before this Court. See Syllabus Point 2, Durm v. Heck's, Inc., 184 W.Va. 562, 401 S.E.2d 908 (1991).
Footnote: 3 3 There is a factual dispute in the discovery record about the extent of Smith's contact with the CWRC regarding Gunnoe. Two CWRC employees stated in depositions that they had spoken with Smith about Gunnoe and about Gunnoe's employment by Smith. Smith did not admit to having these conversations. Nothing in these reported conversations, however, substantively contradicted Smith's or other evidence about the scope of Gunnoe's employment by Smith.
Footnote: 4 4 It appears that Gunnoe was a smooth talker and personable. In a letter sent to the West Virginia Parole Board on July 16, 1991, just four days before Gunnoe murdered Ms. McCormick, O. C. Spaulding, who prosecuted Gunnoe for the Blanton murder, said "Mr. Gunnoe is very personable and easy to like . . . [however] he coldly and cruelly took a human
life. Doug has never shown or experienced any remorse . . . I believe Doug would kill again if the circumstances were to his advantage . . . ." (The DOC did not see this letter before Ms. McCormick's death.)
Footnote:
5 5
In Taylor, we stated:
This Court has
recognized a cause of action based upon negligent hiring. See
King v. Lens Creek Ltd. Partnership, 199 W. Va. 136, 483 S.E.2d 265 (1996); Thomson v. McGinnis, 195 W.Va. 465, 465 S.E.2d 922 (1995); Sisson v. Seneca Mental
Health/Mental Retardation Council, Inc., 185 W.Va. 33, 404 S.E.2d 425 (1991). A leading negligent hiring case is DiCosala
v. Kay, 91 N.J. 159, 450 A.2d 508 (1982).
One commentator
has described the test applied by courts in negligent hiring
cases as:
When the employee was hired, did the employer conduct a
reasonable investigation into the employee's background vis a vis
the job for which the employee was hired and the possible risk of
harm or injury to co- workers or third parties that could result
from the conduct of an unfit employee? Should the employer have
reasonably foreseen the risk caused by hiring an unfit person?
Shattuck, Cathie
A., "The Tort of Negligent Hiring and the Use
of Selection Devices: the Employee's Right of
Privacy and the Employer's Need to Know," 11 Indus.Rel.L.J.
2-3, and cases collected therein at notes 2-5. (1989).
The obtaining of
criminal history record information has been an issue in a number
of negligent hiring and retention cases. See, e.g., Cramer v.
Housing Opportunities Comm'n., 304 Md. 705, 501 A.2d. 35
(1985); Ponticas v. K.M.S. Investments, 331 N.W.2d 907
(Minn.1983); Parker v. Fox Vacuum, Inc., 732 S.W.2d 722
(Tex.App.--Beaumont 1987); Williams v. Feather Sound, Inc.,
386 So. 2d 1238 (Fla.App.1980).
Footnote: 6 6 In the instant case we apply the same legal principles to the claims against the DOC and its officials in their official capacities, and may refer to them collectively as "the DOC."
Footnote:
7 7
W.Va. 29-12-5 [1986 & 1996] applies to actions for which
the state has insurance coverage. In the instant case, the
appellant also argues that the "wrongful acts" language
in the DOC's insurance policy expressly waived or altered the
public duty doctrine. The circuit court rejected this argument,
and ruled that the public duty doctrine applies.
Because we find that there are facts in
the instant case which could support a finding of a special
relationship exception to the public duty doctrine, and reverse
for trial upon that theory, we do not express any opinion on the
merits of the appellant's argument on this issue -- and we do not
disturb the circuit court's ruling that the public duty doctrine
was not expressly waived or altered by the applicable insurance
contract.
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