Parkulo v. WV Board of Probation & Parole
Annotate this Case
September 1996 Term
___________
No. 23366
___________
CHANDRA K. PARKULO,
Plaintiff Below, Appellant
v.
WEST VIRGINIA BOARD OF PROBATION AND PAROLE
and THE WEST VIRGINIA DIVISION OF CORRECTIONS,
Defendant Below, Appellees
_______________________________________________________
Appeal from the Circuit Court of Cabell County
Honorable Alfred E. Ferguson, Judge
Civil Action No. 94-C-49
REVERSED AND REMANDED
_______________________________________________________
Submitted: September 17, 1996
Filed: November 15, 1996
John F. Parkulo
Anderson, Parkulo, Stansbury & Associates, L.C.
Beckley, West Virginia
and
David L. White
White, Smith, Morgan & Scantlebury, L.C.
Bluefield, West Virginia
Attorneys for the Appellant
David P. Cleek
Cleek, Pullin, Knopf, Fowler & Flanagan
Charleston, West Virginia
Attorney for the Appellee,
West Virginia Board of Probation and Parole
Cheryl Lynne Connelly
Campbell, Woods, Bagley, Emerson, McNeer & Herndon
Huntington, West Virginia
Attorney for the Appellee,
The West Virginia Division of Corrections
JUSTICE ALBRIGHT delivered the Opinion of the Court.
JUDGE RECHT sitting by temporary assignment.
SYLLABUS BY THE COURT
1. "Suits which seek no recovery from state funds, but rather allege that
recovery is sought under and up to the limits of the State's liability insurance coverage, fall
outside the traditional constitutional bar to suits against the State." Syl. pt. 2, Pittsburgh
Elevator v. W.Va. Board of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983).
2.
"W.Va. Code, 29-12-5(a) (1986), provides an exception for the State's
constitutional immunity found in Section 35 of Article VI of the West Virginia Constitution.
It requires the State Board of Risk and Insurance Management to purchase or contract for
insurance and requires that such insurance policy "shall provide that the insurer shall be
barred and estopped from relying upon the constitutional immunity of the State of West
Virginia against claims or suits."
Syl. pt. 1, Eggleston v. W.Va. Dept. of Highways, 189
W.Va. 230, 429 S.E.2d 636 (1993).
3.
In the future, this Court will not review suits against the State brought under
the authority of W.Va. Code § 29-12-5 unless it is alleged that the recovery sought is limited
to the applicable insurance coverage and the scope of the coverage and its exceptions are
apparent from the record.
4.
The Legislature may direct such limitation or expansion of the insurance
coverages and exceptions applicable to cases brought under W.Va. Code § 29-12-5, as, in
its wisdom, may be appropriate. The Legislature has also vested in the State Board of
Insurance (Risk and Insurance Management) considerable latitude to fix the scope of
coverage and contractual exceptions to that coverage by regulation or by negotiation of the
terms of particular applicable insurance policies.
5.
If the terms of the applicable insurance coverage and contractual exceptions
thereto acquired under W.Va. Code § 29-12-5 expressly grant the State greater or lesser
immunities or defenses than those found in the case law, the insurance contract should be
applied according to its terms and the parties to any suit should have the benefit of the terms
of the insurance contract.
6.
Unless the applicable insurance policy otherwise expressly provides, a State
agency or instrumentality, as an entity, is immune under common-law principles from tort
liability in W.Va. Code § 29-12-5 actions for acts or omissions in the exercise of a legislative
or judicial function and for the exercise of an administrative function involving the
determination of fundamental governmental policy.
7. The common-law immunity of the State in suits brought under the authority
of W.Va. Code § 29-12-5 (1996) with respect to judicial, legislative, and executive (or administrative) policy-making acts and omissions is absolute and extends to the judicial,
legislative, and executive (or administrative) officials when performing those functions.
8. "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. To the extent that State ex rel. Boone National Bank of Madison v. Manns, 126
W.Va. 643, 29 S.E.2d 621 (1944), is contrary, it is overruled." Syllabus, State v. Chase
Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992).
9. In cases arising under W.Va. Code § 29-12-5, and in the absence of express
provisions of the insurance contract to the contrary, the immunity of the State is coterminous
with the qualified immunity of a public executive official whose acts or omissions give rise
to the case. 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 State's immunity of the State must be determined on
a case-by-case basis.
10. 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.
11.
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.
12. 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.
13. In cases arising under W.Va. Code § 29-12-5, the Board of Probation and
Parole, being a quasi-judicial body, is entitled to absolute immunity from tort liability for
acts or omissions in the exercise of its judicial function, unless such immunity is expressly
waived by the applicable insurance contract.
Albright, Justice:
Appellant, Chandra Parkulo, is appealingSee footnote 1 a final order of the Circuit Court of
Cabell County, West Virginia, granting summary judgment to the West Virginia Division of
Corrections and the West Virginia Board of Probation and Parole, refusing to grant a motion
for reconsideration of an earlier order dismissing the action on the motion of the West
Virginia Board of Probation and Parole, and refusing to grant a motion by appellant to file
an amended complaint, all for the reason that the trial court considered appellant's civil
action barred by the so-called "public duty doctrine" and considered that appellant did not
meet the requirements of the so-called "special relationship" exception to that doctrine.
After reviewing the record, we find that, on common-law principles, the Board of Probation
and Parole may claim quasi-judicial immunity and the West Virginia Division of Corrections
may claim the benefit of the public duty doctrine. However, we further find that there is
insufficient evidence regarding whether the insurance applicable to this action, acquired by
the State Board of Insurance (Risk and Insurance Management) of West Virginia, waived
either or both of these defenses. Therefore, we reverse and remand for a determination as to whether the State's insurance contract provides coverage notwithstanding the availability
of these defenses.
FACTS
Late on the evening of February 9, 1992, as appellant was walking across the
campus of Marshall University in Huntington, West Virginia, she was hit and knocked to the
ground by a vehicle being driven by Emmitt Dawson McCrary, Jr., a convicted criminal who
had been released from prison. McCrary then struck appellant in the head with a blunt object
and dragged her into the vehicle, which McCrary then drove from the scene. Following the
abduction, McCrary repeatedly raped appellant, sexually assaulted her with a screwdriver,
beat her, and eventually left her nude beside the roadway near the West Virginia-Kentucky
state line. A passing motorist observed her, rescued her, and took her to the hospital, where
she underwent treatment for the physical injuries she sustained. McCrary, later arrested in
Boyd County, Kentucky, was tried for the crimes involving appellant and sentenced to
prison. He subsequently died there. According to appellant, at the time McCrary committed
the crimes involving appellant, he had been released from prison by the West Virginia Board
of Probation and Parole and was then under parole supervision by the West Virginia Division
of Corrections.
Appellant brought this action in January, 1994, naming as defendants the West
Virginia Board of Probation and Parole (the "Board" or the "Parole Board")See footnote 2 and the West
Virginia Division of Corrections ("Corrections" or the "Division of Corrections").See footnote 3
Appellant's complaint sought recovery from the two public bodies, as entities, and did not
seek recovery against their respective officers or employees. The complaint alleged that the
Board, in granting McCrary parole, and the Division of Corrections, in supervising McCrary
while he was on parole, violated their respective statutory duties, acted outside the scope of
their respective official responsibilities, and, through their respective employees, acted
negligently, in bad faith, and in a wanton and reckless manner. As a proximate result, the
complaint alleged, appellant was injured, for which she sought damages. Appellant
subsequently served a motion to amend the complaint, but the record does not reflect the
proposed amendments.
On March 1, 1994, the Parole Board filed a motion to dismiss, assigning
multiple grounds. It appears that the motion was treated as a motion under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. The Parole Board asserted that it was immune
from suit because its function in granting or denying parole is judicial or quasi-judicial in
nature and asserted that the employees of the Board were acting in the scope of their
authority. On March 10, 1994, the Division of Corrections served its answer, which, in
addition to denying substantive allegations of the complaint, raised several affirmative
defenses, including the doctrine of sovereign immunity, the doctrine of qualified immunity,
the doctrine of quasi-judicial immunity, lack of duty owed to the plaintiff, and lack of subject
matter jurisdiction.
By letter of February 1, 1995, the circuit judge advised counsel of his decision
on the Parole Board's motion to dismiss. The body of the opinion letter reads as follows:
I am of the opinion to grant the defendant's Motion to
Dismiss the plaintiff's complaint. I am of the opinion that the
act of granting parole is a judicial or quasi-judicial function and
that there is absolute immunity from liability as to each of these
defendants. Counsel for the defendants is to prepare an Order
reflecting the Court's decision. Such Order should reflect the
plaintiff's objection to the Court's ruling in this matter.
(Emphasis added.)
The consequent order granting the Parole Board's motion to dismiss was
entered on April 12, 1995. The order stated, in relevant part:
On the 21st day of June, 1994, came the parties by
counsel, for hearing on the Motion to Dismiss heretofore filed by defendants and the responses and briefs filed by the parties
[sic] is of the opinion to grant said Motion to Dismiss on the
ground of immunity, judicial or quasi-judicial, which is more
fully set forth in the Court's letter opinion of February 1, 1995,
which is incorporated herein and attached as an exhibit to this
Order.
It is therefore, ORDERED that the Motion to Dismiss be
granted with prejudice on the grounds of immunity alleged
therein and that this case be dismissed from the docket of this
Court. (Emphasis added.)
On Monday, April 24, 1995, appellant served a motion asking the trial court
to reconsider its order of dismissal. Appellant complained that the order dismissed the
Division of Corrections even though Corrections had not moved for dismissal and that the
trial court's grounds for dismissing the case had not been adequately articulated. Thereafter,
on August 14, 1995, the Division of Corrections filed a motion for summary judgment,
arguing that, pursuant to the public duty doctrine, Corrections had no duty to protect
appellant. After the hearing, the trial court, by order entered September 15, 1995, denied
appellant's motion for reconsideration, denied appellant's earlier motion to amend her
complaint, and granted the motion of the Division of Corrections for summary judgment,
stating:
I am of the opinion that her [appellant's] cause of action against
the defendants must be dismissed as a matter of law. The
plaintiff does not meet the requirements of the "special
relationship exception." Her claims are barred by the Public
Duty Doctrine. There was no duty owed by either of the
defendants to this particular plaintiff and, therefore, no breach
of such duty occurred. (Emphasis added.)
It is from this order of September 15, 1995, that appellant appeals.See footnote 4
STANDARD FOR REVIEW
It appears that after the hearing on appellant's motion to reconsider the order
entered April 12, 1995, on her motion to file an amended complaint, and on the Division of
Corrections' motion for summary judgment, the trial court's order of September 15, 1995,
can best be characterized as a grant of summary judgment as to both the Board of Probation
and Parole and the Division of Corrections. Accordingly, our standard for review is de novo.
"'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)." Syl. pt. 9, Riffe v. Armstrong,
No. 22980 (W.Va. July 17, 1996).
ASSIGNMENTS OF ERROR
Appellant, Chandra K. Parkulo, assigns two errors. She contends that the
lower court erred in finding that appellee Parole Board enjoys judicial immunity. She also
asserts that the lower court erred in finding that recovery may not be had against appellee
Division of Corrections by reason of the so-called "public duty doctrine". These assignments
raise two distinct legal concepts on which appellees and their insurer or insurers successfully
based their defense below:
(1) That the Appellees, as instruments of the State, are
entitled to claim some form of governmental immunity arising
from the common law independently of the sovereign immunity
granted the State by our Constitution, and
(2) That the Appellant can not maintain an action in
negligence for any breach of Appellees' duties to enforce
regulatory and penal statutes, because such duty is owed to the
public generally and not to a particular person harmed by any
such breach.
CONSTITUTIONAL IMMUNITY AND
THE LIMITED STATUTORY BASIS OF ANY LIABILITY.
We begin our discussion by reviewing the limited statutory basis for the
exercise of jurisdiction by the courts of this State over any claim against that State and its
agencies. Article VI, § 35 of the West Virginia Constitution grants immunity from claims
against the State. That section states, in part: "The State of West Virginia shall never be
made defendant in any court of law or equity[.]" As noted above, appellees, the Parole
Board and the Division of Corrections, defendants below, are instrumentalities of the State.See footnote 5
This Court has long held that Article VI, § 35 of the State Constitution grants sovereign
immunity to the State and that the agencies and instrumentalities of the State are entitled to
the benefit of that immunity.See footnote 6 Accordingly, under the traditional view, the claims giving rise to this appeal may not be prosecuted in the courts by reason of the sovereign immunity of
the State. Under that view, the remedy available to appellant, if any, would be to seek a
recognition by the Legislature of her claim as a moral obligation of the State pursuant to
W.Va. Code § 14-2-1, et seq., or W.Va. Code § 14-2A-1, et seq., and the procedures
employed prior to the enactment of those articles of the Code.
However, in addition to providing a method of redressing claims against the
State as moral obligations of the State, the Legislature has also authorized the purchase of
liability insurance providing coverage of State "property, activities and responsibilities", in
spite of the fact that the State was and is immune from suit in the law courts of the State. See
Ch. 96, Acts of the Legislature, 1957, and W.Va. Code § 29-12-5, as thereafter amended and
reenacted. In Pittsburgh Elevator v. W.Va. Board of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983), the Court addressed the interaction of the insurance coverage within the State's
sovereign immunity. In syllabus point 2, the Court concluded, "[s]uits which seek no recovery from state funds, but rather allege that recovery is sought under and up to the limits
of the State's liability insurance coverage, fall outside the traditional constitutional bar to
suits against the State." Later, in syllabus point 1 of Eggleston v. W.Va. Dept. of Highways,
189 W.Va. 230, 429 S.E.2d 636 (1993), this Court analyzed the State's statutory authority
to purchase liability insurance and a litigant's consequent ability to maintain an action in the
courts of this State for recovery under that insurance despite the State's immunity, as
follows:
W.Va. Code, 29-12-5(a) (1986), provides an exception
for the State's constitutional immunity found in Section 35 of
Article VI of the West Virginia Constitution. It requires the
State Board of Risk and Insurance Management to purchase or
contract for insurance and requires that such insurance policy
"shall provide that the insurer shall be barred and estopped from
relying upon the constitutional immunity of the State of West
Virginia against claims or suits."
We reiterated this position in State ex rel. W.Va. Dept. of Transportation, Highways Division
v. Madden, 192 W.Va. 497, 500, 453 S.E.2d 331, 334 (1994) (per curiam), where we said,
"these cases stand for the proposition that coverage for such liability accruing from alleged
negligent acts by the State is covered by the limits of the State's liability insurance coverage
and not state funds".
The statutory provision applicable to this action, authorizing the purchase of
such liability insurance by the State, W.Va. Code § 29-12-5(a) (1986),See footnote 7 provided as follows:
The board [of risk and insurance management] shall have
general supervision and control over the insurance of all state
property, activities and responsibilities, including the
acquisition and cancellation thereof; determination of amount
and kind of coverage, including, but not limited to, deductible
forms of insurance coverage, inspections or examinations
relating thereto, reinsurance, and any and all matters, factors
and considerations entering into negotiations for advantageous
rates on and coverage of all such state property, activities and
responsibilities. Any policy of insurance purchased or
contracted for by the board shall provide that the insurer shall be
barred and estopped from relying upon the constitutional
immunity of the state of West Virginia against claims or suits;
Provided, That nothing herein shall bar the insurer of political
subdivisions from relying upon any statutory immunity granted
such political subdivisions against claims or suits . . . . [The
board] shall endeavor to secure the maximum protection against
loss, damage or liability to state property and on account of
state activities and responsibilities by proper and adequate
insurance coverage through the introduction and employment
of sound and accepted methods of protection and principles of
insurance . . . . (Emphasis added.)See footnote 8
Accordingly, it appears that, notwithstanding the sovereign immunity of the
State, appellant is entitled to maintain an action against the Parole Board and the Division of Corrections seeking recovery under and up to the limits of the State's liability insurance
coverage, for loss or damage on account of State activities and responsibilities, provided that
the State Board of Insurance (Risk and Insurance Management) has acquired that "kind of
coverage", which would afford recovery under the circumstances of this case. In attempting
to determine whether appellees in the present proceeding are insured with respect to the State
activities and responsibilities which are the subject of this action, we have examined the
record before us, including the complaint and the motion for an amended complaint, and the
State register of regulations. Unfortunately, the record before us is silent regarding, and we
find no applicable regulations which speak to, the scope of coverage or the contractual
exceptions to that coverage. In short, we cannot determine, on the record before us, whether
appellant's action is or is not within the exception to the constitutional sovereign immunity
of the State sanctioned by our ruling set forth in syllabus point 1 of Eggleston, supra.
We are advised by the representations of counsel during oral argument that
some specie of insurance coverage indeed exists relating to the Parole Board and the
Division of Corrections. Reluctantly, we will proceed to analyze the errors assigned by the
parties on the premise that nothing contained in the applicable policy or policies expressly
addresses the issues appealed. We recall and emphasize here that Pittsburgh Elevator
approved only those suits against the State which "allege that recovery is sought under and
up to the limits of the State's liability insurance coverage", acquired under the authority of
W.Va. Code § 29-12-5. We emphasize that in actions such as the one before us, the pleadings should state that qualification, limiting the relief sought to the coverage actually
provided by the applicable insurance policies. Ideally, the text of the applicable insurance
coverages afforded, including any applicable contractual exceptions or limitations contained
in the policies, should be included in the record at an early stage of the proceedings so that
the trial court can readily determine whether, and to what extent, claims and causes of action
pleaded are made subject to litigation in the courts by reason of W.Va. Code § 29-12-5 and
the applicable insurance policy or policies. In the future, this Court will not review suits
against the State brought under the authority of W.Va. Code § 29-12-5 unless it is alleged
that the recovery sought is limited to the applicable insurance coverage and the scope of the
coverage and its exceptions are apparent from the record. Upon remand of this action, if it
is to proceed, appellant should be permitted to promptly amend her pleadings to include the
necessary allegation limiting the relief sought to the insurance coverage and appellees
should promptly provide the applicable coverage terms and contractual exceptions.
RECONCILING THE CONCEPTS OF
COMMON LAW GOVERNMENTAL IMMUNITIES,
THE PUBLIC DUTY DOCTRINE, AND
THE INSURANCE EXCEPTION TO CONSTITUTIONAL IMMUNITY
As noted above, appellees successfully relied below on claims of governmental
immunity arising from the common law independently of the sovereign immunity of the
State. Specifically, the Parole Board asserted there, and asserts here, that it was clothed with quasi-judicial immunity. Appellant argues here that any judicial or quasi-judicial immunity
founded on the common law protects only against the personal liability of the public official
entitled to the immunity. Appellant also argues that, in any event, such common-law
immunities as may apply protect only local governments, not the State government. The
essence of appellant's position, as we discern it, is that, given the direction of W.Va. Code
§ 29-12-5 for the State to purchase liability insurance on "all state . . . activities and
responsibilities", any judicial or quasi-judicial immunities found in the common law do not
inure to the benefit of the State (at least to the extent of its insurance coverage).
We must now determine whether the State and its insurers may claim the
benefit of immunities found in the common law in a W.Va. Code § 29-12-5 action where the
applicable insurance contract is silent on the issue. We recognize that the task we face puts
us on a "slippery slope". On the one hand, the Legislature has enacted W.Va. Code § 29-12-
5 to provide some level of redress in the courts to those allegedly injured by the actions of
the State, limited to the insurance coverages thus made available. While the statute expressly
authorizes local governments (political subdivisions) to claim the benefit of "statutory
immunities" and expressly prohibits the assertion of constitutional immunity, it is silent on
common-law immunities. Moreover, the obvious intent of the statute to provide some
redress in the courts for those injured by State action could be totally or substantially
defeated by an overbroad extension of common-law immunities to all State agency "activities
and responsibilities". Further, the State Board of Insurance (Risk and Insurance Management) is clearly clothed with the authority to tailor the coverages and exceptions to
those deemed necessary to the protection of the State and those wishing to assert a claim
against it.
In light of those considerations, it may be argued that this Court should not
reduce by judicial construction the protections it appears that the statute and the resulting
insurance provide. In short, it is deceptively inviting to conclude that no common-law
immunities apply which are not expressly set out in the State's insurance policies, and that
a private action should therefore lie for the breach of any duty by any agency or
instrumentality of the State. Under that analysis, in the absence of immunities and other
defenses unique to the status of a prospective defendant as an instrument of government, a
private suit might lie against the Legislature -- if not legislators -- for any number of real or
imagined deficiencies in legislation, appropriations, or other actions, or against the courts --
if not the judges and other quasi-judicial officers -- for any negligence alleged in the judicial
processes and against a variety of public offices, agencies, or instrumentalities, so long as
the alleged wrong is covered by insurance and not expressly excluded by the terms of the
policy or policies.
Our consideration of this dilemma has prompted a review of the leading cases
in this State relating to governmental immunity. We have a paucity of cases applying or
considering common-law immunities of the State or its instrumentalities, as entities, because the State has long enjoyed constitutional immunity against suit. To be sure, we have some
jurisprudence dealing with the personal liability of State officers for alleged negligence in
the performance of official duties, but relatively little law dealing with actions against the
entities and public offices comprising the State government. However, we have a
considerable jurisprudence involving the common-law immunities of local governments,
especially since the landmark case of Long v. The City of Weirton, 158 W.Va. 741, 214 S.E.2d 832 (1975). In an effort to perceive what common-law immunities, if any, apply to
the State and its instrumentalities in actions brought under W.Va. Code § 29-12-5, it is useful
to look at the highlights of the modern development of that law and recent cases relating to
so-called qualified or official immunity of State officers from personal liability for alleged
wrongs in the performance of or related to their duties.
In 1974, in Higginbotham v. City of Charleston, 157 W.Va. 724, 204 S.E.2d 1 (1974), overruled on other grounds, O'Neil v. City of Parkersburg, 160 W.Va. 694, 237 S.E.2d 504 (1977), this Court held that Art. VI, § 35 of the West Virginia Constitution,
granting sovereign immunity to the State, does not apply to municipalities. Instead, a
unanimous Court said that cities could be held liable in private actions for failing to repair
and maintain its streets and sidewalks, in violation of a State statute, W.Va. Code § 17-10-
17, found by the Court to impose a duty to repair and maintain. Chief Justice Caplan said
in that opinion that even if cities were immune at common law, the statute imposed liability
on the city for the pleaded violation of it.
A short time later, in Long v. City of Weirton, 158 W.Va. 741, 214 S.E.2d 832
(1975), this Court recognized that it had long followed a general rule that the municipalities
of this State enjoyed a broad immunity for "governmental" functions. The case then before
the Court resulted from personal injuries received incident to an explosion occurring after
a gas line buried in a city street was exposed by third parties doing construction work. The
line was hit by a workman operating machinery, causing a gas leak that was immediately
reported to the city and the gas company. Neither responded promptly, and the explosion
ensued, injuring a young girl. After trial, a jury verdict was returned against the gas
company, but the city was exonerated by the trial court on the basis of immunity from suit
for "governmental functions". The gas company appealed, seeking to impose shared liability
on the city. In a scholarly unanimous opinion by Chief Justice Haden, the Court held in
syllabus point 10, "[t]he rule of municipal governmental immunity is now abolished in this
State." In syllabus point 11, the Court also held that "[a] municipal corporation shall be
liable, as if a private person, for injuries inflicted upon members of the public which are
proximately caused by its negligence in the performance of functions assumed by it."
(Emphasis added.)
The opinion traced the history of the rule of municipal governmental immunity,
demonstrating that although the rule had been said to have arisen from the common law, it
had not in fact been adopted by the Commonwealth of Virginia until 1867, after the creation
of this State. The Court concluded that, notwithstanding some West Virginia cases that appeared to apply common-law governmental immunity to municipalities, the rule previously
recognized was not a part of the common law of Virginia at the time of the creation of this
State. Therefore, the Court concluded, this Court shared with the Legislature the power to
modify our prior holdings on municipal governmental immunity. Commenting that
Higginbotham effectively overruled prior cases treating the State's constitutional immunity
as delegated to the cities, the Court strongly disapproved and abolished the prior distinction
permitting actions against cities for "proprietary" functions but prohibiting such actions for
"governmental" functions. Two facets of the opinion are particularly noteworthy for our
current purposes: (1) The determination that municipal governmental immunity was subject
either to judicial or legislative modification, and (2) the holding that cities might be subject
to suit "as if a private person." Long, 158 W.Va. at 784, 214 S.E.2d at 859. We discern, as
noted later in this opinion, that subsequent decisions by this Court may be read as narrowing
the sweep of that language by the application of the public duty doctrine.
The thrust of Long was applied to suits against other organs of local
government in succeeding opinions by this Court. In Ohio Valley Contractors v. The Board
of Education of Wetzel County, 170 W.Va. 240, 293 S.E.2d 437 (1982), the abolition of
common-law governmental immunity was extended to county boards of education. In
Gooden v. County Commission of Webster County, 171 W.Va. 130, 298 S.E.2d 103 (1982),
the abolition of common-law governmental immunity was extended to county commissions.
In Gooden, the Court employed parallel language with that found in Long: "A county commission shall be liable, just as a private citizen, to members of the general public, for
injuries proximately caused by the negligence of its employees performing their duties." Syl.
pt 2, in part, Id. (emphasis added). The apparent cumulative effect of these cases was to
abolish governmental immunity for local governments in West Virginia.
Notwithstanding the apparent total abolition of the doctrine of governmental
immunity for local governmental units in West Virginia, this Court has limited the effect of
that ruling by invoking the so-called "public duty doctrine". Benson v. Kutsch, 181 W.Va.
1, 380 S.E.2d 36 (1989), involved the alleged negligence of the City of Wheeling in failing
to inspect an apartment occupied by the plaintiffs for compliance with the city building code,
particularly in failing to find and report the absence of required smoke detectors. The suit
alleged that a fire resulted in damage to the plaintiffs which might have been avoided had the
city conducted the inspections and enforced its building code. This Court examined the
"public duty doctrine" for the first time, perhaps, the Court explained, because prior to Long
cities enjoyed immunity for all "governmental" functions. Prior to Long, the Court recalled,
cities could be held liable only for "proprietary functions" and violations of statutes which
imposed a duty on the city. Therefore, the Court concluded, "municipal governmental
immunity foreclosed suit and there was little occasion to utilize the [public duty] doctrine"
before then. Noting that the Wheeling building code did not operate to impose a separate
statutory duty of inspection on the City of Wheeling, the Court defined the public duty
doctrine as providing "that a governmental entity is not liable because of its failure to enforce regulatory or penal statutes". Syl. pt. 1, in part, Benson v. Kutsch, Id. This doctrine, the
Court said, is not a theory of governmental immunity, "although in practice it achieves much
the same result". Id. at 2, 380 S.E.2d at 37.
We recognize that the "public duty doctrine" does not rest squarely on the
principle of governmental 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. Nevertheless, Benson and subsequent cases applying the "public duty doctrine"
may be fairly seen as narrowing the holdings of Long, Ohio Valley Contractors, Inc., and
Gooden that local governments would be subject to suit "as if a private person" and "just as
a private citizen". 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. Therefore, the nature of the defendant as a
governmental entity is invoked, which operates to distinguish the defendant from "a private
person" or a "private citizen".
In Benson, the Court also discussed the "special relationship" exception to the
public duty doctrine. The Court determined that no "special relationship" existed under the
facts of the case, although it discussed, without overtly adopting, factors other courts had
considered in determining whether a "special relationship" existed. In keeping with the
position advanced by appellant in the case sub judice, the thrust of the exception as recognized in Benson is that, given certain circumstances, courts may find that such a
"special relationship" has been created between the public body and a particular private
citizen so that the public body may be said to owe a duty to that particular private person,
in addition to and apart from any duty owed the public in general. In short, utilizing the
principle of negligence law that one may only recover for the breach of a duty owed that
person, the Court adopted a doctrine which provided the functional equivalent of
governmental immunity for local governmental units, absent the circumstances necessary to
create a "special relationship". In place of the traditional inquiry as to whether the conduct
alleged in a given law suit against a local government was "governmental" or "proprietary",
the inquiry after Benson appears to be whether the circumstances create a "special
relationship" between the local governmental unit and the plaintiff.
The public duty doctrine was developed further in Wolfe v. City of Wheeling,
182 W.Va. 253, 387 S.E.2d 307 (1989). In that case, the city fire department failed to
respond to several calls for assistance from a home owner living outside the city limits who
had, perhaps inadvertently, been billed for and had paid the city a fire fee. The home for
which the fee had been paid caught fire, and the fire department would not respond under
circumstances which indicated that a prompt response would have greatly reduced the
damage from the fire. After a devastating fire which virtually destroyed the home, the City
of Wheeling attempted to return the incorrectly assessed and collected fee. The homeowner
refused to accept the return of the fee and sued the City for negligence in responding to the fire. The trial court certified questions to this Court regarding the public duty doctrine. This
Court reiterated its adoption of the "special relationship" test, saying that the duty to fight
fires and provide police protection runs to all citizens and raises no liability to a particular
individual for the failure to do so, absent a "special duty" to do so.
In Wolfe, a four-point test for the existence of a "special relationship" was
adopted: "(1) [A]n assumption by the local governmental entity, through promises or
actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge
on the part of the local governmental entity's agents that inaction could lead to harm; (3)
some form of direct contact between the local governmental entity's agents and the injured
party; and (4) that party's justifiable reliance on the local governmental entity's affirmative
undertaking." Syl. pt. 2, in part, Id. In syllabus point 3 of Wolfe, the Court held expressly
that the applicability of the special relationship exception to the public duty doctrine would
often be a question of fact. Finally, the Court recited that the doctrine and its exception
applied to suits involving "non-discretionary" functions of city government. The Court did
not discuss in detail its perceived distinction between "non-discretionary" and
"discretionary" functions but did note, in keeping with the line of authority begun by
Higginbotham, that the liability of city governments might also be predicated on "a
distinctive statutory duty", in addition to those arising from "non-discretionary"
governmental functions. Wolfe, 182 W.Va. at 258 n.8, 387 S.E.2d at 312 n.8.
Finally, we turn to a highly instructive opinion rendered by Justice McHugh
in Randall v. Fairmont City Police Department, 186 W.Va. 336, 412 S.E.2d 737 (1991).
In that case, a claim was asserted against the City of Fairmont Police Department for failing
to respond to and protect a citizen who had called the police department asking for help
because a person, who later killed her, had harassed and threatened her and she feared for
her safety. The Court upheld the constitutionality of the Local Governmental Tort Claims
and Insurance Reform Act, W.Va. Code § 29-12A-1, et seq., against claims that it denied
remedies at law guaranteed under our State Constitution and violated equal protection. It
construed the "immunity" provided in W.Va. Code § 29-12A-5(a)(5) against suits for failure
to provide adequate police, law enforcement, or fire protection as stating the common-law
public duty doctrine with respect to those functions and determined that, notwithstanding the
"immunity", the "special relationship" exception applied and the city was subject to suit if
such a "special relationship" were proven. In reaching the conclusion that this particular
"immunity" invoked the public duty doctrine and could be overcome by the showing of a
"special relationship", the Court relied, at least in part, on "the general rule of construction
in governmental tort legislation cases favoring liability, not immunity: [U]nless the
legislature has clearly provided for immunity under the circumstances, the general common-
law goal of compensating injured parties for damages caused by negligent acts must prevail."
186 W.Va. at 347, 412 S.E.2d at 748.
In Randall, the Court restricted the public duty doctrine to "liability for
nondiscretionary (or 'ministerial' or 'operational') functions" and noted that at common law,
a local governmental agency was immune from tort liability for acts or omissions constituting
the exercise of a "discretionary" function. In its note,See footnote 9 the Court defined a "discretionary"
function as "the exercise of a legislative or judicial function or the exercise of an
administrative function involving the determination of fundamental governmental policy",
citing Restatement (Second) of Torts § 895C(2)(a)-(b) (1977). The Court's note further
suggests that W.Va. Code § 29-12A-5(a)(1)-(2), (4) (1986), the Local Governmental Tort
Claims and Insurance Reform Act, incorporated the common-law rule granting local
governments immunity with respect to "[l]egislative and quasi-legislative functions, judicial,
quasi-judicial and prosecutorial functions" and the "adoption or failure to adopt a law . . .
rule, regulation or written policy".See footnote 10 Finally, the Court characterized the Local Governmental
Tort Claims and Insurance Reform Act as an appropriate legislative reaction to the abolition
by this Court of the doctrine of municipal, county, and other political subdivision
governmental immunity, as reflected by Long and its progeny.
By drawing the distinction that the immunity provided by W.Va. Code § 29-
12A-5(a)(1)-(2),(4), with respect to "[l]egislative or quasi-legislative functions", "[j]udicial, quasi-judicial or prosecutorial functions" and the "[a]doption or failure to adopt a law . . .
rule, regulation or written policy", incorporates the rule of common-law immunity while the
"immunities" granted by W.Va. Code § 29-12A-5(a)(5), relating to fire and police protection,
are subject to the public duty doctrine and its exception for a "special relationship", the
opinion mirrors the two legal concepts at issue in the case before us and strongly suggests
that the protection afforded local governments for legislative, judicial, and administrative
policy-making functions, defined by the opinion as "discretionary", differs in character and
scope from the protection afforded other functions of the local governments. The obvious
implication is that the former protection, grounded in the law of immunities, protects the
local government entity as well as its officers, while the latter ones, grounded in the public
duty doctrine, achieve a like result by way of the law of negligence, with an exception for
"special relationships" which would not be available were the protection actually an
immunity.
Perhaps the leading case relating to the common-law immunities available at
the State level, as opposed to the local government level, is State v. Chase Securities, Inc.,
188 W.Va. 356, 424 S.E.2d 591 (1992). That case involved a third-party complaint against
members of the State Board of Investments, in their individual capacities, for alleged
negligent actions in the management of the State's investments, resulting in injury to the
complainants. Complainants did not attempt to impose liability against the State Board as an entity, but attempted to impose personal liability on the members of the Board for their
official actions. This Court held that:
A public executive official who is acting within the scope
of his authority and is not covered by the provisions of W.Va.
Code, 29-12A-1, et seq., 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. To the extent that State ex rel. Boone National
Bank of Madison v. Manns, 126 W.Va. 643, 29 S.E.2d 621
(1944), is contrary, it is overruled.
Id. at syl. pt. 1.
Chase describes a "qualified immunity for executive officials, which is to be
distinguished from the absolute immunity conferred on judges and legislators" and defines
that immunity as an affirmative defense which must be pleaded by the official. Chase, 188
W.Va. at 362, 424 S.E.2d at 597. The opinion derides the distinction between "ministerial"
and "discretionary" functions as arbitrary and difficult to apply and "not needed in order to
apply the general qualified immunity standard" adopted in the case. Chase, 188 W.Va. at
364, 424 S.E.2d at 599. That standard, drawn from federal civil rights cases, was first
endorsed in this State in Bennett v. Coffman, 178 W.Va. 500, 361 S.E.2d 465 (1987).
We also spoke to qualified or official immunity in Clark v. Dunn, 195 W.Va.
272, 465 S.E.2d 374 (1995). That opinion appeared to resurrect the distinction between "discretionary" and "non-discretionary" governmental functions, although it clearly applied
the Chase rule. The case applied qualified immunity to the actions of a conservation officer,
acting within the scope of his employment, and allowed the doctrine to be applied for the
benefit of the State agency which employed the officer unless the applicable insurance policy
of the State waived the defense. The case cited and relied in part on Goines v. James, 189
W.Va. 634, 433 S.E.2d 572 (1993), which used, in a slightly altered form, the same test as
Chase and applied the doctrine for the protection of a city police officer against personal
liability.
Finally, we note that this Court has recently discussed judicial immunity in two
cases. In Carey v. Dostert, 185 W.Va. 247, 406 S.E.2d 678 (1991), we held that "judges in
this jurisdiction are absolutely immune from suit for the results of any judicial act performed
by them while acting in their official capacity." 185 W.Va. at 253, 406 S.E.2d at 684. In
that case, we said that a judge acting in his judicial capacity did not give up the protection
of judicial immunity by providing the public with information contained in the public record,
whether through the press or otherwise. On the other hand, in Roush v. Hey, ___ W.Va. ___,
475 S.E.2d 299 (1996), we held that the appearance by a judge on a nationally televised
program, dedicated to contentious discussion of politically and socially sensitive issues, in
order to vindicate a position expressed in a decision in a pending case is not a function
normally performed by a judge. Finding that it was beyond reasonable dispute that the judge
acted out of personal motivation and used his office as an offensive weapon to vindicate personal objectives, and finding that no one had invoked the judicial machinery for any
purpose, this Court concluded that the judge's actions were non-judicial acts, not cloaked
with judicial immunity.
With this review of cases against the backdrop of the State's constitutional
immunity from suit and the legislative prescription for liability insurance relating to the
State's activities and responsibilities, we seek now to achieve a reasoned statement of the
current posture of common-law immunities and the public duty doctrine as it applies to case
before us.
First, we reiterate that "suits which seek no recovery from state funds, but
rather allege that recovery is sought under and up to the limits of the State's liability
insurance coverage, fall outside the traditional constitutional bar to suits against the State."
Syl. pt. 2, Pittsburgh Elevator v. W.Va. Board of Regents, 172 W.Va. 743, 310 S.E.2d 675
(1983). We require that the record in such actions reflect both the pleading of that limitation
on recovery and the scope of such insurance coverage and the contractual exceptions
applicable to each such case.
Second, we note that the Legislature may direct such limitation or expansion
of the insurance coverages and exceptions applicable to cases brought under W.Va. Code
§ 29-12-5, as, in its wisdom, may be appropriate. The Legislature has also vested in the State Board of Insurance (Risk and Insurance Management) considerable latitude to fix the scope
of coverage and contractual exceptions to that coverage by regulation or by negotiation of
the terms of particular applicable insurance policies. In our attempt to resolve the issues
presented by this case, we are sensitive to the general rule of construction favoring liability,
not immunity, in governmental tort legislation cases, cited above.See footnote 11
Third, absent other legislative direction or express insurance contract
provisions, we will apply to the issue of the State's liability in W.Va. Code § 29-12-5 cases
the immunities and defenses that have been sanctioned in analogous governmental tort cases,
including cases involving the immunity of local governments not entitled to the sovereign
immunity of the State, with careful sensitivity to the limitations on such cases that have been
judicially developed or are reasonably implied by that development.
Fourth, if the terms of the applicable insurance coverage and contractual
exceptions thereto acquired under W.Va. Code § 29-12-5 expressly grant the State greater
or lesser immunities or defenses than those found in the case law, the insurance contract
should be applied according to its terms and the parties to any suit should have the benefit
of the terms of the insurance contract.
Fifth, we hold that, unless the applicable insurance policy otherwise expressly
provides, a State agency or instrumentality, as an entity, is immune under common-law
principles from tort liability in W.Va. Code § 29-12-5 actions for acts or omissions in "the
exercise of a legislative or judicial function and in the exercise of an administrative function
involving the determination of fundamental governmental policy." Restatement (Second) of
Torts § 895C(2)(a)-(b) (1977); Randall v. Fairmont City Police Department, 186 W.Va.
336, 346 n.13, 412 S.E.2d 737, 746 n.13 (1991). We cannot conclude that the Legislature
intended by its enactment of W.Va. Code § 29-12-5 to abolish this immunity, which has been
described, at least as to judges and legislators,See footnote 12 as an absolute immunity.
We are mindful of the comments in Chase that the immunity provided for
executive officials is a personal, qualified one "to be distinguished from the absolute
immunity conferred on judges and legislators" and that such immunity is an affirmative
defense which must be pleaded by the official. Chase, 188 W.Va. at 362, 424 S.E.2d at 597.
Here, we are addressing the immunity of the State and its instrumentalities in the context of
the exercise of judicial, legislative, and executive (or administrative) policy-making acts and
omissions. Notwithstanding those comments in Chase, we conclude that the common-law
immunity of the State in suits brought under the authority of W.Va. Code § 29-12-5 (1996) with respect to judicial, legislative, and executive (or administrative) policy-making acts and
omissions is absolute and extends to the judicial, legislative, and executive (or
administrative) officials when performing those functions.
Sixth, we recognize that the scope of "qualified immunity", as it applies to
public executive officials' personal liability, or how it may extend to protect the State against
suit in contexts other than legislative, judicial, or executive policy-making settings, requires
more detailed analysis. In certain circumstances, the qualified immunity of public executive
officials for wrongful acts or omissions within the scope of their authority should extend to
protect the State governmental entity for which such officials function from liability under
W.Va. Code § 29-12-5 (1996). Similarly, occasions will arise where the government should
be liable when the public executive official is not, and, conversely, on occasion the State will
remain free from liability under one theory or another, when the public executive official will
be held liable despite qualified immunity. The comment accompanying the Restatement
(Second) of Torts 2d § 895D, cmt. j, in part (1979), discusses the issue as follows:
As a general rule, the immunity of a public officer is
coterminous with that of his government. But this is not
necessarily true. If the officer intentionally inflicts an injury or
acts completely outside his authority, his government is not
liable in many jurisdictions. The government is normally not
liable for punitive damages, even though the officer's conduct
would make him liable for them. Conversely, 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.
Beyond this, the tests for imposing liability may differ.
When general tort immunity of a government has been
abrogated, whether by court or legislature, this has not
necessarily meant a corresponding change in the officer's
liability. Even when the test is expressed in the same language,
as in the availability of an immunity for the exercise of a
discretionary function, its application to fact situations may
prove different, depending on whether the action is brought
against the government or the officer. "With respect to some
government functions, the threat of individual liability would
have a devastating effect, while the threat of governmental
liability would not significantly impair performance." An
officer may have a privilege so that he is not liable if he acted
reasonably. To require him to be right would seriously affect
his effectiveness. But the injured party sustains a real injury
when the officer acted incorrectly, even though he was
reasonable. It may appear just that the government should
compensate for that injury.
We begin by endorsing the rule for the qualified immunity of public executive
officials, drawn from Chase, from civil rights cases, and from Bennett v. Coffman:
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. To the extent that State ex rel. Boone National
Bank of Madison v. Manns, 126 W.Va. 643, 29 S.E.2d 621
(1944), is contrary, it is overruled."
Syllabus, State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992).
Next, we endorse the principle, expressed in the Restatement, that the
immunity of the State is ordinarily coterminous with the qualified immunity of the public
executive official whose acts or omissions give rise to an action under W.Va. Code § 29-12-
5, unless the applicable insurance policy otherwise provides. We have applied that principle,
albeit with mention of the discretionary nature of the officer's conduct, in Clark v. Dunn,
195 W.Va. 272, 465 S.E.2d 374 (1995). Conversely, we recognize that while no qualified
immunity would protect a public executive official acting beyond the scope of his authority
or by fraudulent, malicious, or otherwise oppressive conduct, 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.See footnote 13
We suggest that the principle underlying qualified immunity provides the guideline that must
be applied on a case-by-case method to determine if qualified immunity which is applicable
to a public officer's actions should result in the application of that immunity to the
government as well. Qualified immunity is said most often to be available to protect the
public executive officer because, as suggested in Bennett v. Coffman, Goines v. James and Clark v. Dunn, an officer should not be faced with the choice of doing his duty and being
constantly faced with litigation for doing so. The public interest is that the official conduct
of the officer not be impaired by constant concern about personal liability. As the
Restatement (Second) of Torts comment quoted suggests, this concern need not always
prevent the attachment of liability to the State:
"With respect to some government functions, the threat of
individual liability would have a devastating effect, while the
threat of governmental liability would not significantly impair
performance."
Restatement (Second) of Torts § 895D, cmt. j, in part (1979).
In summary, we conclude that, in cases arising under W.Va. Code § 29-12-5,
and in the absence of express provisions of the insurance contract to the contrary, the
immunity of the State is coterminous with the qualified immunity of a public executive
official whose acts or omissions give rise to the case. 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 State's
immunity of the State must be determined on a case-by-case basis.
Because 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.See footnote 14
Seventh, we do not disturb our ruling in Roush v. Hey, ___ W.Va. ___, 475 S.E.2d 299 (1996), allowing an action to be brought where a judge's alleged actions were
determined to be non-judicial acts and, therefore, were not cloaked with judicial immunity.
Eighth, we do not disturb the holding in Higginbotham, commented upon in
Benson, that an action against a governmental body otherwise entitled to immunity, be it
absolute or qualified, may be predicated on the violation of a "distinctive statute" which
imposes a duty on the government which is owed to the claimant. As noted in the
Restatement comment:
[D]uties 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.
Restatement (Second) of Torts § 895D, cmt. j (1979).
Finally, we turn to the public duty doctrine and its exception for a "special
relationship". Just as it was found applicable to cases against local governments in Randall,
we hold that, 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. The doctrine
and its exceptions are a recognized part of our law on the liability of governmental bodies,
providing a means of determining the duties for whose breach such an action may be brought
against such governmental bodies. "[A] governmental entity is not liable because of its
failure to enforce regulatory or penal statutes". Syl. pt. 1, Benson v. Kutsch, supra.
Likewise, we adopt the factors to be considered to determine the applicability of the "special
relationship" exception, found in syllabus point 2 of Wolfe v. City of Wheeling, 182 W.Va.
253, 387 S.E.2d 307 (1989), and reiterate its holding in syllabus point 3: 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.
Restated for their application to State agencies, 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.
See syl. pt. 2, Wolfe, Id.
THE APPLICATION OF THESE PRINCIPLES TO THIS CASE
We turn now to the application of these principles to the case before us. First,
contrary to appellant's contentions, we conclude that, in cases arising under W.Va. Code §
29-12-5, the Board of Probation and Parole, being a quasi-judicial body, is entitled to
absolute immunity from tort liability for acts or omissions in the exercise of its judicial
function, unless such immunity is expressly waived by the applicable insurance contract. In
reaching this conclusion, we have reviewed and we now adopt the following rationale which
was well stated in Pate v. Alabama Board of Pardons and Paroles, 409 F. Supp. 478 (1976):
Parole officials bear a more than ordinary responsibility because
of the dangerous traits already demonstrated by those with
whom they must deal. This responsibility imposes far greater
moral burdens and requires far more difficult legal choices than
those met by the average administrative officer. The function of the Parole Board is more nearly akin to that of a judge in
imposing sentence and granting or denying probation than it is
to that of an executive administrator. It is essential to the proper
administration of criminal justice that those who determine
whether an individual shall remain incarcerated or be set free
should do so without concern over possible personal liability at
law for such criminal acts as some parolee will inevitably
commit; in other words, that such official should be able to
exercise independent judgment without pressure of personal
liability for acts of the subject of their deliberations.
Id. at 479.
Accordingly, we affirm the ruling of the trial court that the actions of the
Parole Board appearing from the record are protected from suit under W.Va. Code § 29-12-5
by reason of quasi-judicial immunity. We are conscious of appellant's claim that certain of
the actions of the Parole Board were non-judicial, facts appellant desires to develop by
discovery. We also note that appellant was not permitted by the trial court to file an
amended complaint. We cannot conceive of legitimate actions by the Parole Board, as a
governmental entity, which are not within its quasi-judicial nature. Suffice it to say that if,
upon remand, appellant can demonstrate to the trial court a basis for alleging actionable
conduct by the Parole Board which was non-judicial, then the trial court can grant such
opportunity as appellant's proffers and representations may justify, consistent with this
opinion and the provisions of Rule 11 of the West Virginia Rules of Civil Procedure.
We conclude next that the public duty doctrine applies to the conduct of the
Parole Board and the Division of Corrections alleged in the complaint in this action.
Moreover, nothing in the record discloses any special relationship between appellant and
appellees when the facts alleged are measured against the test we have adopted for the
application of the exception.See footnote 15 We find no allegation or evidence that either governmental
entity assumed an affirmative duty to act on behalf of appellant as a person apart from the
general public. While both entities may have been informed of the criminal record or
tendencies of the parolee, McCrary, the complaint contains no allegation directly asserting
such knowledge. There is no allegation or evidence that appellant had direct contact with
either governmental entity regarding McCrary's release, supervision, or conduct prior to the
parolee's attack upon appellant nor any allegation or evidence suggesting that appellant
relied on any affirmative undertaking to act on behalf of appellant. Unlike the facts in
Randall, there is no suggestion that either governmental agency had knowledge that
appellant, in particular, would be a likely victim. Accordingly, no special relationship
existed between appellees, or either of them, and appellant.
There remains only the question of whether the actual provisions of such policy
or policies of insurance as are said to cover the operation of the Parole Board and the
Division of Corrections provide coverage notwithstanding the quasi-judicial immunity of the
Parole Board and the public duty doctrine. We have made clear that the immunities and
defenses available to the State and its insurer in this action are defined first by the actual
provisions of the policy or policies purchased by the State and may provide coverage
notwithstanding common-law immunity or the public duty doctrine. We remand to develop
the record on the coverage issue thus defined and to permit appellant a reasonable
opportunity to show any allegedly non-judicial conduct by the Parole Board, as a
governmental entity.
If the court below finds the applicable insurance policy contemplates that the
State and its insurer may assert common-law judicial immunity and may assert the public
duty doctrine under the terms of the insurance policy, the court should finally dismiss the
action unless appellant promptly makes an adequate showing regarding the alleged non-
judicial conduct of the Parole Board. However, if the court finds that the applicable
insurance policy affords coverage with respect to the claims raised here by expressly waiving
either judicial immunity or the public duty doctrine, or if appellant makes the requisite
showing regarding non-judicial conduct by the Parole Board, the court should allow the civil
action to proceed to such result as may otherwise be proper under the law and as is
contemplated under the terms of the policy, but only to the extent the policy extends coverage. In such event, the trial court will be called upon to further determine the
applicability to the State of any applicable qualified immunity that has not been waived by
the insurance policy.
Accordingly, we reverse the order of the court dismissing this action and
remand for further proceedings consistent with this opinion.
Reversed and remanded, with directions.
Footnote: 1
The Honorable Arthur M. Recht resigned as Justice of the West Virginia
Supreme Court of Appeals effective October 15, 1996. The Honorable Gaston Caperton,
Governor of the State of West Virginia, appointed him Judge of the First Judicial Circuit on
that same date. Pursuant to an administrative order entered by this Court on October 15,
1996, Judge Recht was assigned to sit as a member of the West Virginia Supreme Court of
Appeals commencing October 15, 1996, and continuing until further order of this Court.Footnote: 2
The Board is an instrumentality of the State of West Virginia, created by law.
Until 1994, the Board was known as the West Virginia Board of Probation and Parole.
Effective June 10, 1994, the name of the Board was changed to the "West Virginia Parole
Board". W.Va. Code § 62-12-12 (1994). Footnote: 3
The Division of Corrections is an instrumentality of the State of West
Virginia, created by law. It was and is a part of the Department of Military Affairs and
Public Safety. See, W.Va. Code § 5F-1-2 (1992), W.Va. Code § 25-1-1 (1977), and W.Va.
Code § 5F-2-1(e)(7) (1992; 1995).Footnote: 4
By way of cross assignment of error, appellee Board challenges the
jurisdiction of this Court to hear the appeal, believing it to be untimely. We disagree.
The petition for appeal was filed in the Circuit Court of Cabell County on
January 3, 1996, within four months of the entry of the order on September 15, 1995,
denying the "motion for reconsideration" and granting summary judgment as to all
defendants. The running of the time for appeal from the order entered April 12, 1995,
dismissing the case from the docket, was tolled by the timely filing of the "motion for
reconsideration". We treat that "reconsideration" motion as a motion under Rule 59(e) of
the West Virginia Rules of Civil Procedure, since the tenth day following the entry of the
order it addresses fell on a Saturday and the motion was served on the following Monday.
Therefore, even if the order of April 12, 1995, is read as unintentionally dismissing both
parties rather than just the movant, both the order of April 12, 1995, and the order of
September 15, 1995, are before us because (1) appeal was filed within the applicable four-
month period for both orders, after tolling is given effect, and (2) in any event, the timely
appeal of an order finally disposing of all claims as to all defendants brings with it all prior
orders.
Rule 59(e) of the West Virginia Rules of Civil Procedure provides: "A motion
to alter or amend the judgment shall be served not later than ten days after entry of the
judgment."
Rule 6(a) of the West Virginia Rules of Civil Procedures provides, in
applicable part: "In computing any period of time prescribed or allowed by these rules, by
the local rules of any court, by order of the court, or by any applicable statute, the day of the
act, event, or default from which the designated period of time begins to run shall not be
included. The last day of the period so computed shall be included, unless it is a Saturday,
a Sunday, or a legal holiday, in which event the period runs until the end of the next day
which is not a Saturday, a Sunday or a legal holiday . . . ."
In syllabus points 6, 7, and 8 of Riffe v. Armstrong, No. 22980 (W.Va. July
17,1996), this Court stated:
6. "'Where an appeal is properly obtained from an
appealable decree either final or interlocutory, such appeal will
bring with it for review all preceding non-appealable decrees or
orders, from which have arisen any of the errors complained of
in the decree appealed from, no matter how long they may have
been rendered before the appeal was taken.' Point 2, syllabus,
Lloyd v. Kyle, 26 W.Va. 534 [1885]." Syllabus point 5, State ex
rel. Davis v. Iman Mining Co., 144 W.Va. 46, 106 S.E.2d 97
(1958).
7. "A motion for reconsideration filed within ten days of
judgment being entered suspends the finality of the judgment
and makes the judgment unripe for appeal. When the time for
appeal is so extended, its full length begins to run from the date
of entry of the order disposing of the motion." Syllabus point 7,
James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16
(1995).
8. An appeal may be taken from a final order disposing
of a motion under Rule 59(e) of the West Virginia Rules of
Civil Procedure at any time within the appeal period provided
by the entry of the order or within any proper extension of the
appeal period.
Rule 3(a) of the West Virginia Rules of Appellate Procedure permits the appeal
of a final order within four months of its entry.Footnote: 5
See notes 2 and 3 above.Footnote: 6
Mahone v. State Road Commission, 99 W.Va. 397, 129 S.E. 320 (1925)
(holding that the State Road Commission of West Virginia is a direct governmental agency
of the State and cannot be sued); Schippa v. West Virginia Liquor Control Commission, 132
W.Va. 51, 53 S.E.2d 609 (1948), cert. denied, 337 U.S. 914, 69 S. Ct. 1154, 93 L. Ed. 1724
(1949) (the State Liquor Control Commission is an agency of the State and is immune from
suit); Hesse v. State Soil Conservation Committee, 153 W.Va. 111, 168 S.E.2d 293 (1969)
(the State Soil Conservation Committee is an arm of the State, acting in its behalf, and is
immune from suit); State ex rel. Gordon v. State Board of Control, 85 W.Va. 739, 102 S.E. 688 (1920) (a mandamus proceeding to compel the State Board of Control, now the State
Commissioner of Public Institutions, to perform the covenants of a contract made between
it and a contractor is virtually one against the State and cannot be maintained); City of
Charleston v. Southeastern Construction Company, 134 W.Va. 666, 64 S.E.2d 676 (1950)
(the state office building commission is a state agency and is, therefore, immune from suit);
State ex rel. C & D Equipment Co. v. Gainer, 154 W.Va. 83, 174 S.E.2d 729 (1970) (the
State Office Building Commission, now called State Building Commission, is a State agency
and is immune from suit); City of Morgantown v. Ducker, 153 W.Va. 121, 168 S.E.2d 298
(1969) (the Board of Governors of West Virginia University is a State agency and, as such,
is an arm of the State and is immune from suit to enforce payment of a claim against such
board); Hamill v. Koontz, 134 W.Va. 439, 59 S.E.2d 879 (1950) (a proceeding by a taxpayer
against the tax commissioner to recover a judgment, payable from available funds in the State
treasury for taxes erroneously paid, is a suit against the State and cannot be maintained); G.
M. McCrossin, Inc. v. West Virginia Board of Regents, 177 W.Va. 539, 355 S.E.2d 32
(1987) (the Board of Regents, as a State agency, is constitutionally immune from contractual
and tort claims).
Footnote: 7
West Virginia Code § 29-12-5 was amended in 1996, but the amendments do
not appear to be material to the matters under discussion.Footnote: 8
The statute further provides that the cost of the insurance is to be determined
by the State Board of Insurance (Risk and Insurance Management) and shall be paid by the
political subdivision or the organization that is insured and provides further for the
promulgation of regulations governing the procurement of the insurance contemplated by the
statutory enactment.
Footnote: 9
See Randall, 186 W.Va. at 346 n.13, 412 S.E.2d at 747 n.13.
Footnote: 10
See W.Va. Code § 29-12A-5(a)(1)-(2), (4) (1986).Footnote: 11
See Randall v. Fairmont City Police Department, 186 W.Va. 336, 347, 412 S.E.2d 737, 748 (1991).Footnote: 12
See State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992);
cf., Randall v. Fairmont City Police Department, 186 W.Va. 336, 346 n.13, 412 S.E.2d 737,
746 n.13 (1991).Footnote: 13
In City of Fairmont v. Hawkins, 172 W.Va. 240, 304 S.E.2d 824 (1983), the
mayor of a municipality settled a claim against the city without any formal action by the
board of directors. The city finance director refused to sign the check. Hawkins signed as
mayor, acting water director, and acting finance director, even though there were no such
position authorized under the city charter. There was no attempt to have the check approved
by the board of directors, as was required by the charter. This Court found the mayor acted
in excess of his statutory authority and in violation of the command in the charter regarding
the issuing of checks on the city treasury. This act was unlawful and, therefore, caused
personal liability to accrue.Footnote: 14
A guideline for use in the case-by-case approach to the problem of the
interplay of governmental and public officer personal tort liability, seemingly endorsed by
the Restatement (Second) of Torts, has been well-stated in an article addressing the subject,
as follows:
Unless the government's exposure to liability can genuinely be
expected to impair seriously the official's performance of duty,
the government should not enjoy immunity from liability simply
because the official is immune.
George A. Bermann, Integrating Governmental and Officer Tort Liability, 77 Col.L.Rev.
1175, 1187 (1977).
Footnote: 15
We have discussed appellant's claim that the Parole Board acted in a non-
judicial capacity. Appellant's complaint also alleges that the appellees' officers or
employees acted in bad faith and in a wanton or reckless manner but did not name such
officers and employees as defendants. We, therefore, deem these claims for officers or
employees acting beyond the scope of their authority not to be at issue here.
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