Clark v. Dunn

• Decision Date: 30 October 1995
• Docket Number: No. 22767,22767
• Citation: 465 S.E.2d 374,195 W.Va. 272
• Court: West Virginia Supreme Court
• Parties: Dale CLARK, Terry Clark, Individually, and Felicia Clark and Kayla Clark, By and Through Their Mother and Next Friend, Terry Clark, Plaintiffs Below, Appellants, v. Terry DUNN and the Department of Natural Resources, Defendants Below, Appellees.

Page 374

465 S.E.2d 374

195 W.Va. 272

Dale CLARK, Terry Clark, Individually, and Felicia Clark and Kayla Clark, By and Through Their Mother and Next Friend, Terry Clark, Plaintiffs Below, Appellants, v. Terry DUNN and the Department of Natural Resources Defendants Below, Appellees.

No. 22767.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 27, 1995.

Decided Oct. 30, 1995.

Syllabus by the Court

1. "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.' " Syllabus point 1, Eggleston v. West Virginia Department of Highways, 189 W.Va. 230, 429 S.E.2d 636 (1993).

2. "Government officials performing discretionary functions are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does." Syllabus, Bennett v. Coffman, 178 W.Va. 500, 361 S.E.2d 465 (1987).

3. "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. [the West Virginia Governmental Tort Claims and Insurance Reform Act], 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).

4. If a public officer is either authorized or required, in the exercise of his judgment and discretion, to make a decision and to perform acts in the making of that decision, and the decision and acts are within the scope of his duty, authority, and jurisdiction, he is not liable for negligence or other error in the making of that decision, at the suit of a private individual claiming to have been damaged thereby.

5. A conservation officer employed by the West Virginia Department of Natural Resources is a public officer and official entitled to the benefit of the doctrine of qualified or official immunity.

6. In the absence of an insurance contract waiving the defense, the doctrine of qualified or official immunity bars a claim of mere negligence against a State agency not within the purview of the West Virginia Governmental Tort Claims and Insurance Reform Act, W.Va.Code § 29-12A-1, et seq., and against an officer of that department acting within the scope of his or her employment, with respect to the discretionary judgments, decisions, and actions of the officer.

M. Andrew Brison, Charles Phalen, Jr., Mitchell & Murray, Charleston, for Appellant.

Stephen P. McGowan, Jan L. Fox, Jeffrey K. Phillips, Steptoe & Johnson, Charleston, for Appellees.

ALBRIGHT, Justice:

The appellant, Dale Clark, asks this Court to reverse the March 18, 1994 order of the Circuit Court of Kanawha County, West Virginia, which granted summary judgment for the appellees, Conservation Officer Terry Dunn and the West Virginia Department of Natural Resources. The lower court determined Officer Dunn was a public official entitled to qualified immunity for discretionary actions performed within the scope of his employment, and therefore he could not be held liable for negligence.

On November 26, 1991, the appellant was hunting in Calhoun County, West Virginia, with Eugene Bailey, Steve Bailey, and James Bailey. Officer Dunn was patrolling Sears Run Road in Calhoun County, as he investigated a complaint of illegal doe hunting. As he explored the nearby woods, following a blood trail consistent with that of deer "drag marks," Dunn ran into fourteen-year-old James Bailey, who told him he was hunting with his father. Dunn asked James Bailey to unload his firearm and questioned him. Shortly thereafter, they heard voices and approached the appellant, Eugene Bailey, and Steve Bailey. The appellant and Eugene Bailey were "hunkered down," sitting with their guns across their laps.

Testimony regarding exactly what happened differs at this point. According to Dunn, Steve Bailey began walking away from the others. Eugene Bailey said Steve Bailey ran when he saw Dunn, and the appellant testified that Steve Bailey ran when Dunn hollered something at him. Dunn says he hollered to Steve Bailey, "Hey, I want to check your license," and denies he ever requested licenses from the appellant or Eugene Bailey. Both the appellant and Eugene Bailey testified that Dunn told them to lay down their guns and get out their hunting licenses. The appellant put down his gun, and Eugene Bailey reached to get his license without putting his gun down. Dunn drew his revolver and held it at a ready position. When Dunn attempted to remove the firearm from Eugene Bailey's lap, the firearm discharged, and the appellant was shot in the left leg.

The appellant subsequently filed a civil complaint alleging negligence against Dunn and the Department of Natural Resources by reason of the discharge of the firearm. The appellees moved for summary judgment, and the motion was heard before the Circuit Court of Kanawha County. The appellees argued Dunn and the Department of Natural Resources enjoyed qualified immunity and, as a matter of law, a negligence action could not lie, given the facts of the case. The lower court agreed. In its order entered on March 18, 1994, the court granted the appellees' motion for summary judgment, explaining:

It is clear that as a public official, officer Dunn is entitled to qualified immunity for his actions in performing discretionary acts. The doctrine protects all government officials who exercise their discretion in fulfilling their duties, unless the official abuses that discretion by violating a clearly established constitutional right. Negligence simply is not sufficient for liability to be imposed under this standard or doctrine. Thus, officer Dunn cannot be held liable and if he cannot be held liable neither can the Department of Natural Resources. (Emphasis added.)

The appellants contend the trial court erred in granting summary judgment for the appellees upon a determination that Dale Clark could not maintain an action for negligence against the Department of Natural Resources and one of its conservation officers because of the doctrine of qualified immunity. Although the appellants conclude that "if their cause of action was premised upon a violation of their civil and/or constitutional rights then perhaps appellees did enjoy 'qualified immunity' ...," appellants argue their suit against Dunn and the Department of Natural Resources, based solely on a theory of negligence, may be maintained. The appellants' complaint stated, in relevant part:

That while the plaintiff was so hunting, the defendant, Terry Dunn, either acting individually or in his capacity as an agent, servant or employee of the State of the Department of Natural Resources, stopped your Plaintiff and others, during which time he negligently and carelessly grabbed a weapon being held by Eugene Bailey, causing the same to discharge and therefore causing a bullet to enter the left leg of your Plaintiff and to, among other things, shatter the bone in his left leg and to destroy the tissue within that leg. (Emphasis added.)

In response, the appellees argue they are entitled to immunity from an award of damages because the appellant was not deprived of any right clearly established by law or the State or Federal Constitutions.

The issue now before this Court is whether the appellees, Terry Dunn and the Department of Natural Resources, are entitled to qualified immunity from liability for Officer Dunn's alleged negligence.

In their petition for appeal, the appellants relied on the West Virginia Governmental Tort Claims and Insurance Reform Act (the Act), W.Va.Code § 29-12A-1, et seq. They asserted that the Act "clearly imposes liability in situations involving the negligence of employees acting within the scope of their employment. The Act provides that '[p]olitical subdivisions are liable for injury, death, or loss to persons or property caused by the negligent performance of acts by their employees while acting within the scope of employment.' " Beckley v. Crabtree, 189 W.Va. 94, 428 S.E.2d 317, 320 (1993). The appellants concede in their brief that the appellees do not come within the purview of the Act. They argue nonetheless that the Legislature intended for victims of State negligence to be able to seek redress for their injuries in the courts. The appellants maintain that because they assert a claim of simple negligence against the appellees, rather than civil or constitutional violations, the appellees are not entitled to qualified immunity.

Initially, we note that the Department of Natural Resources is not a political subdivision, ¹ but instead is a State department or agency. W.Va.Code § 20-1-3. Appellee Dunn is an employee of that State department authorized to enforce the provisions of W.Va.Code § 20-7-1, et seq. As such, he is a law enforcement officer and public official of the State, not of a political subdivision.

The State enjoys constitutional or sovereign immunity, as expressed in Section 35, Article VI, of the West Virginia Constitution,...