O'Dell v. Town of Gauley Bridge

Decision Date24 November 1992
Docket Number21112 and 21260,Nos. 20741,s. 20741
Citation425 S.E.2d 551,188 W.Va. 596
CourtWest Virginia Supreme Court
Parties, 80 Ed. Law Rep. 365 Donna Sue O'DELL and Jack O'Dell, Her Husband, Plaintiffs Below, Appellants, v. TOWN OF GAULEY BRIDGE, a West Virginia Municipal Corporation; and Gauley Bridge Volunteer Fire Company, Inc., a Corporation, Defendants Below, Appellees. Leon FRANCE and Juanita France; and Shawn France, Who Sues By His Guardian and Next Friend, Juanita France, Plaintiffs Below, Appellants, v. The BOARD OF EDUCATION OF the COUNTY OF BRAXTON, Defendants and Third-Party Plaintiffs Below, Appellees, v. The VELOTTA COMPANY and Robert Velotta, Third-Party Defendants Below, Appellees. Thomas E. PRITCHARD and Sylvia Pritchard, Plaintiffs Below, Petitioners, v. The CITY OF LOGAN, a Municipal Corporation, Defendant Below, Respondent.

Syllabus by the Court

1. " ' "In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. [ W.Va. Const. art. V, § 1.] Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt." Syl. pt. 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965).' Syl. pt. 2, West Virginia Public Employees Retirement System v. Dodd, 183 W.Va. 544, 396 S.E.2d 725 (1990)." Syllabus Point 1, Robinson v. Charleston Area Medical Center, 186 W.Va. 720, 414 S.E.2d 877 (1991).

2. " ' "Where economic rights are concerned, we look to see whether the classification is a rational one based on social, economic, historic or geographic factors, whether it bears a reasonable relationship to a proper governmental purpose, and whether all persons within the class are treated equally. Where such classification is rational and bears the requisite reasonable relationship, the statute does not violate Section 10 of Article III of the West Virginia Constitution which is our equal protection clause." Syllabus Point 7, [as modified,] Atchinson v. Erwin, W.Va. , 302 S.E.2d 78 (1983).' Syllabus Point 4, as modified, Hartsock-Flesher Candy Co. v. Wheeling Wholesale Grocery Co., , 328 S.E.2d 144 (1984)." Syllabus Point 4, Gibson v. West Virginia Department of Highways, 185 W.Va. 214, 406 S.E.2d 440 (1991).

3. "When legislation either substantially impairs vested rights or severely limits existing procedural remedies permitting court adjudication, thereby implicating the certain remedy provision of article III, section 17 of the Constitution of West Virginia, the legislation will be upheld under that provision if, first, a reasonably effective alternative remedy is provided by the legislation or, second, if no such alternative remedy is provided, the purpose of the alteration or repeal of the existing cause of action or remedy is to eliminate or curtail a clear social or economic problem, and the alteration or repeal of the existing cause of action or remedy is a reasonable method of achieving such purpose." Syllabus Point 5, Lewis v. Canaan Valley Resorts, Inc., 185 W.Va. 684, 408 S.E.2d 634 (1991).

4. W.Va.Code, 29-12A-5(a)(11), giving political subdivisions immunity from tort liability in suits by injured persons whose claims are covered by workers' compensation or employer's liability laws, does not violate the equal protection principles of Article III, Section 10 or the "certain remedy" provision of Article III, Section 17 of the West Virginia Constitution.

5. To the extent that the "special legislation" prohibition found in Article VI, Section 39 of the West Virginia Constitution mirrors equal protection precepts, it is subsumed in the equal protection principles contained in Article III, Section 10 of our constitution. Consequently, arguments relating to this aspect of the special legislation prohibition will not be separately addressed where we have applied an equal protection analysis to the claim.

6. W.Va.Code, 29-12A-5(a)(11), clearly contemplates immunity for political subdivisions from tort liability in actions involving claims covered by workers' compensation even though the plaintiff was not employed by the defendant political subdivision at the time of the injury.

Edward G. Atkins, Charleston, and Arthur M. Recht, Martin P. Sheehan and Volk, Frankovitch, Anetakis, Recht, Robertson & Hellerstedt, Wheeling, for appellants.

Gary E. Pullin, Cleek, Pullin & Bibb, Charleston, for appellees Town of Gauley Bridge and Bd. of Educ.

David K. Schwirian, Charleston, for appellee Gauley Bridge Volunteer Fire Co., Inc.

Shawn P. George, George, Ferguson & Lorenson, Charleston, for appellees The Velotta Co. and Robert Velotta.

Allan M. Karlin, Morgantown and Jolyon McCamic, Wheeling, for amicus curiae W.Va. Trials Lawyers Ass'n.

John J. Polak, King, Betts & Allen, Charleston, for amicus curiae Ella Rosaline Shafer and Elmer R. Shafer.

Silas B. Taylor, Sr. Deputy Atty. Gen., Charleston, for amicus curiae Atty. Gen. of West Virginia.

Douglas Witten, Avis, Witten & Wandling, Logan, for petitioners.

John D. Hoffman, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Charleston, for respondent.

MILLER, Justice:

These three cases were consolidated for decision because they present similar issues with regard to provisions of the West Virginia "Governmental Tort Claims and Insurance Reform Act," W.Va.Code, 29-12A-1, et seq. Specifically, the plaintiffs below challenge rulings of the lower courts to the effect that W.Va.Code, 29-12A-5(a)(11), confers immunity from suit upon political subdivisions of the State in personal injury actions where the claim or loss results from a claim covered by workers' compensation or employer's liability laws. 1


The facts in each case are undisputed.

A. Donna Sue O'Dell

Mrs. O'Dell was employed at a branch of the Fayette County Public Library located in Gauley Bridge, Fayette County. One means of access to the library was a wooden walkway which led from a street on the hillside above and across adjacent property owned by the Gauley Bridge Volunteer Fire Company, Inc., on which the fire station was located. The walkway was owned and maintained by the Town of Gauley Bridge.

On January 20, 1989, Mrs. O'Dell, while on her way to work, slipped and fell on the walkway, sustaining injuries to her left leg and ankle. Because the injuries occurred in the course of and resulting from her employment, Mrs. O'Dell received workers' compensation benefits.

Mrs. O'Dell and her husband brought a personal injury action against the Town and the Fire Company in the Circuit Court of Fayette County alleging that the defendants had failed properly to construct, maintain, and repair the walkway. The defendants subsequently moved for summary judgment on the ground that they were immune from suit under W.Va.Code, 29-12A-5(a)(11). By order dated October 15, 1991, the circuit court granted the summary judgment motion and dismissed, with prejudice, the complaint in the negligence action. Mr. and Mrs. O'Dell appeal from this order.

B. Leon France

Mr. France is a deaf-mute who was employed as a cement finisher by The Velotta Company, an Ohio corporation under contract with the West Virginia Department of Highways to perform construction work. On September 28, 1989, Mr. France was working on a bridge on a county road in Braxton County. Due to the construction, traffic on the bridge was reduced to a single lane.

At approximately 5:00 p.m. a school bus owned by the Braxton County Board of Education and driven by a Board of Education employee approached the bridge. The bus stopped to allow Mr. France to move out of the traffic lane to a curb on the outside of the bridge. As the bus passed, it struck Mr. France's wheelbarrow, which, in turn, struck Mr. France, pushing him over the bridge railing. Mr. France fell over sixty feet onto rocky ground. As a result of his injuries, he is permanently and totally disabled from employment as a construction worker.

Mr. France was awarded workers' compensation benefits in Ohio. Mr. France, his wife, and his minor son subsequently sued the Board of Education in the Circuit Court of Braxton County, alleging that the bus driver's negligence in the operation of the school bus was the proximate cause of his injuries. 2 The Board subsequently moved for summary judgment on the ground that it was immune from suit under W.Va.Code, 29-12A-5(a)(11). By order dated January 2, 1992, the circuit court granted the motion. The France family now appeals from that ruling.

C. Thomas E. Pritchard

Mr. Pritchard was employed as a salesman by the Letter Shop, Inc., a private business in Logan. On July 12, 1988, he slipped and fell on a handicap access ramp located on a public sidewalk owned and maintained by the City of Logan.

Mr. Pritchard's injuries occurred in the course of and resulting from his employment. He applied for workers' compensation benefits and received a 10 percent permanent partial disability award.

Mr. Pritchard and his wife also instituted a civil action in the Circuit Court of Logan County against the City, alleging that the City was negligent in failing to maintain and repair the sidewalk and in applying paint to the sloped surface of the access ramp, causing it to become slippery when wet. The City moved for summary judgment on the ground that it was immune from suit under W.Va.Code, 29-12A-5(a)(11). By order dated April 27, 1992, the circuit court certified to...

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