J.H. v. Div. Of Rehabilitation Services

• Decision Date: 23 June 2009
• Docket Number: No. 33918.,33918.
• Citation: 680 S.E.2d 392
• Court: West Virginia Supreme Court
• Parties: J.H., Plaintiff Below, Appellant, v. WEST VIRGINIA DIVISION OF REHABILITATION SERVICES, a State Agency, Defendant Below, Appellee.

680 S.E.2d 392

J.H., Plaintiff Below, Appellant, v. WEST VIRGINIA DIVISION OF REHABILITATION SERVICES, a State Agency, Defendant Below, Appellee.

No. 33918.

Supreme Court of Appeals of West Virginia.

Submitted January 14, 2009.

Decided June 23, 2009.

Concurring Opinion of Justice Benjamin July 27, 2009.

Syllabus by the Court

1. "The standard of review applicable to an appeal from a motion to alter or amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that would apply to the underlying judgment upon which the motion is based and from which the appeal to this Court is filed." Syl. Pt. 1, Wickland v. American Travellers Life Ins. Co., 204 W.Va. 430, 513 S.E.2d 657 (1998).

2. "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 Co. v. West Virginia Bd. of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983).

3. "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. West Virginia Dep't of Highways, 189 W.Va. 230, 429 S.E.2d 636 (1993).

4. "In determining whether under a liability insurance policy an occurrence was or was not an `accident' — or was or was not deliberate, intentional, expected, desired, or foreseen — primary consideration, relevance, and weight should ordinarily be given to the perspective or standpoint of the insured whose coverage under the policy is at issue." Syllabus, Columbia Cas. Co. v. Westfield Ins. Co., 217 W.Va. 250, 617 S.E.2d 797 (2005).

5. "`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)." Syl. Pt. 8, Parkulo v. West Virginia Bd. of Prob. and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996).

6. "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." Syl. Pt. 9, Parkulo v. West Virginia Bd. of Prob. and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996).

7. "If a public officer is either authorized or required, in the exercise of his judgment and discretion, to make a decision and to perform acts in the making of that decision, and the decision and acts are within the scope of his duty, authority, and jurisdiction, he is not liable for negligence or other error in the making of that decision, at the suit of a private individual claiming to have been damaged thereby." Syl. Pt. 4, Clark v. Dunn, 195 W.Va. 272, 465 S.E.2d 374 (1995).

8. "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." Syl. Pt. 6, Clark v. Dunn, 195 W.Va. 272, 465 S.E.2d 374 (1995).

9. "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." Syl. Pt. 6, Parkulo v. West Virginia Bd. of Prob. and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996).

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." Syl. Pt. 10, Parkulo v. West Virginia Bd. of Prob. and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996).

11. "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." Syl. Pt. 12, Parkulo v. West Virginia Bd. of Prob. and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996).

12. "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 facts." Syl. Pt. 11, Parkulo v. West Virginia Bd. of Prob. and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996).

Mark D. Moreland, Esq., Charleston, WV, for Appellant.

Ancil G. Ramey, Esq., Hannah B. Curry, Esq., Jan L. Fox, Esq., Steptoe & Johnson, Charleston, WV, for Appellee.

The Opinion was delivered PER CURIAM.

The Appellant, J. H.,¹ appeals an Order entered June 4, 2007, by the Circuit Court of Kanawha County concluding that the public duty doctrine was applicable to the Appellee, the West Virginia Division of Rehabilitation Services (also referred to as "the Division") and dismissing the Appellant's negligence action against the Division. Specifically, the circuit court determined that

the Public Duty Doctrine is applicable to the defendant, a State agency charged with the safety of its residents in general. The Court FINDS that Plaintiff's reading of the relevant duty associated with the Public Duty Doctrine is overly narrow. Further, the Court FINDS that the applicable policy of insurance does not expressly waive qualified immunity or other statutory or constitutional immunity.²

The Appellant asks the Court to reverse the circuit court's determination that the special duty exception to the public duty doctrine was not applicable in this case. After thorough consideration of the public duty doctrine, as well as sovereign immunity and qualified immunity, we find that sufficient allegations were pleaded by the Appellant regarding the existence of the special duty exception to the public duty doctrine to survive the Appellee's Motion to Dismiss. We further find pursuant to Parkulo v. West Virginia Bd. of Prob. and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996), that the existence of a special duty is a question of fact to be determined by the trier of fact under proper instruction of law. Id. at 164, 483 S.E.2d at 510, Syl. Pt. 11. Accordingly, the Court reverses and remands this case to the circuit court for further proceedings on the question of whether a special duty existed to defeat the Division's reliance on the public duty doctrine.

I. Factual and Procedural Background

The Appellant, J. H., filed the instant action³ in Kanawha County, West Virginia alleging that in October of 2004, he was a client of the Division and became a resident at the Division's West Virginia Rehabilitation Center (hereinafter "Rehabilitation Center") in Institute, Kanawha County, West Virginia. Because of the Appellant's compromised mobility, he was provided a room in the "Attendant Care Unit" of the Rehabilitation Center. While a resident in that unit, the Appellant allegedly was the victim of sexual molestation. The Appellant alleged that he was molested by another alleged resident/client of the Rehabilitation Center, Jeff Bell. The Appellant maintained that Mr. Bell was under investigation for an attempted molestation of another resident of the facility at the time of the incident involving the Appellant.⁴ The Appellant averred that Mr. Bell was allowed private access to his bedroom.

According to the allegations contained in the Plaintiff's Amended Complaint, the Appellee advised its clients who would become residents at the West Virginia Rehabilitation Center, that it is a location with a "safe environment[.]" Additionally, the Appellant pleaded that:

a. The defendant, by its promises of a "safe" environment for residents of its Rehabilitation Center and its actions to impose rules and codes of conduct on such residents and its employees and staff for safety reasons, creates an affirmative duty on the defendant to provide a safe environment of its Center;

b. The defendant is knowledgeable that its failure to enforce its...