Jeffrey v. West Virginia Dept. of Public Safety, Div. of Corrections

• Decision Date: 17 January 1997
• Docket Number: No. 23367,23367
• Citation: 198 W.Va. 609,482 S.E.2d 226
• Parties: Bobby Z. JEFFREY, as Personal Representative of the Estate of Karen Jean Jeffrey, Plaintiff Below, Appellant, v. WEST VIRGINIA DEPARTMENT OF PUBLIC SAFETY, DIVISION OF CORRECTIONS; Donald Ervin, Individually and in his Official Capacity as Director of the Charleston Work Release Center; Debbie Cottrell, Individually and in her Official Capacity as Counselor at the Huttonsville Correctional Facility; Billy Joe Hottle and Craig S. Swick, Defendants Below, Appellees.
• Court: West Virginia Supreme Court

Page 226

482 S.E.2d 226

198 W.Va. 609

Bobby Z. JEFFREY, as Personal Representative of the Estate of Karen Jean Jeffrey, Plaintiff Below, Appellant, v. WEST VIRGINIA DEPARTMENT OF PUBLIC SAFETY, DIVISION OF CORRECTIONS; Donald Ervin, Individually and in his Official Capacity as Director of the Charleston Work Release Center Debbie Cottrell, Individually and in her Official Capacity as Counselor at the Huttonsville Correctional Facility Billy Joe Hottle and Craig S. Swick, Defendants Below, Appellees.

No. 23367.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 17, 1996.

Decided Dec. 20, 1996.

Rehearing Denied Jan. 17, 1997.

Syllabus by the Court

1. "A moral obligation of the State exists in favor of the personal representative of a deceased person, and may be so declared and a valid appropriation of public funds for its payment made by the Legislature, when it appears that officers or agents of the State have negligently failed to perform an official duty imposed upon them and, as the natural and probable consequence of their negligence, death results to an innocent person from a murderous attack made by a convict committed, by sentence of life imprisonment for murder, to a state prison under their control, and, with knowledge of his vicious disposition and propensity to commit murder, they enable him, while unobserved and armed with a knife, to leave the prison and utilize the opportunity so presented for him to kill such person." Syl. Pt. 1, State ex rel. Davis Trust Co. v. Sims, 130 W.Va. 623, 46 S.E.2d 90 (1947).

2. "The public duty doctrine, simply stated, is that a governmental entity is not liable because of its failure to enforce regulatory or penal statutes." Benson v. Kutsch, 181 W.Va. 1, 380 S.E.2d 36 (1989).

3. "To establish that a special relationship exists between a local governmental entity and an individual, which is the basis for a special duty of care owed to such individual, the following elements must be shown: (1) an 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, Wolfe v. City of Wheeling, 182 W.Va. 253, 387 S.E.2d 307 (1989).

4. "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).

Daniel R. James, F. Cody Pancake, III, Barr & James, Keyser, P. Rodney Jackson, Lonnie C. Simmons, DiTrapano & Jackson, Charleston, for Appellant.

David P. Cleek, Lou Ann S. Cassell, McQueen, Harmon, Potter & Cleek, Charleston, for West Virginia Department of Public Safety, Division of Corrections, Donald Ervin, and Debbie Cottrell.

PER CURIAM:

This is an appeal ¹ by Bobby Jeffrey (hereinafter "the Appellant") from a decision of the Circuit Court of Kanawha County dismissing his wrongful death action against the Division of Corrections (hereinafter "the Appellee"). The lower court dismissed the action based upon preclusion by the public duty doctrine, and the Appellant contends that the action is not barred. We affirm in part, reverse in part, and remand for consideration of applicable insurance coverage.

I.

In 1993, while incarcerated in Huttonsville, West Virginia, and working with the Huttonsville Correctional Center Work Detail in Cass, West Virginia, ² Billy Joe Hottle formulated a document enumerating a detailed plan of destruction and murder of several prominent persons in the vicinity of Petersburg, West Virginia. ³ Although Mr. Hottle had discussed some of these plans with his prison counselor, Ms. Debbie Cottrell, she was apparently ordered to shred the information, ⁴ and no specific efforts were made to assure that Mr. Hottle would be powerless to accomplish his goals. On July 15, 1993, while on work detail at Cass, Mr. Hottle was reprimanded for cussing officers and violating work duty regulations. He was therefore sent back to the prison. Later that day, however, Mr. Hottle was permitted to return to work detail. On July 28, 1993, Mr. Hottle again violated work detail regulations by swimming in the river with local residents. Yet he was still permitted to participate in the work detail. On August 5, 1993, Mr. Hottle escaped.

Craig Swick, Mr. Hottle's first cousin, was incarcerated at the Charleston Work Release Center at the time of Mr. Hottle's escape. Despite concerns by corrections officials that Mr. Hottle would attempt to contact his cousin, ⁵ Mr. Swick was given a two-hour pass for furlough from the center on August 15, 1993, and Mr. Swick failed to return to the center. Mr. Hottle and Mr. Swick engaged in a crime spree ⁶ which culminated in the murders of three people, including the Appellant's wife, Karen Jeffrey. On August 23, 1993, Mr. Hottle and Mr. Swick murdered Mrs. Jeffrey while she was working in a Seven-Eleven store in Keyser, West Virginia, a crime for which both men were subsequently convicted of first degree murder. ⁷ Mr. Hottle and Mr. Swick abducted and forced a minister, his wife, and their granddaughter to drive them from Fayette County to Grant County on August 26, 1993, and they were finally apprehended on August 27, 1993, as they attempted to steal vehicle keys from employees at a Petersburg automobile dealership.

As investigation into the escapes ensued, Correctional Officer Robin Hammer of Huttonsville faxed a letter to the Warden's Office alleging that negligence on the part of Huttonsville Correctional Center administrators resulted in the escape of Mr. Hottle. On August 22, 1995, the Appellant instituted a wrongful death action against the Appellee, and the Appellee filed a motion to dismiss on September 25, 1995, alleging that it owed no special duty to Karen Jeffrey to exercise reasonable care in controlling Mr. Hottle and Mr. Swick, and that pursuant to the public duty doctrine, it could not be held liable in the wrongful death action. The lower court, after submission of briefs and arguments of counsel, agreed and dismissed the Appellant's action by order dated January 19, 1996. Specifically, the lower court held that the Appellant had failed to meet the standards enunciated in Wolfe v. City of Wheeling, 182 W.Va. 253, 387 S.E.2d 307 (1989), and Randall v. Fairmont City Police Department, 186 W.Va. 336, 412 S.E.2d 737 (1991), to overcome the obstacle created by the public duty doctrine.

II.

The Appellant contends that the lower court erred in failing to follow the principles enunciated in State ex rel. Davis Trust Company v. Sims, 130 W.Va. 623, 46 S.E.2d 90 (1947). In Sims, the deceased had been raped and murdered by an inmate at Huttonsville after the inmate had been permitted to leave the prison unaccompanied. The Davis Trust Company, as Administrator of the personal estate of the deceased, sought a peremptory writ of mandamus to compel the state auditor to order payment for damages resulting from the death of the intestate elderly woman. 130 W.Va. at 624, 46 S.E.2d at 91. In holding that the officers in control of the inmate were negligent in their duty to supervise the inmate, we discussed the obligation to "exercise due care to keep the convict ... in continuous and secure confinement and to prevent his escape...." Id. at 630, 46 S.E.2d at 94. We concluded in syllabus point one of Sims:

A moral obligation of the State exists in favor of the personal representative of a deceased person, and may be so declared and a valid appropriation of public funds for its payment made by the Legislature, when it appears that officers or agents of the State have negligently failed to perform an official duty imposed upon them and, as the natural and probable consequence of their negligence, death results to an innocent person from a murderous attack made by a convict committed, by sentence of life imprisonment for murder, to a state prison under their control, and, with knowledge of his vicious disposition and propensity to commit murder, they enable him, while unobserved and armed with a knife, to leave the prison and utilize the opportunity so presented for him to kill such person.

130 W.Va. at 623, 46 S.E.2d at 91.

The lower court examined the Sims precedent and concluded that only a moral obligation applicable to the particular circumstance in the Court of Claims had been established. As the lower court noted, the Sims Court was not presented with an issue of immunity. Rather, the Legislature had authorized and directed the state auditor to command payment, "from the state general revenue fund, in favor of the petitioner as administrator of the estate of the decedent for $5,000, as compensation to her heirs for her wrongful death, and declared the appropriation of that amount necessary to discharge a moral obligation of the State." Id. at 624, 46 S.E.2d at 91. ⁸ Thus, Sims established only the moral obligation of the State to pay the decedent's administrator an appropriation based upon the State's negligence in allowing the inmate's escape. As the lower court correctly concluded, Sims does not answer the question presently before this Court and does not impact upon the immunity defenses potentially available to the State.

III. Public Duty Doctrine

In our recent decision in Parkulo v. West Virginia Board of Probation and Parole and The West Virginia Division of Corrections, 199 W. Va. 161, 483 S.E.2d 507 (1996), the plaintiff instituted a civil action against Probation and Corrections after she was raped by a convicted criminal...