McCormick v. Dept. of Public Safety

• Decision Date: 08 May 1998
• Docket Number: No. 24446.,24446.
• Citation: 202 W.Va. 189,503 S.E.2d 502
• Parties: Robert W. McCORMICK, as Personal Representative of the Estate of Alicia A. McCormick, Plaintiff below, Appellant, v. WEST VIRGINIA DEPARTMENT OF PUBLIC SAFETY, Division of Corrections, Joseph Skaff, Individually and in his Official Capacity as Secretary of the Department of Public Safety, Ron Gregory, Individually and in his Official Capacity as Past Commissioner of the West Virginia Division of Corrections, Karen Schumaker, Individually and in her Official Capacity as former Chief of Community Services with the Division of Corrections, Donald Smith and Harold D. Gunnoe, Defendants below, Appellees.
• Court: West Virginia Supreme Court

503 S.E.2d 502

202 W.Va. 189

Robert W. McCORMICK, as Personal Representative of the Estate of Alicia A. McCormick, Plaintiff below, Appellant, v. WEST VIRGINIA DEPARTMENT OF PUBLIC SAFETY, Division of Corrections, Joseph Skaff, Individually and in his Official Capacity as Secretary of the Department of Public Safety, Ron Gregory, Individually and in his Official Capacity as Past Commissioner of the West Virginia Division of Corrections, Karen Schumaker, Individually and in her Official Capacity as former Chief of Community Services with the Division of Corrections, Donald Smith and Harold D. Gunnoe, Defendants below, Appellees.

No. 24446.

Supreme Court of Appeals of West Virginia.

Submitted January 20, 1998.

Decided May 8, 1998.

Mike Kelly, Lonnie C. Simmons, DiTrapano & Jackson, Charleston, for Appellant.

John R. Fowler, Mary Sanders, Kathleen H. Jones, Huddleston, Bolen, Beatty, Porter & Copen, Charleston, for Appellee Smith. David P. Cleek, Marilyn T. McClure, Lou Ann S. Cassell, McQueen, Harmon, Potter & Cleek, L.C., Charleston, for State Appellees.

Marc P. Turgeon, Charleston, for Appellee Gunnoe.

PER CURIAM:¹

This case arises from the July, 1991 murder of Alicia McCormick, a Charleston, West Virginia social worker. Ms. McCormick was stabbed to death in her apartment by Harold D. Gunnoe ("Gunnoe"), an inmate at the Charleston Work Release Center ("CWRC"), operated by the appellee West Virginia Department of Public Safety, Division of Corrections ("DOC"), a state agency. At the time of Ms. McCormick's murder, she was living in an apartment building owned by the appellee, Donald Smith ("Smith").

On July 16, 1993, the appellant Robert McCormick, as administrator of Alicia McCormick's estate, filed a wrongful death suit in the Circuit Court of Kanawha County against (a) the DOC and several of its officials; (b) Donald Smith; and (c) Harold Gunnoe—claiming that these defendants' wrongful conduct proximately caused or contributed to Ms. McCormick's death.

On August 25, 1994 the circuit court dismissed the DOC officials in their individual capacities and dismissed the appellant's request for punitive damages against the DOC and its officials. On January 3, 1997 the circuit court granted summary judgment against the appellant on his claim against Smith. Finally, on May 8, 1997 the circuit court granted a motion for summary judgment made by the DOC and its officials in their official capacities. The appellant appeals all of these rulings, which dismiss all of the appellant's claims against the DOC, its officials, and Smith.²

We reverse the May 8, 1997 grant of summary judgment for the DOC and its officials in their official capacities, but we affirm the circuit court's other rulings.

I. Facts and Background

In 1991, Gunnoe was serving a five-to-18 year imprisonment sentence for second-degree murder. Gunnoe had stabbed to death Veronica Blanton, a counselor whom Gunnoe met in a substance abuse program. Gunnoe pled guilty to second-degree murder after his first-degree murder conviction for Ms. Blanton's death was overturned on the grounds that an illegally obtained confession was used as evidence at his trial. See State v. Gunnoe, 179 W.Va. 808, 374 S.E.2d 716 (1988)

.

In addition to the murder of Ms. Blanton, Gunnoe had a substantial record of involvement with the criminal justice system. In over 15-plus years, in addition to the Blanton murder, Gunnoe had been arrested and charged with forgery, worthless checks, uttering, burglary, breaking and entering, assault with a deadly weapon, grand larceny, resisting arrest, escape and parole violation. In a number of instances, however, no convictions followed the arrests or charges.

On March 28, 1990, after serving about three and one-half years in prison for Ms. Blanton's murder, Gunnoe was transferred by the DOC from the medium security prison at Huttonsville, West Virginia, to the unsecured Charleston Work Release Center.

Gunnoe's conduct at the CWRC was poor. He was removed from his first "inside" job at the CWRC, a maintenance position, for inadequate work. He quit or was fired from his first "outside" job. He broke CWRC rules by cashing his first paycheck instead of turning it in. He was fired from a second outside job.

In September, 1990 Gunnoe pled guilty to 16 CWRC disciplinary charges of fraudulent misrepresentation and failure to proceed or return, before a DOC magistrate. Gunnoe was sentenced to return to Huttonsville, but the sentence was suspended and Gunnoe was given a punishment of "lost privileges" for 30 days.

Gunnoe continued to perform poorly. He failed to attend counseling, failed to turn in his paycheck, and he unlawfully operated a motor vehicle without insurance. He was fired from a third outside job, and lied about another job. In May, 1991 he was fired from a fourth outside job—for poor work habits, bad attitude, and refusal to work.

In June 1991, Gunnoe was discharged from a fifth outside job, because he "constantly mouthed off, refused work details, refused to work, made inappropriate comments to females, and had a bad attitude with the supervisor." On June 5, 1991, DOC staff summarized Gunnoe's history at the CWRC in a memo urging his return to Huttonsville, as a "program failure."

Meanwhile, in March of 1991, Gunnoe and his then-wife had moved into an apartment in Charleston, next door to an apartment building owned by the appellee Smith. (Apparently the CWRC allowed some inmates who were assigned to the CWRC to reside away from the CWRC, on "furlough" status.) Smith and Gunnoe spoke, and this conversation led to Gunnoe beginning to perform part-time maintenance work for Smith on several rental properties owned by Smith.

Gunnoe and his wife thereafter moved into one of Smith's apartment buildings, agreeing that any work they performed for Smith would go toward their rent. Gunnoe's wife cleaned some of Smith's vacant apartments, and Gunnoe and his father constructed a retaining wall for Smith.

At some point after Smith met and employed Gunnoe, Smith learned that Gunnoe was an inmate at the CWRC, that Gunnoe had been in prison, and that Gunnoe had been convicted of murder.³ According to Smith, Gunnoe told Smith that Gunnoe had killed a man who raped Gunnoe's sister.⁴

Alicia McCormick was employed as a domestic violence counselor and program director for the YWCA in Charleston. She ran an anger control group that was frequented by work release inmates. On about June 7, 1991, Ms. McCormick moved into an apartment at Smith's Green Meadow apartments. (Green Meadow was not the building where Gunnoe lived.)

In the latter part of June, 1991, Gunnoe informed DOC employee Becky Jordan at the CWRC that Gunnoe had met Ms. McCormick "by doing work at her apartment." In Ms. Jordan's presence, Gunnoe referred to Ms. McCormick as a "looker."

On about July 2, 1991, Ms. McCormick came to the CWRC to discuss with inmates the relationship between alcohol and violence. Gunnoe was "hanging out" in the yard, according to Ms. Jordan, and Ms. Jordan and Ms. McCormick stopped to speak with Gunnoe.

According to Ms. Jordan, Ms. McCormick thanked Gunnoe for hanging blinds for Ms. McCormick at her apartment, and asked Gunnoe if he could locate an air conditioner for Ms. McCormick's use. Ms. Jordan described Gunnoe as "flirting" with Ms. McCormick, because he thought "she was good looking." Ms. Jordan believed that Gunnoe was deliberately present at the CWRC on that occasion because he knew that Ms. McCormick would be there. On about July 18, 1991, Gunnoe and Smith were at the apartment building where Ms. McCormick lived, and Gunnoe whistled at Ms. McCormick as she came down the stairs. Smith admonished Gunnoe.

On or about July 20, 1991, Gunnoe murdered Ms. McCormick in her apartment, by stabbing her to death with a knife. Smith had changed the McCormick apartment locks when Ms. McCormick moved in, and she had the only key. The Charleston police concluded that Gunnoe's entry to the McCormick apartment was not forcible.

II. Standard of Review

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). A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law. Syllabus Point 3, Aetna Casualty and Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160,133 S.E.2d 770 (1963).

III. Discussion

A. Smith's Liability

The circuit court determined that the appellee Donald Smith could not be liable to the appellant under the appellant's theory of negligent hiring or negligent retention. We agree.

There can be no doubt that this court has recognized a cause of action based upon a claim of negligent hiring (or negligent retention)—as we recently stated in State ex rel. West Virginia State Police v. Taylor, 201 W.Va. 554, 560 n. 7, 499 S.E.2d 283, 289 n. 7 (1997)⁵

Paraphrasing slightly a portion of our statement in Taylor, we will assume for the purposes of the instant case that a fair formulation of the inquiry upon which liability for negligent hiring or retention should be determined is: "when the employee was hired or retained, did the employer conduct a reasonable investigation into the employee's background vis a vis the job for which the employee was hired and the possible risk of harm or injury to co-workers or third parties that could result from the conduct of an unfit employee? Should the employer have reasonably foreseen the risk caused by hiring or retaining an unfit person?" Id.

The appellant claims that Smith, when he learned that Gunnoe was a convicted murderer, should have further investigated Gunnoe's background, assessed whether Gunnoe posed a risk to third persons, and taken appropriate steps to eliminate or minimize any risk—presumably by discharging Gunnoe, circumscribing his activities,...