Randall v. Fairmont City Police Dept., No. 20089

• Court: Supreme Court of West Virginia
• Writing for the Court: McHUGH
• Citation: 412 S.E.2d 737,186 W.Va. 336
• Parties: Ann RANDALL, Administratrix of the Estate of Sandra C. Johnson; Renna Denise Gibson, Individually; Nicole Rae Gibson, by Her Mother, Guardian, and Next Friend, Renna Denise Gibson; and Dennis C. Terry, Curator of Elizabeth Lee Johnson, Plaintiffs Below, Appellants, v. The FAIRMONT CITY POLICE DEPARTMENT; Eddie Devito, Chief of Police of the Fairmont City Police Department; and Patti McIntire, Dispatcher, Defendants Below, Appellees.
• Docket Number: No. 20089
• Decision Date: 12 December 1991

Page 737

412 S.E.2d 737 186 W.Va. 336 Ann RANDALL, Administratrix of the Estate of Sandra C.
Johnson; Renna Denise Gibson, Individually; Nicole Rae
Gibson, by Her Mother, Guardian, and Next Friend, Renna
Denise Gibson; and Dennis C. Terry, Curator of Elizabeth
Lee Johnson, Plaintiffs Below, Appellants,
v.
The FAIRMONT CITY POLICE DEPARTMENT; Eddie Devito, Chief of
Police of the Fairmont City Police Department;
and Patti McIntire, Dispatcher,
Defendants Below, Appellees. No. 20089. Supreme Court of Appeals of
West Virginia. Submitted Sept. 24, 1991.
Decided Dec. 12, 1991.

Page 739

[186 W.Va. 338] Syllabus by the Court

1. "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." Syl. pt. 5, Lewis v. Canaan Valley Resorts, Inc., 185 W.Va. 684, 408 S.E.2d 634 (1991).

2. The qualified tort immunity provisions of the West Virginia Governmental Tort Claims and Insurance Reform Act of 1986, W.Va. Code, 29-12A-1 to 29-12A-18, do not violate the certain remedy provision of article III, section 17 of the Constitution of West Virginia.

3. " '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).

4. " ' "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., W.Va. , 328 S.E.2d 144 (1984)." Syl. pt. 4, Gibson v. West Virginia Department of Highways, 185 W.Va. 214, 406 S.E.2d 440 (1991).

5. The qualified tort immunity provisions of the West Virginia Governmental Tort Claims and Insurance Reform Act of 1986, W.Va.Code, 29-12A-1 to 29-12A-18, do not violate the equal protection principles of article III, section 10 of the Constitution of West Virginia.

6. "If a special relationship exists between a local governmental entity and an individual which gives rise to a duty to

Page 740

[186 W.Va. 339] such individual, and the duty is breached causing injuries, then a suit may be maintained against such entity." Syl. pt. 3, Benson v. Kutsch, 181 W.Va. 1, 380 S.E.2d 36 (1989).

7. "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).

8. W.Va.Code, 29-12A-5(a)(5) [1986], which provides, in relevant part, that a political subdivision is immune from tort liability for "the failure to provide, or the method of providing, police, law enforcement or fire protection[,]" is coextensive with the common-law rule not recognizing a cause of action for the breach of a general duty to provide, or the method of providing, such protection owed to the public as a whole. Lacking a clear expression to the contrary, that statute incorporates the common-law special duty rule and does not immunize a breach of a special duty to provide, or the method of providing, such protection to a particular individual.

9. "The question of whether a special duty arises to protect an individual from a local governmental entity's negligence in the performance of a nondiscretionary ... function is ordinarily a question of fact for the trier of the facts." Syl. pt. 3, in part, Wolfe v. City of Wheeling, 182 W.Va. 253, 387 S.E.2d 307 (1989).

Monty L. Preiser, Preiser Law Offices, Charleston, for appellants.

Harry P. Waddell and Gordon H. Copland, Steptoe & Johnson, Clarksburg, for appellees.

McHUGH, Justice:

In this appeal by the plaintiffs below from a final order of the Circuit Court of Marion County, West Virginia, dismissing the action for failure to state a claim upon which relief may be granted, the primary substantive issue is the constitutionality of the qualified tort immunity provisions of the West Virginia Governmental Tort Claims and Insurance Reform Act of 1986, W.Va.Code, 29-12A-1 to 29-12A-18 [1986]. This Court agrees with the circuit court that the qualified tort immunity provisions of such Act are constitutional. The dispositive procedural issue, however, is the propriety of the dismissal of the action for failure to state a claim upon which relief may be granted. We believe such dismissal was improper in this case, due to a material factual issue raised by the complaint, specifically, whether a special relationship existed between the plaintiffs and the defendant city. If proved, such a relationship created duties of the city not covered by the immunity provisions of the Act. Accordingly, we affirm in part and reverse in part and remand this case for further proceedings consistent with this opinion.

I.

FACTS

On June 16, 1988, June 25, 1988, July 19 or 20, 1988, and August 14, 1988, Sandra C. Johnson made telephone calls to the Police Department of the City of Fairmont, Marion County, West Virginia, informing the police that Zachary Curtis Lewis had harassed and threatened her and that she feared for her safety and life. During this same period of time, Mr. Lewis had on one occasion physically injured Ms. Johnson to the extent that she required hospitalization.

Prior to August 15, 1988, Mr. Lewis was to appear at a judicial proceeding in Marion County on criminal charges, but he failed to appear. Thereupon, a warrant was issued for his arrest. Despite the fact that

Page 741

[186 W.Va. 340] an arrest warrant was outstanding for Mr. Lewis and despite the fact that Ms. Johnson had made the numerous telephone calls to the police, reporting the threats by Mr. Lewis toward her, the city police and other law enforcement officers took no action to apprehend and to arrest Mr. Lewis.

On August 15, 1988, Ms. Johnson, who was driving her automobile in Fairmont, noticed that Mr. Lewis was following her in his car. In fear, she drove to the Police Department of the City of Fairmont and parked her car directly beside the city police department building, on the city police department parking lot. She blew her automobile horn several times in an unsuccessful attempt to get the attention of the police inside the police department building. While she was in her automobile, Mr. Lewis approached on foot and, with a pistol, shot and killed Ms. Johnson. Ms. Johnson was pregnant at the time. Her baby daughter was delivered by cesarean section shortly thereafter. She died a couple of months later. At the same time Mr. Lewis shot and killed Ms. Johnson in her car, he also shot and physically injured one other adult passenger in Ms. Johnson's car and emotionally injured a minor passenger in the car.

This wrongful death/negligence action subsequently was brought on behalf of Ms. Johnson's estate and the other fatally or nonfatally injured persons against the Police Department of the City of Fairmont and its chief of police and dispatcher. The plaintiffs alleged that the defendants negligently failed to protect the plaintiffs from harm, despite having been alerted several times as to Mr. Lewis' threats against Ms. Johnson and despite Ms. Johnson's attempt to get police protection immediately prior to her death at the hands of Mr. Lewis.

The trial court, the Circuit Court of Marion County, granted the defendants' motion to dismiss for failure to state a claim, in light of the West Virginia Governmental Tort Claims and Insurance Reform Act of 1986, specifically, W.Va.Code, 29-12A-5(a)(5) [1986] and W.Va.Code, 29-12A-5(b) [1986]. ¹

The plaintiffs have brought this appeal, challenging the...