Upchurch v. Mcdowell Cnty. 911

Decision Date24 October 2013
Docket NumberNo. 12–0824.,12–0824.
Citation750 S.E.2d 644,232 W.Va. 91
CourtWest Virginia Supreme Court
PartiesLorraine M. UPCHURCH, Administratrix of the Estate of Joe Edward Mallory, Deceased, Plaintiff Below, Petitioner v. McDOWELL COUNTY 911 and Jane Doe Dispatcher, Defendants Below, Respondents.

OPINION TEXT STARTS HERE

Recognized as Invalid

West's Ann.W.Va.Code, 57–3–1

Syllabus by the Court

1. “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).

2. “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.” Syllabus point 8, Randall v. Fairmont City Police Department, 186 W.Va. 336, 412 S.E.2d 737 (1991).

3. “If a special relationship exists between a local governmental entity and an individual which gives rise to a duty to such individual, and the duty is breached causing injuries, then a suit may be maintained against such entity.” Syllabus point 3, Benson v. Kutsch, 181 W.Va. 1, 380 S.E.2d 36 (1989).

4. “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 inactioncould 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.” Syllabus point 2, Wolfe v. City of Wheeling, 182 W.Va. 253, 387 S.E.2d 307 (1989).

J.B. Akers, Akers Law Offices, PLLC, Charleston, WV, for Petitioner.

M. Andrew Brison, Anspach Meeks Ellenberger, LLP, Charleston, WV, for Respondents.

PER CURIAM:

The petitioner herein and plaintiff below, Lorraine M. Upchurch (Ms. Upchurch), Administratrix of the Estate of Joe Edward Mallory (“Mr. Mallory”), appeals from orders entered June 6, 2012, and June 12, 2012, by the Circuit Court of Kanawha County. By the June 6, 2012, order, the circuit court found that the respondents herein and defendants below, McDowell County 911 and Jane Doe Dispatcher 1 (collectively McDowell County 911), were entitled to summary judgment because Ms. Upchurch had failed to prove that they owed a special duty to her decedent, Mr. Mallory. Thereafter, by order entered June 12, 2012, the circuit court extended the time within which Ms. Upchurch was required to file her notice of appeal to this Court. Before this Court, Ms. Upchurch challenges the circuit court's award of summary judgment to the respondents. Upon our review of the parties' arguments, the appendix record, and the pertinent authorities, we affirm the circuit court's decision. In summary, we find that Ms. Upchurch failed to prove that the respondents, McDowell County 911 and Jane Doe Dispatcher, owed a special duty of care to her decedent, Mr. Mallory, as contemplated by Syllabus point 2 of Wolfe v. City of Wheeling, 182 W.Va. 253, 387 S.E.2d 307 (1989).2

I.FACTUAL AND PROCEDURAL HISTORY

The facts giving rise to the instant proceeding are not generally disputed by the parties. At approximately 10:00 a.m., on Saturday, January 19, 2008, Mr. Mallory 3 called McDowell County 911 to request assistance at his residence because a man,4 who was later identified as Robert Wayne Johnson, Jr. (“Mr. Johnson”),5 was banging on the front door of his home and threatening to harm him.6 McDowell County 911 dispatcher, Ms. Heffner, answered Mr. Mallory's call. Ms. Heffner obtained Mr. Mallory's name, address,7 and telephone number, and asked him the nature of his problem. Mr. Mallory reported that a man was threatening to kick in his door and harm him. During the call, Ms. Heffner could hear the man yelling, and Mr. Mallory gave Ms. Heffner a description of the man and the man's vehicle. Ms. Heffner told Mr. Mallory that she would alert the police.

After the call from Mr. Mallory ended, Ms. Heffner called West Virginia State Police Trooper Jason Keffer (“Trooper Keffer”), who was stationed in McDowell County.8 Trooper Keffer informed Ms. Heffner that he was between shifts and was not yet ready for duty, and he asked Ms. Heffner to call Mr. Mallory back to obtain more information about his request for assistance.

Ms. Heffner then called Mr. Mallory and informed him a trooper was on the way to his house. After learning that the man had left, Ms. Heffner explained to Mr. Mallory that there was no longer a need for a trooper to come to his home. Mr. Mallory expressed fear that the man would return and hurt him, and indicated that he had a shotgun that he could use to protect himself. Ms. Heffner cautioned Mr. Mallory not to shoot anyone and instructed him to call her back if the man returned. Ms. Heffner also told Mr. Mallory that she would have a trooper call him so he could explain why he had requested assistance.

After her second conversation with Mr. Mallory, Ms. Heffner called Trooper Keffer and relayed that the man had left Mr. Mallory's residence, that she had warned him not to shoot anyone, and that she had instructed him to call her back if the man returned.

Following this exchange, the parties dispute whether Trooper Keffer also called Mr. Mallory to check on his safety and to ascertain whether he needed to go to his home. This telephone call was not recorded. However, it is undisputed that Trooper Keffer did not travel to Mr. Mallory's home on Saturday, January 19, 2008. Moreover, Mr. Mallory did not call McDowell County 911 for further assistance on January 19, 2008.

The next morning, Sunday, January 20, 2008, Pat Johnson (“Mrs.Johnson”), Mr. Johnson's stepmother, called McDowell County 911 to report that she believed that Mr. Johnson had killed a man. It was later determined that Mr. Johnson had broken into Mr. Mallory's home through his back door at approximately 11:30 p.m., on Saturday, January 19, 2008, and had robbed and killed him. Mr. Johnson allegedly killed Mr. Mallory by stabbing him over thirty times in the head, face, and arms, which wounds indicated that Mr. Mallory had tried to defend himself.9

Thereafter, Ms. Upchurch filed the instant wrongful death action against the West Virginia Department of Military Affairs and Public Safety; James W. Spears; West Virginia State Police; Colonel Timothy S. Pack; John Doe State Trooper; 10 McDowell County Commission; McDowell County Sheriff's Department; John Doe McDowell County Deputy Sheriff; McDowell County 911; Jane Doe Dispatcher; 11 Robert Wayne Johnson, Sr.; 12 and Pat Johnson. In her complaint, Ms. Upchurch alleged that the named defendants had contributed to Mr. Mallory's death through their negligence and wanton and reckless conduct and sought wrongful death damages. McDowell County 911 moved for summary judgment arguing that it did not owe a special duty to Mr. Mallory. By order entered June 6, 2012, the circuit court granted summary judgment to McDowell County 911 13 concluding that Plaintiff [Ms. Upchurch] can present no evidence at trial to support the legal position that [Mr.] Mallory justifiably relied upon any conduct of [Ms.] Heffner that created a special relationship between the two. As a result, Plaintiff [Ms. Upchurch] cannot, as a matter of law, demonstrate that a special duty was created upon Defendant [McDowell County 911] that resulted in any harm to [Mr.] Mallory.

Because no special relationship was created between [Mr.] Mallory and [Ms.] Heffner, Defendant [McDowell County 911] is immune from this litigation pursuant to West Virginia Code, § 29–12A–5.

By subsequent order entered June 12, 2012, the circuit court extended the time within which Ms. Upchurch was required to file her appeal from the circuit court's earlier summary judgment order to this Court.14 From these orders, Ms. Upchurch now appeals to this Court.

II.STANDARD OF REVIEW

The orders from which Ms. Upchurch appeals involve an award of summary judgment to the respondents. Our review of the lower court's summary judgment order is plenary: “A circuit court's entry of summary judgment is reviewed de novo. Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). In light of this standard, we proceed to consider the parties' arguments.

III.DISCUSSION

The sole dispositive issue in this case 15 is whether McDowell County 911 owed Mr. Mallory a special duty of care. If such a special duty of care exists, then McDowell County 911 is amenable to suit for Mr. Mallory's wrongful death. If no such special duty of care exists, then McDowell County 911 is immune from suit as a political subdivision. We find, under the facts of this case, that Ms. Upchurch has failed to prove that McDowell County 911 owed Mr. Mallory a special duty of care.

Pursuant to W. Va.Code § 29–12A–5(a) (1986) (Repl.Vol.2013),

[a] political subdivision is immune from liability if a loss or claim results from:

....

(4) Adoption or failure to adopt a law, including, but not limited to, any statute, charter provision, ordinance, resolution, rule, regulation or written policy; [or]

(5) Civil disobedience, riot, insurrection or rebellion or the failure to provide, or the method of providing, police, law enforcement or fire...

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1 cases
  • City of Marmet, Corp. v. Hunter
    • United States
    • West Virginia Supreme Court
    • May 17, 2018
    ...several instances in which this scenario has arisen. For example, we addressed the special relationship issue in Upchurch v. McDowell Co., 232 W.Va. 91, 750 S.E.2d 644 (2013), within the context of a wrongful death suit against a county 911 dispatch after a victim's murder. We examined the ......

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