W. Va. Reg'l Jail & Corr. Facility Auth. v. A.B., 13-0037

• Decision Date: 27 March 2014
• Docket Number: No. 13-0037,13-0037
• Court: West Virginia Supreme Court
• Parties: WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY, an agency of the State of West Virginia, Defendant, Petitioner v. A. B., Plaintiff, Respondent

WEST VIRGINIA REGIONAL JAILAND CORRECTIONAL FACILITY AUTHORITY,an agency of the State of West Virginia, Defendant, Petitioner v. A. B., Plaintiff, Respondent

No. 13-0037

SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2014 Term

Submitted: February 4, 2014

Filed: March 27, 2014

Appeal from the Circuit Court of Kanawha County

The Honorable Carrie Webster, Judge

Civil Action No. 10-C-2131

REVERSED AND REMANDED

M. Andrew Brison, Esq.

Ryan L. Bostic, Esq.

Allen, Kopet, and Associates, PLLC

Charleston, West Virginia

Attorneys for Petitioner

Kerry A. Nessel, Esq.

THE NESSEL LAW FIRM

Huntington, West Virginia

Attorney for Respondent

JUSTICE WORKMAN delivered the Opinion of the Court.

CHIEF JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.

SYLLABUS BY THE COURT

1. "This Court reviews de novo the denial of a motion for summary judgment, where such a ruling is properly reviewable by this Court." Syl. Pt. 1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002).

2. "A circuit court's denial of summary judgment that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the 'collateral order' doctrine." Syl. Pt. 2, Robinson v. Pack, 223 W. Va. 828, 679 S.E.2d 660 (2009).

3. "The ultimate determination of whether qualified or statutory immunity bars a civil action is one of law for the court to determine. Therefore, unless there is a bona fide dispute as to the foundational or historical facts that underlie the immunity determination, the ultimate questions of statutory or qualified immunity are ripe for summary disposition." Syl. Pt. 1, Hutchison v. City of Huntington, 198 W. Va. 139, 479 S.E.2d 649 (1996).

4. "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 officialwill be entitled to immunity when the State is not. The existence of the [] immunity of the State must be determined on a case-by-case basis." Syl. Pt. 9, Parkulo v. W. Va. Bd. of Probation and Parole, 199 W. Va. 161, 483 S.E.2d 507 (1996).

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. [the West Virginia Governmental Tort Claims and Insurance Reform Act], 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." Syllabus, in part, State v. Chase Securities, Inc., 188 W. Va. 356, 424 S.E.2d 591 (1992).

6. "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).

7. "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 Stateagency 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).

8. "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. W. Va. Bd. of Probation and Parole, 199 W. Va. 161, 483 S.E.2d 507 (1996).

9. "The common-law immunity of the State in suits brought under the authority of W. Va. Code § 29-12-5 (1996) with respect to judicial, legislative, and executive (or administrative) policy-making acts and omissions is absolute and extends to the judicial, legislative, and executive (or administrative) official when performing those functions." Syl. Pt. 7, Parkulo v. W. Va. Bd. of Probation and Parole, 199 W. Va. 161, 483 S.E.2d 507 (1996).

10. To determine whether the State, its agencies, officials, and/or employees are entitled to immunity, a reviewing court must first identify the nature of thegovernmental acts or omissions which give rise to the suit for purposes of determining whether such acts or omissions constitute legislative, judicial, executive or administrative policy-making acts or involve otherwise discretionary governmental functions. To the extent that the cause of action arises from judicial, legislative, executive or administrative policy-making acts or omissions, both the State and the official involved are absolutely immune pursuant to Syl. Pt. 7 of Parkulo v. W. Va. Bd. of Probation and Parole, 199 W. Va. 161, 483 S.E.2d 507 (1996).

11. To the extent that governmental acts or omissions which give rise to a cause of action fall within the category of discretionary functions, a reviewing court must determine whether the plaintiff has demonstrated that such acts or omissions are in violation of clearly established statutory or constitutional rights or laws of which a reasonable person would have known or are otherwise fraudulent, malicious, or oppressive in accordance with State v. Chase Securities, Inc., 188 W. Va. 356, 424 S.E.2d 591 (1992). In absence of such a showing, both the State and its officials or employees charged with such acts or omissions are immune from liability.

12. If the plaintiff identifies a clearly established right or law which has been violated by the acts or omissions of the State, its agencies, officials, or employees, or can otherwise identify fraudulent, malicious, or oppressive acts committed by such official or employee, the court must determine whether such acts or omissions were within the scope of the public official or employee's duties, authority, and/oremployment. To the extent that such official or employee is determined to have been acting outside of the scope of his duties, authority, and/or employment, the State and/or its agencies are immune from liability, but the public employee or official is not entitled to immunity in accordance with State v. Chase Securities, Inc., 188 W. Va. 356, 424 S.E.2d 591 (1992) and its progeny. If the public official or employee was acting within the scope of his duties, authority, and/or employment, the State and/or its agencies may be held liable for such acts or omissions under the doctrine of respondeat superior along with the public official or employee.

WORKMAN, Justice:

The West Virginia Regional Jail and Correctional Facility Authority (hereinafter "the WVRJCFA") appeals the December 3, 2012, order of the Circuit Court of Kanawha County denying its motion for summary judgment on qualified immunity grounds. The circuit court found that the WVRJCFA was not entitled to qualified immunity because 1) disputed issues of material fact precluded a determination as to whether the WVRJCFA is vicariously liable for the alleged sexual assaults committed by its employee; and 2) respondent's claims of negligent supervision, training, and retention do not encompass discretionary decisions in the administration of fundamental government policy. Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we find that the WVRJCFA is entitled to qualified immunity; therefore, we reverse the order of the circuit court and remand the case for entry of an order granting summary judgment and dismissing the action against it.

I. FACTS AND PROCEDURAL HISTORY

Respondent/plaintiff below, A. B. (hereinafter "respondent"), was convicted in 2006 of two counts of third degree sexual assault for having intercourse with her boyfriend's fourteen-year-old son; she was sentenced to one to five years for each count, to run consecutively. Respondent was paroled in August 2008, but violated her parole and was reconfined. She was booked into the Southern Regional Jail inSeptember, 2009. Respondent alleges that beginning in October, 2009 while housed at the Southern Regional Jail, she was vaginally and orally raped seventeen times by Correctional Officer D. H. (non-participant in this appeal),¹ who denies all allegations of sexual contact with respondent. Shortly after respondent claims the alleged sexual assaults commenced, on November 2, 2009, D. H. filed an incident report against respondent indicating that she had improperly propositioned him, asking if he would be willing to "trade a favor for a favor" in exchange for "anything."

On November 23, 2009, a fellow inmate in transit to a court hearing advised Sgt. Michael Francis and Correctional Officer Brian Ewing that respondent and others had assaulted her in the pod, resulting in a black eye; she further advised that respondent and Correctional Officer D. H. were having a sexual relationship. Sgt. Francis and C. O. Ewing each filed incident reports with their superior, Lt. Bunting. Lt. Bunting convened a meeting between Sgt. Francis, C. O. Ewing, and D. H., to advise D. H. of the allegations. C. O. Ewing testified...