W.Va. State Police v. J.H., 19-0741

Decision Date26 March 2021
Docket NumberNo. 19-0741,19-0741
CourtWest Virginia Supreme Court

Appeal from the Circuit Court of Berkeley County

The Honorable Michael Lorensen, Judge

Civil Action No. 19-C-161


Montè L. Williams

Steptoe & Johnson PLLC

Morgantown, West Virginia

Mark G. Jeffries

Steptoe & Johnson PLLC

Bridgeport, West Virginia

Attorneys for the Petitioner

Paul G. Taylor

Martinsburg, West Virginia

Attorney for the Respondent

CHIEF JUSTICE JENKINS delivered the Opinion of the Court.

JUSTICES HUTCHISON and WOOTON dissent and reserve the right to file dissenting opinions.


1. "Under W. Va. Code, 58-5-1 [1998], appeals only may be taken from final decisions of a circuit court. A case is final only when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined." Syllabus point 3, James M.B. v. Carolyn M., 193 W. Va. 289, 456 S.E.2d 16 (1995).

2. "A circuit court's denial of a motion to dismiss that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the 'collateral order' doctrine." Syllabus point 1, West Virginia Board of Education v. Marple, 236 W. Va. 654, 783 S.E.2d 75 (2015).

3. Where a complaint fails to adequately plead specific facts that (1) allow the court to draw the reasonable inference that the defendant is liable for the harm alleged, and (2) defeat a qualified immunity defense, then a circuit court's order deferring its ruling on a motion to dismiss based upon an assertion of qualified immunity is an interlocutory ruling that is subject to immediate appeal under the collateral order doctrine.

4. "When a party . . . assigns as error a circuit court's denial of a motion to dismiss, the circuit court's disposition of the motion to dismiss will be reviewed denovo." Syllabus point 4, in part, Ewing v. Board of Education of County of Summers, 202 W. Va. 228, 503 S.E.2d 541 (1998).

5. "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." Syllabus point 1, Hutchison v. City of Huntington, 198 W. Va. 139, 479 S.E.2d 649 (1996).

6. "'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 State agency 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)." Syllabus point 7, West Virginia Regional Jail & Correctional Facility Authority v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014).

7. "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 mustdetermine 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." Syllabus point 11, West Virginia Regional Jail & Correctional Facility Authority v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014).

8. "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/or employment. 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 vicarious 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 oremployee." Syllabus point 12, West Virginia Regional Jail & Correctional Facility Authority v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014).

Jenkins, Chief Justice:

Petitioner, the West Virginia State Police, Department of Military Affairs and Public Safety (the "WVSP"), appeals the circuit court's July 26, 2019 order denying its motion to dismiss the first amended complaint filed by Respondent, J.H.1, a minor, by and through his parent and next friend, L.D. ("J.H."), for failure to state a claim upon which relief can be granted. On appeal, the WVSP contends that the circuit court erred in three ways by (1) committing plain error in denying the WVSP's motion to dismiss when the court considered matters outside the pleadings without giving notice to the parties and without converting the WVSP's motion to dismiss into one for summary judgment; (2) denying the WVSP's motion to dismiss the vicarious liability claim on qualified immunity grounds; and (3) denying the WVSP's motion to dismiss the negligent training and supervision claim on qualified immunity grounds. Conversely, J.H. asserts that the circuit court correctly decided the issues by denying in part the WVSP's motion to dismiss and deferring its ruling on the issue of qualified immunity until discovery had been undertaken.

Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we find that the circuit court erred by considering matters outside the pleadings and failing to appropriately consider whether qualified immunity applied to shield the WVSP from suit. Accordingly, we reverse the July 26,2019 order of the circuit court and remand this case to the circuit court to enter an order dismissing the vicarious liability and negligent training and supervision claims against the WVSP and for further proceedings consistent with this opinion.


This appeal arises from an incident on November 19, 2018, in Berkeley County, West Virginia, involving J.H., WVSP Troopers Michael Kennedy and Derek Walker (the "Trooper Defendants"), and Berkeley County Sheriff's Deputies Christopher Merson and Austin Ennis (the "Officer Defendants"). On April 24, 2019, J.H. filed a complaint against the WVSP, the Trooper Defendants, and the Officer Defendants.2 In the complaint, J.H. alleged that all individual law enforcement officials "were acting both within and outside the scope of their duties" when, on November 19, 2018, they "individually and acting together as a mob under color of law, brutally and severely beat and hit . . . J.H., a minor, in [and] about the head and body, causing him injuries along with bodily damage, pain[,] and suffering." J.H. further asserted that the Trooper Defendants' actions were imputed to the WVSP pursuant to the doctrine of respondeat superior, and that the WVSP was vicariously liable for the Trooper Defendants' torts. In addition, with respect to the WVSP, J.H. contended that it was negligent and/or reckless in failing to(1) properly train its officers; (2) seek out, negate, and prevent the execution of any policy and agreement "wherein its members physically assault and beat up any person accused of a criminal offense . . . , and [] [in] fail[ing] to discipline its members who have engaged in such conduct in the past"; and (3) exercise field supervision over its officers. The complaint also alleged that the WVSP was "negligent and/or reckless in other manners of its operation and control." J.H. further averred that the WVSP and the Trooper Defendants violated ten statutes: West Virginia Code sections 15-2-12(b)(1),3 15-2-14,4 15-2-13(a),561-2-9,6 61-5-16,7 61-5-28,8 61-6-7,9 61-6-12,10 61-6-21,11 and 61-10-31.12 The violation of these statutes, according to J.H., gave rise to a cause of action under West Virginia Code section 55-7-9 (eff. 1923), which provides that "[a]ny person injured by the violation of any statute may recover from the offender such damages as he may sustain by reason of the violation, although a penalty or forfeiture for such violation be thereby imposed, unless the same be expressly mentioned to be in lieu of such damages." The claims against the Officer Defendants were similar to those asserted against the Trooper Defendants.

Following the filing of the complaint, the Trooper Defendants filed separate motions to dismiss for failure to state a claim upon which relief may be granted under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. The Trooper Defendants each argued that the statutes cited by J.H. in his complaint did not create private causes of action and that each Trooper Defendant was entitled to qualified immunity. J.H. filed a response in opposition to Trooper Walker's motion to dismiss, but it does not...

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