W. Va. State Police v. Hughes, 15-0691

• Decision Date: 26 January 2017
• Docket Number: No. 15-0691,15-0691
• Citation: 796 S.E.2d 193
• Court: West Virginia Supreme Court
• Parties: WEST VIRGINIA STATE POLICE, Corporal R.D. Eshbaugh, Corporal Z.L. Nine, and Trooper First Class J.D. See, Defendants below, Petitioners v. Victoria HUGHES, individually and as the administratrix of the estate of Walter N. Hughes, Kristina Arntz, Kristal Hughes, and Kristie Canfield, Plaintiffs below, Respondents

796 S.E.2d 193

WEST VIRGINIA STATE POLICE, Corporal R.D. Eshbaugh, Corporal Z.L. Nine, and Trooper First Class J.D. See, Defendants below, Petitioners

v.Victoria HUGHES, individually and as the administratrix of the estate of Walter N. Hughes, Kristina Arntz, Kristal Hughes, and Kristie Canfield, Plaintiffs below, Respondents

No. 15-0691

Supreme Court of Appeals of West Virginia.

Submitted: January 10, 2017

Filed: January 26, 2017

Michael D. Mullins, Esq., Robert L. Bailey, Esq., Steptoe & Johnson PLLC, Charleston, West Virginia, Tracey B. Eberling, Esq., Steptoe & Johnson PLLC, Martinsburg, West Virginia, Counsel for the Petitioners

Harry P. Waddell, Esq., Martinsburg, West Virginia, Counsel for the Respondents

Justice Ketchum :

In this appeal from the Circuit Court of Berkeley County, we apply the doctrine of qualified immunity. The plaintiffs contend that several West Virginia State Police employees were negligent in their duties. Under the doctrine of qualified immunity, state government employees are immune for negligent acts committed in the exercise of discretion; government employees can be liable only if their actions violate some clear legal or constitutional right. The doctrine shields officials from harassment, distraction, and liability when they exercise their discretion within the bounds of the law.

The record on appeal, even viewed in a light most favorable to the plaintiffs, indicates that the plaintiffs failed to show how the actions of the State Police employees violated any clear legal or constitutional right. However, the circuit court refused to afford the State Police employees qualified immunity. As set forth below, we reverse the circuit court's decision and remand the case for entry of summary judgment in favor of the State Police and its employees based on qualified immunity.

I.FACTUAL AND PROCEDURAL BACKGROUND

Decedent Walter Hughes and plaintiff Victoria Hughes were married in 1962. It appears that, throughout the marriage, Mr. Hughes repeatedly engaged in extra-marital affairs. In April 2012, Mrs. Hughes learned that her husband was engaging in another affair. Fearing her husband, because he had a propensity for verbal abuse and often carried a gun, Mrs. Hughes moved out of the couple's house.

On April 13, 2012, two of the Hughes's daughters (plaintiffs Kristina Arntz and Kristal Hughes) met with their father at the family's house to retrieve some of Mrs. Hughes's personal items. In the 15 minutes spent in the residence, both women say that their father became argumentative and brandished a gun, pointing it at Kristina. Mr. Hughes then pointed the gun at his chest and said, "I'm going to blow my f---g heart out," and, "You had better say goodbye to me Kristina. This is the last time you'll ever speak to me." He also said he would be dead by midnight. The two daughters left the Hughes's residence and retreated to Kristal's home across the street.

Fearing that Mr. Hughes might follow and harm them (or might seek out Mrs. Hughes and harm her), the two daughters collected their children and drove to the barracks of the defendant, the West Virginia State Police. They encountered a State Police office assistant, Barbara Boward, and told her they needed help. The daughters assert they told the office assistant: (1) that Mr. Hughes was threatening to kill himself, and (2) that Mr. Hughes had threatened Kristina with a gun, and that she feared for her life. The office assistant, however, claims the daughters never told her that Mr. Hughes had threatened Kristina. Regardless, when the office assistant contacted a dispatcher, she only relayed information that Mr. Hughes had a gun and was threatening to commit suicide.

Three State Police troopers (hereafter identified as the "April Troopers") were dispatched to the Hughes's residence at about 12:50 p.m. Mr. Hughes allegedly told the April Troopers that he had been caught cheating on his wife, but he repeatedly denied planning to kill himself. He admitted to having guns in the house and a pat down by the April Troopers found he was not carrying a weapon. The April Troopers spoke to him for about 15 minutes, and concluded that Mr. Hughes was calm and did not appear to be a threat to himself.

As the April Troopers left the Hughes's residence, they spoke to Kristal's boyfriend, Todd Jones, who also lived across the street. One of the April Troopers told the boyfriend they could not detain Mr. Hughes or take his guns because he was not threatening himself or others. The boyfriend asserts the trooper said, "He is 68 years old, he can do what he wants." The trooper told the boyfriend that the family could take the guns if they could get Mr. Hughes out of the house, and may have suggested the family could file a mental hygiene petition if they viewed Mr. Hughes as a threat to himself or others.

Back at the State Police barracks, the office assistant told the two daughters, "Everything is okay." When asked if Mr. Hughes had been taken to a hospital or otherwise taken into custody, the office assistant said, "No, they said he was fine." The daughters left the barracks but, allegedly fearing their father, declined to go back to the Hughes's residence.

At 2:39 p.m., Mr. Hughes sent a text message to Kristina's phone saying, "You can tell your mother that she can move back in tomorrow. There is an $82,000 check in her name on the table. I am so sorry this happened, Kristina. I love you." Kristina did not respond to the text.

Kristal returned to her home around 7:30 p.m., and she and her boyfriend saw no lights or movement in the Hughes's residence across the street. Between 8:00 and 8:30 p.m., the Hughes family phoned the State Police barracks and requested a check on Mr. Hughes's welfare. Troopers who responded inspected the residence and found a typed suicide note, a cashier's check for $82,000 made out to Mrs. Hughes, some jewelry, a wallet, and Mr. Hughes's cellphone. Mr. Hughes, however, was not found. At the request of the troopers, Kristina filed a missing person report.

Seven months later, on November 29, 2012, at about 1:10 p.m., the State Police received a report about a human skull found in an old quarry near the Hughes's residence.¹ Three troopers² (hereafter referred to as the "November Troopers") responded to the quarry, a 20-plus-acre abandoned shale pit overgrown with foliage and brush. The State Police aver that the November Troopers searched a 6,000 square foot area at least three times. Beginning where the skull was found, the November Troopers located concrete blocks covered by a wood plank that was set up like a seat. There, they found a tan jacket, a black t-shirt, part of a rib cage, and arm bones. Within fifty feet of the concrete blocks the troopers found shorts, a belt, the top half of a set of dentures, two femur bones, vertebrae, part of a hip bone, and several other bones.

The November Troopers photographed, documented, mapped, and bagged the items found. When the shirt by the concrete blocks was moved, the troopers found a handgun. Taken together, the evidence indicated Mr. Hughes was sitting on the cement blocks prior to shooting himself and fell forward and slightly to the left. The plaintiffs assert that the November Troopers only searched the quarry when they initially arrived. The November Troopers allege they conducted several searches, and that they remained on the scene until about 5:00 p.m., when it began to get dark. Thereafter, a trooper visited the Hughes's residence, told the family the evidence that was recovered, and said he thought the remains were those of Mr. Hughes.

The next day, November 30, 2012, the plaintiffs (and other family members, including a third Hughes daughter, plaintiff Kristie Canfield) visited the quarry. Soon after their arrival, they found the bottom half of Mr. Hughes's dentures, part of a jaw bone, an arm bone, finger bones, vertebrae, a rib, and pelvic bones. The family called the medical examiner's office, and a trooper responded to secure the remains. The trooper allegedly "dug around more in that area, in that immediate area, to try and locate anything else that may be behind," but found nothing else. The bones were transported to the funeral home.

On December 3, 2012, the Hughes's fourth daughter, Kristen (who was visiting from Germany and is not a plaintiff), went to visit the quarry with the plaintiffs. While there, the family discovered another of Mr. Hughes's bones. Troopers again responded, secured the bone and took it to the funeral home.

Several days later, a family friend searched the quarry using rakes and a leaf blower. Six to eight feet from the concrete blocks the friend found the shell casing for the bullet that appears to have killed Mr. Hughes. No other bones were found.

Despite the searches of the quarry on four different days, a significant portion of Mr. Hughes's skeleton was never found. The defendants tactfully suggest that wildlife may have disturbed the remains in the seven months before they were found.

On August 12, 2013, the plaintiffs (Mrs. Hughes and three of her four daughters) filed the instant case against the State Police.³ The plaintiffs asserted two causes of action against the defendants. First, the plaintiffs claimed the defendants were liable for the wrongful death of Mr. Hughes. The plaintiffs essentially contended that the State Police office assistant, Ms. Boward, knew or should have known that Mr. Hughes had the potential to harm himself or others, and because of her alleged miscommunication the State Police negligently or recklessly breached a duty to protect Mr. Hughes and others by failing to take him into custody. Second, the plaintiffs asserted that the November Troopers negligently or recklessly mishandled the remains of Mr. Hughes, thereby causing severe mental anguish to the plaintiffs.

After the parties conducted discovery, the State Police filed a motion for summary judgment. The State Police argued that the actions of the office assistant who spoke to...