West Virginia Regional Jail & Correctional Facility Authority v. A.B.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2014 Term

FILED

October 31, 2014

released at 3:00 p.m.

No. 13-0037 RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

WEST VIRGINIA REGIONAL JAIL AND

CORRECTIONAL FACILITY AUTHORITY,

an agency of the State of West Virginia,

Defendant Below, Petitioner

v.

A. B.,

Plaintiff Below, Respondent

Appeal from the Circuit Court of Kanawha County

The Honorable Carrie Webster, Judge

Civil Action No. 10-C-2131

REVERSED AND REMANDED

Rehearing Granted: June 10, 2014

Submitted Upon Rehearing: June 10, 2014

Filed: October 31, 2014

M. Andrew Brison, Esq. Kerry A. Nessel, Esq.

ANSPACH MEEKS ELLENBERGER LLP THE NESSEL LAW FIRM

Charleston, West Virginia Michael A. Woelfel, Esq.

Attorney for Petitioner Huntington, West Virginia

Attorneys for Respondent

Lonnie C. Simmons, Esq.

DITRAPANO, BARRETT, DIPIERO,

MCGINLEY & SIMMONS, PLLC

Charleston, West Virginia

David M. Hammer, Esq.

Hammer, Ferretti & Schiavoni

Martinsburg, West Virginia

Attorneys for Amicus Curiae

American Civil Liberties Union of West Virginia Foundation,

National Association for Women, National Association

Of Social Workers, West Virginia Division, West Virginia

Council of Churches, West Virginia Employment Lawyers

Association, WV Free, and West Virginia Association for

Justice

JUSTICE WORKMAN delivered the Opinion of the Court.

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

JUSTICE BENJAMIN concurs and reserves the right to file a concurring 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 official

i

will 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 State

ii

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).

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 the

iii

governmental 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/or

iv

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 or employee.

13. The Court takes the pleadings and record as it finds them and the

adversarial process makes it incumbent on the parties to plead the causes of action and

present the requisite evidence necessary to maintain viability of their case. Courts cannot

concoct or resurrect arguments neither made nor advanced by the parties.

14. The “special relationship” or “special duty” doctrine is an exception

to the liability defense known as the public duty doctrine; it is neither an immunity

concept nor a stand-alone basis of liability.

v

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. The WVRJCFA appealed and this Court reversed and remanded for

entry of an order granting it summary judgment, finding that it was entitled to qualified

immunity. Following review of respondent’s petition for rehearing, along with the

amicus curiae’s brief in support of rehearing,1 we concluded that justice required us to

revisit the legal issues presented and attendant public policy concerns raised by our initial

opinion.

1

We wish to acknowledge and thank the amicus curiae American Civil Liberties

Union of West Virginia Foundation, National Association for Women, National

Association Of Social Workers, West Virginia Division, West Virginia Council of

Churches, West Virginia Employment Lawyers Association, WV Free, and West

Virginia Association for Justice for their briefing on these most important issues.

1

Upon further review of the briefs, the appendix record, the arguments of the

parties, the amicus curiae, and the applicable legal authority, we again find that the

WVRJCFA is entitled to immunity under the circumstances here present; 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 in

September, 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. (a non-participant in this appeal), who denies all allegations of

sexual contact with respondent. In particular, respondent alleges that D. H. raped her in

various commonly accessible areas of the jail including the video arraignment room and

property room. On November 2, 2009, shortly after the alleged sexual assaults

commenced, 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.”

2

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 in his deposition that D. H. responded to the

allegations with “a snicker, you know, like, you know I can’t believe that” and that

Francis responded, “I knew when I heard it was your name, it wasn’t you.” No further

investigation was conducted and respondent was never questioned about the allegations

of sexual contact between her and D. H.2 It is undisputed that respondent never reported

any inappropriate conduct by D. H. D. H. testified that he received yearly training on

prison rape and that he was aware that sexual contact with inmates was forbidden.

Respondent remained at the Southern Regional Jail until April, 2010, when she was

transferred to Lakin Correctional Center.

Respondent filed suit against D. H. and the WVRJCFA. As against D. H.,

individually, respondent alleged 1) violation of 42 U.S.C. §19833 and the West Virginia

2

As discussed more fully infra, respondent did not make any allegations against

Lt. Bunting or any other WVRJCFA official pursuant to Section 1983 as a result of their

investigation. See n.33, infra.

3

42 U.S.C. § 1983 provides:

(continued . . .)

3

Governmental Tort Claims and Insurance Reform Act; 2) intentional infliction of

emotional distress; and 3) a variety of common law intentional torts. The claim by

respondent also named a “John Doe” employee of the WVRJCFA, who “negligently

allowed” the conduct of D. H., but that claim was subsequently voluntarily dismissed by

respondent.

As against the WVRJCFA, respondent alleged only vicarious liability and

negligence-based claims; specifically respondent alleged negligent hiring, retention,

supervision, staffing, and training. It is important to note that the complaint expressly

asserted that it was making no claims against the WVRJCFA under Section 1983 or for

intentional infliction of emotional distress. Furthermore, during the pendency of the

matter, respondent agreed to voluntarily dismiss her claims against the WVRJCFA for

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured in an action at law . . .

.

In short, “[t]o state a claim under § 1983, a plaintiff must allege the violation of a right

secured by the Constitution and laws of the United States, and must show that the alleged

deprivation was committed by a person acting under color of state law.” West v. Atkins,

487 U. S. 42, 48 (1988).

4

negligent hiring, invasion of privacy, and violation of the Tort Claims Act.4 Critically,

respondent also voluntarily dismissed all West Virginia Constitutional violations and any

Section 1983 claims (which were expressly not pled in the complaint in the first

instance), leaving only negligence-based claims for supervision, training, and retention

against the WVRJCFA. Moreover, although not expressly dismissed, no further mention

of the civil conspiracy claim was made in the pleadings below, nor was any evidence

adduced regarding a “conspiracy” involving the alleged cover-up of sexual assaults

within the regional jail system.5 Rather, the record clearly reflects that these allegations

were reported, documented, and investigated at least to some degree.

At the close of discovery, the WVRJCFA moved for summary judgment on

the basis of qualified immunity, arguing 1) that it could not be held vicariously liable for

the intentional, illegal acts of its employee and respondent had not demonstrated a

“clearly established” right which the WVRJCFA violated; and 2) respondent’s negligence

claims were barred because they involved the discretionary decisions involving the

administration of a fundamental government policy. Respondent contended that 1) the

WVRJCFA was vicariously liable for the acts of D. H. because the sexual assaults were

4

The West Virginia Governmental Tort Claims and Insurance Reform Act, West

Virginia Code § 29-12A-1 et seq., obviously however, does not apply to claims against

the State. See W. Va. Code § 29-12A-3(c) and (e); Hess v. W. Va. Div. of Corr., 227 W.

Va. 15, 705 S.E.2d 125 (2010).

5

The negligent staffing claim was likewise apparently abandoned.

5

within the scope of his employment; 2) the WVRJCFA, through its employee, violated

West Virginia Code § 61-8B-10 (Repl. Vol. 2014) 6 and the federal Prison Rape

Elimination Act of 2003; 7 and 3) the allegedly negligent acts of the WVRJCFA were

neither “administrative” nor involved “fundamental governmental policy.” Importantly,

D. H. did not assert that he is entitled to qualified immunity; therefore, he remains a party

defendant in the litigation below.8 The circuit court agreed with respondent and denied

summary judgment. The circuit court’s order specifically found that 1) disputed issues of

material fact precluded a determination as to whether the WVRJCFA was 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.” This appeal

followed.

6

West Virginia Code § 61-8B-10(a) provides, in pertinent part, that

Any person employed by . . . a jail or by the Regional Jail and

Correctional Facility Authority . . . who engages in sexual

intercourse, sexual intrusion or sexual contact with a person

who is incarcerated in this state is guilty of a felony and, upon

conviction thereof, shall be confined in a state correctional

facility under the control of the Commissioner of Corrections

for not less than one nor more than five years or fined not

more than $5,000.

7

42 U.S.C. § 15601 et seq. (hereinafter “PREA”).

8

Although respondent’s claims are accepted as true for purposes of our review, in

light of the fact that the claims against D. H. remain pending, nothing herein is to be

construed as this Court’s opinion on the truth or falsity of the allegations.

6

II. STANDARD OF REVIEW

It is well-established that “[t]his 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). Moreover, “[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). This review, however, is guided by the following principle regarding

immunity:

[t]he 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).

With these standards in mind, we proceed to the parties’ arguments.

III. DISCUSSION

We take this opportunity on rehearing to make plain our concern over the

seriousness of the allegations contained herein. To whatever extent this opinion or our

prior opinion is characterized as suggesting that this Court is not mindful of the

pervasiveness and gravity of the issue of prison sexual assault, such a characterization is

7

at best patently incorrect. However, this Court is constrained to the faithful application of

the law.

The sole issue before this Court is whether the WVRJCFA is immune from

liability in this matter. Respondent attempts to establish the WVRJCFA’s liability in two

ways: 1) through use of the doctrine of respondeat superior, or vicarious liability, for the

actions of D. H.; and 2) by establishing that the WVRJCFA in its own right was

negligent, which negligence permitted D. H. to allegedly commit these acts.

Accordingly, the WVRJCFA assigns as error the circuit court’s determination that 1) the

WVRJCFA may be held vicariously liable for the alleged intentional, criminal acts of its

employee, D. H.; and 2) employee supervision, training, and retention are not

discretionary functions subject to immunity. This Court must determine if respondent’s

claims and evidence are sufficient both in the context of our long-standing principles of

governmental immunity as well as the largely uncharted territory of the scope and extent

of vicarious liability of the State and its agencies for its officials and employees.

A.

Immunity and the Vicarious Liability of the State and Its Agencies

In the instant case, the WVRJCFA argues that it is not vicariously liable for

the alleged acts of its employee, D. H., because the sexual assaults alleged herein were

outside the scope of his duties as a correctional officer and therefore, it is entitled to

immunity. Respondent, on the other hand, suggests that the following portion of Syllabus

8

Point 9 of Parkulo v. W. Va. Bd. of Probation and Parole, 199 W. Va. 161, 483 S.E.2d

507 (1996), settles the issue: “[T]he immunity of the State is coterminous with the

qualified immunity of a public executive official whose acts or omissions give rise to the

case.” Respondent contends, in essence, that this passage from Parkulo establishes a rote

respondeat superior liability for the State and its agencies since the State’s immunity is

“coterminous” with that of the public official whose acts give rise to the case. In other

words, respondent contends that where the official has no immunity (as in the instant

case), the State likewise has no immunity. Respondent argues, in the alternative, since

the sexual assaults allegedly occurred while D. H. was on-duty and abetted by his

position as a correctional officer, such acts were within the scope of his employment.

The circuit court, relying primarily on common-law master-servant

principles, found that a jury question existed as to whether D. H. was acting within the

scope of his employment. In so finding, the court relied on a case from the Eastern

District of Virginia, Heckenlaible v. Va. Peninsula Regional Jail Authority, 491 F.

Supp.2d 544 (E.D. Va. 2007), which held that because a correctional officer was required

to look at an inmate unclothed while she showered, his employment put him a particular

position to commit the alleged sexual assault; therefore, a jury could reasonably conclude

that he was within the scope of his employment.9

9

There was no discussion of the issue of qualified immunity in that case because,

Virginia expressly allows actions against the State for the negligence of its employees

(continued . . .)

9

1. The “Coterminous” Immunity of the State and its officials or employees

We begin our analysis by addressing respondent’s position that Syllabus

Point 9 of Parkulo stands for the proposition that where a State employee is not entitled

to qualified immunity, the State is likewise not immune. In point of fact, it is precisely

the remainder of this syllabus point which militates squarely against respondent’s

position:

. . . However, on occasion, the State will be entitled to

immunity when the official is not entitled to the same

immunity; in others, the official will 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, in part, Parkulo. See also Restatement (Second) of Torts § 895B cmt. h (1979)

(“The existence of immunity on the part of the State or its agencies does not necessarily

committed within the scope of their employment pursuant to its State Tort Claims Act.

Va. Code Ann. § 8.01-195.3 (2007).

Moreover, Heckenlaible is a case from the Eastern District of Virginia and is a

minority position within Virginia federal districts (including its own district) and the 4th

Circuit. See Blair v. Defender Servs., Inc., 386 F.3d 623, 627 (4th Cir. 2004) (refusing to

find employer vicariously liable where an assault by an employee “had nothing to do

with” employee’s performance of his job duties; “the simple fact that an employee is at a

particular location at a specific time as a result of his employment is not sufficient to

impose respondeat superior liability on the employer.”); see also Jones v. Tyson Foods,

Inc., 378 F. Supp.2d 705, 713 (E. D. Va. 2004) (“[Respondeat superior] liability may not,

however, be imposed solely on allegations that the [conduct] took place at the work place

and during work hours.”); Meade v. Johnston Memorial Hospital, 2010 WL 3463639 *4

(W.D. Va. 2010) (dismissing on respondeat superior grounds because assault was “an

independent act that grossly deviated from [the employee’s] workplace duties and

functions”).

10

imply immunity on the part of its public officers, or vice versa.”). In fact, Parkulo further

specifically notes that “the vicarious liability of the State for its officer’s conduct is not to

be presumed merely from the absence of qualified immunity to protect the public

executive official from personal liability for that conduct.” 199 W. Va. at 177, 483

S.E.2d at 523. As such, it is clear in our jurisprudence that the immunity of the State

and/or its agency is not necessarily circumscribed by the extent of the public official’s

immunity or lack thereof. The question which Parkulo and its progeny leave

tantalizingly unanswered is what standards are to be utilized to determine the extent of

the State’s immunity, irrespective of that of its employee. 10 Simply relegating this

determination to a “case-by-case” basis without further guidance is particularly

unedifying to both practitioners and the lower courts.

The paucity of guidance on the vicarious liability of the State and its

agencies, both in West Virginia and other jurisdictions, is occasioned almost entirely by

the fact most other jurisdictions have enacted some form of tort claims act which governs

actions against the state and its agencies. In West Virginia, however, the Governmental

Tort Claims and Insurance Reform Act, West Virginia Code § 29-12A-1 et seq., is

10

The Court in Parkulo stated that “[b]ecause we do not have before us a factual

situation requiring further development of this approach to the scope of qualified

immunity for the governmental entities represented by public officials entitled to its

benefit, we leave the full development of that approach to another day.” Id. at 178, 483

S.E.2d at 524.

11

limited to political subdivisions and their employees and does not cover claims made

against the State or its agencies. See n. 4, supra.

As one commentator noted many years ago,

the relationship between governmental and officer liability

remains to a large extent ill-defined. The failure of

legislatures to resolve many of the problems that flow from

the coexistence of these two bodies of law has had the effect

both of transferring basic policy decisions to the courts and of

greatly complicating governmental tort claims litigation.

Furthermore, if there is any substance to the notion that the

prospect of personal liability instills an unhealthy insecurity

in public officials, uncertainty over the relationship between

governmental and officer liability probably only aggravates

the situation.

George A. Bermann, Integrating Governmental and Officer Tort Liability, 77 Colum. L.

Rev. 1175, 1213 (1977).11 Unfortunately, at least in West Virginia, little has transpired in

the intervening thirty-seven years to better define this relationship in absence of a

statutory tort claims act applicable to the State, its agencies, officials, and employees. In

most instances where immunity was addressed, where both the State and an individual

officer or employee were named defendants, this Court has simply ruled on the more

11

Professor Bermann’s law review article is quoted liberally throughout this

opinion and represents a particularly thorough treatment of this subject, more recent

discussion of which has been largely obviated by the passage of statutory tort claims acts

throughout the country. In fact, this article was commended for use in further

development of the principles herein by the Court in Parkulo: “A guideline for use in the

case-by-case approach to the problem of the interplay of governmental and public officer

personal tort liability . . . has been well-stated in [Professor Bermann’s] article[.]” 199

W. Va. at 178 n.14, 483 S.E.2d at 524 n.14.

12

central issue of whether the complained-of conduct underlying the case warranted

immunity and treated individual defendants and their employers collectively, without

separate analysis of whether the State or State agency is necessarily entitled to like

treatment and why. See, e.g., State v. Chase Securities, Inc., 188 W. Va. 356, 424 S.E.2d

591 (1992); Clark v. Dunn, 195 W. Va. 272, 465 S.E.2d 374 (1995); Jarvis v. W. Va.

State Police, 227 W. Va. 472, 711 S.E.2d 542 (2010).

2. The Evolution of Immunity in West Virginia

In the absence of any action by our Legislature to enact a statutory scheme

which would outline the scope of the State’s liability in tort, we are left to examine the

state of our law with respect to the immunity of the State, its agencies, officials, and

employees, as well as the policy implications attendant to governmental immunity, in an

attempt to formulate a workable rule for State-level governmental and employee

immunities.12 It is clear that relegating these issues to the lower courts to decide on a

12

Without question, “the task of balancing the interests relevant to governmental

tort litigation is legislative in character.” Bermann, supra at 1189. Nearly twenty-two

years ago, Justice Miller first raised the specter of legislative enactment which would

obviate the necessity for such issues to be foisted upon this Court by the Legislature’s

silence. See Chase Securities, 188 W. Va. at 365 n.28, 424 S.E.2d at 600 n.28.

“[Q]uestions of public entity liability are policy and fiscal questions better left to the

Legislature than to the courts.” Mary M., v. City of Los Angeles, 814 P.2d 1341, 1358

(Cal. 1991) (Baxter, J., concurring). “[P]ayments from the public purse involve hard

choices of priorities.” Id. at 1359. More to the point, we agree with Justice Baxter that

whether it is simply “good public policy” for the State to be held liable in this case

irrespective of our immunity jurisprudence is “a question beyond our right or ability to

answer.” Id. While the facts alleged in the case are troubling, we cannot engage in an

“unprecedented expansion of liability which is unauthorized by the controlling

(continued . . .)

13

“case-by-case” basis as instructed in Parkulo has compelled practitioners and the lower

courts to indiscriminately borrow phrases from what this Court has described as a

“patchwork of holdings” to cobble together an applicable rule. W. Va. Dept. of Health

and Human Resources v. Payne, 231 W. Va. 563, 571, 746 S.E.2d 554, 562 (2013).

As Professor Bermann noted, “[b]ecause the doctrines of sovereign and

officer immunity spring from distinct, if related, concerns, each has evolved

independently.” Bermann, supra at 1181. This independent evolution has

unquestionably occurred in West Virginia, as evidenced by the following brief history.

Our modern immunity law began to take a more clearly identifiable form in 1992 with

State v. Chase Securities, 188 W. Va. 356, 424 S.E.2d 591 (1992). In Chase Securities,

this Court noted that “our law with regard to public official immunity is meager,” 188 W.

Va. at 358, 424 S.E.2d at 593, and borrowed from federal public official immunity

caselaw to craft the following syllabus point regarding the immunity of a public official

“acting within the scope of his authority”:

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. 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

governmental immunity [law].” Id. at 1356. Moreover, “[w]hether plaintiff should

recover for her injuries is only one side of the equation. The other side is whether the

taxpayers . . . should be forced to pay for those injuries. The public fisc is not infinite.”

Id. at 1359.

14

executive official whose acts are fraudulent, malicious, or

otherwise oppressive. . . .

Syllabus, in part, Chase Securities. In formulating its initial statements on governmental

immunity, this Court encouraged the use of federal precedent to guide our immunity

analysis because “it would seem appropriate to construct, if possible, an immunity

standard that would not conflict with the federal standard.” Chase Securities, 188 W. Va.

at 360, 424 S.E.2d at 595. In fact, the amici myopically urge that this case could have

been “easily” resolved by simple application of federal case law. However, in every case

cited by the amici in support of its conclusion that this Court was misguided in its initial

resolution, the claims asserted were brought pursuant to 42 U.S.C. § 1983. As is patently

obvious from these cases, and as made clear below, analysis utilized in Section 1983

cases as to respondeat superior is simply inapplicable to the case sub judice, because

respondent expressly asserted that she was making no claim pursuant to Section 1983,

except as to D. H.13

13

With respect to the interplay between the immunity of the State and its public

official and employees, federal caselaw provides little assistance for several reasons.

Factually similar cases addressing immunity found in federal caselaw are cases brought

pursuant to 42 U.S.C. § 1983, which actions do not lie against the State. See Will v.

Mich. Dept. of State Police, 491 U.S. 58, 71 (1989) (“[N]either a state nor its officials

acting in their official capacities are ‘persons’ under § 1983.”). Further, attempts to draw

analogies between the contours of actionable claims pursuant to § 1983 and those alleged

herein are inadequate since § 1983 jurisprudence is constrained by the federal courts’

interpretation of the language of § 1983 itself. We have no such controlling statutory

language in the instant case. Accordingly, nothing herein serves to supplant the federal §

1983 jurisprudence regarding immunity or actionable claims thereunder inasmuch as “in

Section 1983 litigation a state may not create an immunity for state officials that is

(continued . . .)

15

The Chase Securities standard was thereafter extended to cover the

discretionary judgments of “rank-and-file” employees in 1995 in Clark v. Dunn, 195 W.

Va. 272, 465 S.E.2d 374 (1995).14 In Clark, plaintiff brought a negligence action against

the Department of Natural Resources and a DNR officer, who was found to be “engaged

in the performance of discretionary judgments and actions within the course of his

authorized law enforcement duties.” Id. at 278, 465 S.E.2d at 380. Noting that the

officer did not violate a “clearly established . . . statutory law or constitutional right[],”

195 W. Va. at 278, 465 S.E.2d at 380, the Court reaffirmed the above syllabus point from

Chase Securities and established what is now referred to as the “discretionary function”

immunity:15

greater than the federal immunity.” Chase Securities, 188 W. Va. at 359, 424 S.E.2d at

594; see also Hutchison v. City of Huntington, 198 W.Va. 139, 152 n.17, 479 S.E.2d 649,

662 n.17 (1996) (“[S]tate immunity laws are not applicable to § 1983 actions.”); Howlett

v. Rose, 496 U.S. 356 (1990) (in § 1983 litigation in state courts, a state may not create an

immunity greater than the federal immunity).

14

The Court summarily concluded that “Officer Dunn is properly considered a

public officer” without discussion as to whether the immunity of the “public official”

described in Chase Securities (which involved the Governor, the Treasurer, and the

Auditor—all high-ranking elected officials) perhaps differed in character from the type of

immunity afforded a rank-and-file employee such as Officer Dunn. Clark, 195 W. Va. at

278, 465 S.E.2d at 380 (emphasis added). Our subsequent caselaw likewise has made no

such distinction.

15

This type of immunity is characterized by the Restatement (Second) of Torts as

somewhat “derivative” of the executive or administrative immunity: “A public officer

acting within the general scope of his authority is not subject to tort liability for an

administrative act or omission if [] he is immune because engaged in the exercise of a

discretionary function[.]” § 895D. However, in West Virginia, the type of immunity

(continued . . .)

16

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, 195 W. Va. 272, 465 S.E.2d 374 (emphasis added). Speaking for the

first time specifically to the immunity of the State and its agencies, as opposed to merely

its public officials, the Court further held:

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, 195 W.Va. 272, 465 S.E.2d 374 (emphasis added).

afforded by the discretionary acts immunity, which is a qualified immunity, should not be

conceptually commingled with the executive/administrative act immunity for policy-

making acts which is absolute. Syl. Pt. 7, Parkulo, 199 W. Va. 161, 483 S.E.2d 507.

This is the trap into which respondent and the circuit court fell as evidenced by

their rejection of WVRJCFA’s “discretionary acts” immunity argument by concluding

that training, supervision, and retention were not acts which involved the “determination

of fundamental governmental policy.” It is clear that this Court has established, akin to

the federal courts, a distinct immunity for “discretionary” acts or functions of

governmental actors from the highest level down to the rank-and-file; it is wholly at odds

with the goal of this immunity to require that these discretionary acts must also rise to the

level of “policy-making” before such immunity may be invoked. See, e.g., Clark, 195 W.

Va. 272, 465 S.E.2d 374; but see Hess, 227 W. Va. at 20, 705 S.E.2d at 130 (dispensing

as premature the issue of whether the acts giving rise to the cause of action arise from

“discretionary, administrative policy-making” acts).

17

The following year (in our only reported case to discuss in any meaningful

fashion the immunity of the State and its agencies), the Court in Parkulo set out to recast

a “reasoned statement” of the current posture of common law immunities. 199 W. Va. at

175, 483 S.E.2d at 512. This “reasoned statement,” albeit well-intentioned and sorely

needed, resulted in a wandering, historical overview of immunity that unfortunately has

done little to clarify matters. The Court began by reiterating that the State and its public

officials are absolutely immune with respect to “judicial, legislative, and executive (or

administrative) policy-making acts and omissions.” Syl. Pts. 6 and 7, in part, Parkulo,

199 W. Va. 161, 483 S.E.2d 507. With respect to the immunity of the State and its

officials for matters falling outside the scope of judicial, legislative, or executive policy-

making acts, the Court “endorsed” the Chase Securities rule regarding a public official’s

personal, qualified immunity for discretionary judgments and functions which are neither

in violation of a “clearly established law” nor “fraudulent, malicious, or otherwise

oppressive.” Syl. Pt. 8, in part, Parkulo. As noted above, the Parkulo Court then

obliquely passed along the “general rule” of the “coterminous” immunity between a

public official and the State before allowing its undefined exceptions to quite literally

swallow and render meaningless this “rule.” See Syl. Pt. 9, Parkulo.

3. Respondeat Superior and the Immunity of the State

Turning now to the specific issues presented in the instant case, the

WVRJCFA maintains that because any alleged sexual assault by D. H. would fall well

outside of the scope of his duties as a correctional officer, the WVRJCFA is entitled to

18

immunity. As previously noted, rather than exploring the issue of the scope of the State’s

immunity relative to that of its public officials and employees, the parties and lower court

relegated this issue to ordinary respondeat superior principles. While we reject a blind

application of common-law master-servant principles which fail to accommodate the

policy interests at play with respect to the immunity of the State and its agencies,16 we do

agree that the issue of whether the public official or employee’s actions are within the

scope of his duties, authority, or employment has long been a relevant inquiry in our

immunity law. As indicated above, beginning in Chase Securities and thereafter in

Clark, this Court has utilized the phrases “scope of authority” and “scope of

employment” at least as pertains to the immunity of the public official. Moreover, the

Restatement (Second) of Torts § 895D, provides that

[a] public officer acting within the general scope of his

authority is immune from tort liability for an act or omission

involving the exercise of a judicial or legislative function . . .

[or] administrative act or omission if . . . he is . . . engaged in

the exercise of a discretionary function . . . .

(emphasis added). Comment g to the Restatement notes that when an officer goes

“entirely beyond [the general scope of his official authority] and does an act that is not

permitted at all by that duty, he is not acting in his capacity as a public officer or

employee and he has no more immunity than a private citizen.” Id.

16

“The decision whether to impose liability requires a delicate balancing of

competing interests, particularly when the defendant at law is a public entity and the

defendants in fact are the taxpayers.” Mary M., 814 P.2d at 1361 (Baxter, J., concurring).

19

The rationale for stripping a public official of his immunity informs the

issue of whether the State should likewise lose its immunity for and be vicariously liable

for acts of its officials or employees when they act outside of the scope of their authority.

Most tort claims acts include not merely exclusions for acts outside of the employee’s

scope of employment, but many specifically enumerate intentional torts for which the

government is expressly immune. Such exclusions are necessary to “reliev[e] the

government of liability where its connection to the tort is too remote.” Bermann, supra at

1186. The rationale behind imposing personal liability upon a public official where his

acts are beyond the scope of his authority has been aptly described as follows:

First, the harm resulting from such conduct is probably more

easily avoided than the harm caused by simple negligence and

is therefore a poorer candidate for consideration as an

ordinary cost of government. Second, if the threat of personal

liability serves some deterrent purpose, its imposition would

seem particularly useful where willful or wanton misconduct

is concerned. Finally, even if such conduct cannot readily be

eliminated, it does not follow that the public should have to

pay for its consequences. On the contrary, retributive justice

would seem to demand that public officials answer personally

for egregious conduct.

Id. at 1197 (emphasis added). We can perceive no stated public policy which is

justifiably advanced by allocating to the citizens of West Virginia the cost of wanton

official or employee misconduct by making the State and its agencies vicariously liable

for such acts which are found to be manifestly outside of the scope of his authority or

20

employment.17 Such conduct is notable for being driven by personal motives which in no

way benefit the State or the public, nor is it reasonably incident to the official or agent’s

duties.18

Such a conclusion, however, necessarily implies that where a public official

or employee’s conduct which properly gives rise to a cause of action is found to be

within the scope of his authority or employment, neither the public official nor the State

is entitled to immunity and the State may therefore be liable under the principles of

respondeat superior. We find that this approach is consistent with the modern view that

“the cost of compensating for many such losses is regarded as an ordinary expense of

17

To that end, we agree with the California Law Revision Commission’s

statement that

The problems involved in drawing standards for

governmental liability and governmental immunity are of

immense difficulty. Government cannot merely be made

liable as private persons are, for public entities are

fundamentally different from private persons. . . . Private

persons do not prosecute and incarcerate violators of the law

or administer prison systems. . . . Unlike many private

persons, a public entity often cannot reduce its risk of

potential liability by refusing to engage in a particular

activity, for government must continue to govern and is

required to furnish services that cannot be adequately

provided by any other agency.

Recommendation Relating to Sovereign Immunity, No. 1, Tort Liability of Public

Entities and Public Employees (Jan. 1963) 4 Cal. Law Revision Com. Rep. (1963), p.

810. See n.12, supra.

18

See discussion, infra.

21

government to be borne indirectly by all who benefit from the services that government

provides.” Bermann, supra at 1176. Much like the negligent performance of ministerial

duties for which the State enjoys no immunity, we believe that situations wherein State

actors violate clearly established rights while acting within the scope of their authority

and/or employment, are reasonably borne by the State.19 It has been observed that “the

government through taxation can more easily distribute such losses among all who

benefit from its services.” Bermann, supra at 1194. Further, “[b]y encouraging higher

standards of care in the selection, training, equipment, and supervision of personnel, such

a system can have at least as positive an effect on governmental performance as one

based upon liability of the individual official.” Id. at 1195. We find that such policy

considerations well-justify extension of liability to the State in such instances. Moreover,

we agree that the public interest in ensuring that public officials are “not [] impaired by

constant concern about personal liability . . . need not always prevent the attachment of

liability to the State.” Parkulo, 199 W. Va. at 178, 483 S.E.2d at 524. As further noted

by the Restatement (Second) of Torts: “With respect to some government functions, the

threat of individual liability would have a devastating effect, while the threat of

governmental liability would not significantly impair performance.” § 895D cmt. j.

19

The mere fact that liability hinges upon the violation of a “clearly established”

right does not, in itself, suggest that the acts which give rise to a case are within the realm

of “fraudulent, malicious, or oppressive” acts for which a public official loses his

immunity. Rather, violations of clearly established rights frequently occur in the absence

of any ill-intent which might militate against the imposition of vicarious liability.

22

4. Reconciliation of Existing Immunity Principles to Determine Coextensiveness of

Immunity

We therefore take this opportunity to harmonize our existing syllabus

points with respect to the immunity of the State, its agencies, officials and employees,

and further elaborate on the procedural analysis required to determine whether immunity

flows to an individual employee or official defendant, the State and its agencies, neither,

or both. To determine whether the State, its agencies, officials, and/or employees are

entitled to immunity, a reviewing court must first identify the nature of the governmental

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 otherwise involve discretionary governmental functions. This critical first

step may be evident from the nature of the allegations themselves or may be effectively

accomplished by identifying the official or employee whose acts or omissions give rise to

the cause of action. This individual identification may more easily permit a proper

examination of that particular official or employee’s duties and responsibilities and any

statutes, regulations, or other “clearly established” laws which are applicable to his or her

duties. This approach is compelled by the well-settled precept that “[g]overnmental

entities can act only through their officers, agents, and employees.” 57 Am. Jur. 2d

Municipal, County, School, and State Tort Liability § 145.

We recognize, however, that

some losses occasioned by governmental activity may not be

traceable to any particular official. For example, legislation

23

may impose duties upon the government that the latter simply

fails to implement. . . . More generally, however, a

governmental operation may suffer from inefficiency, delay

or other systemic disorders that cannot be laid at the feet of

any particular official yet still cause injury that warrants

compensation.

Bermann, supra at 1187. Moreover, “duties or obligations may be placed on the

government that are not imposed on the officer, and statutes sometime make the

government liable when its employees are immune.” Parkulo, 199 W. Va. at 177, 483

S.E.2d at 523 (quoting Restatement (Second) of Torts 2d § 895D, cmt. j, in part (1979)).

More importantly, however, “immunity is justified and defined by the functions it

protects and serves, not by the person to whom it attaches.” Forrester v. White, 484 U.S.

219, 227 (1988). As such, identifying a particular official or employee whose actions

give rise to a cause of action is necessary only to the extent needed to guide the lower

court’s analysis of whether the complained of actions are legislative, judicial, executive

or administrative policy-making acts, or 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 Syllabus Point 7 of Parkulo v. W. Va. Bd. of

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

However, 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 further determine whether the plaintiff has demonstrated that such acts or omissions

24

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. 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 then determine whether such acts or omissions were within the scope of the

public official or employee’s duties, authority, and/or employment. Such determination

may or may not turn on disputed issues of material fact. In the event of a genuine dispute

of material fact the court may submit for resolution by a jury the issue of whether the

State actor was in fact within the scope of his duty, authority, and employment when

committing the acts which give rise to the case in accord with our admonitions in

Hutchison. See Syl. Pt. 1, in part, Hutchison, 198 W. Va. 139, 479 S.E.2d 649 (holding

that immunity is ripe for summary disposition except where there is a “bona fide dispute

as to the foundational or historical facts that underlie the immunity determination”).

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,

25

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. We observe that our holdings today in no

way represent a seismic shift in this Court’s handling of governmental immunities,20 but

rather, reflect a clarification and elaboration on the scope of the State’s immunity vis-a­

20

In its brief in support of rehearing, the amici argue that certain of this Court’s

precedent on the issue of qualified immunity is “inconsistent,” “irreconcilable,”

“outliers,” and “confus[ing.]” To that end, the amici, who took no position during the

original briefing of this matter, appear to be seizing this opportunity to urge the Court to

revisit not its decision in this case, but rather more than two decades of existing

jurisprudence. Not only is such a position well outside of the bounds of rehearing, but is

a particularly disingenuous basis upon which to urge that this Court “misapprehended” or

“overlooked” law in its initial decision. “Mere disagreement as to how a case was

decided is not a sufficient reason to deviate from a judicial policy promoting certainty,

stability and uniformity in the law.” Dailey v. Bechtel Corp., 157 W.Va. 1023, 1029, 207

S.E.2d 169, 173 (1974).

More specifically, to whatever extent respondent and the amici disagree merely

with the policy implications of our application of existing law, they are free to lobby the

Legislature for a tort claim act which would satisfy their concerns; in fact, the absence of

Legislative enactment to reflect the policy judgments of the citizens of this state is

bemoaned throughout this opinion. However, this particular case, and in particular this

rehearing, is not the proper forum in which to do so. See Taxpayers for Public Education

v. Douglas County School District, 2013 WL 791140, at *21 (Colo. App. February 28,

2013) (“Some amici curiae urge us to affirm or reverse the district court’s judgment

purely for policy reasons, without regard for the governing law. Because making

decisions based on such reasons is not part of the courts’ constitutional function, these

arguments are improper. Such arguments should be directed to the appropriate law­

making bodies.” See also Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d

30, 38 (Colo. 2000) (“[C]ourts must avoid making decisions that are intrinsically

legislative. It is not up to the court to make policy or to weigh policy.”).

26

vis its officials and employees, as reflected in our precedent and long-standing public

policy concerns. 21

5. Application of Immunity Paradigm to Case Sub Judice

Turning now to the application of the foregoing to the facts of this

particular case, we find that D. H.’s general functions as a correctional officer, like most

law enforcement officers, are broadly characterized as discretionary, requiring the use of

his discretionary judgments and decisions. Having made that determination, however, it

is undisputed that D. H. is alleged to have violated a clearly established law, West

Virginia Code § 61-8B-10(a), leaving us only to determine whether he was acting within

the general scope of his authority and employment. We observe, however, that “[t]he

issue of scope of employment has proven to be one of the most troublesome issues in

21

Nor do our holdings expressly affect the liability of the State, its agencies,

officials, and employees for actions based upon breach of so-called “ministerial” duties,

which have been historically exempted from the realm of governmental functions for

which the State, its officials, and employees are entitled to immunity. See Clark, 195 W.

Va. at 278 n.2, 465 S.E.2d at 380 n.2 (“This opinion does not address causes of action

arising out of ministerial functions of government agencies or officers.”). However, in

Payne, we recognized and agreed with the observation of the Chase Securities Court that

application of the “clearly established law” principle “will ordinarily have the same effect

as the invocation of the ‘ministerial acts’ principle.” 231 W. Va. at 574 n.26, 746 S.E.2d

at 565 n.26 (citing Chase Securities, 188 W. Va. at 364, 424 S.E.2d at 599).

27

modern tort law” and that unfortunately, “the law provides little guidance on the issue,

with liability too often turning on ad hoc jury determinations.”22

The amici argue strenuously that this determination is necessarily and

without exception an issue which must be submitted to the jury. In that regard, this Court

has held in Syllabus Point four of Griffith v. George Transfer and Rigging, Inc., 157 W.

Va. 316, 201 S.E.2d 281 (1973), whether an agent is “acting within the scope of his

employment and about his employer’s business at the time of a collision, is generally a

question of fact for the jury and a jury determination on that point will not be set aside

unless clearly wrong.” (emphasis added). See also Syl. Pt. 1, in part, Laslo v. Griffith,

143 W.Va. 469, 102 S.E.2d 894 (1958) (“When the facts relied upon to establish the

existence of an agency are undisputed, and conflicting inferences can not be drawn from

such facts, the question of the existence of the agency is one of law for the court[.]”;

Cremeans v. Maynard, 162 W. Va. 74, 86, 246 S.E.2d 253, 259 (1978) (stating where

evidence “conclusively shows lack of authority and where conflicting inferences cannot

be drawn” the court may decide issues of agency). As stated by the Mary M. court:

Ordinarily, the determination whether an employee has acted

within the scope of employment presents a question of fact; it

becomes a question of law, however, when “the facts are

undisputed and no conflicting inferences are possible.” In

some cases, the relationship between an employee’s work and

wrongful conduct is so attenuated that a jury could not

22

Roszkowski, Mark E. and Christie L., “Making Sense Of Respondeat Superior:

An Integrated Approach For Both Negligent And Intentional Conduct,” 14 S. Cal. Rev.

L. & Women’s Stud. 235 (Spring 2005).

28

reasonably conclude that the act was within the scope of

employment.

814 P.2d at 1347 (citations omitted).23

Given that this Court is in no way precluded from making a determination,

as a matter of law, as to “scope of employment” where there are no disputed facts, we

turn then to the guiding principles in that regard. In Syllabus Point six of Courtless v.

Jolliffe, 203 W.Va. 258, 507 S.E.2d 136 (1998) we held: “‘An act specifically or

impliedly directed by the master, or any conduct which is an ordinary and natural

incident or result of that act, is within the scope of the employment.’” (quoting Syllabus,

Cochran v. Michaels, 110 W.Va. 127, 157 S.E. 173 (1931) (emphasis added)); see also

23

See Doe v. Sipper, 821 F. Supp. 2d 384, 388 (D.D.C. 2011) (“Scope of

employment is ordinarily a question for the jury, but it ‘becomes a question of law for the

court . . . if there is not sufficient evidence from which a reasonable juror could conclude

that the action was within the scope of the employment.’”); Engler v. Gulf Interstate

Eng’g, Inc., 258 P.3d 304, 309-10 (Ariz. Ct. App. 2011) aff’d, 280 P.3d 599 (2012)

(“Whether an employee’s tort is within the scope of employment is generally a question

of fact. It is a question of law, however, if the undisputed facts indicate that the conduct

was clearly outside the scope of employment.”); Kang v. Charles Pankow Assocs., 675

P.2d 803, 808 (Haw. Ct. App. 1984) (“[W]here the facts are susceptible of but one

reasonable conclusion, the question may become a question of law for the court.”); Tall

v. Bd. of Sch. Comm’rs of Baltimore City, 706 A.2d 659, 668 (Md. Ct. Spec. App. 1998)

(“Ordinarily, the question of whether an employee’s conduct is within the scope of

employment is one for the jury. The issue becomes a question of law, however, when

there is no factual dispute.” (citations omitted)); Birkner v. Salt Lake Cnty., 771 P.2d

1053, 1057 (Utah 1989) (“Some conduct, however, is so clearly outside the scope of

employment that the issue may properly be decided by the trial judge as a matter of

law.”); Hamilton v. Natrona Cnty. Educ. Ass’n, 901 P.2d 381 (Wyo. 1995) (“Generally,

the determination as to whether or not one is acting within the scope of employment is a

question of fact for the jury, but it becomes a question of law when but one reasonable

inference can be drawn.”).

29

Griffith v. George Transfer & Rigging, Inc., 157 W.Va. 316, 326, 201 S.E.2d 281, 288

(1973) (“‘Scope of employment’ is a relative term and requires a consideration of

surrounding circumstances including the character of the employment, the nature of the

wrongful deed, the time and place of its commission and the purpose of the act.”

(emphasis added)).

The “purpose” of the act is of critical importance and this element echoes

throughout our jurisprudence. Moreover, the Restatement (Second) of Agency § 228

(1958) states that a servant is within scope of employment if the conduct is 1) of the kind

he is employed to perform; 2) occurs within the authorized time and space limits; 3) it is

actuated, at least in part, by a purpose to serve the master, and; 4) if force is used, the use

of force is not unexpectable by the master.24 (Emphasis added). “Conduct of a servant is

not within the scope of employment if it is different in kind from that authorized, far

beyond the authorized time or space limits, or too little actuated by a purpose to serve the

master.” Id. (emphasis added). The theme of “purpose” permeates our caselaw

regarding scope of employment and is nowhere more apparent than in the litany of cases

cited by the amici. See Travis v. Alcon Laboratories, Inc., 202 W. Va. 369, 381, 504

S.E.2d 419, 431 (1998) (“[A]n employer may be liable for the conduct of an employee,

even if the specific conduct is unauthorized or contrary to express orders, so long as the

employee is acting within his general authority and for the benefit of the employer”

24

In this case, the conduct was specifically criminalized by statute. See infra.

30

(emphasis added)); Barath v. Performance Trucking Co., Inc., 188 W. Va. 367, 424

S.E.2d 602 (1992) (conflicting facts suggesting dad told son to assault plaintiff because

of union activity that affected business); Holliday v. Gilkeson, 178 W. Va. 546, 363

S.E.2d 133 (1987) (conflicting facts presented suggesting shooter was protecting

employer’s business property); Porter v. South Penn Oil Co., 125 W. Va. 361, 366, 24

S.E.2d 330, 333 (1943) (employee assault was not in course of employment because the

“acts in committing this assault grew out of his personal grievance, real or assumed, with

which, by no reasonable rule of law, can the South Penn Oil Company be connected.”);

Syl. Pt. 1, Meadows v. Corinne Coal & Land Co., 115 W. Va. 522, 177 S.E. 281 (1934)

(“A corporation is liable for a malicious prosecution by its agent, acting within the scope

of his employment and in furtherance of his company’s business, notwithstanding the

company may not have expressly authorized or ratified his act.” (emphasis added)); Syl.

Pt. 1, Nees v. Julian Goldman Stores, Inc., 109 W. Va. 329, 154 S.E. 769 (1930) (finding

respondeat superior “[i]f [employee’s] act be done within the scope of authority, and in

furtherance of the principal’s business[.]”).

Respondent has failed to adduce any evidence bringing these alleged

criminal acts within the ambit of D. H.’s employment beyond merely suggesting that his

job gave him the opportunity to commit them. Equally importantly, there are no disputed

material facts which require a jury’s determination. We recognize that by virtue of his

position as a correctional officer, D. H. was unquestionably in a particularly unique

position to perpetrate such acts, if any. However, the mere proximity and opportunity

31

that his job provided to commit such acts do not, alone, bring them within the scope of

his employment. Moreover, not only were D. H.’s alleged acts criminal in nature, they

were specifically criminalized by statute for all jail or correctional facility employees.

Therefore, D. H. did not just allegedly commit acts which also “happened” to be a crime;

he allegedly committed acts which were so divergent from the scope of his duties they

were made expressly felonious if committed by him in that context. While the amici

boldly (and incorrectly) state that the Court’s determination that D. H. was outside the

scope of his employment is “unprecedented,” we find, quite to the contrary, that the

weight of authority nationwide accords with our conclusion. There is overwhelming

majority support in other jurisdictions concluding that sexual assaults committed on the

job are not within the employee’s scope of employment.25 A. B. and the amici would urge

25

See Doe v. United States, 769 F.2d 174, 175 (4th Cir. 1985) (employer not liable

for sexual misconduct of an Air Force social worker because he was “acting for his

personal gratification”); Andrews v. United States, 732 F.2d 366, 370 (4th Cir. 1984)

(employer not liable under South Carolina law for sexual misconduct of a counselor);

Rabon v. Guardsmark, Inc., 571 F.2d 1277, 1279 (4th Cir. 1978) (employee assault

“manifestly not in furtherance of Guardsmark’s business; it was the converse of

Guardsmark’s purpose that of providing protection and that for which it was employed.

The assault was to effect Roberts’ independent purpose, and it was not within the scope

of his employment. The mere fact that the tort was committed at a time that Roberts

should have been about Guardsmark's business and that it occurred at the place where

Roberts was directed to perform Guardsmark's business does not alter these

conclusions.”), cert. denied, 439 U.S. 866 (1978); City of Green Cove Springs v.

Donaldson, 348 F.2d 197, 203 (5th Cir. 1965) (employer not liable under Florida law for

an assault and rape committed by a police officer); Grimes v. B.F. Saul Co., 47 F.2d 409,

410 (D.C. Cir. 1931) (apartment building owner not liable for an attempted rape of a

tenant by an employee who gained access to the apartment to conduct an inspection);

Hunter v. Countryside Ass’n for the Handicapped, 710 F. Supp. 233, 239 (N.D. Ill. 1989)

(no employer liability for rape and beating by an employee because “sexual assault can in

no way be interpreted as furthering Countryside’s business”); Dockter v. Rudolf Wolff

(continued . . .)

32

Futures, Inc., 684 F. Supp. 532, 536 (N.D. Ill. 1988) (employer not liable because an

employee’s “sexual misbehavior was committed entirely for his own enjoyment and

benefit; he neither intended to nor did benefit” his employer), aff'd, 913 F.2d 456 (7th

Cir. 1990); Valdez v. Church’s Fried Chicken, Inc., 683 F. Supp. 596, 610 (W.D. Tex.

1988) (employer not liable for a sexual assault committed by a team leader because it was

“purely personal” and not in furtherance of the employer’s business); Padilla v. d’Avis,

580 F. Supp. 403, 409-10 (N.D. Ill. 1984) (health facility not liable for a sexual assault by

a physician during a gynecological exam); Doe v. Swift, 570 So. 2d 1209, 1213 (Ala.

1990) (state not liable for a sexual assault by a psychologist of an involuntarily

committed patient because assault was “against all rules of his profession and were

without any benefit to his employer”); Hendley v. Springhill Mem’l Hosp., 575 So. 2d

547, 550-51 (Ala. 1990) (employer not liable for unauthorized vaginal exam performed

by physical therapy service vendor because it was personally motivated and a “gross

deviation” from employee’s duties therefore “to gratify wholly personal objectives or

desires of the agent”); Lisa M. v. Henry Mayo Newhall Mem’l Hosp., 907 P.2d 358, 362

(Cal. 1995) (declining to find vicarious liability for sexual assault by ultrasound

technician, noting that “the employment brought tortfeasor and victim together in time

and place is not enough”); M.P. v. City of Sacramento, 98 Cal.Rptr.3d 812, 822 (Cal. Ct.

App. 2009) (“Their alleged nonconsensual sex assault was motivated for strictly personal

reasons not related to their duties and performance as firefighters . . . .The harm to the

victim was not a risk that may fairly be regarded as typical of or broadly incidental to the

operations of a firefighter.”); Jeffrey Scott E. v. Cent. Baptist Church, 243 Cal. Rptr. 128,

130 (Cal. Ct. App. 1988) (church not liable for sexual assault by Sunday school teacher

because employee “was not employed to molest young boys.... [The employee’s] acts

were independent, self-serving pursuits unrelated to church activities.”); Rita M. v.

Roman Catholic Archbishop, 232 Cal. Rptr. 685, 690 (Cal. Ct. App. 1986) (church not

liable for sexual misconduct of priest because sexual assault was not “characteristic of the

activities of the enterprise”); Alma W. v. Oakland Unified Sch. Dist., 176 Cal. Rptr. 287,

290 (Cal. Ct. App. 1981) (“The mere fact that an employee has the opportunity to abuse

facilities necessary to the performance of his duties does not render an employer

vicariously liable for the abuse. . . . If an employee’s tort is personal in nature, mere

presence at the place of employment and attendance to occupational duties prior or

subsequent to the offense will not give rise to a cause of action against the employer

under the doctrine of respondeat superior.”); Destefano v. Grabrian, 763 P.2d 275, 287

(Colo. 1988) (archdiocese not liable for the sexual misconduct of a priest during marriage

counseling noting that sexual misconduct was “contrary to the instructions and doctrines”

of the employer); Rawling v. City of New Haven, 537 A.2d 439, 444 (Conn. 1988) (city

need not indemnify police officer for costs of defending himself against sexual assault

charge, noting that “sexual assault is generally viewed as foreign to the scope of

employment”); Gutierrez v. Thorne, 537 A.2d 527, 530-31 (Conn. App. Ct. 1988)

(finding no vicarious liability for sexual assault of mentally handicapped patient because

(continued . . .)

33

employee was “engaging in criminal conduct which had no connection to the defendant’s

business of providing supervision” and further, fact that acts occurred while on duty “is

not susceptible of an inference that he was acting to further his employer’s interest.”); See

v. Bridgeport Roman Catholic Diocesan Corp., 1997 WL 466498 at *3 (Conn. Super. Ct.

1997) (“While an employer may be vicariously liable for the intentional torts committed

by a disobedient servant, the employee in such situations must be ‘engaged in a

disobedient or unfaithful conducting of the master’s business.’”); Boykin v. Dist. of

Columbia, 484 A.2d 560, 562 (D.C. 1984) (city not liable for a program coordinator’s

sexual assault of blind, deaf, and mute student as “assault was in no degree committed to

serve the school’s interest, but rather appears to have been done solely for the

accomplishment of Boyd’s independent, malicious, mischievous and selfish purposes”);

Duyser v. School Bd., 573 So. 2d 130, 131-32 (Fla. Dist. Ct. App. 1991) (school not

liable for sexual abuse of students by teacher because acts were “clearly self-serving, in

bad faith and outside any conceivable course and scope of employment”); Big

Brother/Big Sister of Metro Atlanta, Inc. v. Terrell, 359 S.E.2d 241, 243 (Ga. Ct. App.

1987) (no liability for sexual abuse of child by volunteer noting that “[w]hile Hendricks

may have been advancing Big Brother’s interest by spending time with Sheridan, he

clearly abandoned Big Brother’s interest and pursued only his own when he sodomized

the child”); Deloney v. Bd. of Educ. of Thornton Tp., 666 N.E.2d 792, 783 (Ill. App. Ct.

1996) (“[G]enerally, acts of sexual assault are outside the scope of employment.”); Randi

F. v. High Ridge YMCA, 524 N.E.2d 966, 971 (Ill. App. Ct. 1988) (employer not liable

for sexual assault of three-year-old by day care teacher’s aide because assault was

“deviation from the scope of the employment having no relation to the business of the

day care center or the furtherance thereof”); Webb v. Jewel Cos., 485 N.E.2d 409, 412-13

(Ill. App. Ct. 1985) (supermarket not liable for a sexual assault committed by security

guard); Hoover v. Univ. of Chicago Hosps., 366 N.E.2d 925, 929 (Ill. App. Ct. 1977)

(hospital not liable where doctor raped patient); Sanborn v. Methodist Behavioral

Resources P’ship, 866 So.2d 299, 305 (La. Ct. App. 2004) (finding no vicarious liability

for counselor’s sexual assault observing that assault was “completely extraneous to

[employee’s] counseling duties at the Center [and] . . . an egregious violation of the

ethical standards applicable to a substance abuse counselor.”); Worcester Ins. Co. v. Fells

Acres Day Sch., Inc., 558 N.E.2d 958, 967 n. 13 (Mass. 1990) (no vicarious liability as

sexual molestations by employees did not originate in any legitimate activities closely

associated with employment relationship); Hamed v. Wayne Cnty., 803 N.W.2d 237, 244­

45 (Mich. 2011) (“[T]here is no question that Johnson’s sexual assault of plaintiff was

beyond the scope of his employment as a deputy sheriff. The sexual assault was an

independent action accomplished solely in furtherance of Johnson’s own criminal

interests. It cannot be said that any of the institutional defendants benefited in any way

from Johnson’s criminal assault or his exercise of unlawful authority over plaintiff. In

fact, Johnson’s behavior was expressly prohibited by defendants’ rules regarding

treatment of detainees and defendants' antidiscrimination policies, to say nothing of the

(continued . . .)

34

this Court to adopt a wildly expansive view of “scope of employment,” which would

criminal law. In short, there is no fair basis on which one could conclude that the sheriff

or county themselves vicariously took part in the wrongful acts.”) Smothers v. Welch &

Co. House Furnishing Co., 274 S.W. 678, 679 (Mo. 1925) (employer not liable for

attempted rape by furniture store employee); Cosgrove v. Lawrence, 520 A.2d 844, 848­

49 (N.J. Super. Ct. Law Div. 1986) (employer not liable for sexual misconduct of a

therapist because it “was not of the kind he was employed to perform but was different in

kind from that authorized; it went far beyond authorized space limits, and was too little

actuated by a purpose to serve the master.”), aff'd, 522 A.2d 483 (N.J. Sup. Ct. App. Div.

1987); Heindel v. Bowery Sav. Bank, 525 N.Y.S.2d 428, 429 (N. Y. App. Div. 1988)

(employer not liable for sexual assault of teenage girl by security guard because “[t]he

acts were committed for personal motives and were a complete departure from the

normal duties of a security guard.”); Noto v. St. Vincent’s Hosp. & Med. Ctr., 537

N.Y.S.2d 446, 449 (N. Y. Sup. Ct. 1988) (hospital not liable for psychiatrist’s sexual

misconduct), aff'd, 559 N.Y.S.2d 510 (App. Div.), appeal denied, 565 N.E.2d 1269 (N.Y.

1990); Shantelle S. v. State, 819 N.Y.S.2d 851 *3 (N.Y. Ct. Cl. 2006) (“[S]exual assaults

are not the kind of intentional torts that may render the employer liable under the doctrine

because they are clearly perpetrated for the employee’s own purposes, and are a departure

from service to the employer.”); Medlin v. Bass, 398 S.E.2d 460, 464 (N.C. 1990) (school

not liable for sexual assault of student by school principal, observing that “sexually

assaulting the student was unrelated to counseling or any other function explicitly or

implicitly authorized by [the employer] and could not conceivably further any [employer]

purpose”); Taylor v. Doctors Hosp (West), 486 N.E.2d 1249, 1251 (Ohio Ct. App. 1985)

(hospital not liable for sexual assault of patient by orderly because orderly acted “from

intensely personal motives, be they malice, lust or rage.”); Birkner v. Salt Lake Cnty., 771

P.2d 1053, 1058 (Utah 1989) (employer not liable for social worker’s sexual misconduct

with patient because “the admitted purpose of [the employee] was not to further the

employer’s interest, but only a personal interest, and his conduct was strictly prohibited

both by the employer’s work rules and the rules governing his professional conduct.”);

Doe v. Forrest, 853 A.2d 48, 55 (Vt. 2004) (“Although [Sheriff’s deputy’s] misconduct

occurred while ostensibly on duty, we cannot conclude that coercing plaintiff to perform

fellatio was conduct that was actuated, even in part, by a purpose to serve the county

sheriff. The act [the deputy] performed is so different from the acts he was authorized to

perform that we can reach this conclusion as a matter of law.”); Niece v. Elmview Grp.

Home, 929 P.2d 420, 429 (Wash. 1997) (“Vicarious liability for intentional or criminal

actions of employees would be incompatible with recent Washington cases rejecting

vicarious liability for sexual assault, even in cases involving recognized protective special

relationships[.]”); Blenheim v. Dawson & Hall Ltd., 667 P.2d 125, 129 (Wash. Ct. App.

1983) (employer not liable for rape of dancer at party on employer's construction site);

Olson v. Connerly, 457 N.W.2d 479, 484 (Wis. 1990) (employer not liable for sexual

contact between physician and patient).

35

render the term virtually meaningless as long as an employee was on the job at the time

of the acts.

As noted above, while fact questions may on occasion in other cases

preclude summary determination of this prong, we find that D. H.’s alleged acts fall

manifestly outside the scope of his authority and duties as a correctional officer. When

taken as true for purposes of the motion for summary judgment, there can be no question

that these acts, as alleged, are in no way an “ordinary and natural incident” of the duties

with which he was charged by the WVRJCFA and in no way furthered the purposes of

the WVRJCFA. As such, we conclude that the WVRJCFA is entitled to immunity for

respondent’s claims based on vicarious liability for D. H.’s acts.

B.

Negligent Training, Supervision, and Retention

With the foregoing framework in mind, we turn now to the WVRJCFA’s

claim of immunity for respondent’s negligent training, supervision, and retention

allegations. The WVRJCFA contends that training, supervision, and retention are

inherently discretionary acts for which the State enjoys immunity and that respondent has

failed to identify a “clearly established” right or law which the WVRJCFA violated in its

supervision, training, and retention of D. H. Respondent counters that if employee

training, supervision, and retention are found to be discretionary functions, then the State

will have a de facto absolute immunity from suit. Respondent further argues that West

36

Virginia expressly recognizes a claim of negligent hiring/supervision/retention against a

State agency.

We begin by observing that it is of no consequence to our analysis that the

parties characterize this as a “direct” claim against the WVRJCFA; in fact, this claim too

is based on vicarious liability despite the absence of specifically named “bad actor(s)”

who allegedly negligently supervised, trained, and retained D. H. See n.2, supra. This

claim does not present a scenario where some general duty was statutorily or otherwise

imposed upon the State26 or where the negligence alleged in the complaint cannot be

traced to a particular individual(s). The training, supervision, and retention of D. H.

unquestionably fell to some public officer(s) or employee(s), from whose alleged

negligence respondent’s claim derives. However, because respondent did not name a

specific individual defendant with respect to this claim coupled with the voluntary

dismissal of the claim against “John Doe,” we are faced only with the issue of whether

immunity bars such a claim against the State in accordance with the principles previously

and herein enunciated.

26

This is potentially the basis for a scenario where a public official or employee

may enjoy immunity, but the State would not—the sole configuration not otherwise

developed and analyzed herein. Given the clarification which we endeavor to provide

herein, we are loathe to leave this aspect of the public official/governmental immunity

paradigm untouched; however, such a scenario has seldom presented itself before this

Court and we resign ourselves to review of that issue at a later date.

37

Having clarified that this claim likewise derives from the alleged

negligence of some public officer(s) or employee(s) responsible for the training,

supervision, and retention of D. H., we are again guided by the principle first enunciated

in Clark:

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, 195 W. Va. 272, 465 S.E.2d 374. More specifically as pertains to the

immunity of the State or its agencies for negligence of its public officers and as placed

into proper context above:

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, Id. (emphasis added). However, as this Court noted last year in Payne and as

we have clarified herein:

[O]nce the “judgments, decisions, and actions” of a

governmental official are determined to be discretionary, the

analysis does not end. Rather, even if the complained-of

actions fall within the discretionary functions of an agency or

an official’s duty, they are not immune if the discretionary

actions violate “clearly established laws of which a

reasonable official would have known[.]”

38

231 W.Va. at 572, 746 S.E.2d at 563 (citing Syl. Pt. 3, Clark, 195 W. Va. 272, 465

S.E.2d 374).

In Payne, we noted further that “certain governmental actions or functions

may involve both discretionary and non-discretionary or ministerial aspects, the latter of

which may constitute a ‘clearly established law of which a reasonable public official

would have known.’” Id. at 574 n.26, 746 S.E.2d at 565 n.26. For instance, a broadly-

characterized governmental action or function may fall under the umbrella of a

“discretionary” function; but within this discretionary function there are nonetheless

particular laws, rights, statutes, or regulations which impose ministerial duties on the

official charged with these functions. We believe that the broad categories of training,

supervision, and employee retention, as characterized by respondent, easily fall within the

category of “discretionary” governmental functions. Accord Stiebitz v. Mahoney, 134

A.2d 71, 73 (Conn. 1957) (the duties of hiring and suspending individuals require “the

use of a sound discretion”); McIntosh v. Becker, 314 N.W.2d 728, 729 (Mich. Ct. App.

1981) (school board immune for negligent hiring and supervision); Gleason v. Metro.

Council Transit Operations, 563 N.W.2d 309, 320 (Minn. Ct. App. 1997) (claims for

negligent supervision, hiring, training and retention are immune as discretionary acts);

Doe v. Jefferson Area Local Sch. Dist., 646 N.E.2d 187 (Oh. Ct. App. 1994) (school

board is immune from negligent hiring and supervision claims); Dovalina v. Nuno, 48

S.W.3d 279, 282 (Tex. App. 2001) (hiring, training, and supervision discretionary acts);

Uinta Cnty. v. Pennington, 286 P.3d 138, 145 (Wyo. 2012) (“hiring, training, and

39

supervision of employees involve the policy judgments protected by the discretionary

requirement”).27

Moreover, we disagree with respondent that this Court has previously held

that negligent hiring, supervision, and retention claims are per se viable causes of action

against the State or its agencies. In the cases relied upon by respondent, State ex rel. W.

Va. State Police v. Taylor, 201 W. Va. 554, 499 S.E.2d 283 (1997) and McCormick v. W.

Va. Dep’t of Pub. Safety, 202 W. Va. 189, 503 S.E.2d 502 (1998), the negligent hiring,

supervision, and retention claims were asserted against private entities who were also

parties to the litigation and not the State agency named in the suit.28

27

A number of federal courts are likewise in accord that hiring, training,

supervision, and retention are discretionary acts. See Doe v. Holy See, 557 F.3d 1066,

1084 (9th Cir. 2009); Sydnes v. United States, 523 F.3d 1179, 1186 (10th Cir. 2008);

Bolduc v. United States, 402 F.3d 50, 61 (1st Cir. 2005); Vickers v. United States, 228

F.3d 944, 950 (9th Cir. 2000); Nurse v. United States, 226 F.3d 996, 1001 (9th Cir.

2000); Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1216–17 (D.C. Cir.

1997); Tonelli v. United States, 60 F.3d 492, 496 (8th Cir. 1995); Gordon v. Ottumwa

Comm. Sch. Dist., 115 F. Supp.2d 1077, 1088 (S.D. Iowa 2000); Hughes v. City of

Hartford, 96 F. Supp.2d 114, 119 (D. Conn. 2000); Jackson v. Katy Ind. Sch. Dist., 951

F. Supp. 1293, 1306 (S.D. Tex. 1996); Newsome v. Webster, 843 F. Supp. 1460, 1468

(S.D. Ga. 1994).

28

We likewise find the West Virginia federal court cases cited by respondent in

support of this proposition inapposite inasmuch as they were filed against political

subdivisions, the liability of which is governed by the West Virginia Tort Claims and

Insurance Reform Act. See, e.g., Woods v. Town of Danville, W. Va., 712 F. Supp.2d 502

(S.D.W. Va. 2010); Gilco v. Logan Cnty. Comm’n, No. 2:11-0032, 2012 WL 3580056

(S.D.W. Va. Aug. 17, 2012).

40

However, as explained more fully above, the conclusion that employee

training, supervision, and retention are discretionary governmental functions is not

necessarily fatal to respondent’s claim. To the extent that she can nonetheless

demonstrate that the WVRJCFA violated a “clearly established” right or law with respect

to its training, supervision, or retention of D. H., the WVRJCFA is not entitled to

immunity.29 In an effort to identify such a law, respondent contends that the WVRJCFA

violated the PREA; the WVRJCFA, however, claims that the PREA was not in effect at

the time of the alleged incidents underlying this action.

The PREA became effective September 4, 2003; as such, it appears that the

WVRJCFA is actually asserting that the “national standards” to be developed by the

Commission created under the PREA were not yet in effect. 42 U.S.C. § 15607

(“Adoption and effect of national standards”). The final rule was published in the federal

register on June 20, 2012, and became effective on August 20, 2012. 77 Fed. Reg.

37106-01 (June 20, 2012) (to be codified at 28 C.F.R. pt. 115). Certain standards do not

go into effect until a later date. The acts alleged in the underlying suit occurred in 2009

through 2010. We find, however, that the PREA merely “authorizes grant money, and

creates a commission to study the [prison rape] issue. . . . The statute does not grant

prisoners any specific rights.” De’Lonta v. Clarke, No. 7:11-cv-00483, 2013 WL

29

The WVRJCFA does not claim that any such alleged negligence with respect to

training, supervision, or retention would fall outside of the scope of the authority of any

official or employee charged with such responsibilities.

41

209489, at *3 (W.D. Va. Jan. 14, 2013) (quoting Chinnici v. Edwards, No. 1:07-cv-229,

2008 WL 3851294, at *3 (D. Vt. Aug. 13, 2008). As such, neither the PREA, nor the

standards promulgated at its direction, provide respondent with an adequate basis upon

which to strip the WVRJCFA of its immunity.

There are, nevertheless, existing state regulations which govern certain

aspects of the training, supervision, and retention of jail employees as set forth in the

“West Virginia Minimum Standards for Construction, Operation, and Maintenance of

Jails,” West Virginia C.S.R. § 95-1-1 et seq. In the instant case, however, respondent has

failed to identify a single regulation which the WVRJCFA has violated as pertains to

training, supervision, or retention, which proximately caused D. H.’s alleged actions.30

See Section D, infra. Moreover, respondent voluntarily dismissed her West Virginia

constitutional claims and expressly exempted the WVRJCFA from the scope of the

30

In her briefing before this Court in a further attempt to identify a “clearly

established law,” respondent argues that the WVRJCFA was obliged and failed to

conduct an annual psychological examination of D. H., pursuant to Harrah v. Leverette,

165 W. Va. 665, 271 S.E.2d 322 (1980). Prior to the creation of the Regional Jail and

Correctional Facility Authority, the Court in Harrah held that annual psychological

testing was required for corrections officers within the Division of Corrections. 165 W.

Va. at 681, 271 S.E.2d at 332.

However, West Virginia Code of State Regulations § 95-1-4.2, effective June 3,

1996, provides that psychological testing is only required prior to employment and “when

a justifiable need exists during their employment.” This Court has held that “[a]

regulation that is proposed by an agency and approved by the Legislature is a ‘legislative

rule’ as defined by the State Administrative Procedures Act, W. Va. Code, 29A–1–2(d)

[1982], and such a legislative rule has the force and effect of law.” Syl. Pt. 5, Smith v.

West Virginia Human Rights Comm’n., 216 W.Va. 2, 602 S.E.2d 445 (2004).

42

United States constitutional claims alleged in her complaint.31 It is critical to note that

respondent pled only simple negligence against the WVRJCFA; she did not plead a

violation of her civil rights by the WVRJCFA or any of its officials. Whether respondent

may have had other avenues of recourse against the WVRJCFA or other individual

officers or officials is not for this Court to speculate upon or manufacture for her.32 The

31

Respondent suggests that “Judge Webster’s ‘dismissal’ of [the constitutional

claims] . . .” may have caused confusion. However, the order entered below plainly

reflects that respondent’s attorney prepared the order which states the “parties have

stipulated to dismissal of Plaintiff’s claims against the WVRJA for violation of the West

Virginia Constitution . . . [and] Plaintiff’s claims under 42 U.S.C. Section 1983[.]”.

32

That said, however, we note that our research indicates that inmate rape cases

are almost exclusively brought pursuant to Section 1983, invariably alleging that a

particular corrections officer or official was “deliberately indifferent” to a risk of or

allegations of sexual assault. Respondent asserted a Section 1983 claim against D. H.

alone and made no allegations against any other individuals within the WVRJCFA

against whom a case may lie. To whatever extent respondent’s failure to plead such an

action against any other employees or officials whom she claims were deliberately

indifferent to the alleged actions of D. H. was a tactical or calculated choice, she made

that choice at her own peril. We note specifically that respondent made no Section 1983

claim against Lt. Bunting who conducted the investigation into the allegations against D.

H. While we are troubled by the superficial nature of the investigation, we again note

that respondent pled simple negligence against the WVRJCFA, which is insufficient to

defeat immunity in absence of violation of a clearly established right.

The Supreme Court of South Dakota was faced with a nearly identical scenario

wherein an inmate pled only negligence-based claims against the State after she alleged

that a correctional officer raped her. Casazza v. State, 616 N.W.2d 872 (S. D. 2000).

The Court astutely noted therein that “[i]f [the inmate] would have brought a § 1983

action, she may have had a better foundation for her suit than under the negligence theory

she pled in this case.” Id. at 875 n.3. Like the amici and respondent herein, the inmate

Casazza likewise claimed that if the court found immunity the guards would be “allowed

to act with no restraint, prudence, caution or accountability.” Id. at 876. However, not

unlike the accusations made by respondent, Casazza “only provided conclusory

statements as to the ramifications to her fellow prisoners if her action is not allowed to

proceed.” Id. The South Dakota Supreme Court similarly noted that while the actions

(continued . . .)

43

Court takes the pleadings and record as it finds them and the adversarial process makes it

incumbent on the parties to plead the causes of action and present the requisite evidence

necessary to maintain viability of their case. “[C]ourts cannot concoct or resurrect

arguments neither made nor advanced by the parties.” Fils v. City of Aventura, 647 F.3d

1272, 1284 (11th Cir. 2011). Respondent’s case suffers from the same fundamental flaw

as did the case in Payne: “[A]t no time do respondents identify a specific law, statute, or

regulation which the DHHR defendants violated.” 221 W. Va. at 574, 746 S.E.2d at

565.33 As such, we find that respondent’s failure to identify a “clearly established” right

which the WVRJCFA violated through its training, supervision, and retention of D. H. is

likewise fatal to her claim.

Before leaving this issue, we would be remiss if we did not take this

opportunity to clarify what this opinion does and does not suggest. It does not suggest

that the WVRJCFA has no duty to prevent prison rape; any suggestion to the contrary is

not simply disingenuous, but irresponsible and frankly ludicrous. The undisputed facts

alleged were “deplorable, our feelings for what Casazza possibly has gone through

should not override our obligations on this appeal.” Id. at 877.

33

Also, like Payne, in discovery, respondent made the skeletal assertion that if D.

H. were properly trained and supervised, the rape would not have occurred. This illusory

and languid contention is no more sufficient to overcome the State’s immunity in this

case than in Payne: “Respondents seem to argue simply that if the DHHR defendants

were doing their job properly, this incident would not have occurred. . . . . Although this

overly simplistic analysis may be appealing in light of these tragic events, qualified

immunity insulates the State and its agencies from liability based on vague or principled

notions [of government responsibility].” Id. at 574, 746 S.E.2d at 565.

44

demonstrate that the WVRJCFA has policies and training in effect designed to prevent

and address such issues. The undisputed facts demonstrate that D. H. was trained

annually on PREA and unquestionably understood that sexual contact with inmates was

prohibited. Even the most well-understood prohibitions are insufficient to prevent bad

actors intent on acting for their own purposes from doing so. “Rape, of course, is no

accident. It results from an individual’s conscious decision to commit the outrageous act

despite all moral and legal sanctions. Hence, it cannot be prevented in the way a city

might train its officers in safe driving.” Mary M., 814 P.2d at 1363 (Baxter, J.,

concurring).

Moreover, the foregoing should not be misread to suggest that the

WVRJCFA is immune because it did not have rules and regulations forbidding prison

rape. Obviously, it did have such rules and D. H. allegedly violated them. The issue

presented by A. B.’s direct claim against the WVRJCFA is what did the WVRJCFA fail

to do that it was specifically required to do under a clearly established law or right?

What respondent’s scant evidence failed to establish was that the WVRJCFA, itself—

rather than D. H.— acted in a manner which violated a clearly established right of which

a reasonable official would have known.

This issue likewise is not aided by both respondent and the amici’s vague

incantations that respondent’s right to be free from prison rape is a “clearly established”

right under the United States Constitution. Such an argument grossly oversimplifies, and

45

frankly nullifies, this requirement. As this Court has stated and as has been the subject of

a plethora of federal jurisprudence on this particular issue:

To prove that a clearly established right has been infringed

upon, a plaintiff must do more than allege that an abstract

right has been violated. Instead, the plaintiff must make a

“particularized showing” that a “reasonable official would

understand that what he is doing violated that right” or that

“in the light of preexisting law the unlawfulness” of the

action was “apparent.” Anderson v. Creighton, 483 U.S. 635,

640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).

Hutchison v. City of Huntington, 198 W.Va. 139, 149 n.11, 479 S.E.2d 649, 659 n.11

(1996). Moreover, “the question of whether the constitutional or statutory right was

clearly established is one of law for the court.” Id. In a case heavily relied on by the

amici, this Court recognized that the issue, more pointedly, is whether “it would be clear

to a reasonable officer that his conduct was unlawful in the situation he confronted.” City

of Saint Albans v. Botkins, 228 W.Va. 393, 400, 719 S.E.2d 863, 870 (2011) (quoting

Saucier v. Katz, 533 U.S. 194, 202 (2009)).

To that end, there is no question that D. H. allegedly violated all manner of

clearly established rights—constitutional and otherwise—it is not his conduct which is

the focus of this aspect of the appeal. Rather, it is whether the WVRJCFA, in the course

of its supervision and retention of D. H., violated a clearly established right; a right is

“clearly established” when its contours are “sufficiently clear that a reasonable official

would understand that what he is doing violates that right.’” Hope v. Pelzer, 536 U.S.

730, 739 (2002) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). A. B. failed

46

to establish what the WVRJCFA did or failed to do that it would have reasonably

understood was unlawful with regard to its supervision, retention, and training of D. H.

In fact, A. B. could not identify a single policy, procedure, rule, regulation, or statute

which the WVRJCFA (and not D. H.) violated. Inasmuch as respondent failed entirely in

her burden to identify for this Court what the WVRJCFA did that was purportedly

unlawful, she can hardly be said to have demonstrated that such actions violated a

“clearly established right.”

C.

Respondent’s “Special Relationship” with the WVRJCFA

Before dispensing with this matter altogether, we pause briefly to address

respondent’s contention that, as an inmate at a correctional facility, respondent was owed

a “special duty” by the State entitling her to escape the immunity shield of the

WVRJCFA. Respondent haphazardly tosses around the phrase “special duty” in an

attempt to bolster her claim of the WVRJCFA’s negligence, without ever stopping to

place the concept into its proper legal context. This failure has resulted in an error we

have had repeated occasion to mention in our immunity cases which involve the related

issue of the “public duty doctrine.” In sum, the “special relationship” or “special duty”

doctrine is an exception to the liability defense known as the public duty doctrine; it is

47

neither an immunity concept, nor a stand-alone basis of liability.34 “The special duty

exception does not create liability but negates the public duty doctrine, a defense to

liability.” Chase v. City of Memphis, 971 S.W.2d 380, 385 (Tenn. 1998). We have made

plain that,

[q]ualified immunity is, quite simply, immunity from suit.

The public duty doctrine is a defense to negligence-based

liability, i.e. an absence of duty. See Holsten v. Massey, 200

W. Va. 775, 782, 490 S.E.2d 864, 871 (1997) (“The public

duty doctrine, however, is not based on immunity from

existing liability. Instead, it is based on the absence of duty

in the first instance.”). This Court dedicated an extensive

discussion to the similarities, yet fundamental difference,

34

Respondent urges that J. H. v. West Virginia Div. of Rehabilitation Svcs, 224 W.

Va. 147, 680 S.E.2d 392 (2009) stands for the proposition that the special duty doctrine

creates a separate cause of action. J. H. involved a patient at a rehab center who was

sexually molested by another resident. First, we note that J. H. is a per curiam decision

which does, in fact, cite to the special duty doctrine as a basis to reverse the circuit

court’s 12(b)(6) dismissal of the case. However, it is clear that J. H. is contrary to the

well-established and predominant application of the special duty doctrine. See also

Lavender, supra (holding that the special duty doctrine, as an exception to the public duty

doctrine, was a concept distinct from immunity and did not serve to resurrect an

otherwise immune claim). The overwhelming bulk of our jurisprudence applies the

concept properly, i.e. where a citizen because of some interaction with police, fire, etc.

establishes a specific duty to them as individuals as opposed to the general public, which

they rely upon to their detriment. This application comports with the purpose of the

special duty doctrine as explained by the Court of Appeals of New York and endorsed by

this Court:

[A]t the heart of most of these “special duty” cases is the

unfairness that the courts have perceived in precluding

recovery when a municipality’s voluntary undertaking has

lulled the injured party into a false sense of security and has

thereby induced him either to relax his own vigilance or to

forego other available avenues of protection.

Walker v. Meadows, 206 W.Va. 78, 83, 521 S.E.2d 801, 806 (1999) (quoting Cuffy v.

City of New York, 505 N.E.2d 937, 940 (N. Y. 1987)).

48

between the two concepts in Parkulo v. West Virginia Bd. Of

Probation and Parole, 199 W. Va. 161, 172, 483 S.E.2d 507,

518 (1996): “[The public duty doctrine] is not a theory of

governmental immunity, ‘although in practice it achieves

much the same result’” (quoting Syl. Pt. 1, Benson v. Kutsch,

181 W. Va. 1, 380 S.E.2d 36 (1989). Although both defenses

are frequently raised, as in this case, only qualified immunity,

if disposed of by way of summary judgment, is subject to

interlocutory appeal. All other issues are reviewable only

after they are subject to a final order[.]

Payne, 231 W. Va. at 568-69 n.10, 746 S.E.2d at 559-60 n.10; see also Jones v. Wilcox,

476 N.W.2d 473, 476 (Mich. Ct. App. 1991) (“The public duty doctrine is premised on

the existence of an element of a cause of action for negligence. On the other hand, the

governmental immunity issue concerns the creation of exceptions to liability based on the

functions of a governmental actor.”). As in Payne, the attempt to invoke the special duty

exception to the public duty doctrine in this interlocutory appeal is improper inasmuch as

only the immunity issue is before this Court. Moreover, there is no suggestion

whatsoever in the underlying allegations that the WVRJCFA is asserting the public duty

doctrine as a defense to liability, to which respondent could then properly invoke the

special duty exception. This is likely because respondent has alleged no breach of a duty

to the general public such as to give rise to a public duty doctrine defense.35

35

To the extent, however, that respondent is attempting to use the “special duty”

concept to evade the scope of immunity by suggesting that she is owed a heightened duty

of care by virtue of her placement in a correctional facility, we find it unnecessary to

carve out an exception for prison inmates and create a special rule of liability for them.

While respondent is correct that she stands in a different relation to the State as a

confined inmate, to whatever extent she is entitled to different or “heightened” standards

(continued . . .)

49

Accordingly, we find that the WVRJCFA is entitled to immunity for

respondent’s claims of negligent training, supervision, and retention, and therefore, the

circuit court erred in failing to grant summary judgment to the WVRJCFA.

D.

Arguments Asserted by Respondent in Petition for Rehearing

The petition for rehearing feverishly assembles a collection of legislative

rules, purported policy and procedure statements, and “internal” policy directives which

respondent insists constitute “clearly established” rights sufficient to resurrect her claim

against the WVRJCFA. Respondent candidly admits that these items were “overlooked

by former counsel.”36

Rule 25 of the West Virginia Rules of Appellate Procedure states that a

petition for rehearing “shall state with particularity the points of law or fact which in the

opinion of the petitioner the Court has overlooked or misapprehended[.]” (emphasis

added). This Court has recognized that “well settled principles of appellate procedure

indicate that ‘a rehearing on an appeal can be granted only for purposes of correcting

of care, such standards exist in countless forms not the least of which are the United

States and West Virginia Constitutional prohibitions against cruel and unusual

punishment and the plentiful administrative regulations governing correctional facilities.

As noted before, respondent has established no violation of any clearly established law,

asserted no civil rights claim pursuant to Section 1983 except as against D. H., and

expressly dismissed her West Virginia constitutional claims as against the WVRJCFA.

36

Respondent apparently obtained new counsel following this Court’s initial

opinion for purposes of rehearing.

50

errors that the court has made, and the party seeking a rehearing cannot assign as error

points or arguments that could have been raised before the appeal was resolved.’”

Perrine v. E.I. du Pont de Nemours and Co., 225 W.Va. 482, 598, 694 S.E.2d 815, 931

(2010) (quoting In re Leslie H., 861 N.E.2d 1010, 1015 (2006)). It has been correctly

noted that “[t]he purpose of a petition for rehearing is not to present points which lawyers

for the losing parties have overlooked or misapprehended[.]” Kennedy v. South Carolina

Ret. Sys., 564 S.E.2d 322, 322 (S. C. 2001) (quotations and citation omitted).

Moreover, respondent’s attempt to supplement her deficient discovery,

briefing, and appendix record for purposes of rehearing with hastily attached newspaper

articles and scattershot rules and regulations (which may or may not be of any import to

the issues herein) is wholly improper. “[A]n appellate court must accept the record as it

was originally presented and cannot consider previously unpresented or substituted items

of evidence. The court will not consider a document attached to a petition for a rehearing

that was not part of the record.” 5 C.J.S. Appeal and Error § 802. We save the analysis

of these items for a case where these matters have been properly discovered and

presented to the Court as supporting the viability of a claim.

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IV. CONCLUSION

For the foregoing reasons, the December 3, 2012, order denying summary

judgment is reversed, and we remand for the entry of an order granting the WVRJCFA’s

motion for summary judgment and dismissing the action against it.

Reversed and remanded.

52