Gloria Allen v. Greenbrier Co. Sheriff's Dept.

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Gloria Allen, Plaintiff Below, FILED

Petitioner June 28, 2013

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

vs) No. 12-1088 (Greenbrier County 11-C-16) OF WEST VIRGINIA

Greenbrier County Sheriff’s Department,

and the Greenbrier County Commission,

Defendants Below, Respondents

MEMORANDUM DECISION

Petitioner Gloria Allen, by counsel Jeff C. Woods, appeals the August 14, 2012 order of

the Circuit Court of Greenbrier County granting respondents’ motion for summary judgment.

Respondents, by counsel Wendy E. Greve and Michelle Rae Johnson, have filed a response and a

supplemental appendix.

The Court has considered the parties’ briefs and the record on appeal. The facts and legal

arguments are adequately presented, and the decisional process would not be significantly aided

by oral argument. Upon consideration of the standard of review, the briefs, and the record

presented, the Court finds no substantial question of law and no prejudicial error. For these

reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate

Procedure.

In January of 2012, petitioner initiated a civil action against the Greenbrier County

Sheriff’s Office, the Greenbrier County Commission, and Deputy R.A. Martin. Petitioner alleged

that respondents were negligent when the Deputy Martin attempted to calm and/or apprehend

James G. Wilburn during a Greenbrier East High School basketball game on or about January 23,

2009. According to petitioner, while attempting to apprehend the individual, Deputy Martin

pushed petitioner down. The cause of action also alleged that respondents were negligent in the

use of force and failure to use appropriate caution and care with regard to petitioner. Petitioner

claims that, as a result of the respondents’ actions, she suffered physical injury which caused her

to incur medical expenses in the past and will cause her to continue to incur medical expenses in

the future. On May 18, 2012, respondents filed a motion for summary judgment, alleging that

petitioner could not prove the requisite elements of negligence and that respondents were immune

under the public duty doctrine. Finding that petitioner was owed no duty of care, the circuit court

granted summary judgment in respondents’ favor. It is from this order that petitioner appeals.

This Court has previously held that “‘[a] circuit court’s entry of summary judgment is

reviewed de novo.’ Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).” Syl. Pt.

1, Nat’l Union Fire Ins. Co. of Pittsburgh v. Miller, 228 W.Va. 739, 724 S.E.2d 343 (2012). After

careful consideration of the parties’ arguments, this Court concludes that the circuit court did not

err in granting respondents’ motion for summary judgment. To begin, it is clear that the circuit

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court did not err in making a determination that respondents did not owe petitioner a duty of care.

While petitioner cites to our prior holding in Syllabus Point 4 of Aikens v. Debow, 208 W.Va.

486, 541 S.E.2d 576 (2000) (holding that questions of negligence present issues of fact for jury

determination when the evidence is conflicting or the facts are such that reasonable jurors may

draw different conclusions from them), to argue that questions of negligence are questions of fact

to be determined by a jury, the Court notes that the same opinion clearly states that

[t]he determination of whether a defendant in a particular case owes a duty to the

plaintiff is not a factual question for the jury; rather the determination of whether a

plaintiff is owed a duty of care by a defendant must be rendered by the court as a

matter of law.

Syl. Pt. 5, Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000).

However, it is important to note that, in granting summary judgment for respondents, the

circuit court found that the public duty doctrine barred petitioner’s negligence claim. In

discussing the public duty doctrine, the Court has stated that

the duty to . . . provide police protection runs ordinarily to all citizens and is to

protect the safety and well-being of the public at large; therefore, absent a special

duty to the plaintiff(s), no liability attaches to a municipal . . . police department’s

failure to provide adequate . . . police protection.

Rhodes v. Putnam Cnty. Sheriff’s Dep’t, 207 W.Va. 191, 194, 530 S.E.2d 452, 455 (1999)

(quoting Randall v. Fairmont City Police Dep’t, 186 W.Va. 336, 346-47, 412 S.E.2d 737, 747-48

(1991)). In regard to the special duty exception, we have listed the requirements necessary to

establish such an exception as follows:

“The four requirements for the application of the ‘special relationship’ exception to

W. Va.Code § 29–12–5 cases are as follows: (1) An assumption by the state

governmental entity, through promises or actions, of an affirmative duty to act on

behalf of the party who was injured; (2) knowledge on the part of the state

governmental entity’s agents that inaction could lead to harm; (3) some form of

direct contact between the state governmental entity’s agents and the injured party;

and (4) that party’s justifiable reliance on the state governmental entity’s

affirmative undertaking.” Syl. Pt. 12, Parkulo v. West Virginia Bd. of Prob. and

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

Syl. Pt. 11, J.H. v. W.Va. Div. of Rehab. Services, 224 W.Va. 147, 680 S.E.2d 392 (2009).

This analysis is important to the issue of granting summary judgment, because we have

previously held that

“[i]n cases arising under W.Va. Code § 29–12–5, the question of whether a special

duty arises to protect an individual from a State governmental entity’s negligence

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is ordinarily a question of fact for the trier of facts.” Syl. Pt. 11, Parkulo v. West

Virginia Bd. of Prob. and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996).

Id. at 150, 680 S.E.2d at 396. The Court finds that under the narrow circumstances presented in

the present case, the circuit court did not err in granting summary judgment in respondents’ favor

because of its finding that petitioner failed to allege any facts supporting the existence of any of

the four factors for establishing a special duty, as set forth above. Because petitioner failed to

allege facts sufficient to overcome summary judgment on this issue, the Court finds that the

circuit court did not err in the granting of summary judgment.

As to petitioner’s allegation that the circuit court failed to apply West Virginia Code § 29­

12A-4(c)(2) to the instant matter, we find no error in the circuit court’s application of this Code

section, which states that

[s]ubject to sections five [§ 29-12A-5] and six [29-12A-6] of this article, a political

subdivision is liable in damages in a civil action for injury, death, or loss to

persons or property allegedly caused by an act or omission of the political

subdivision or of any of its employees in connection with a governmental or

proprietary function, as follows: (2) Political subdivisions are liable for injury,

death, or loss to persons or property caused by the negligent performance of acts

by their employees while acting within the scope of employment.

The Court notes that petitioner’s argument on this issue ignores the plain language of the statutes

involved. This liability is clearly limited by sections five and six of Article 12A, and section five

states that “[a] political subdivision is immune from liability if a loss or claim results from: (5)

Civil disobedience, riot, insurrection or rebellion or the failure to provide, or the method of

providing, police, law enforcement or fire protection.” W.Va. Code § 29-12A-5(a)(5).

Accordingly, it is clear that the circuit court properly applied West Virginia Code § 29-12A­

4(c)(2), petitioner’s argument that it confers liability on respondents notwithstanding.

Further, the Court finds no merit in petitioner’s argument that the circuit court’s

application of the public duty doctrine renders West Virginia Code § 29-12A-4(c)(2) null and

void because that argument fails to recognize prior case law harmonizing the public duty doctrine

with the Governmental Tort Claims and Insurance Reform Act [West Virginia Code § 29-12A-1,

et seq.]. We have previously held that

W.Va. Code, 29–12A–5(a)(5) [1986], which provides, in relevant part, that a

political subdivision is immune from tort liability for “the failure to provide, or the

method of providing, police, law enforcement or fire protection [,]” is coextensive

with the common-law rule not recognizing a cause of action for the breach of a

general duty to provide, or the method of providing, such protection owed to the

public as a whole. Lacking a clear expression to the contrary, that statute

incorporates the common-law special duty rule and does not immunize a breach of

a special duty to provide, or the method of providing, such protection to a

particular individual.

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Syl. Pt. 8, Randall v. Fairmont City Police Dept., 186 W.Va. 336, 412 S.E.2d 737 (1991). Based

on this holding, it is clear that this Court has already analyzed the interplay between the public

duty doctrine, the special duty exception to that doctrine, and the immunity provided to political

subdivisions for their method of providing police protection. As such, the public duty doctrine

does not render West Virginia Code § 29-12A-4(c)(2) null and void, and petitioner is entitled to

no relief in regard to this assignment of error.

For the foregoing reasons, we find no error in the decision of the circuit court and its order

granting summary judgment for respondents is affirmed.

Affirmed.

ISSUED: June 28, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin

Justice Robin Jean Davis

Justice Margaret L. Workman

Justice Menis E. Ketchum

Justice Allen H. Loughry II

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