# Brenda Albert v. City of Wheeling

> West Virginia Supreme Court · October 27, 2016 · 238 W. Va. 129

URL: https://www.frixlaw.com/law-library/cases/9837653

## Case

- **Full name:** Brenda ALBERT, Plaintiff Below, Petitioner v. CITY OF WHEELING, Defendant Below, Respondent
- **Court:** West Virginia Supreme Court
- **Decided:** October 27, 2016
- **Citations:** 238 W. Va. 129; 792 S.E.2d 628; 2016 W. Va. LEXIS 767
- **Precedential status:** Published
- **Opinion:** Concurrence by Benjamin
- **Judges:** Loughry, Benjamin, Davis, Workman
- **Nature of suit:** Tort, Contract, and Real Property
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9837653

## How later opinions describe it (automated extraction)

- holding that W. Va. Code § 29 -12A-5(a) provides immunity “regardless of whether such loss or claim is caused by the negligent performance of acts by the political subdivision’s employees while acting within the scope of employment
- noting that “subsection 4(c) begins with the disclaimer that the subsequent grants of liability are expressly made ‘[s]ubject to section five [§ 29-12A-5] and six [§ 29-12A-6].’”
- noting that “subsection 4(c) begins with the disclaimer that the subsequent grants of liability are expressly made [s]ubject to section five [§ 29-12A-5] and six [§ 29-12A-6].’”

## Opinion text

Benjamin, Justice,
concurring in result:
I agree with the decision to affirm the trial court, but for reasons separate from those set forth in Justice Loughry’s decision. I agree with my colleagues and with Judge Cuomo crediting the complaint as having been artfully drafted. I also agree with the circuit court that artfully pled claims do not trump facts when considering immunity issues.
After considering the nature of the petitioner’s claims, the circuit court dismissed this matter with prejudice on the basis that both statutory and common law immunity barred petitioner’s claims. Specifically, with respect to common law immunity, the circuit court relied upon Wolfe v. City of Wheeling, 182 W. Va. 253 , 378 S.E.2d 307 (1989), to conclude that there was no special duty owed to petitioner either pled or present, thereby requiring dismissal. Petitioner appealed the order below only with respect to the circuit court’s statutory immunity ruling. Petitioner did riot raise the common law immunity portion of the circuit court’s ruling in her Petition for appeal. In her Reply Brief herein, in response to respondent’s arguments, she contends that because of the manner in which her complaint was pled, common law immunity is not at issue. However, being an independent basis of the circuit court’s decision below, the failure to appeal the common law immunity portion of the circuit court’s order requires affirmation of the dismissal of the matter below. I, therefore, concur insofar as this Court affirms the dismissal of this matter.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9837653. Public record. Not legal advice.