Elizabeth Crawford v. City of Charleston

FILED

November 17, 2023

EDYTHE NASH GAISER, CLERK

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

SUPREME COURT OF APPEALS OF WEST VIRGINIA

Elizabeth Crawford,

Plaintiff Below, Petitioner

vs.) No. 22-615 (Kanawha County 20-C-594)

City of Charleston,

Defendant Below, Respondent

MEMORANDUM DECISION

Petitioner Elizabeth Crawford appeals the June 27, 2022, order of the Circuit Court of

Kanawha County granting Respondent City of Charleston’s motion to dismiss petitioner’s

complaint pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. 1 The circuit

court concluded that respondent was immune from petitioner’s claim under the West Virginia

Governmental Tort Claims and Insurance Reform Act (“Tort Claims Act”), West Virginia Code

§§ 29-12A-1 to -18, and that, as a result, petitioner had failed to state a claim upon which relief

could be granted. Upon our review, finding no substantial question of law and no prejudicial error,

we determine that oral argument is unnecessary and that a memorandum decision affirming the

circuit court’s order is appropriate. See W. Va. R. App. P. 21(c).

In July 2020, petitioner filed a civil complaint against respondent, alleging that she was

injured while walking on Wilkie Drive in Charleston, West Virginia, in July 2018. She claimed

that, to avoid traffic, she “was forced to step into a large pool of water that [had] collected in the

road.” She alleged that “green slime” hid under the surface of the water and that the green slime

caused her to slip, fall, suffer injuries, and incur damages. Petitioner claimed, “Based on

speculation and belief, the slime like substance . . . had been present for a considerable period of

time due to [respondent’s] negligent failure to maintain said road.” Petitioner asserted that

respondent was liable for her damages pursuant to West Virginia Code § 29-12A-4(c), which

provides, in relevant part:

Subject to sections five and six 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:

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Petitioner appears by counsel Erika Klie Kolenich. Respondent appears by counsel Kevin

Baker and Jason Neal.

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....

(3) Political subdivisions are liable for injury, death, or loss to persons or

property caused by their negligent failure to keep public roads, highways, streets,

avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within

the political subdivisions open, in repair, or free from nuisance, except that it is a

full defense to such liability, when a bridge within a municipality is involved, that

the municipality does not have the responsibility for maintaining or inspecting the

bridge.

Respondent filed a motion to dismiss the complaint pursuant to Rule 12(b)(6), arguing that

petitioner had failed to state a claim upon which relief could be granted because, according to

respondent, West Virginia Code § 29-12A-5(a)(6) provided it with immunity from petitioner’s

claim as the condition that caused petitioner to fall was a temporary or natural condition resulting

from weather. West Virginia Code § 29-12A-5(a) provides, in relevant part:

A political subdivision is immune from liability if a loss or claim results

from:

....

(6) Snow or ice conditions or temporary or natural conditions on any public

way or other public place due to weather conditions, unless the condition is

affirmatively caused by the negligent act of a political subdivision[.]

Following a hearing on the matter, the circuit court entered an order on June 27, 2022,

granting respondent’s motion. The circuit court found that petitioner’s “negligence claim [was]

integrally related to the temporary and everchanging weather conditions,” and it concluded that

the claim was barred by the Tort Claims Act. Petitioner appeals the circuit court’s order to this

Court, arguing that the circuit court’s finding and conclusion were erroneous, and ultimately, that

the circuit court erred by granting respondent’s motion to dismiss. Our review of the circuit court’s

order is de novo. See Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.

Va. 770, 461 S.E.2d 516 (1995) (“Appellate review of a circuit court’s order granting a motion to

dismiss a complaint is de novo.”).

We find no error in the circuit court’s finding that petitioner’s negligence claim was

integrally related to the temporary and everchanging weather conditions. Petitioner’s complaint

describes a natural condition in the roadway—green slime in a pool of water—that clearly formed

because of weather conditions. As the circuit court astutely observed below: “[W]e can[not] throw

common sense out the door when we’re talking about these issues.” Consequently, we also

determine that the circuit court did not err in concluding that respondent is entitled to immunity

under West Virginia Code § 29-12A-5(a)(6). See Syl. Pt. 1, in part, Hutchison v. City of

Huntington, 198 W. Va. 139, 479 S.E.2d 649 (1996) (“The ultimate decision of whether qualified

or statutory immunity bars a civil action is one of law for the court to determine.”). As we have

explained “[i]mmunities under West Virginia law are more than a defense to a suit in that they

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grant governmental bodies and public officials the right not to be subject to the burden of trial at

all.” Id. at 148, 479 S.E.2d at 658. An immunity defense “spares the defendant from having to go

forward with an inquiry into the merits of the case.” Id. Where, as here, a claim results from a

natural condition existing due to weather conditions, a political subdivision such as respondent is

immune from liability. Because respondent is entitled to immunity under West Virginia Code §

29-12A-5(a)(6), the circuit court committed no error in granting respondent’s motion to dismiss. 2

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: November 17, 2023

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton

Justice C. Haley Bunn

DISSENTING:

Justice John A. Hutchison

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We note three things: First, the circuit court’s June 27, 2022, order determined that

respondent was also entitled to immunity under West Virginia Code § 29-12A-5(a)(10), and

petitioner argues on appeal that this determination was erroneous. Having decided that the circuit

court did not err in concluding that respondent is entitled to immunity under West Virginia Code

§ 29-12A-5(a)(6), we need not consider whether the circuit court’s determination concerning West

Virginia Code § 29-12A-5(a)(10) was correct. Second, the parties make arguments on appeal as to

whether the condition that caused petitioner to fall was open and obvious. Because the circuit court

made no findings as to whether the condition was open and obvious and because we have

determined respondent is immune from petitioner’s claim under West Virginia Code § 29-12A-

5(a)(6), we need not consider the issue. Third, we observe that petitioner’s brief argues that West

Virginia Code § 17-10-17 imposes liability upon respondent; however, petitioner made no

arguments concerning this statute to the circuit court and petitioner has not asserted that the circuit

court committed plain error in deciding respondent’s motion without considering West Virginia

Code § 17-10-17. Accordingly, we will not consider petitioner’s arguments concerning West

Virginia Code § 17-10-17 in this appeal. See State v. LaRock, 196 W. Va. 294, 316, 470 S.E.2d

613, 635 (1996) (“‘“One of the most familiar procedural rubrics in the administration of justice is

the rule that the failure of a litigant to assert a right in the trial court likely will result” in the

imposition of a procedural bar to an appeal of that issue.’” (quoting State v. Miller, 194 W. Va. 3,

17, 459 S.E.2d 114, 128 (1995)).

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Hutchison, Justice, dissenting:

I dissent to the majority’s resolution of this case. I would have set this case for oral argument to

thoroughly address the error alleged in this appeal. Having reviewed the parties’ briefs and the

issues raised therein, I believe a formal opinion of this Court was warranted, not a memorandum

decision. Accordingly, I respectfully dissent.

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