Todd Kent, Mark Spessert, Christopher Kutcher, City of Charleston Town, Bradley Meacham, Glenna Hosby-Brown, William Roper, and City of Ranson v. Christopher Sullivan

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

FILED

January 2024 Term

May 9, 2024

_____________________ released at 3:00 p.m.

C. CASEY FORBES, CLERK

SUPREME COURT OF APPEALS

No. 22-0428 OF WEST VIRGINIA

_____________________

TODD KENT, MARK SPESSERT, CHRISTOPHER KUTCHER,

CITY OF CHARLES TOWN, BRADLEY MEACHAM, GLENNA HOSBY-BROWN,

WILLIAM ROPER, and CITY OF RANSON

Defendants Below, Petitioners,

v.

CHRISTOPHER SULLIVAN,

Plaintiff Below, Respondent.

___________________________________________________________

Appeal from the Circuit Court of Jefferson County

The Honorable Debra McLaughlin, Judge

Civil Action No. 21-C-136

REVERSED AND REMANDED

_________________________________________________________

Submitted: March 13, 2024

Filed: May 9, 2024

Matthew R. Whitler, Esq. Michael T. Logsdon, II, Esq.

PULLIN, FOWLER, FLANIGAN, Sutton & Janelle, PLLC

BROWN & POE, LLC Martinsburg, West Virginia

Martinsburg, West Virginia Counsel for Respondent

Counsel for Petitioners Todd Kent,

Mark Spessert, Christopher Kutcher,

and the City of Charles Town

Keith C. Gamble, Esq.

PULLIN, FOWLER, FLANIGAN,

BROWN & POE, LLC

Morgantown, West Virginia

Counsel for Petitioners Bradley Meacham,

Glena Hosby-Brown, William Roper, and

the City of Ranson

JUSTICE WOOTON delivered the Opinion of the Court.

CHIEF JUSTICE ARMSTEAD AND JUSTICE BUNN concur and reserve the right to file

separate opinions.

SYLLABUS BY THE COURT

1. “Under Rule 12 of the West Virginia Rules of Civil Procedure, a

circuit court’s denial of a motion to dismiss a complaint that is predicated on the statutory

immunity conferred by the Governmental Tort Claims and Insurance Reform Act is an

interlocutory ruling that is subject to immediate appeal under the ‘collateral order’

doctrine.” Syl. Pt. 5, State ex rel. Grant Cnty. Comm’n v. Nelson, 244 W. Va. 649, 856

S.E.2d 608 (2021).

2. “‘A circuit court’s denial of a motion to dismiss that is predicated on

qualified immunity is an interlocutory ruling which is subject to immediate appeal under

the “collateral order” doctrine.’ Syllabus point 1, West Virginia Board of Education v.

Marple, 236 W. Va. 654, 783 S.E.2d 75 (2015).” Syl. Pt. 1, W. Va. Reg’l Jail and Corr.

Facility v. Estate of Grove, 244 W. Va. 273, 852 S.E.2d 773 (2020).

3. “When a party, as part of an appeal from a final judgment, assigns as

error a circuit court’s denial of a motion to dismiss, the circuit court’s disposition of the

motion to dismiss will be reviewed de novo.” Syl. Pt. 4, Ewing v. Bd. of Educ. of Cnty. of

Summers, 202 W. Va. 228, 503 S.E.2d 541 (1998).

i

4. “‘[This Court] may, sua sponte, in the interest of justice, notice plain

error.’ Syl. Pt. 1, in part, State v. Myers, 204 W. Va. 449, 513 S.E.2d 676 (1998).” Syl. Pt.

1, Cartwright v. McComas, 223 W. Va. 161, 672 S.E.2d 297 (2008).

5. “ ‘ “ ‘To trigger application of the “plain error” doctrine there must be

(1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the

fairness, integrity, or public reputation of the judicial proceedings.’ Syllabus point 7, State

v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).” Syllabus Point 7, Page v. Columbia

Natural Resources, Inc., 198 W. Va. 378, 480 S.E.2d 817 (1996).’ Syl. Pt. 12, Keesee v.

General Refuse Service, Inc., 216 W. Va. 199, 604 S.E.2d 449 (2004).” Syl. Pt. 2,

Cartwright v. McComas, 223 W. Va. 161, 672 S.E.2d 297 (2008).

ii

WOOTON, Justice:

The petitioners/defendants below, Officers Bradley Meacham and Glenna

Hosby-Brown, Chief William Roper, and the City of Ranson, (“Ranson petitioners”), as

well as Officer Todd Kent, Sgt. Mark Spessert, Chief Christopher Kutcher, 1 and the City

of Charles Town (“Charles Town petitioners”) (collectively “the petitioners”), appeal the

May 3, 2022, order of the Circuit Court of Jefferson County, West Virginia, partially

granting the petitioners’ motion to dismiss the amended complaint filed by the

respondent/plaintiff below, Christopher Sullivan. The respondent asserted twenty-three

state law causes of action against the petitioners following a confrontation that he had with

the petitioner police officers which led to his arrest on various charges including disorderly

conduct and driving under the influence (“DUI”). 2 The Ranson petitioners and the Charles

Town petitioners filed two separate motions to dismiss the respondent’s amended

complaint pursuant to West Virginia Rule of Civil Procedure 12(b)(6), alleging varying

theories of immunity.

In its order resolving the petitioners’ motions, and of key importance to the

issues before us, the circuit court applied both the analytical framework of West Virginia

Regional Jail and Correctional Facility Authority v. A.B., 234 W. Va. 492, 766 S.E.2d 751

1

All the respective law enforcement officers will sometimes be referred to

collectively as the “petitioner police officers.”

2

As discussed infra in greater detail, the respondent was eventually cleared of all

charges.

1

(2014) and West Virginia Regional Jail and Correctional Facility Authority v. Estate of

Grove, 244 W. Va. 273, 852 S.E.2d 773 (2020), as well as the West Virginia Governmental

Tort Claims and Insurance Reform Act (“the Tort Claims Act”), W. Va. Code §§ 29-12A-

1 to -18 (2023), in resolving the immunity issues. 3

After careful review of the briefs of the parties, their oral arguments, the

appendix record, and the applicable law, we reverse the circuit court’s decision and remand

for further proceedings consistent with this opinion. Insofar as none of the petitioners’

assigned errors 4 address the overarching error in the circuit court’s decision, we sua sponte

find that the court committed plain error 5 by basing its immunity decisions on common law

3

The circuit court also dismissed the City of Ranson Police Department and the

Charles Town Police Department, who were named defendants in the respondent’s

amended complaint, and granted the petitioners’ motions to dismiss the respondent’s

claims for punitive damages pursuant to West Virginia Code section 29A-12A-7

(prohibiting punitive damages against political subdivisions). Neither of these rulings were

appealed by the parties and, therefore, are not now before the Court. Further, the City of

Ranson Police Department and the Charles Town Police Department are not named

petitioners for purposes of this appeal.

4

On appeal, the petitioners raise four assignments of error: that the circuit court

erred 1) by failing to dismiss the petitioner police officers on the grounds of qualified

immunity; 2) by failing to dismiss all the respondeat superior claims against the City of

Ranson and the City of Charles Town on the basis of qualified immunity; 3) by failing to

dismiss the assault and battery claims against the petitioner police officers; and 4) by failing

to dismiss the respondeat superior claims for battery against Chief Roper and Chief Kutcher

on the basis of qualified immunity. Because we reverse on other grounds, we decline to

address the issues raised by the petitioners.

5

See Syl. Pts. 1 and 2, Cartwright v. McComas, 223 W. Va. 161, 672 S.E.2d 297

(2008) (setting forth requisite elements for application of plain error doctrine and discussed

infra in greater detail).

2

qualified immunity principles which are only applicable to the State, its agencies, officials,

and employees, rather than applying the provisions of the Tort Claims Act, which govern

immunity for the claims asserted against the petitioners as they are undisputedly political

subdivisions and employees of political subdivisions.

I. Facts and Procedural Background

The respondent’s amended complaint alleges 6 that on the night of September

28, 2019, he observed the police vehicles of Officer Meacham and Sgt. Spessert parked in

a privately owned parking lot that served the residents of an apartment complex where the

respondent resided; however, their vehicles were not positioned in individually marked

parking spaces. The officers were responding to a vehicle break-in call at the apartment

complex. While he was driving past the officers, the respondent made remarks out his

window to the officers about their parking, after which he parked his own vehicle. Officer

Meacham then confronted him, allegedly without reasonable suspicion that the respondent

had committed any crime, and a verbal altercation ensued between the two. During the

verbal altercation which included profanity by both individuals and threats of jail and

hospitalization made by Officer Meacham, Officer Meacham warned the respondent to

stop loudly cursing at the officers or else he would be arrested for disorderly conduct. The

respondent started to walk away yet he continued to argue with Officer Meacham, using

6

The allegations in the respondent’s amended complaint reference specific portions

from the transcripts of the involved officers’ body cameras.

3

profane language. Officer Meacham arrested the respondent for disorderly conduct and

used two sets of handcuffs to restrain him, one of the sets coming from Sgt. Spessert.

Additionally, as the respondent was being transported to the police vehicle, Officer

Meacham used a leg sweep to take him to the ground after he asked the officers to pick up

his belongings. He alleges that he injured his head when he fell to the ground and, despite

his requests, none of the police officers contacted or sought medical assistance for him.

After the respondent was placed in a police cruiser, Officer Meacham stated

that he wanted to “add [driving under the influence (“DUI”)] now because he’s just running

his mouth.” The officers claim that they detected an odor of alcohol on the respondent

prompting them to reasonably suspect a possible DUI. The respondent rejected the

officers’ request that he perform field sobriety tests but claims he did not refuse a

preliminary breathalyzer test; however, the officers contend that they understood the

respondent’s refusal to take the field sobriety tests as a refusal of the preliminary

breathalyzer test. The respondent contends that he was not lawfully arrested because he

did not affirmatively refuse either the preliminary or secondary chemical breath tests and

he was not given paperwork explaining the penalties for refusing a breath test. He asserts

that he was further harassed and verbally abused by Officers Kent and Hosby-Brown after

he was arrested and placed inside a police vehicle.

Ultimately, the respondent was charged with disorderly conduct, DUI,

battery on an officer, obstructing an officer, resisting arrest, fingerprint refusal, and

4

destruction of property. The State later dismissed the charges for fingerprint refusal, DUI,

and destruction of property; a jury found the respondent not guilty of obstructing an officer

and disorderly conduct, and a magistrate entered a judgment of acquittal on the charge of

battery on an officer.

On September 27, 2021, the respondent filed a 244-paragraph amended

complaint 7 against the petitioners, containing twenty-three counts for the following state

law causes of actions: common law assault, common law battery, outrageous conduct,

three counts of intentional infliction of emotional distress, three counts of negligent

infliction of emotional distress, malicious prosecution relating to the Department of Motor

Vehicles, three counts of malicious prosecution, negligence, gross negligence, four counts

of negligence in employment (employment, entrustment, retention, training, and

supervision), and failure to intervene. The amended complaint also contained respondeat

superior claims against the petitioners the City of Ranson and the City of Charles Town

related to the allegations against the petitioner police officers.

In response to the respondent’s amended complaint, the Charles Town

petitioners and the Ranson petitioners filed separate motions to dismiss pursuant to West

Virginia Rule of Civil Procedure 12(b)(6). Interestingly, the Ranson petitioners claimed

immunity only under the Tort Claims Act, see W. Va. Code §§ 29-12A-1 to -18, which

7

The original complaint was filed on September 24, 2021.

5

affords immunity in certain circumstances to political subdivisions and their employees.

In contrast, the Charles Town petitioners first argued that they were entitled to immunity

under the Tort Claims Act but then later argued that they were entitled to “qualified

immunity” under this Court’s body of case law developed in claims involving State

agencies.

By order entered May 3, 2022, the circuit court partially granted the

petitioners’ motions to dismiss. Specifically, the court determined: 1) that the petitioner

law enforcement officers were not entitled to “qualified immunity” because “the alleged

actions of the officer defendants set forth sufficient details . . . to show that the

Governmental Tort Claims Act under W. VA. CODE § 29-12A-5 (2002) does not

apply[;]” 8 2) that “the City and Chief Defendants are state actors and there is not an

8

The circuit court’s analysis of “qualified immunity” tracked this Court’s analysis

in Estate of Grove:

[W]henever a defendant raises the issue of qualified immunity

in a motion to dismiss, the circuit court must look to our

qualified immunity body of law and follow the steps this Court

expressly has outlined to make the determination of whether

qualified immunity applies under the specific circumstances of

that particular case. Specifically, these steps include whether:

(1) a state agency or employee is involved; (2) there is an

insurance contract waiving the defense of qualified immunity;

(3) the West Virginia Governmental Tort Claims and Insurance

Reform Act, W. Va. Code § 29-12A-1 et seq. would apply; (4)

the matter involves discretionary judgments, decisions, and/or

actions; (5) the 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

6

insurance contract that waives the immunity,” and “the City of Charles Town, the City of

Ranson, and each city’s respective police department and police chief are entitled to

qualified immunity from the Plaintiff’s negligence claims, including separate claims for

liability under theories of supervisory liability throughout the Complaint[;]” 3) that the

petitioner Charles Town Defendant’s Motion to Dismiss was granted “only to the extent of

a failure to properly train as to Sgt. Spessert, Chief Kutcher, and the City of Charles Town,

but not under the other theories of liability under Count II, Common Law Battery[;]” and

4) that the respondent was “entitled to allege claims of negligence and intentional torts

from the same facts.” (Emphasis added). It is from this order that the petitioners appeal.

II. Standard of Review

In syllabus point five of State ex rel. Grant County Commission v. Nelson,

244 W. Va. 649, 856 S.E.2d 608 (2021), we held that

[u]nder Rule 12 of the West Virginia Rules of Civil

Procedure, a circuit court’s denial of a motion to dismiss a

complaint that is predicated on the statutory immunity

conferred by the Governmental Tort Claims and Insurance

Reform Act is an interlocutory ruling that is subject to

immediate appeal under the “collateral order” doctrine.

fraudulent, malicious, or oppressive; and (6) the State

employee was acting within his/her scope of employment. See

generally A.B., 234 W. Va. 492, 766 S.E.2d 751.

244 W. Va. at 283, 852 S.E.2d at 783.

7

Similarly, we have held that “‘[a] circuit court’s denial of a motion to dismiss that is

predicated on qualified immunity is an interlocutory ruling which is subject to immediate

appeal under the “collateral order” doctrine.’ Syllabus point 1, West Virginia Board of

Education v. Marple, 236 W. Va. 654, 783 S.E.2d 75 (2015).” Estate of Grove, 244 W.

Va. at 275, 852 S.E.2d at 775, Syl. Pt. 1. Further, “[w]hen a party, as part of an appeal

from a final judgment, assigns as error a circuit court’s denial of a motion to dismiss, the

circuit court’s disposition of the motion to dismiss will be reviewed de novo.” Syl. Pt. 4,

Ewing v. Bd. of Educ. of Cnty. of Summers, 202 W. Va. 228, 503 S.E.2d 541 (1998).

Finally, the Court held in syllabus points one and two of Cartwright v. McComas, 223 W.

Va. 161, 672 S.E.2d 297 (2008):

“[This Court] may, sua sponte, in the interest of justice,

notice plain error.” Syl. Pt. 1, in part, State v. Myers, 204 W.Va.

449, 513 S.E.2d 676 (1998).

“‘“To trigger application of the ‘plain error’ doctrine

there must be (1) an error; (2) that is plain; (3) that affects

substantial rights; and (4) seriously affects the fairness,

integrity, or public reputation of the judicial proceedings.”

Syllabus point 7, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114

(1995).’ Syllabus Point 7, Page v. Columbia Natural

Resources, Inc., 198 W. Va. 378, 480 S.E.2d 817 (1996).” Syl.

Pt. 12, Keesee v. General Refuse Service, Inc., 216 W. Va. 199,

604 S.E.2d 449 (2004).

Cartwright, 223 W. Va. at 162, 672 S.E.2d at 298, Syl. Pts. 1 & 2. It is under the guidance

of these standards of review that we proceed to address the issues before us.

8

III. Discussion

Our focus is on the law the circuit court applied in reaching its decision in

regard to the immunities claimed by the petitioners. 9 Immunity law can be difficult to

understand under the best of circumstances, as it involves three separate and distinct legal

analyses which apply to claims against three separate and distinct categories of entities and

individuals. See infra text and notes 11-13. Where, as here, the analyses are conflated and

the affected entities and individuals are not properly categorized, legal chaos ensues. This

situation could have been avoided in the instant case had the court followed a two-step

analysis: 1) categorize the party claiming immunity; and 2) determine whether the party

is entitled to immunity under the facts and circumstances presented. 10

The first step is to properly categorize the party claiming immunity. In this

regard, there are three sources of immunity in our jurisprudence: constitutional or

9

As previously indicated in supra note 4, it is unnecessary to address any of the

petitioners’ assigned errors.

10

The framework we set forth herein, which focuses on a method for determining

which type of immunity is applicable in a particular case, is offered as a means of

simplifying the subsequent application of the law to the facts. We acknowledge that our

case law has not been a model of clarity in this respect.

9

“sovereign” immunity, 11 common law “qualified immunity,” 12 and statutory immunity as

set forth in the Tort Claims Act. 13 It is well established that that claims for both

constitutional and common law qualified immunity are available only for the State, its

agencies, officials, and/or employees. See W. Va. Const. art. VI, § 35; see also A.B., 234

W. Va. at 502; 766 S.E.2d at 761 (“In West Virginia, however, the Governmental Tort

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

political subdivisions and their employees and does not cover claims made against the State

or its agencies.”); Estate of Grove, 244 W. Va. at 283, 852 S.E.2d at 783 (“[W]e have

developed a significant body of law in order to determine whether a state agency, a state

employee, or both are entitled to be protected from suit by the doctrine of qualified

immunity.”). 14

11

The West Virginia Constitution article VI, section 35 provides for immunity of

the State as follows:

The State of West Virginia shall never be made

defendant in any court of law or equity, except the State of

West Virginia, including any subdivision thereof, or any

municipality therein, or any officer, agent, or employee

thereof, may be made defendant in any garnishment or

attachment proceeding, as garnishee or suggestee.

12

See generally A.B., 234 W. Va. at 503-05, 766 S.E.2d at 762-64 (discussing the

evolution of common law immunity afforded to “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.”).

13

See W. Va. Code §§ 29-12A-1 to -18.

14

The circuit court determined that the petitioner police officers “were acting under

the color of state law when the alleged torts occurred[,]” implicitly making them “state

10

Conversely, statutory immunity, as set forth in the Tort Claims Act, is

available only to political subdivisions and their employees. The Tort Claims Act was the

Legislature’s response to this Court’s abolition of common law qualified immunity first for

municipalities, 15 and then for county commissions 16 and county boards of education. 17 In

this regard, we invited legislative action in Long, noting that

[f]or the foregoing reasons, we believe the rule of

municipal government immunity from tort liability previously

applied in this jurisdiction to be unsound and unworkable. In

moving toward resolution of this problem we are acutely aware

of the constraints of the doctrine of Stare decisis. Although,

indeed, it would seem preferable for the Legislature to speak

comprehensively on the subject, we do not wish to perpetuate

actor[s].” However, here there are no claims alleged in the amended complaint under 42

United States Code section 1983 where actions taken “under color of state law” would be

relevant. Thus, the court’s characterization of the officers as “state actors” in an attempt

to place them within the framework of common law qualified immunity applicable only to

the State, its agencies, officials, and/or employees defies the definitions of the Tort Claims

Act discussed infra in greater detail.

15

See Syl. Pt. 10, Long v. City of Weirton, 158 W. Va. 741, 214 S.E.2d 832 (1975)

(“The [common-law] rule of municipal governmental immunity is now abolished in this

State.”), superceded by statute as stated in Pritchard v. Arvon, 186 W. Va. 445, 413 S.E.2d

100 (1991).

16

See Syl. Pt. 2, Gooden v. Cnty. Comm’n of Webster Cnty., 171 W. Va. 130, 298

S.E.2d 103 (1982) (“Common-law governmental immunity for county commissions is

abolished. A county commission shall be liable, just as a private citizen, to members of

the general public, for injuries proximately caused by the negligence of its employees

performing their duties.”), superseded by statute as stated in Pritchard v. Arvon, 186 W.

Va. 445, 413 S.E.2d 100 (1991).

17

See Syl., Ohio Valley Contractors v. Bd. of Educ. of Wetzel Cnty., 170 W. Va.

240, 293 S.E.2d 437 (1982) (“Local boards of education do not have state constitutional

immunity nor common law governmental immunity from suit.”), superceded by statute as

stated in Moore ex rel. Knight v. Wood Cnty. Bd. of Educ., 200 W. Va. 247, 489 S.E.2d 1

(1997).

11

bad law of judicial origin pending the fortuity of action by the

Legislature.

158 W. Va. at 783, 214 S.E.2d at 859

The Tort Claims Act was enacted in 1986. See W. Va. Code §§ 29-12A-1 to

-18. The Legislature’s stated purpose for this statutory scheme was to “limit liability of

political subdivisions and provide immunity to political subdivisions in certain instances

and to regulate the costs and coverage of insurance available to political subdivisions for

such liability.” Id. § 29-12A-1. Further, the Legislature defined exactly what it meant by

a “political subdivision”:

“Political subdivision” means any county commission,

municipality and county board of education; any separate

corporation or instrumentality established by one or more

counties or municipalities, as permitted by law; any

instrumentality supported in most part by municipalities; any

public body charged by law with the performance of a

government function and whose jurisdiction is coextensive

with one or more counties, cities or towns; a combined city-

county health department created pursuant to article two,

chapter sixteen of this code; public service districts; and other

instrumentalities including, but not limited to, volunteer fire

departments and emergency service organizations as

recognized by an appropriate public body and authorized by

law to perform a government function: Provided, That

hospitals of a political subdivision and their employees are

expressly excluded from the provisions of this article.

Id. § 29-12A-3(c). Further, an “employee” was defined as

an officer, agent, employee, or servant, whether compensated

or not, whether full-time or not, who is authorized to act and is

acting within the scope of his or her employment for a political

subdivision. “Employee” includes any elected or appointed

12

official of a political subdivision. “Employee” does not include

an independent contractor of a political subdivision.

Id. § 29-12A-3(a). “Municipality” was defined as “any incorporated city, town or village

and all institutions, agencies or instrumentalities of a municipality.” Id. § 29-12A-3(b).

Finally, “State” was defined to mean “the State of West Virginia, including, but not limited

to, the Legislature, the Supreme Court of Appeals, the offices of all elected state officers,

and all departments, boards, offices, commissions, agencies, colleges, and universities,

institutions, and other instrumentalities of the State of West Virginia.” Id. § 29-12A-3(e).

The Legislature expressly provided that “‘State’ does not include political subdivisions.” 18

Id. (emphasis added). Thus, if a party meets the statutory definition of a political

subdivision or employee, it is entitled to assert a claim of statutory immunity under the

Tort Claims Act.

18

Following these statutory definitions, this Court has repeatedly recognized that

“[t]he 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.”

A.B., 234 W. Va. at 499 n.4, 766 S.E.3d at 758 n.4. This Court has also distinguished

between State agency immunities and political subdivision immunity in other cases. See

State v. Chase Sec., Inc., 188 W. Va. 356, 358, 424 S.E.2d 591, 593 (1992) (“[W]e make a

distinction between the immunity that is available to state executive officials, such as the

three individuals involved in this case, and the immunity afforded public officials who are

employed by political subdivisions under W. Va. Code, 29-12A-1, et seq.”); Hess v. W. Va.

Div. of Corrections, 227 W. Va. 15, 18 n.6, 705 S.E.2d 125, 128 n.6 (2010) (“[T]he Court

notes that the West Virginia Governmental Tort Claims and Insurance Reform Act (“the

Act”), West Virginia Code §§ 29-12A-1 to -18 (2008), applies to “the political subdivisions

of this State [,]” such as a county commission or municipality. W. Va. Code § 29-12A-2

and § 29-12A-3(c). By definition, the State of West Virginia is not considered a “political

subdivision.” W. Va. Code § 29-12A-3(e)(“‘State’ does not include political

subdivisions.”).”).

13

We may readily resolve the first step in our immunity analysis, as it is

undisputed that all of the petitioners herein fall within the statutory definitions of a political

subdivision or its employee set forth in the Tort Claims Act. See W. Va. Code § 29-12A-

3. Thus, the circuit court’s overarching error here was in analyzing the immunity issue

based on the principles set forth in Estate of Grove – principles established to govern

common law qualified immunity cases involving the State, its agencies, officials, and/or

employees, not cases involving political subdivisions and their employees. See 244 W. Va.

at 283, 852 S.E.2d at 783.

Having established that the sole framework for the immunity analysis in this

case is set forth in the Tort Claims Act, we turn to the second step in the immunity analysis:

whether the petitioners are entitled to statutory immunity under the facts and circumstances

herein. See, e.g., C.C. v. Harrison Cnty. Bd. of Educ., 245 W. Va. 594, 600, 859 S.E.2d

762, 768 (2021) (“Governing our assessment of the propriety of the circuit court’s

dismissal of these two negligence claims, as well as the circuit court’s decision to dismiss

these claims in the first instance, is the West Virginia Governmental Tort Claims and

Insurance Reform Act . . . , which ‘limit[s the] liability of political subdivisions and

provide[s] immunity to political subdivisions in certain instances[.]; W. Va. Code § 29-

12A-1 (eff. 1986).”); State ex rel. Town of Pratt v. Stucky, 229 W. Va. 700, 735 S.E.2d 575

(2012) (applying only Tort Claims Act in determining that Town of Pratt was entitled to

statutory immunity); Beckley v. Crabtree, 189 W. Va. 94, 428 S.E.2d 317 (1993) (applying

14

only the Tort Claims Act to analyze immunity claims advanced by a county sheriff and a

county commission).

As the Court explained in Randall v. Fairmont City Police Department, 186

W. Va. 336, 412 S.E.2d 737 (1991),

[t]he basic structure [or framework] of the Act is as follows.

Under the Act a political subdivision is stated to be

immune generally from liability for damages in a civil action

brought for death, injury or loss to persons or property

allegedly caused by any act or omission of the political

subdivision. W. Va. Code, 29-12A-4(b)(1) [1986]. The Act

lists seventeen specific types of acts or omissions covered by

the tort immunity available under the Act to a political

subdivision. W. Va. Code, 29-12A-5(a)(1)-(17) [1986]. . . .

The Act also immunizes an employee of a political

subdivision from tort liability, unless his or her acts or

omissions were manifestly outside the scope of employment or

official responsibilities; or unless the employee’s acts or

omissions were with malicious purpose, in bad faith or in a

wanton or reckless manner; or unless any statute expressly

imposes liability upon the employee. W. Va. Code, 29-12A-

5(b)(1)-(3) [1986].

On the other hand, the Act recognizes the tort liability

of a political subdivision for acts or omissions in five fairly

broad situations, W. Va. Code, 29-12A-4(c)(1)-(5) [1986],

including liability in tort for damages “caused by the negligent

performance of acts by their [political subdivisions’]

employees while acting within the scope of employment[,]” W.

Va. Code, 29-12A-4(c)(2) [1986]. 19 For these situations where

liability attaches, the Act imposes a $500,000 limit of liability

19

West Virginia Code section 29-12A-4(c) also sets forth other instances wherein a

political subdivision’s tort liability is recognized and subject to the specific immunities

established in West Virginia Code section 29-12A-5(a).

15

for the noneconomic loss of any one person, W. Va. Code, 29-

12A-7(b) [1986], and disallows punitive damages, W. Va.

Code, 29-12A-7(a) [1986].

The Act explicitly provides that “[t]he purchase of

liability insurance . . . by a political subdivision does not

constitute a waiver of any immunity it may have pursuant to

this article or [of] any defense of the political subdivision or its

employees.” W. Va. Code, 29-12A-16(d) [1986]. The liability

insurance could be purchased by a political subdivision “with

respect to its potential liability and that of its employees” under

the Act. W. Va .Code, 29-12A-16(a) [1986].

Finally, the Act contains provisions regulating the costs

and coverage of liability insurance available to political

subdivisions. W. Va. Code, 29-12A-17 [1986]. 20

20

West Virginia Code section 29-12A-18 provides for certain instances wherein the

Tort Claims Act does not apply:

This article does not apply to, and shall not be construed to

apply to, the following:

(a) Civil actions that seek to recover damages from a political

subdivision or any of its employees for contractual liability;

(b) Civil actions by an employee, or the collective bargaining

representative of an employee, against his or her political

subdivision relative to any matter that arises out of the

employment relationship between the employee and the

political subdivision;

(c) Civil actions by an employee of a political subdivision

against the political subdivision relative to wages, hours,

conditions, or other terms of his or her employment;

(d) Civil actions by sureties, and the rights of sureties, under

fidelity or surety bonds;

(e) Civil claims based upon alleged violations of the

Constitution or statutes of the United States except that the

16

186 W. Va. at 341-42, 412 S.E.2d at 742-43 (footnotes omitted and footnotes added).

The plain error herein is that the circuit court failed to analyze the immunity

claims in this case under the Tort Claims Act, which is the sole source of immunity

applicable to the petitioners. 21 Consequently, we have no choice but to reverse and remand

this case for further proceedings. We decline to provide what would be an advisory

analysis of the respondent’s claims, as that task is for the circuit court in the first instance.

provisions of section eleven of this article shall apply to such

claims or related civil actions.

We note that where the Tort Claims Act is inapplicable, a common law qualified

immunity analysis may be appropriate. For instance, in cases where federal claims are

alleged under 42 United States Code section 1983, we have applied federal common law

qualified immunity. See, e.g., Hutchison v. City of Huntington, 198 W. Va. 139, 147-48,

479 S.E.2d 649, 657-58 (1996) (finding statutory immunity applied to all state law claims

alleged therein and discussing federal claim alleged under 42 United States Code section

1983 and stating that “[p]ublic officials and local government units should be entitled to

qualified immunity from suit under § 1983, or statutory immunity under W. Va. Code, 29-

12A-5(a), unless it is shown by specific allegations that the immunity does not apply. See

State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992).”); see also City of

Saint Albans v. Botkins, 228 W. Va. 393, 398, 719 S.E.2d 863, 868 (2011) (“Our approach

to matters concerning immunity historically has followed federal law due in large part to

the need for a uniform standard when, as in the case before us, public officers are sued in

state court for violations of federal civil rights pursuant to 42 U.S.C. § 1983.”). As

previously mentioned, there are no claims involving section 1983 in this case.

21

We have no problem noticing plain error in this case. See Cartwright, 223 W.

Va. at 162, 672 S.E.2d at 298, Syl. Pt. 1. The error in this case involves the circuit court’s

incorrect application of immunity law, which undeniably meets the requisite elements to

establish plain error as it is an error “that is plain, and [] that affects substantial rights; and

[] seriously affects the fairness, integrity, or reputation of the judicial proceedings. See id.,

Syl. Pt. 2.

17

It is incumbent on the court to examine each count of the respondent’s amended complaint

under the framework of the Tort Claims Act. 22 The court then must determine, based on

the facts alleged, whether to grant or deny immunity to any of the petitioners on any claims,

or whether additional factual development is needed.

IV. Conclusion

For the foregoing reasons, the May 3, 2022, order of the Circuit Court of

Jefferson County, West Virginia, partially granting the petitioners’ motion to dismiss the

respondent’s amended complaint, is reversed, and this case is remanded for further

proceedings consistent with this opinion.

Reversed and remanded.

22

“Rule 8(f) of the West Virginia Rules of Civil Procedure dictates that courts

liberally construe pleadings so ‘as to do substantial justice[,]’”Mountaineer Fire & Rescue

Equip., LLC v. City Nat’l Bank of W. Va., 244 W. Va. 508, 520, 854 S.E.2d 870, 882 (2020),

and so “‘[t]he trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6)

motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which would entitle him to relief.’” Syl.

Pt. 3, Chapman v. Kane Transfer Co., 160 W. Va. 530, 236 S.E.2d 207 (1977) (quoting

Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Although the Court construes the factual

allegations of the complaint, including all inferences arising therefrom, in the light most

favorable to respondents, Chapman, 160 W. Va. at 538, 236 S.E.2d at 212, we are also

guided by the principle that, “[i]n civil actions where immunities are implicated, the trial

court must insist on heightened pleading by the plaintiff.” Hutchison, 198 W. Va. at 149,

479 S.E.2d at 659. However, where “the information contained in the pleadings is

sufficient to justify the case proceeding further,” the motion to dismiss should be denied.

Id. at 150, 479 S.E.2d at 660.

18