STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Katie Danner and Masie Ramsey,
Plaintiffs Below, Petitioners FILED
November 20, 2015
vs) No. 14-1214 (Jefferson County 12-C-103J) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
City of Charles Town and Jefferson
County Commission,
Defendants Below, Respondents
MEMORANDUM DECISION
Petitioners Katie Danner and Masie Ramsey, by counsel William V. DePaulo, appeal the
order of the Circuit Court of Jefferson County, entered on January 10, 2014, granting summary
judgment in favor of respondents. Respondent City of Charles Town appears by counsel Jeffrey
W. Molenda and Benjamin P. Warder. Respondent Jefferson County Commission appears by
counsel Wendy E. Greve.
This 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 affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
Petitioners initiated their lawsuit in the Circuit Court of Jefferson County, asserting that
Petitioner Danner was injured in February of 2012, when a car driven by Raymond Burcker, a
retired Charles Town police officer, struck the car she was driving. When treated for injuries
immediately after the accident, Mr. Burcker was determined to have a blood alcohol content
level of .230. Petitioner Danner’s daughter, Masie Ramsey, approximately eighteen months old
at the time of the accident, was a passenger in her mother’s car during the collision, but was
physically uninjured. Subsequent to the filing of the initial complaint, Mr. Burcker’s insurance
carrier settled petitioners’ claims against him, and Petitioner Danner’s insurance carrier paid
policy limits on Petitioner Danner’s underinsurance coverage claim.
Petitioners’ complaint included claims against Respondent City of Charles Town and
Respondent Jefferson County Commission, based on petitioners’ allegations that city and county
police officers “conspired to cover up . . . [Mr.] Burcker’s operation of his motor vehicle while
speeding and under the influence of alcohol” and that officers completed a false report finding
Petitioner Katie Danner at fault for the accident. The causes of action included “conspiracy to
deny substantive and procedural due process rights,” outrage and intentional infliction of
emotional distress, and negligent hiring, supervision, and retention. In September of 2013,
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petitioners moved to add individual defendants James Bird, a patrolman with the Charles Town
Police Department, and Deputy Robert Sell, an officer with the Jefferson County Sheriff’s
Department.
After the close of discovery, respondents filed motions for summary judgment, and the
circuit court granted those motions by order entered on January 10, 2014. Petitioners appealed to
this Court.
On appeal, petitioners assert four assignments of error, which we summarize as follows:
that the circuit court (1) erred in resolving factual disputes in favor of respondents; (2)
incorrectly applied “the public duty doctrine” in order to “insulate” respondents from liability;
(3) incorrectly rejected petitioners’ claims for damages for civil rights violations and intentional
infliction of emotional distress after confusing those causes of action with the negligence claim
against Mr. Burcker; and (4) incorrectly stated, in the order granting summary judgment, that
petitioners’ prior motion to join individually-named police officers as defendants was denied
prior to the court’s consideration of the summary judgment motion.
This Court has consistently 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). We
have further explained that
“‘[a] motion for summary judgment should be granted only when it is clear that
there is no genuine issue of fact to be tried and inquiry concerning the facts is not
desirable to clarify the application of the law.’ Syllabus Point 3, Aetna Casualty &
Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770
(1963).” Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421
S.E.2d 247 (1992).
Syl. Pt. 2, Painter, 192 W.Va. at 190, 451 S.E.2d at 756. When we consider the matter before us,
we are cognizant that “[t]he circuit court’s function at the summary judgment stage is not to
weigh the evidence and determine the truth of the matter, but is to determine whether there is a
genuine issue for trial.” Syl. Pt. 3, Id. at 190, 451 S.E.2d 756. Guided by these standards, we
proceed to consider petitioners’ assignments of error.
We begin with petitioners’ first assignment of error, wherein they argue that the circuit
court, contrary to the tenets of summary judgment resolution, made factual determinations
favoring respondents. Specifically, petitioners suggest “that Anthony Mancine, a police officer
directly involved in the investigation, blew the whistle on his fellow police officers[’]
misconduct. . . .” This dispute arises from the contrast between the testimony of Tara Stitely,
Petitioner Danner’s mother, stating that Sgt. Mancine telephoned to inform her that Mr. Burcker
was a former police officer and “that he felt that it was not being handled correctly, that [Ms.
Stitely] should get a lawyer immediately” and Sgt. Mancine’s denial of the same. Petitioners
further allege “the additional fact that Deputy Sheriff Robert Sell, the officer who altered the
police report to exonerate Burcker and assign [Petitioner] Danner liability for the motor vehicle
accident, conceded he had no evidentiary basis for his findings.” Deputy Sell, a specially-trained
accident reconstructionist, determined in his investigation that Petitioner Danner failed to yield
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the right-of-way when turning left, and that she was at fault in the accident. Deputy Sell’s
determination was contrary to the initial impression of Patrolman James Bird. Patrolman Bird
testified that when he began investigating the accident, he believed Mr. Burcker had driven off
the roadway, then had re-entered the roadway and struck the car driven by Petitioner Danner.
As noted above, the circuit court’s role in ruling on a party’s motion for summary
judgment is to determine whether there is a genuine issue of fact. We have further explained:
Roughly stated, a “genuine issue” for purposes of West Virginia Rule of Civil
Procedure 56(c) is simply one half of a trialworthy issue, and a genuine issue does
not arise unless there is sufficient evidence favoring the non-moving party for a
reasonable jury to return a verdict for that party. The opposing half of a
trialworthy issue is present where the non-moving party can point to one or more
disputed “material” facts. A material fact is one that has the capacity to sway the
outcome of the litigation under the applicable law.
Syl. Pt. 5, Jividen v. Law, 194 W. Va. 705, 708, 461 S.E.2d 451, 454 (1995). The facts that
petitioners argue are in dispute simply do not have the capacity to sway the litigation and do not
present trialworthy issues.
First, each of the officers deposed testified that he did not know of Mr. Burcker’s
previous employment as a Charles Town police officer until after the accident occurred. Sgt.
Mancine testified that he learned Mr. Burcker was a former officer of his department at the
accident scene, possibly from Mr. Burcker’s wife. Sgt. Mancine further testified that he
contacted Ms. Stitely to provide her updates and inquire about Petitioner Danner, and he testified
that investigating officers received no pressure about the investigation other than to complete it
quickly. Regardless of the content of Sgt. Mancine’s communications to Ms. Stitely, there is no
evidence that the officers mishandled the accident investigation. Patrolman Bird noted in the
accident report his belief that Mr. Burcker had consumed alcohol prior to driving, and ultimately
prepared a search warrant and obtained Mr. Burcker’s blood test results from the hospital. As a
direct result of Patrolman Bird’s actions, Mr. Burcker was charged with aggravated DUI. As for
Patrolman Bird’s initial impression of the accident scene, he himself testified that the main focus
of his investigation did not involve the skid mark evidence considered by Deputy Sell.
Furthermore, Patrolman Bird’s supervisor testified that he would have expected Patrolman Bird
to defer to Deputy Sell’s opinion (which Patrolman Bird did), because Deputy Sell had special
training in accident reconstruction. In any event, the officers did not give Petitioner Danner a
citation for her part in the accident. Upon consideration of this evidence, we find that the
disputes described by petitioners in their first assignment of error do not involve material facts
and, even when taken as true, those facts do not constitute evidence supporting the claims set
forth in petitioners’ complaint. Thus, we find no error.
Next, we consider petitioners’ second assignment of error, in which they argue that the
“public duty doctrine[,]” applied by the circuit court in its grant of summary judgment, is no
longer viable in this state because it was overturned “sub silencio” in SER Riffle v. Ranson, 195
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W.Va. 121, 464 W.Va. 763 (1995).1 Petitioners aver, with scant explanation, that the
legislature’s adoption of a “comprehensive statutory scheme” bars common law doctrines
including, they say, the public duty doctrine. We find the applicable principle codified at West
Virginia Code § 29-12A-5(a)(5), which provides that “[a] political subdivision is immune from
liability if a loss or claim results from . . . the failure to provide, or the method of providing,
police, law enforcement or fire protection.” In addition, we have explained the common law
origins of the public duty doctrine:
The public duty doctrine is that a local governmental entity’s liability . . . may not
be predicated upon the breach of a general duty owed to the public as a whole;
instead, only the breach of a duty owed to the particular person injured is
actionable. As a specific example of the public duty doctrine, the duty to fight
fires or 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 fire or police department’s
failure to provide adequate fire or police protection.
Randall v. Fairmont City Police Dept., 186 W.Va. 336, 346-47, 412 S.E.2d 737, 747
48(1991)(citing Wolfe v. City of Wheeling, 182 W.Va. 253, 256, 387 S.E.2d 307, 310
(1989))(footnote omitted). Moreover, the statute and the common law doctrine are, without
question, harmonious.
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.
Syl. Pt. 8, Randall, 186 W.Va. at 339, 412 S.E.2d at 740.
It is apparent that the circuit court applied the current and relevant test for statutory
immunity to its consideration. The circuit court cited West Virginia Code § 29-12A-5(a)(5), as
set forth above, as well as our explanation of the doctrine at common law. Then, in considering
the relationship of these parallel principles to petitioners’ claims, the circuit court specifically
found that none of the individual officers’ actions were manifestly outside the scope of
employment or official responsibilities; that there was no evidence that the actions were done
maliciously, in bad faith, or willfully or wantonly; and that there was no evidence of a “special
1
We note that we use syllabus points, as required by our state constitution, “to announce
new points of law or to change established patterns of practice by the Court.” Syl. Pt. 1, State v.
McKinley, 234 W. Va. 143, 146, 764 S.E.2d 303, 306 (2014).
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relationship” or promise between petitioners and respondents that could give rise to a claim for
breach of duty. Inasmuch as our longstanding jurisprudence is not abrogated by statute, and
inasmuch further as the circuit court considered petitioners’ claims within the appropriate
statutory framework, we find that petitioner’s second assignment of error is without merit.2
Finally, we conclude with petitioners’ third assignment of error (argued in a mere two
sentences) in which they argue that the circuit court “conflated” their claims against respondents
with those against Mr. Burcker,3 and their final assignment of error (argued in a single sentence)
in which they argue that the circuit court either erred in denying their motion to join Deputy Sell
and Patrolman Bird as individual defendants or in stating that the motion had been denied
previously. We decline to address petitioners’ assignments of error for lack of any meaningful
supporting argument. As we have repeatedly cautioned litigants, “[a] skeletal ‘argument,’ really
nothing more than an assertion, does not preserve a claim. . . .’ State, Dep’t of Health & Human
Res. v. Robert Morris N., 195 W.Va. 759, 765, 466 S.E.2d 827, 833 (1995)(citation omitted).”
State v. White, 228 W.Va. 530, 547, 722 S.E.2d 566, 583 (2011).
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: November 20, 2015
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
DISSENTING:
Justice Robin Jean Davis
2
To the extent that petitioners have argued, within their second assignment of error, that
the doctrine has no application because respondents’ officers were acting contrary to the law,
rather than simply failing in their duties, we reject this argument for the reasons set forth in our
discussion concerning petitioners’ first assignment of error.
3
Again, to the extent that petitioners argue that they have presented evidence to support
any of the claims set forth in the second amended complaint, we explicitly reject this argument
for the reasons set forth in the body of this decision.
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