IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2016 Term
__________ FILED
October 27, 2016
No. 15-0879 released at 3:00 p.m.
RORY L. PERRY, II CLERK
__________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
BRENDA ALBERT,
Plaintiff Below, Petitioner
v.
CITY OF WHEELING,
Defendant Below, Respondent
______________________________________________________
Appeal from the Circuit Court of Ohio County
Honorable James A. Cuomo
Civil Action No. 15-C-43
AFFIRMED
_______________________________________________________
Submitted: October 4, 2016
Filed: October 27, 2016
Ronald Wm Kasserman, Esq. Thomas E. Buck, Esq.
Kasserman Law Offices Bruce M. Clark, Esq.
Wheeling, West Virginia Bailey & Wyant, PLLC
Counsel for Petitioner Wheeling, West Virginia
Counsel for Respondent
JUSTICE LOUGHRY delivered the Opinion of the Court.
JUSTICE BENJAMIN concurs and reserves the right to file a concurring opinion.
JUSTICE DAVIS and JUSTICE WORKMAN dissent and reserve the right to file
dissenting opinions.
SYLLABUS
1. “Appellate review of a circuit court’s order granting a motion to dismiss
a complaint is de novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick,
Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).
2. “The ultimate determination of whether qualified or statutory immunity
bars a civil action is one of law for the court to determine. Therefore, unless there is a bona
fide dispute as to the foundational or historical facts that underlie the immunity
determination, the ultimate questions of statutory or qualified immunity are ripe for summary
disposition.” Syl. Pt. 1, Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649
(1996).
3. “Pursuant to W.Va. Code, 29-12A-4(c)(2) [1986] and W.Va. Code, 29-12A
5(a)(9) [1986], a political subdivision is immune from liability if a loss or claim results from
licensing powers or functions such as the issuance, denial, suspension or revocation of or
failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval,
order or similar authority, 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.” Syl. Pt. 4, Hose v. Berkeley Cty. Planning Comm’n, 194 W.Va. 515, 460
S.E.2d 761 (1995).
i
4. Statutory immunity exists for a political subdivision under the provisions
of West Virginia Code § 29-12A-5(a)(5) (2013) if a loss or claim results from the failure to
provide fire protection or the method of providing fire protection regardless of whether such
loss or claim, asserted under West Virginia Code § 29-12A-4(c)(2) (2013), is caused by the
negligent performance of acts by the political subdivision’s employees while acting within
the scope of employment. To the extent that this ruling is inconsistent with syllabus point
five of Smith v. Burdette, 211 W.Va. 477, 566 S.E.2d 614 (2002), the holding as it pertains
to the negligent acts of a political subdivision’s employee in furtherance of a method of
providing fire protection is hereby overruled.
5. Statutory immunity exists for a political subdivision under West Virginia
Code § 29-12A-5(a)(5) (2013) if a loss or claim results from the failure to provide fire
protection or the method of providing fire protection regardless of whether such loss or
claim, asserted under West Virginia Code § 29-12A-4(c)(3) (2013), is caused by the
negligent failure of the political subdivision to maintain, inspect and otherwise keep its
waterworks and fire hydrant system fully operable.
6. For purposes of the immunity provided by West Virginia Code § 29-12A
5(a)(5) (2013), a municipality’s policy of inspecting and maintaining its fire hydrants is
directly connected to the city’s method of providing fire protection.
ii
LOUGHRY, Justice:
The petitioner, Brenda Albert, appeals from the August 18, 2015, order of the
Circuit Court of Ohio County, granting the motion of the respondent, the City of Wheeling
(“City”), to dismiss the negligence-based complaint Ms. Albert filed against the City for the
loss of her home due to fire. As grounds for its ruling, the trial court relied upon the grant
of immunity extended to political subdivisions for fire protection services by West Virginia
Code § 29-12A-5(a)(5) (2013).1 Acknowledging the creative pleading of her case as arising
from the negligent inspection and/or maintenance of the fire hydrant system, the trial court
nonetheless rejected the petitioner’s attempt to circumvent the grant of legislative immunity
extended to political subdivisions2 for failing to provide, or the method of providing, fire
protection. Arguing that her complaint is based solely on the City’s aqueduct system and
not on the provision of fire protection services, the petitioner seeks to have her complaint
reinstated. Having reviewed the applicable statutes and law against the pleadings and
submitted record in this case, we do not find that the trial court committed error in its
application of statutory immunity as a bar to further prosecution of the petitioner’s case.
Accordingly, we affirm.
1
The trial court also relied on the common law public duty doctrine in dismissing the
complaint; the petitioner has appealed this matter based solely on the application of statutory
immunity. Her attorney acknowledged during oral argument that he could not establish the
existence of a special duty owed to Ms. Albert by the City.
2
See infra note 7 (defining “political subdivision”).
1
I. Factual and Procedural Background
When a fire started in the dining room of the first floor of the petitioner’s
home on February 14, 2013, the Wheeling Fire Department was dispatched to Ms. Albert’s
home. After initially containing the fire on the first floor, the firemen proceeded to the
basement where they encountered a problem with the fire hoses. According to the fire
incident report, the water presumably stopped flowing due to rocks clogging the line. As
a result of the blocked fire hoses, the house continued to burn and was ultimately declared
a total loss.3
The petitioner instituted a lawsuit against the City on February 5, 2015,
alleging that the City negligently failed to inspect, maintain, and operate its waterworks and
fire hydrant system. She expressly asserted liability based on the negligent acts of the City
in failing to contain the fire that resulted in her house being declared a total loss. In
responding to the complaint, the City filed a motion to dismiss under Rule 12(b)(6) of the
West Virginia Rules of Civil Procedure in which it asserted statutory immunity for fire
protection services.4 After hearing argument on the motion, the circuit court granted the
City’s motion to dismiss based on its determination that both statutory and common law
3
The petitioner did not have any home owner’s insurance on her residence.
4
See W.Va. Code § 29-12A-5(a)(5).
2
immunity prevented further prosecution of the subject lawsuit.5 It is from this ruling that
Ms. Albert seeks relief.
II. Standard of Review
As we announced in syllabus point two of State ex rel. McGraw v. Scott
Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995), “[a]ppellate review of
a circuit court’s order granting a motion to dismiss a complaint is de novo.” Of further
import to this matter is syllabus point one of Hutchison v. City of Huntington, 198 W.Va.
139, 479 S.E.2d 649 (1996): “The ultimate determination of whether qualified or statutory
immunity bars a civil action is one of law for the court to determine. Therefore, unless there
is a bona fide dispute as to the foundational or historical facts that underlie the immunity
determination, the ultimate questions of statutory or qualified immunity are ripe for summary
disposition.” Fully cognizant of these applicable standards, we proceed to determine
whether the circuit court erred in ruling that the legislative grant of immunity pursuant to
West Virginia Code § 29-12A-5(a)(5) prevents Ms. Albert from pursuing her case against
the City.
III. Discussion
In seeking to impose liability against the City for its actions in connection with
5
See supra note 1.
3
her fire-decimated home, the petitioner focused narrowly on portions of two subsections of
The Governmental Tort Claims and Insurance Reform Act (“Tort Claims Act”).6 See
§§W.Va. Code § 29-12A-1 to -18 (2013). She relies on subsection 4(c)(2), which authorizes
the imposition of liability on a political subdivision “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.”7 W.Va. Code § 29-12A-4(c)(2). As additional authority for her
action, the petitioner cites to subsection 4(c)(3), which provides authority for imposing
liability on a political subdivision “for injury, death, or loss to persons or property caused
by the negligent failure to keep public roads, highways, streets, avenues, alleys, sidewalks,
bridges, aqueducts, viaducts, or public grounds . . . open, in repair, or free from nuisance .
. . .”8 W.Va. Code § 29-12A-4(c)(3) (emphasis supplied). Wholly overlooked by the
petitioner, however, is the fact that, instead of sanctioning potentially unlimited liability,
6
The Tort Claims Act “was the result of legislative findings that political subdivisions
of the State were unable to obtain affordable tort liability insurance coverage without
reducing the quantity and quality of traditional governmental services.” O’Dell v. Town of
Gauley Bridge, 188 W.Va. 596, 600, 425 S.E.2d 551, 555 (1992) (citing W.Va. Code § 29
12A-2).
7
See W.Va. Code § 29-12A-3(c) (2013) (defining “political subdivision” to mean
“any county commission, municipality and county board of education; any separate
corporation or instrumentality established by one or more counties or municipalities . . .; any
instrumentality supported in most part by municipalities; any public body charged by law
with the performance of a government function . . . .”).
8
The petitioner advances her position based on the assumption that a fire hydrant
qualifies as an aqueduct. The trial court made no finding on this issue and we do not find
it necessary to further address this issue given our resolution of this matter.
4
subsection 4(c) begins with the disclaimer that the subsequent grants of liability are
9
expressly made “[s]ubject to section five [§ 29-12A-5] and six [§ 29-12A-6].” W.Va.
Code § 29-12A-4(c). As a result, subsections 4(c)(2) and 4(c)(3) cannot be dissociated from
the introductory language that expressly conditions liability on the absence of any provisions
of immunity set forth in section five and six of article twenty-nine. See W.Va. Code §§ 29
12A-4, -5, -6.
As the City correctly recognizes, language in West Virginia Code § 29-12A
5(a)(5) operates to prevent the imposition of liability under the facts of this case. Section
5(a)(5) provides immunity from liability to political subdivisions for the “failure to provide,
or the method of providing, police, law enforcement or fire protection.” Id. Because any
potential liability set forth in subsection 4(c)(2) is made expressly subject to the grant of
immunity provided in section 5(a)(5), there is no right to seek recovery from a political
subdivision for the negligent performance of its employee’s actions performed within the
scope of his or her employment and authority when those actions pertain to either the failure
to provide fire protection or the method of providing fire protection. Cf. W.Va. Code § 29
12A-4(c)(2) to § 29-12A-5(a)(5). There is similarly no right to recover damages from a
political subdivision for the negligent failure to keep a city’s waterworks and fire hydrant
9
The petitioner wholly fails to address both the existence and the effect of this critical
language that expressly links liability to the lack of a superceding grant of immunity.
5
system fully operable if the actions at issue are subsumed within the immunity extended to
political subdivisions for the failure to provide fire protection or the method of providing
fire protection. Cf. W.Va. Code § 29-12A-4(c)(3) to § 29-12A-5(a)(5); see also Jackson
v. Belcher, 232 W.Va. 513, 523, 753 S.E.2d 11, 19-21 (2013) (Loughry, J., dissenting)
(recognizing significance of statutory immunity and detrimental effects of “render[ing] the
immunity plainly articulated by the Legislature wholly without effect”).
In Hose v. Berkeley County Planning Commission, 194 W.Va. 515, 460 S.E.2d
761 (1995), this Court addressed the precise issue of how subsection 4(c)(2) must be read
in conjunction with section 5 of the Tort Claims Act. Seeking to elude the statutory
immunity set forth in section 5(a)(9), which concerns licensing functions performed by a
political subdivision, the plaintiff in Hose alleged negligence under 4(c)(2) based on the
approval by the Planning Commission’s employee of the defendant’s plans to install a thirty-
six inch drainage pipe. Id. at 520, 460 S.E.2d at 766. We expressly rejected this attempt to
rely on subsection 4(c)(2) as a means of defeating immunity by underscoring the pivotal
proviso language–subject to section five and six [§§ 29-12A-5 and 29-12A-6] of this article.
See Hose, 194 W.Va. at 521, 460 S.E.2d at 767. Looking solely to the “subject to” language
of subsection 4(c), this Court recognized that the specified immunity provided in subsection
5(a)(9) necessarily trumped the grant of liability seemingly extended by subsection 4(c)(2).
As we held in syllabus point four of Hose:
6
Pursuant to W.Va. Code, 29-12A-4(c)(2) [1986] and
W.Va. Code, 29-12A-5(a)(9) [1986], a political subdivision is
immune from liability if a loss or claim results from licensing
powers or functions such as the issuance, denial, suspension or
revocation of or failure or refusal to issue, deny, suspend or
revoke any permit, license, certificate, approval, order or similar
authority, 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.
194 W.Va. at 517, 460 S.E.2d at 763 (emphasis supplied); accord State v. Sanders, 224
W.Va. 630, 634, 687 S.E.2d 568, 572 (2009) (discussing action brought under W.Va. Code
§ 29-12A-4(c)(3) and stating, “[h]owever, W.Va. Code, § 29-12A-4(c)(3) is made subject
to the immunities set forth in section five and six of article 29”); Calabrese v. City of
Charleston, 204 W.Va. 650, 659, 515 S.E.2d 814, 823 (1999) (holding that “aqueduct”
language of W.Va. Code § 29-12A-4(c)(3) encompassed negligent sewer maintenance and
operation claim but recognizing that any potential liability was subject to specific immunity
provisions set forth in sections 5 and 6 of the Tort Claims Act).
Like our decision in Hose, this case is similarly driven by the axiomatic
principle of statutory construction that requires us to apply the Tort Claims Act as written.
See Syl. Pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968). (“Where the language
of a statute is clear and without ambiguity the plain meaning is to be accepted without
resorting to the rules of interpretation.”); see also T. Weston, Inc. v. Mineral Cty., 219 W.Va.
564, 568, 638 S.E.2d 167, 171 (2006) (“Courts should favor the plain and obvious meaning
7
of a statute as opposed to a narrow or strained construction.”). Extending the holding of
Hose to the case sub judice, we conclude that statutory immunity exists for a political
subdivision under the provisions of West Virginia Code § 29-12A-5(a)(5) if a loss or claim
results from the failure to provide fire protection or the method of providing fire protection
regardless of whether such loss or claim, asserted under West Virginia Code § 29-12A
4(c)(2), is caused by the negligent performance of acts by the political subdivision’s
employees while acting within the scope of employment. To the extent that this ruling is
inconsistent with syllabus point five of Smith v. Burdette, 211 W.Va. 477, 566 S.E.2d 614
(2002), the holding as it pertains to the negligent acts of a political subdivision’s employee
in furtherance of a method of providing fire protection is hereby overruled.10 Similarly, we
further hold that statutory immunity exists for a political subdivision under West Virginia
Code § 29-12A-5(a)(5) if a loss or claim results from the failure to provide fire protection
or the method of providing fire protection regardless of whether such loss or claim, asserted
under West Virginia Code § 29-12A-4(c)(3), is caused by the negligent failure of the
political subdivision to maintain, inspect and otherwise keep its waterworks and fire hydrant
system fully operable.
While the petitioner has sought to disguise the essence of her claim through
10
This Court failed to discuss either our decision in Hose or the “subject to” language
in section 4(c). See 211 W.Va. at 481, 566 S.E.2d at 618. As a result, Burdette conflicts
with, and cannot be reconciled with, our precedent on the issue of statutory immunity.
8
creative pleading, the circuit court was not fooled and neither are we. Despite the
petitioner’s attempt to camouflage her claim as divorced from matters of fire protection or
policy implementation,11 the record in this case makes clear that but for the fire this matter
would not be before us. Upon analysis, virtually every aspect of the petitioner’s case arises
from the City’s efforts to squelch that fire. Were it not for the need to dispatch the fire
department in response to the subject fire and were it not for the unsuccessful efforts of the
fire department to contain the flames, the petitioner would not have filed the underlying
lawsuit. Similarly, but for the need to utilize water to suppress the fire, the purported
existence of rocks in the water line would not be at issue. Each and every fact upon which
the petitioner relies to assert her claim is inexorably linked to the fire at her home which the
City was not able to extinguish.12
When presented with artful pleadings seeking to frame liability on a negligent
water supply, courts have readily identified the attempt to circumvent the statutory immunity
that is regularly extended to public bodies in exchange for fire protection services. In
Shockey v. City of Oklahoma City, 632 P.2d 406 (Okla. 1981), the Supreme Court of
11
Her claim that she has not asserted negligence against the firefighters rings hollow
as the City is the party against whom negligence is asserted whether the claim is for failure
to provide adequate fire protection or for failure to provide water for fire fighting purposes.
12
It is clear from the petitioner’s complaint that she appreciated the pyric origin of her
claim as she pled: “As a result of the negligent acts of the City of Wheeling, the fire . . .
could not be contained and the house became a total loss.”
9
Oklahoma considered whether the Oklahoma Political Subdivisions Tort Claims Act barred
a tort action against a municipality for fire-related damages that resulted from an inoperable
fire hydrant. Like West Virginia, Oklahoma extends immunity to its political subdivisions
for the failure to provide, and the methods employed in, providing fire protection. See id.
at 408 (discussing 51 Okla. Stat., Governmental Tort Claims Act, § 155(6) (1978)). In
concluding that the statutory immunity provisions pertaining to fire protection were
applicable, the court reasoned:
Fire hydrants, as such, are a part of the physical structure of
the fire department and their maintenance, including an
adequate supply of water, and their repair are incidental to the
operation of the fire department. The fire hydrants were
installed for the purpose of fire protection. Although
appellants’ damages may have resulted from a failure of the
water service, supplying water to the fire hydrants was just a
part of appellee’s [the City’s] overall operation in providing fire
protection. Assuming, arguendo, appellee negligently failed to
employ the proper methods in checking its water service for the
proper operation of its fire hydrants, s[ection] 155(6) clearly
exempts it from liability.
632 P.2d at 408 (emphasis supplied); accord Zacharie v. City of San Antonio, 952 S.W.2d
56, 59 ( Tex. App. 1997) (barring suit under Texas Torts Claims Act for failure to maintain
pumps to supply adequate water pressure to fire hydrant system, stating that “[e]nsuring that
an adequate amount of water is available to fire hydrants is necessarily connected to
providing fire protection”).
Having conceded that an action for failing to provide adequate firefighting
10
personnel and equipment was barred by statutory immunity, the plaintiffs in Wells v. City
of Lynchburg, 501 S.E.2d 746 (S.C. Ct. App. 1998), sought recovery based on the city’s
failure to inspect and/or maintain a system of fire hydrants and to notify authorities of
inoperative fire hydrants. Id. at 750. In rejecting this tact, the appellate court stated:
We agree with the reasoning of the Oklahoma court in
Shockey and hold the South Carolina Tort Claims Act precludes
Appellants’ action. The maintenance of fire hydrants and the
supply of water for fighting fires clearly is included in the
exceptions from liability in section 15-78-60 for the method of
providing fire protection and the discretionary act of
maintaining the city water system with the resources available.
See, e.g., Pierce v. Village of Divernon, 17 F.3d 1074 (7th Cir.
1994) (Illinois tort claims act codifies common law rule that a
municipality owes the public no general duty of fire protection
and that it therefore cannot be held liable either for failing to
provide or negligently providing fire protection services; an
alleged failure to provide sufficient water or water pressure
could be viewed either as a complete failure to provide fire
protection or as a failure to provide sufficient facilities to
suppress or contain a fire; either way, the municipality is
immune); . . . City of Columbus v. McIlwain, 205 Miss. 473,
38 So.2d 921 (1949) (municipality is not responsible for the
destruction of property within its limits by a fire merely
because, through the negligence or other default of the
municipality or its employees, the members of the fire
department failed to extinguish the fire regardless of whether
this failure is due to an insufficient supply of water, the
interruption of the service during the course of a fire, the
neglect or incompetence of the firemen, the defective condition
of the fire apparatus, negligence in permitting fire hydrants to
become clogged or defective, etc.); Ross v. City of Houston, 807
S.W.2d 336 (Tex. App. 1990) (city’s policy of inspecting fire
hydrants was directly connected to the city’s method of
providing fire protection; therefore, the state tort claims act
exclusion from governmental liability for claims arising from
the failure to provide or the method of providing fire protection
11
barred suit by homeowner).
501 S.E.2d at 751.
In Travelers Excess and Surplus Lines Co. v. City of Atlanta, 677 S.E.2d 388
(Ga. App. 2009), the insurers of commercial property destroyed by a fire sought to cast their
complaint as spawning from the negligence of the city’s water department rather than its fire
department. Dismissing this patent attempt to avoid immunity, the court reasoned:
No matter how artfully pleaded, the essence of the Travelers
Companies’ complaint is that the City failed to promptly
provide adequate fire protection in response to the fire, leading
to increased property damage. Furthermore, fire hydrants “are
a part of the physical structure of the fire department,” are
“installed for the purpose of fire protection,” and are a
necessary component of the fire protection services offered to
citizens by a municipality. As such, it is of no legal
consequence that the negligence respecting the hydrant was
committed by the water department rather than the fire
department itself.
Id. at 390 (internal citation omitted).
Like the courts in Oklahoma, Georgia, Texas, Illinois, South Carolina, and
Mississippi, we agree that fire hydrants are an integral component of fire protection services.
Consequently, any attempt to separate the provision of water services necessary to battle
fires from the firefighting itself is untenable. Accordingly, we determine that for purposes
of the immunity provided by West Virginia Code § 29-12A-5(a)(5), a municipality’s policy
12
of inspecting and maintaining its fire hydrants is directly connected to the city’s method of
providing fire protection. Because we conclude that the actions for which the petitioner is
seeking to impose liability on the City fall within the statutory ambit of fire protection or the
method of providing fire protection, the immunity extended to political subdivisions by West
Virginia Code § 29-12A-5(a)(5) is a bar to further prosecution of the petitioner’s case. To
decide otherwise would risk further erosion of “well-established common law and statutory
immunities which are vital to the proper function[ing] of government.” Belcher, (Loughry,
J., dissenting), 232 W.Va. at 529, 753 S.E.2d at 27.
IV. Conclusion
Having determined that the Circuit Court of Ohio County did not error in
dismissing this case with prejudice based on principles of statutory and common law
immunity, the August 18, 2015, order is affirmed.
Affirmed.
13