IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2019 Term
_____________________ FILED
June 4, 2019
No. 18-0086 released at 3:00 p.m.
_____________________ EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
JANE DOE,
Plaintiff Below, Petitioner
v.
LOGAN COUNTY BOARD OF EDUCATION,
Defendant Below, Respondent
___________________________________________________________
Appeal from the Circuit Court of Logan County
The Honorable Joshua Butcher, Judge
Civil Action No. 16-C-195
AFFIRMED, IN PART; REVERSED IN PART;
AND REMANDED WITH DIRECTIONS
_________________________________________________________
Submitted: March 12, 2019
Filed: June 4, 2019
Steven S. Wolfe, Esq. Duane J. Rugger II, Esq.
J. Christopher White, Esq. Jacob D. Layne, Esq.
Wolfe, White & Associates Pullin, Fowler, Flanagan, Brown
Logan, West Virginia & Poe, PLLC
Counsel for Petitioner Charleston, West Virginia
Counsel for Respondent
JUSTICE HUTCHISON delivered the Opinion of the Court.
JUSTICE WORKMAN concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
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 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 Company, W.Va., 236 S.E.2d 207 (1977)[,] quoting
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).” Syl., John W.
Lodge Distrib. Co., Inc. v. Texaco, Inc., 161 W.Va. 603, 245 S.E.2d 157 (1978).
3. “On appeal of a dismissal based on granting a motion pursuant to West
Virginia Rules of Civil Procedure 12(b)(6), the allegations of the complaint must be taken
as true.” Syl. Pt. 1, Wiggins v. Eastern Associated Coal Corp., 178 W.Va. 63, 357 S.E.2d
745 (1987).
i
HUTCHISON, Justice:
The petitioner “Jane Doe,”1 plaintiff below, appeals the Order Granting
Defendants’ Motion to Dismiss entered by the Circuit Court of Logan County on January
3, 2018. In that order, the circuit court dismissed all counts in Jane Doe’s civil action
against the respondent Logan County Board of Education (“Board”), a co-defendant below.
On appeal, Jane Doe argues that the circuit court erroneously dismissed her negligence
claims based upon the court’s conclusion that she had failed to plead sufficient facts in her
Complaint to state a claim for relief. She also contends that the circuit court failed to
address her claim regarding breach of fiduciary duty. The Board argues in support of the
circuit court’s dismissal order.
After considering the parties’ written and oral arguments, as well as the
record on appeal and the applicable law, we find that the circuit court erroneously
dismissed two counts in Jane Doe’s Complaint that asserted the Board and its employees
were negligent. However, we find no merit to her contention that the circuit court failed to
consider a fiduciary duty claim. Furthermore, Jane Doe has not appealed the other rulings
in the circuit court’s dismissal order. Accordingly, we reverse, in part, and affirm, in part,
the circuit court’s dismissal order, and remand this case to the circuit court for further
proceedings consistent with this opinion.
Because of the sensitive nature of the petitioner’s allegations, she is referred
1
to as “Jane Doe” in the pleadings and in this opinion. See e.g., W.Va. R. App. P. 40(e);
State v. Edward Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
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I. Facts and Procedural Background
According to the Complaint, Jane Doe was a seventeen-year-old high school
student attending a vocational center operated by the Board during the 2014-2015 school
year. Jane Doe took a carpentry class at the vocational center taught by the Board’s
employee, John Thomas Cain (“Cain”). The Complaint alleges escalating sexual behavior
that this teacher inflicted upon her during the school year, including remarking during class
that her appearance was “sexy,” repeatedly displaying photos of his genitalia to her,
repeatedly requesting nude photos of her, following her into the bathroom in his classroom,
and pulling up her shirt to expose her breasts. Jane Doe asserted that in January or February
2015, Cain forced her to perform oral sex on him. She contended that in March or April
2015, Cain digitally penetrated her vagina while holding his other hand over her mouth,
only stopping when another student walked by. Cain’s acts of misconduct occurred in the
classroom, and Jane Doe asserted that other students questioned her about what had
occurred. Jane Doe further alleged that when she halted Cain’s sexual advancements, he
threatened her with physical violence.2
Jane Doe’s lawsuit names both Cain and the Board as defendants. The instant
appeal only concerns claims brought against the Board.3 The Complaint’s claims against
2
The Complaint also alleges, and the Board confirms, that Cain was
criminally convicted and incarcerated for his sexual misconduct against Jane Doe.
3
The lawsuit’s claims against Cain are not addressed in this opinion. He was
not dismissed from the lawsuit by the circuit court’s January 3, 2018, order, and he is not
a party to this appeal.
2
the Board may be categorized into two groups: claims asserting vicarious liability for
Cain’s sexual misconduct against this student because the Board was Cain’s employer; and
claims alleging the Board is directly liable because it and its other employees (employees
other than Cain) were negligent in hiring, retaining, supervising, monitoring, and/or
training Cain. For this latter category, Jane Doe asserted the following negligence in Count
Three of her Complaint:
14. Upon information and belief, the Defendant Board
was negligent in several aspects, including but not limited to
the following facts:
a. failing to properly interview, evaluate and screen
Defendant Cain prior to hiring; and
b. failing to properly supervise and monitor Defendant
Cain.
15. Defendant Board had an affirmative duty to properly
investigate the background of its employees prior to providing
employment. Defendant Board breached said duty by
negligently hiring Defendant Cain thereby directly introducing
a sexual predator to countless children and students, including
but not limited to Jane Doe.
16. As a direct and proximate result of the Defendant’s
aforesaid actions, Jane Doe has suffered and will continue to
suffer damages in an amount to be proven at trial.
Count Six of the Complaint alleged the following negligence:
27. Teachers and administrators employed by
Defendant Board were negligent in several aspects, including,
but not limited to the following affirmative acts:
a. multiple educators observed Defendant Cain interact
with Jane Doe in ways that were contrary to acceptable school
standards, but none even initiated a discussion with an
administrator, reported suspicious conduct to an administrator,
or even made an anonymous report that the relationship
between Jane Doe and Defendant Cain should be investigated.
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b. Defendant Cain received improper, deficient, and
negligent training about interactions with students,
contributing to his casual seduction of Jane Doe to whom he
and the Defendant Board had a responsibility regarding her
well-being and safety.
The Board filed a motion to dismiss all of the claims against it pursuant to
Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. Rule 12(b)(6) permits motions
to dismiss all or part of a complaint for the “failure to state a claim upon which relief can
be granted.” With respect to the vicarious liability claims where the Board was sued for
Cain’s sexual misconduct, the Board argued that those were intentional criminal acts
outside the scope of Cain’s employment and thus the Board was immune from suit pursuant
to the Governmental Tort Claims and Insurance Reform Act (“Tort Claims Act”). See
W.Va. Code §§ 29-12A-1 to -18. The circuit court agreed and dismissed Jane Doe’s
vicarious liability claims. The circuit court also dismissed a claim for punitive damages.
Jane Doe does not appeal these rulings, and these rulings are not disturbed on appeal.
As to the claims of negligence against the Board and its other employees, the
Board argued that Jane Doe asserted nothing but conclusory allegations without including
a sufficient factual basis to state a claim for relief. The circuit court agreed and also
dismissed these claims. All claims against the Board were dismissed with prejudice. Jane
Doe now appeals from the circuit court’s January 3, 2018, order dismissing her negligence
claims against the Board.
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II. Standard of Review
On appeal, Jane Doe challenges the dismissal of some of the counts in her
civil complaint. Our standard of review is plenary: “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). We recently
elaborated on the meaning of this standard of review in Gastar Exploration Inc. v. Rine,
239 W.Va. 792, 806 S.E.2d 448 (2017):
The term “de novo” means “Anew; afresh; a second
time.” We have often used the term “de novo” in connection
with the term “plenary.” . . . Perhaps more instructive for our
present purposes is the definition of the term “plenary,” which
means “[f]ull, entire, complete, absolute, perfect, unqualified.”
We therefore give a new, complete and unqualified review to
the parties’ arguments and the record before the circuit court.
Id. at 798, 806 S.E.2d at 454 (internal quotation marks, footnotes, and citations omitted).
With this in mind, we consider the parties’ arguments.
III. Discussion
In her first assignment of error, Jane Doe asserts that the circuit court
erroneously dismissed her claims against the Board for negligent supervision, which she
indicates includes aspects of negligent hiring, retention, training, monitoring, and
discipline. These negligence claims are encompassed within Counts Three and Six of her
Complaint, quoted supra. Although the circuit court found that these claims were merely
conclusory allegations, Jane Doe contends that her Complaint is sufficient. She argues that
the Complaint sets forth instances where other Board employees knew, or should have
5
known, of Cain’s misconduct against her, but those employees failed to intervene, report
the misconduct, or take any other action. Moreover, she contends that the specifics of what
the Board’s employees knew, and when they knew it, require further investigation through
discovery.
In response, the Board argues that there are no facts alleged in the Complaint
to indicate how it or its employees were negligent. The Board argues that the only reference
in Jane Doe’s Complaint to the action or inaction of any specific Board employee (other
than Cain) is a factual allegation concerning a janitor, but this allegation fails to assert any
wrongdoing by the janitor or the Board. Specifically, Jane Doe’s Complaint alleges:
10. While working on an outdoor project involving
planting flowers and putting down mulch, Jane Doe went to the
restroom inside Defendant Cain’s classroom and he [Cain]
followed her into the restroom and was waiting outside the stall
when she emerged—stating that he had come to talk. When
Jane Doe left the restroom, she crossed paths with a janitor who
did not intervene.
The Board argues that this paragraph fails to allege that the janitor also observed Cain enter
or exit the restroom with Jane Doe. The Board contends that it may have statutory immunity
from the negligence claims, thus, to survive dismissal, Jane Doe’s Complaint must include
specific allegations. Both the Board’s brief and the circuit court’s order rely heavily upon
language in Hutchison v. City of Huntington: “local government units should be entitled to
. . . immunity under W.Va. Code, 29-12A-5(a), unless it is shown by specific allegations
that the immunity does not apply.” Hutchison v. City of Huntington, 198 W.Va. 139, 148,
479 S.E.2d 649, 658 (1996) (citation omitted). They also quote Hutchison for the
6
proposition that “[i]n civil actions where immunities are implicated, the trial court must
insist on heightened pleading by the plaintiff.” Id. at 149, 479 S.E.2d at 659 (citations
omitted).
This Court has explained that “[t]he purpose of a motion under Rule 12(b)(6)
of the West Virginia Rules of Civil Procedure is to test the sufficiency of the complaint.”
Cantley v. Lincoln Co. Comm’n, 221 W.Va. 468, 470, 655 S.E.2d 490, 492 (2007).
Pleadings are to be “liberally construed so as to do substantial justice. W.Va. R.C.P. 8(f).
The policy of the rule is thus to decide cases upon their merits[.]” John W. Lodge Distrib.
Co., Inc. v. Texaco, Inc., 161 W.Va. 603, 605, 245 S.E.2d 157, 158-59 (1978) (citation
omitted). Indeed,
“[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 Company,
W.Va., 236 S.E.2d 207 (1977)[,] quoting Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
John W. Lodge Distrib., 161 W.Va. at 603, 245 S.E.2d at 158, syl. Moreover, the issues
currently on appeal are negligence claims, and Rule 9(b) of the West Virginia Rules of
Civil Procedure states that “[n]egligence may . . . be averred generally.” Finally, “[o]n
appeal of a dismissal based on granting a motion pursuant to West Virginia Rules of Civil
Procedure 12(b)(6), the allegations of the complaint must be taken as true.” Syl. Pt. 1,
Wiggins v. Eastern Associated Coal Corp., 178 W.Va. 63, 357 S.E.2d 745 (1987).
7
In Hutchison, this Court discussed the importance of making specific
allegations when governmental immunity is at issue. Hutchison, 198 W.Va. at 148, 479
S.E.2d at 658. This is because “[i]mmunities under West Virginia law are more than a
defense to a suit in that they grant governmental bodies and public officials the right not to
be the subject to the burden of trial at all.” Id. Thus, the Court called for “heightened
pleading by the plaintiff” in “civil actions where immunities are implicated[.]” Id. at 149,
479 S.E.2d at 659. However, the Court also recognized that the term “heightened pleading”
can be a “misnomer,” and a “plaintiff is not required to anticipate the defense of immunity
in his complaint.” Id. at 150, 479 S.E.2d at 660. Although the Board and the circuit court
rely upon a few phrases from a paragraph in Hutchison, an examination of the entire
paragraph is instructive:
We believe that in civil actions where immunities are
implicated, the trial court must insist on heightened pleading
by the plaintiff. See Schultea v. Wood, 47 F.3d 1427 (5th
Cir.1995) (en banc) (a § 1983 action); see generally Parkulo v.
West Virginia Board of Probation and Parole, supra. To be
sure, we recognize the label “heightened pleading” for special
pleading purposes for constitutional or statutory torts involving
improper motive has always been a misnomer. A plaintiff is
not required to anticipate the defense of immunity in his
complaint, Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct.
1920, 1923–24, 64 L.Ed.2d 572 (1980), and, under the West
Virginia Rules of Civil Procedure, the plaintiff is required
to file a reply to a defendant’s answer only if the circuit
court exercises its authority under Rule 7(a) to order one.
We believe, in cases of qualified or statutory immunity,
court ordered replies and motions for a more definite
statement under Rule 12(e) can speed the judicial process.
Therefore, the trial court should first demand that a
plaintiff file “a short and plain statement of his complaint,
a complaint that rests on more than conclusion alone.”
Schultea v. Wood, 47 F.3d at 1433. Next, the court may, on
8
its own discretion, insist that the plaintiff file a reply
tailored to an answer pleading the defense of statutory or
qualified immunity. The court’s discretion not to order such a
reply ought to be narrow; where the defendant demonstrates
that greater detail might assist an early resolution of the
dispute, the order to reply should be made. Of course, if the
individual circumstances of the case indicate that the plaintiff
has pleaded his or her best case, there is no need to order more
detailed pleadings. If the information contained in the
pleadings is sufficient to justify the case proceeding further, the
early motion to dismiss should be denied.
Hutchison, 198 W.Va. at 149-50, 479 S.E.2d at 659-60 (bold emphasis added). Thus,
instead of mandating dismissal, the Court in Hutchison offered remedies for situations
where a public entity or official asserts immunity in an answer but the plaintiff has failed
to file a “heightened pleading[.]” Pursuant to Rule 12(e) of the Rules of Civil Procedure,
the trial court may require the plaintiff to file a more definite statement. Pursuant to Rule
7(a) of these same Rules, the trial court may require the plaintiff to file a reply to the
defendant’s answer. In addition, we observe that pursuant to Rule 15(a) of the Rules of
Civil Procedure, a trial court may grant the plaintiff leave to amend the complaint. “Leave
to amend should be freely given when justice so requires . . . .” Syl. Pt. 6, in part, Perdue
v. S.J. Groves & Sons Co., 152 W.Va. 222, 161 S.E.2d 250 (1968). Finally, if a plaintiff
believes that discovery is necessary to oppose a motion to dismiss, the plaintiff may request
discovery pursuant to Rule 56(f) of the Rules of Civil Procedure:
Where a plaintiff opposes a motion to dismiss under
Rule 12(b)(6) of the West Virginia Rules of Civil Procedure
and claims that discovery would enable him or her to oppose
such a motion, the plaintiff may request a continuance for
further discovery pursuant to Rule 56(f) of the West Virginia
Rules of Civil Procedure. In order to obtain such a discovery
continuance, a plaintiff must, at a minimum, (1) articulate
9
some plausible basis for the plaintiff’s belief that specified
“discoverable” material facts likely exist which have not yet
become accessible to the plaintiff; (2) demonstrate some
realistic prospect that the material facts can be obtained within
a reasonable additional time period; (3) demonstrate that the
material facts will, if obtained, suffice to engender an issue
both genuine and material; and (4) demonstrate good cause for
failure to have conducted the discovery earlier.
Syl. Pt. 6, Harrison v. Davis, 197 W.Va. 651, 478 S.E.2d 104 (1996).
Upon our plenary review of Jane Doe’s Complaint, we determine that the
circuit court’s dismissal, with prejudice, of the negligence claims in Counts Three and Six
was in error. Admittedly, the Complaint is not a model of jurisprudential craftsmanship.
Nonetheless, it contains some factual allegations to support aspects of the alleged
negligence. The Complaint details Cain’s grooming and sexual behavior toward Jane Doe,
and the Complaint expressly asserts that other “educators” observed inappropriate
interactions between teacher and student but failed to act. Jane Doe was a minor and may
not have known the names or the jobs of the people who observed the interactions.
Furthermore, although the Complaint does not specifically state that the janitor witnessed
both Jane Doe and Cain exiting the bathroom, this is the obvious implication from the
assertion that the janitor “did not intervene.” Given the allegations, both factual and legal,
that are included in Jane Doe’s Complaint, we conclude that instead of wholly dismissing
her negligence claims with prejudice, the circuit court should have first allowed one or
more of the options set forth above. Accordingly, we reverse the circuit court’s dismissal
of Counts Three and Six, and remand this case to the circuit court for further proceedings
10
consistent with this opinion. It is within the circuit court’s sound discretion to select which
of the methods listed above would best serve the purpose of allowing Jane Doe to provide
a heightened pleading such that the Board can ascertain whether it has an immunity
defense. Thereafter, the Board may file a motion asserting immunity or any other
arguments it may have.
In her second assignment of error on appeal, Jane Doe argues that the circuit
court failed to address her claim that a fiduciary relationship existed between her, a minor
student enrolled at the vocational center, and the Board. However, strictly speaking, the
circuit court did address this issue. The court gave Jane Doe the benefit of the doubt and
expressly assumed, for purposes of its analysis, that she and the Board had a fiduciary
relationship. More importantly, Jane Doe fails to explain how the existence of a fiduciary
relationship would help her negligence case. The Board is a political subdivision whose
liability for negligence is governed by the Tort Claims Act, West Virginia Code §§ 29-
12A-1 to -18. To prevail on a claim of negligence, she must satisfy the requirements of this
Act. We find no merit to the petitioner’s second assignment of error.
IV. Conclusion
For the foregoing reasons, we reverse the circuit court’s dismissal of Counts
Three and Six of Jane Doe’s Complaint. We affirm the remaining rulings in the circuit
11
court’s January 3, 2018, dismissal order. Finally, we remand this case to the circuit court
for further proceedings consistent with this opinion.
Affirmed, in part; reversed, in part; and remanded.
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