FILED
No. 18-0211 – Goodwin v. Fayette County Board of Education, et al. November 12, 2019
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
WORKMAN, J., dissenting: SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Once again, under the guise of appellate review, the majority resolves issues
which are underdeveloped below and in so doing renders this Court an adjudicatory body.1
I dissent from the majority’s cursory disposition of this case because it effectively blankets
all local boards of education under any degree of state intervention with absolute immunity
from suit. The majority’s new syllabus point states that whether a local school board is a
State actor depends upon the “degree of control” the West Virginia State Board of
Education (“State Board”) “exercises over the county’s school system.” Yet it provides no
further guidance on factors to consider in making that determination; nor does it conduct a
meaningful analysis of this issue. Instead, it concludes that the local board was a State
actor without any factual development of the instant situation on that issue below. After
summarily declaring the Fayette County Board of Education (“BOE”) to be a State actor
and therefore entitled to assert qualified immunity, the majority then makes a sharp left
turn (providing no further immunity analysis), and reaches the clearly inaccurate
1
See Cochran v. River Road PSD, No. 18-0302, 2019 WL 5849372 (W. Va. Nov.
7, 2019) (memorandum decision) (Workman, J., dissenting) (criticizing affirmance of
dismissal on grounds not ruled on by circuit court); State ex rel. Universal Underwriters
Ins. Co. v. Wilson, 241 W. Va. 335, 355, 825 S.E.2d 95, 115 (2019) (Workman, J.,
dissenting) (encouraging “full processing of a . . . legal issue by its being fully considered
by a lower court, a lower court making a ruling, the parties then briefing and arguing the
issue at the appellate level”); State ex rel. Gallagher Bassett Servs., Inc. v. Webster, 242
W. Va. 88, ___, 829 S.E.2d 290, 301 (2019) (Workman, J., dissenting) (discouraging
premature resolution of “legal issues that hinge on facts” in prohibition).
1
conclusion that local school boards owe no duties to 18-year-old students injured on school
property, but outside of the four walls of the school building. For these reasons, I must
dissent.
In this case, petitioner alleges the BOE, by and through its employees, was
negligent in its supervision of students at Oak Hill High School, which negligence
proximately caused petitioner’s injuries on a school soccer field. Since the State Board
had intervened in the BOE, the threshold issue in this case was whether the BOE was 1)
rendered an arm of the State by virtue of this takeover and could therefore raise qualified
immunity to petitioner’s suit; or 2) whether it continued to be governed by the
Governmental Tort Claims and Insurance Reform Act (“Tort Claims Act”), which
expressly provides for liability for negligent acts by employees such as those alleged by
petitioner.2
This distinction is obviously critical to petitioner’s claim: if the BOE is
found to be an arm of the State and therefore may assert qualified immunity, petitioner’s
claim would almost certainly fail inasmuch as the general notion of “supervision”—in
2
See W. Va. Code § 29-12A-4(c) (1986) (establishing liability for injuries caused
by political subdivision employees for negligence in operating motor vehicle, negligence
in “performance of acts” within scope of employment, negligence in failing to “keep”
public areas and grounds, negligence which occurs “within or on the grounds of [public]
buildings”).
2
absence of any well-established mandates—has been found to be an inherently
discretionary act for which the State is immune. 3 See W. Va. Reg’l Jail & Corr. Facility
Auth. v. A.B., 234 W. Va. 492, 514, 766 S.E.2d 751, 773 (2014) (stating that “broad
categories of training, supervision, and employee retention . . . fall within the category of
‘discretionary’ governmental functions” and collecting cases). On the other hand, if not
found to be an arm of the State, the BOE continues to be subject to the Tort Claims Act
and petitioner’s negligence claim clearly survives. Under the Tort Claims Act, political
subdivisions such as the BOE are expressly “liable 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.” W. Va. Code § 29-12A-4(c)(2).
On this issue, the circuit court, without citation or analysis, declared
summarily that
while the [BOE] was in [State Board] intervention, the [BOE]
is necessarily part of the “State” defined in pertinent part as “all
boards, offices, commissions, agencies . . . and other
instrumentalities of the state of West Virginia.” W. Va. Code
§29-12A-3 and not within the purview of the West Virginia
3
In fact, petitioner concedes that “implementation and administration of compliance
with the duty to supervise may constitute a discretionary function” and that the “manner in
which the duty to supervise is maintained may be a question of discretion.” Nevertheless,
as is well-established, even if an act is discretionary, if an injured plaintiff establishes that
“such 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 fraudulent,
malicious, or oppressive,” qualified immunity will not lie. Syl. Pt. 11, in part, A. B., 234
W. Va. 492, 766 S.E.2d 751. Petitioner identifies no such clearly established rights or
laws, i.e. a specific directive regarding supervision which was violated, in order to
overcome qualified immunity.
3
Governmental Tort Claims and Insurance Reform Act, W. Va.
Code §29-12A-l et seq.
Without addressing the circuit court’s complete lack of factual or legal analysis for this
conclusion, the majority examines two cases from the Southern District of West Virginia
wherein the District Court found two local boards of education to be arms of the State for
purposes of Eleventh Amendment immunity. See Workman v. Mingo Cty. Schs., 667 F.
Supp.2d 679 (S.D.W. Va. 2009); B. E. v. Mount Hope High Sch., No. 2:11-CV-00679,
2012 WL 3580190 (S.D.W. Va. Aug. 17, 2012). The majority then notes that in Workman,
the District Court evaluated whether the Mingo County Board of Education was a State
actor under the factors identified by the Fourth Circuit in Cash v. Granville County Board
of Education, 242 F.3d 219 (4th Cir. 2001):
The principal factor, upon which courts have virtually always
relied, is whether a judgment against the governmental entity
would have to be paid from the States treasury. . . .
....
. . . [W]e keep the State treasury factor in the calculus
and look to three additional factors: (1) the degree of control
that the State exercises over the entity or the degree of
autonomy from the State that the entity enjoys; (2) the scope of
the entity’s concerns—whether local or statewide—with which
the entity is involved; and (3) the manner in which State law
treats the entity.
Id. at 223-24.
Despite tacitly endorsing the use of these factors to determine whether a
political subdivision has been rendered an arm of the State, the majority adopts a relatively
4
perfunctory new syllabus point stating that the determination of whether a local board is
an arm of the State is dependent upon the “degree of control” exercised by the State Board.
It ignores the state treasury factor entirely. Moreover, neither the syllabus point nor
opinion itself gives even the slightest guidance regarding what “degree of control” actually
means: whether the State’s “control” must actually be exercised or if the State Board must
merely have the authority to control; whether the “control” must be exercised over the
specific function of the local board at issue or the board and school system as a whole.
More importantly, the majority apparently finds no fault whatsoever with the circuit court’s
failure to conduct any such analysis below, nor is it concerned with petitioner’s inability to
conduct discovery on this specific issue.4
Rather, the majority substitutes its own equally empty analysis of the issue
and concludes that on the sole basis of the State Board’s pro forma meeting minutes that it
“exercised extensive, almost complete control” over the BOE. In reality and as readily
apparent to even a casual reader, the meeting minutes from the BOE authorizing the
4
Petitioner and the BOE debated during oral argument whose burden it was to
develop the record on this issue below. As this Court has stated, “Qualified immunity is
an affirmative defense to liability, which under the Rules of Civil Procedure must be pled.”
W. Va. of Educ. v. Marple, 236 W. Va. 654, 667-68, 783 S.E.2d 75, 88-89 (2015). As such,
it is the BOE’s burden to establish a record sufficient to establish itself as an arm of the
State and therefore entitled to assert the affirmative defense of qualified immunity.
Discovery on the underlying facts, however, appears to have been complete and revealed
disputed issues of material fact regarding the BOE’s liability and the comparative
negligence of petitioner.
5
intervention simply parrot the language of West Virginia Code § 18-2E-5(p)(4)(C)5 which
outlines the broad areas in which the State Board “may” intervene to “cause
improvements” to the BOE. Aside from these minutes, the record is completely devoid of
any evidence regarding the State Board’s control of the BOE and more importantly, devoid
of evidence regarding the areas of control actually exercised by the State Board. The bases
for state intervention in local school boards are varied and extensive and while the State
Board may have reserved its right to intervene in any of the areas permitted by statute, it
may well have exercised little to no control over the school functions which underlie
petitioner’s claim. In that event, there is simply no purpose in extending a blanket of
immunity for actions which are otherwise expressly subject to liability without even
examining the parameters of authority or control the State actually exercised over that
function.6
The reason the exercise of actual authority is critical is because what we are
actually determining in conducting this analysis is the applicability of qualified immunity.
What the majority’s scant analysis fails to recognize is that qualified immunity for the State
serves as protection for distinct functions of the State and its actors and that, unless those
5
Now W. Va. Code § 18-2E-5(m)(2) (2017).
6
For example, if the State Board intervened and exercised control only over the
high-level matters of curriculum, school closure or consolidation, or budget expenditures,
it certainly does not follow that the State Board was likewise necessarily involved in the
day-to-day minutiae of the mechanics of student supervision or isolated end-of-year
attendance issues. In fact, the likelihood of the State Board becoming involved in such
situational and ad hoc particulars on an individual school level appears slim indeed.
6
functions were actually undertaken by the State and proximately relate to the allegations
asserted, there is no reasoned purpose for the extension of immunity. Qualified immunity
serves to insulate the State and its actors from limitless liability for their discretionary and
proprietary decisions for which there is no clear-cut and determinative guidance: “[T]he
doctrine of qualified or official immunity bars a claim of mere negligence against a State
agency . . . and against an officer of that department acting within the scope of his or her
employment, with respect to the discretionary judgments, decisions, and actions of the
officer.” Syl. Pt. 6, in part, Clark v. Dunn, 195 W.Va. 272, 465 S.E.2d 374 (1995)
(emphasis added).7 This purpose quite simply does not translate in an action which is based
upon a local school board’s simple negligence, unless the underlying function which
proximately caused the plaintiff’s injury was, in fact, being controlled by the State and
should be protected with the cloak of immunity.
Instead, in this case, so fundamental is the right of recovery for claims as
those at least asserted by petitioner, that school boards are expressly made liable for such
allegations, if proven, by virtue of the Tort Claims Act. Therefore, the analysis of whether
the BOE is a State actor for qualified immunity purposes must be assessed in light of the
specific conduct at issue in the case. Our qualified immunity caselaw makes this
fundamental precept clear. See A. B., 234 W. Va. at 507, 766 S.E.2d at 766 (“‘[I]mmunity
is justified and defined by the functions it protects and serves, not by the person to whom
7
But see n.2 supra regarding violations of clearly established rights.
7
it attaches.’” (quoting Forrester v. White, 484 U.S. 219, 227, 108 S.Ct. 538, 98 L.Ed.2d
555 (1988) (emphasis in original)).
As inadequate as the majority’s analysis of the State actor issue is, perhaps
more puzzling is its dispositive conclusion: that 18-year old students are owed no duties
outside of the school building. The majority’s conclusion that since petitioner (age
eighteen but still a junior in high school) left the building, “the duty to supervise [him]
terminated” is abject nonsense. If an unsupervised child is struck by a car after escaping a
school building, does the school escape liability because he was struck outside? The entire
issue is whether petitioner was improperly supervised such that he could leave the building
and injure himself. Furthermore, the property on which he was allegedly injured was
school property.
The majority seemingly believes it is justified in this conclusion by virtue of
the definition of “student” contained in West Virginia Code § 18A-5-1(g)(1):
“Student” includes any child, youth or adult who is enrolled in
any instructional program or activity conducted under board
authorization and within the facilities of or in connection with
any program under public school direction: Provided, That, in
the case of adults, the student-teacher relationship shall
terminate when the student leaves the school or other place of
instruction or activity[.]
8
(emphasis added). 8 First, nowhere in this definitional provision are adult students
exempted from the duty and authority to supervise established in West Virginia Code §
18A-5-1: “The teacher shall stand in the place of the parent(s), guardian(s) or custodian(s)
in exercising authority over the school and has control of all students enrolled in the school
from the time they reach the school until they have returned to their respective homes[.]”
(emphasis added). Secondly, West Virginia Code § 18A-5-1(g)(1) specifically states that
the student-teacher relationship does not end until the student leaves the school “or other
place of instruction or activity.” It is difficult to conceive of a place more emblematic of
an “other place of . . . activity” than an adjacent school athletic field. Other than including
this phrase in their citation of the statute, the majority does not address this phrase of the
statute in any fashion. In fact, it inexplicably declares itself “not concerned by the fact that
the Petitioner was on Respondent’s property, the soccer field, when he was injured.”
Instead, the majority boldly declares that the BOE “did not owe a duty of
supervision to the Petitioner once he left the school building without authorization.”9 That
is, of course, exactly the point: petitioner alleges he should not have been permitted to
leave the building and escape to an unsupervised school area where he was injured. For
8
The suggestion that half of the statutory definition of “student” and a singular
sentence in a 1985 case definitively establishes the parameters of a school board’s duties
to adult students is a disturbingly sparse analysis.
9
The majority’s use of the limiting phrases “[i]n light of the unique facts of this
case” and “under the narrow facts of this case” signals a result-oriented approach,
particularly when there are disputed facts below.
9
purposes of supervisory negligence, the issue of duty is not defined by the location of an
injury, but the scope of the employee’s duties and authority relative to supervising the
injured party. And while the majority may bristle at the notion that an 18-year-old seeks
to recover for what it perceives is his own negligence, that issue is for a jury to determine
under proper instruction of law by the trial court. It is, in fact, no different than any other
adult who is comparatively negligent in contributing to his or her own injury—this does
not serve as a bar to recovery unless and until a jury finds him or her fifty percent negligent.
While not suggesting that petitioner has necessarily established a right of
recovery, this dissent does find that the majority has injected itself into the undeveloped
issue of whether the BOE was a State actor and then insinuated itself into the disputed
underlying facts by summarily declaring that 18-year old students are owed no duty outside
of the school building, even if on school property. The majority’s holding herein
encourages local boards of education and their employees to act with complete impunity
when under State intervention. It further decimates any semblance of duty owed to adult
students who happen to turn eighteen before graduating in contravention of clear statutory
law. This case should have been reversed and remanded for factual development of the
areas of control the State Board exercised over the BOE and a determination as to whether
that control rendered the BOE an arm of the State for purposes of these allegations. If the
case survived the immunity analysis, a jury should have been permitted to decide the issues
of negligence and comparative negligence under proper instruction of law. For these
reasons, I respectfully dissent.
10