STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Gloria Allen, Plaintiff Below, FILED
Petitioner June 28, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 12-1088 (Greenbrier County 11-C-16) OF WEST VIRGINIA
Greenbrier County Sheriff’s Department,
and the Greenbrier County Commission,
Defendants Below, Respondents
MEMORANDUM DECISION
Petitioner Gloria Allen, by counsel Jeff C. Woods, appeals the August 14, 2012 order of
the Circuit Court of Greenbrier County granting respondents’ motion for summary judgment.
Respondents, by counsel Wendy E. Greve and Michelle Rae Johnson, have filed a response and a
supplemental appendix.
The 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.
In January of 2012, petitioner initiated a civil action against the Greenbrier County
Sheriff’s Office, the Greenbrier County Commission, and Deputy R.A. Martin. Petitioner alleged
that respondents were negligent when the Deputy Martin attempted to calm and/or apprehend
James G. Wilburn during a Greenbrier East High School basketball game on or about January 23,
2009. According to petitioner, while attempting to apprehend the individual, Deputy Martin
pushed petitioner down. The cause of action also alleged that respondents were negligent in the
use of force and failure to use appropriate caution and care with regard to petitioner. Petitioner
claims that, as a result of the respondents’ actions, she suffered physical injury which caused her
to incur medical expenses in the past and will cause her to continue to incur medical expenses in
the future. On May 18, 2012, respondents filed a motion for summary judgment, alleging that
petitioner could not prove the requisite elements of negligence and that respondents were immune
under the public duty doctrine. Finding that petitioner was owed no duty of care, the circuit court
granted summary judgment in respondents’ favor. It is from this order that petitioner appeals.
This Court has previously 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).” Syl. Pt.
1, Nat’l Union Fire Ins. Co. of Pittsburgh v. Miller, 228 W.Va. 739, 724 S.E.2d 343 (2012). After
careful consideration of the parties’ arguments, this Court concludes that the circuit court did not
err in granting respondents’ motion for summary judgment. To begin, it is clear that the circuit
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court did not err in making a determination that respondents did not owe petitioner a duty of care.
While petitioner cites to our prior holding in Syllabus Point 4 of Aikens v. Debow, 208 W.Va.
486, 541 S.E.2d 576 (2000) (holding that questions of negligence present issues of fact for jury
determination when the evidence is conflicting or the facts are such that reasonable jurors may
draw different conclusions from them), to argue that questions of negligence are questions of fact
to be determined by a jury, the Court notes that the same opinion clearly states that
[t]he determination of whether a defendant in a particular case owes a duty to the
plaintiff is not a factual question for the jury; rather the determination of whether a
plaintiff is owed a duty of care by a defendant must be rendered by the court as a
matter of law.
Syl. Pt. 5, Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000).
However, it is important to note that, in granting summary judgment for respondents, the
circuit court found that the public duty doctrine barred petitioner’s negligence claim. In
discussing the public duty doctrine, the Court has stated that
the duty 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 . . . police department’s
failure to provide adequate . . . police protection.
Rhodes v. Putnam Cnty. Sheriff’s Dep’t, 207 W.Va. 191, 194, 530 S.E.2d 452, 455 (1999)
(quoting Randall v. Fairmont City Police Dep’t, 186 W.Va. 336, 346-47, 412 S.E.2d 737, 747-48
(1991)). In regard to the special duty exception, we have listed the requirements necessary to
establish such an exception as follows:
“The four requirements for the application of the ‘special relationship’ exception to
W. Va.Code § 29–12–5 cases are as follows: (1) An assumption by the state
governmental entity, through promises or actions, of an affirmative duty to act on
behalf of the party who was injured; (2) knowledge on the part of the state
governmental entity’s agents that inaction could lead to harm; (3) some form of
direct contact between the state governmental entity’s agents and the injured party;
and (4) that party’s justifiable reliance on the state governmental entity’s
affirmative undertaking.” Syl. Pt. 12, Parkulo v. West Virginia Bd. of Prob. and
Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996).
Syl. Pt. 11, J.H. v. W.Va. Div. of Rehab. Services, 224 W.Va. 147, 680 S.E.2d 392 (2009).
This analysis is important to the issue of granting summary judgment, because we have
previously held that
“[i]n cases arising under W.Va. Code § 29–12–5, the question of whether a special
duty arises to protect an individual from a State governmental entity’s negligence
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is ordinarily a question of fact for the trier of facts.” Syl. Pt. 11, Parkulo v. West
Virginia Bd. of Prob. and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996).
Id. at 150, 680 S.E.2d at 396. The Court finds that under the narrow circumstances presented in
the present case, the circuit court did not err in granting summary judgment in respondents’ favor
because of its finding that petitioner failed to allege any facts supporting the existence of any of
the four factors for establishing a special duty, as set forth above. Because petitioner failed to
allege facts sufficient to overcome summary judgment on this issue, the Court finds that the
circuit court did not err in the granting of summary judgment.
As to petitioner’s allegation that the circuit court failed to apply West Virginia Code § 29
12A-4(c)(2) to the instant matter, we find no error in the circuit court’s application of this Code
section, which states that
[s]ubject to sections five [§ 29-12A-5] and six [29-12A-6] of this article, a political
subdivision is liable in damages in a civil action for injury, death, or loss to
persons or property allegedly caused by an act or omission of the political
subdivision or of any of its employees in connection with a governmental or
proprietary function, as follows: (2) Political subdivisions are 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.
The Court notes that petitioner’s argument on this issue ignores the plain language of the statutes
involved. This liability is clearly limited by sections five and six of Article 12A, and section five
states that “[a] political subdivision is immune from liability if a loss or claim results from: (5)
Civil disobedience, riot, insurrection or rebellion or the failure to provide, or the method of
providing, police, law enforcement or fire protection.” W.Va. Code § 29-12A-5(a)(5).
Accordingly, it is clear that the circuit court properly applied West Virginia Code § 29-12A
4(c)(2), petitioner’s argument that it confers liability on respondents notwithstanding.
Further, the Court finds no merit in petitioner’s argument that the circuit court’s
application of the public duty doctrine renders West Virginia Code § 29-12A-4(c)(2) null and
void because that argument fails to recognize prior case law harmonizing the public duty doctrine
with the Governmental Tort Claims and Insurance Reform Act [West Virginia Code § 29-12A-1,
et seq.]. We have previously held that
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.
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Syl. Pt. 8, Randall v. Fairmont City Police Dept., 186 W.Va. 336, 412 S.E.2d 737 (1991). Based
on this holding, it is clear that this Court has already analyzed the interplay between the public
duty doctrine, the special duty exception to that doctrine, and the immunity provided to political
subdivisions for their method of providing police protection. As such, the public duty doctrine
does not render West Virginia Code § 29-12A-4(c)(2) null and void, and petitioner is entitled to
no relief in regard to this assignment of error.
For the foregoing reasons, we find no error in the decision of the circuit court and its order
granting summary judgment for respondents is affirmed.
Affirmed.
ISSUED: June 28, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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