Political Subdivision Immunities

1. Political Subdivision Immunities Charles R. Bailey, Esq. Bailey & Wyant, PLLC

2. Bailey & Wyant, PLLC was formed in 2000. Since its inception, the firm has grown from only a handful of attorneys to its current mark of over thirty.  We have offices in both Charleston and Wheeling, West Virginia, and provide representation to clients throughout West Virginia, Ohio, Kentucky, and Pennsylvania. • Bailey & Wyant serves as general counsel to several state and county agencies and commissions.  Our experience and dedication in representing governmental agencies and officials is a source of pride for all of our attorneys. • Our philosophy is simple.  We provide aggressive and effective legal representation, while being ever mindful of each client's individual needs, goals, and economic interests.  No matter how complex or novel, our focus in a case is always to reach the right resolution for our client.

3. Purpose: Enacted in 1986, the WestVirginia Governmental Tort Claims and Insurance Reform Act limits tort liability of political subdivisions, provides tort immunity to political subdivisions, and regulates the costs and coverage of liability insurance. W. Va. Code § 29-12A-1 et seq., (1986). Governmental Tort Claims and Insurance Reform Act

4. Legislative Intent,§29-12A-2: • Political subdivisions in WV were unable to procure adequate liability insurance coverage at a reasonable cost • The Tort Reform Act provides certain immunities and limitations with regard to the [tort] liability of political subdivisions and employees • Regulates the insurance industry providing liability insurance to political subdivisions

5. Political subdivision, employee defined,§29-12A-3: Political Subdivision Employee • “Political subdivisions” include municipalities, county commissions, county boards of education, and other local governmental entities • Act does not apply to the state of WV, state agencies, or state officers • “Employee” means an officer, agent, employee, servant of a political subdivision.

6. Political Subdivisions • Private corporations who enter into service contracts with state agencies are not covered under the Tort Reform Act. • A private corporation that enters into a contract with the state to provide mental health services is not a “political subdivision” under the Tort Reform Act and is not entitled to immunities set forth in Act. Moats v. Preston County Com’n. • Likewise, a private corporation that enters into a contract with a state agency for juvenile detention services is not a political subdivision. State ex rel Youth Service Systems, Inc. v. Wilson

7. Governmental and proprietary functions of political subdivisions, liability for damages, §29-12A-4: Political subdivisions are generally immune from liability for damages in a civil action for death, injury, or loss to persons or property caused by any of acts or omissions of the political subdivision or an employee.

8. However, a political subdivision is liable for negligent acts or omissions, §29-12A-4: • negligent operation of any vehicle when employees are acting within the scope of their employment • negligent performance of acts by employees acting within the scope of employment • negligent failure to keep public roads, highways, streets, avenues, alleys, sidewalks, etc. in good repair • negligence of employees that occurs within or on the grounds of buildings that are used by political subdivisions

9. Political subdivision immunities under§29-12A-5: • W. Va. Code §29-12A-5 lists 17 specific instances under which political subdivisions are immune from liability: • The following slides will highlight examples of specific immunities provided under W. Va. Code §29-12A-5:

10. Examples of specific immunities provided under W. Va. Code §29-12A-5: • Civil rights, § 29-12A-5(a): • Goines v. James. Officer entered home without permission to make a warrantless arrest. Arrest was later determined to be unconstitutional • In Goines, the Supreme Court held that government officials performing discretionary functions are shielded from liability for civil damages insofar as their conduct does not violate clearly established rights of which a reasonable person would have known.

11. Execution or enforcement of a court order, §29-12A-5(3): Execution of arrest warrant • Court found that a political subdivision is immune from liability if a loss or claim results from the execution or enforcement of the lawful orders of any court, even if 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. Mallamo v. Town of Rivesville

12. The method of providing police, law enforcement or fire protection, civil disobedience, § 29-12A-5(a)(5): Public duty doctrine: Public duty doctrine holds that a local government entity is not liable for a failure to enforce regulatory or penal statutes. Randall v. Fairmount City Police Department

13. Under the public duty doctrine, the duty to fight fires or to provide police protection runs to all citizens and the public at large. Wolfe v. City of Wheeling. • Absent a special duty to a particular plaintiff, no private liability attaches to a fire department’s failure to provide adequate fire protection to the particular plaintiff. Id. Public Duty Doctrine continued

14. Public Duty Doctrine • Immunity only for “discretionary” and not for “mandatory” government functions • Randall v Fairmount City Police Department • “…a local governmental entity’s liability for non-discretionary (or 'ministerial' or 'operational’ functions) may not be predicated upon the breach of a general duty owed to public as a whole.” Randall v Fairmount City Police Department

15. Public Duty Doctrine • Special relationship exception. Randall v. City of Fairmount • The public duty doctrine is abrogated only if a special relationship exists between the parties. The test for special relationship requires: • Affirmative duty to act • Knowledge that inaction could lead to loss • Direct contact between government and injured party • Injured parties’ reliance

16. Special Relationship in Randall • Facts: Zachary Lewis had history of violence against plaintiff, once beating her so severely she required hospitalization • From June to August 1988, plaintiff made numerous calls to city police stating that Lewis had threatened plaintiff and she feared for life • An arrest warrant was issued for Lewis after he failed to appear in court • Despite phone calls and warrant, police took no actions to apprehend Lewis • Subsequently, plaintiff noticed Lewis following her while driving. She drove to the City police station and repeatedly blew car horn in attempt to alert police. • While still in her vehicle, Lewis approached on foot, and, using a pistol, shot and killed the plaintiff

17. Randall continued… • The trial court granted City’s motion to dismiss under the Tort Reform Act • On appeal, Court agreed with the circuit court that the qualified tort immunity provisions of the Tort Reform Act are constitutional • However, dismissal was not proper as question of material fact was present as to special relationship exception. • The court pointed to the plaintiff’s numerous phone calls and attempts to seek police protection, holding that the Complaint states a claim based on the negligent acts of employees of a political subdivision within the scope of their employment.

18. Examples of specific immunities provided under W. Va. Code §29-12A-5 continued: • Snow, ice, and weather conditions, unless affirmatively caused by the negligent act of a political subdivision, § 29-12A-5(a)(6):  •  Collection of taxes, § 29-12A-5(a)(8):  

19. Examples of specific immunities provided under W. Va. Code §29-12A-5: • Licensing powers or functions, § 29-12A-5(a)(9): • A political subdivision is immune from liability if a loss or claim results from licensing powers or functions. Hose v. Berkeley County Planning Comm'n,

20. Licensing powers or functions, § 29-12A-5(a)(9): • Licensing powers or functions include 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 • In Hose, the court held that the planning commission and county engineer, even if they were negligent in approving building plans, were immune from liability pursuant to Tort Reform Act. Hose v. Berkeley County Planning Comm'n.

21. Examples of specific immunities provided under W. Va. Code §29-12A-5: • Inspection powers or functions, § 29-12A-5(a)(10):  • Supreme Court of Appeals of West Virginia has held that §29-12A-5(a)(10) provides immunity for a political subdivision's inspection functions related to assuring compliance with a law or ordinance of the political subdivision including, but not limited to, housing, fire, zoning and health. Marlin v. Bill Rich Constr., Inc.

22. Examples of specific immunities provided under W. Va. Code §29-12A-5: • Workers' compensation law and deliberate intent; §29-12A-5 (a)(11): • Act provides immunity for political subdivisions from tort liability in actions involving claims covered by workers' compensation even though the plaintiff was not employed by the defendant political subdivision at the time of the injury. O'Dell v. Town of Gauley Bridge.

23. Workers' compensation law and deliberate intent; §29-12A-5 (a)(11): • Regarding Deliberate Intent claims, the Supreme Court of Appeals of West Virginia in Michael v Marion County Bd. Of Educ., clarified that the immunity from liability extended to political subdivisions under the Act. • The court held that if legislature intended to provide an exception for DI claims, they easily could have included language to that effect.

24. Examples of specific immunities provided under W. Va. Code §29-12A-5: • Dumps, sanitary landfills, and facilities, § 29-12A-5(a)(16): • Immunity if dump, landfill, or sewer system is located on government property. Calabrese v. city of Charleston • Recently the Supreme Court of Appeals of W.Va. found that a “transfer station” qualified for immunity under the Tort Reform Act. Posey v. City of Buckhannon, January 2012

25. Employee Immunity under §29-12A-5(b)(1) to (3): Employees of political subdivisions are immune from personal tort liability unless: • His or her acts or omissions were manifestly outside the scope of employment; • His or her acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; or • Liability is expressly imposed upon the employee by a provision of WV code.

26. Employee Immunity under §29-12A-5(b)(1) to (3) Acts outside the scope of employment: Mallamo v. Town of Rivesville • Police chief entered a home pursuant to a capias for plaintiff’s arrest. Plaintiff was shot an injured while he was hiding in a storage closet. • The court ruled that the Town was immune from liability because the police chief was in the course of executing a valid capias when plaintiff was shot • Chief held immune from liability because he was acting within the scope of his employment when he served the capias on plaintiff. • But, the Court reversed a dismissal of a conspiracy claim against the police chief, as it reasoned a question of material fact existed as to chief’s attempts to conceal the facts of the shooting. If proven, such conduct is not related to execution of capias and is clearly outside the scope of employment.

27. Moore By and Through Knight v. Wood County Bd. Of Educ. • Facts: Student waiting for a bus on school property claims injury due to the principal’s negligent supervision. Student was picked up and slammed to ground by another student. • Held: Student was unable to show that the principal acted “outside the scope of his employment” or that he acted with a malicious purpose, in bad faith, or in a reckless manner. Malicious purpose, bad faith, or in wanton or recklessness manner §29-12A-5(b)(2): .

28. Malicious purpose, bad faith, or in wanton or recklessness manner §29-12A-5(b)(2) • Sergent v. City of Charleston: Supreme Court of Appeals of W. Va. held that police officers were not “negligent, wanton, or reckless” in their pursuit by automobile of suspected drug dealers; therefore, the officers were not liable to the estate of a cyclist who was struck by the suspects’ fleeing car during the pursuit. The officers repeatedly attempted to avoid confrontation before suspects caused the accident in question. • Reed v. Bord: Finding nothing in the record below suggested an assistant prosecuting attorney acted with malice, bad faith, wantonly, or recklessly toward worker who was injured when he stepped on automobile parts that were left on the attorney’s office floor.

29. Moving on from exceptions to immunity … • Limitations of actions, specification of damages amounts prohibited. § 29-12A-6: • Two year period of limitations • Claims shall not specify an exact sum of monetary damages sought

30. Limits on liability; prohibiting punitive damages against political subdivisions but not political subdivision employees, Joint and Several Liability,§ 29 -12A-7: • $500,000 cap on non-economic loss • Act does not place any limitations on compensatory damages • Punitive damages specifically prohibited

31. Joint and several liability and the twenty five percent rule • Joint and several liability against every defendant who bears twenty-five percent or more of the negligence attributable to all defendants • Right to contribution available • Defendants who bear less than 25% fault are only responsible for own obligation

32. Settlement or defense of suit; effect of liability insurance,§29-12A-9(a): Bender v. Glendenning • Facts: Defendant, a teacher, sexually abused plaintiff and other elementary students • Issue: Whether defendant’s “wrongful acts” were covered by BOE’s insurance policy • The court stated that (despite various limitations of liability under the Tort Reform Act) when a policy of insurance provides coverage for a political subdivision, the terms of such insurance contract determine the rights and responsibilities of the insurer and its insured(s) under W. Va. Code § 29-12A-9(a) • Bender held when an insurance policy issued to a BOE did not contain language specifically preserving the immunity provisions of the West Virginia Governmental Tort Claims and Insurance Reform Act, a claim against the defendant employee for sexually abusing students was controlled by the terms of the policy • Bender resulted in changes in insurance policy language excluding coverage in similar instances

33. The real or personal property of a political subdivision is not made available or subject to attachment or sale to satisfy judgment in any civil action against a political subdivision • Political subdivisions are directed by this section of the Act to appropriate funds for the purposes of paying such judgments. Enforcement of judgments, §29-12A-10:

34. Defense and indemnification of employees, settlement, §29-12A-11: • A political subdivision will provide for the defense of an employee, and shall indemnify and hold harmless, if employee was acting in good faith and within scope of employment • Defense normally provided through insurance policy, but subdivision may choose to self insure • Political Subdivision can recover from employee if conduct leading to adverse judgment was outside the scope of employment. §29-12A-12

35. Venue, parties, real parties in interest, service of process, §29-12A-13: • All suits against political subdivisions within the scope of the act must be brought in the county in which the situs of the political subdivision is located or in which the cause of action arose • Filings shall name as defendant the political subdivision • Employee can only be named if exception to immunity is present

36. Procurement of liability insurance and self insurance, § 29-12a-16: • A political subdivision may use public funds to secure insurance • Includes the option to obtain insurance coverage through the State Board of Risk and Insurance Management (BRIM) • Political Subdivisions can establish and maintain a self-insurance program

37. Custom designed policies under § 29-12A-16: • In Cook v. McDowell County Emergency Ambulance Serv. Auth., the Court stated “when a policy is a custom- designed policy procured by a body subject to the Governmental Tort Claims and Insurance Reform Act, the broad discretion granted the West Virginia State Board of Risk and Insurance Management authorizes that body to incorporate language absolutely limiting liability under the policy, even if such language would ordinarily be in violation of the provisions of W.Va. Code § 33-6-31.

38. Liability insurance rates, rate filings; cancellations, group insurance, § 29-12A-17 • Policy premiums for coverage shall not be increased by more than ten percent per annum • Cancellation only for : • Failure to make premium payments (2) Fraud or substantial misrepresentation (3) Substantial increase in the risk of loss

39. Claims to which the Act does not apply§ 29-12A-18. (1) civil actions seeking to recover damages for contractual liability; (2) any civil action that evolves out of the employment relationship, including disputes as to wages hours and terms of employment; (3) civil rights claims based on alleged violations of U.S. Constitution.

40. II. Qualified immunity for political subdivisions • Qualified Immunity Government officials performing discretionary functions are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Hutchinson v. City of Huntington • Therefore, “Public officials and local government units should be entitled to qualified immunity from suit under §1983, or statutory immunity under W.Va. Code, 29-12A-5(a) [Governmental Tort Claims and Insurance Reform Act], unless it is shown by specific allegations that the immunity does not apply. Id.

41. Qualified immunity continued • There is no immunity for a executive official who acts are fraudulent, malicious, or otherwise oppressive. State v. Chase Securities, Inc. • The court will ask, “whether a objectively reasonable official…could have believed that his conduct did not violate the plaintiff’s constitutional rights. Id. • Test: • Does the alleged conduct set out a constitutional or statutory violation? • Were the constitutional standards clearly established at the time in question?

42. Recent Qualified Immunity Decisions City of St. Albans v. Botkins, 719 S.E.2d 863 (2011) • Facts: Officers approach a confrontation between 6 adult males; officer orders plaintiff to ground , strikes him in head with but of gun and places him under arrest • Defendant City moved for summary judgment on qualified immunity grounds as officers’ actions were not clearly unlawful; the Kanawha Co. Circuit Court denied the motion • An interlocutory appeal from Circuit Court ruling followed. • The Court stated “A circuit court's denial of summary judgment that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the 'collateral order' doctrine.” • Continued…

43. City of St. Albans v. Botkins continued… • Qualified immunity "is an immunity from suit rather than a mere defense to liability… it is effectively lost if a case is erroneously permitted to go to trial • In reviewing the record, the Supreme Court of Appeals stated “A reasonable officer in the same situation … could have believed a crime was in progress or about to be committed… and a reasonable officer could determine that force was necessary” • Court held qualified immunity should have been found as the facts show no constitutional violation was present and a reasonable officer would have considered the actions lawful given the circumstances

44. Recent Qualified Immunity Cases • Samantha Jones, et al., v. City of Charleston, Civil Action No. 2:11-cv-00612 (March 2012) • Facts: Suspect, after a high speed pursuit, attempted to escape by ramming officers with his vehicle • Officers at the scene opened fire, and tragically, one bullet hit and fatally wounded Officer Jones. • Plaintiff alleged violations of 4th and 14th amendments were committed by City and its officer. • Court dismissed both claims as 4th amendment did not apply and Officer Jones due process rights were not violated • Notably, Court states that whether “it was appropriate for the officer to discharge his weapon without accounting for location of fellow officer…and whether his actions in doing so may have been negligent or reckless are questions that are not before the court.”

45. SAFFORD UNIFIED SCHOOL DISTRICT #1, et al., v. APRIL REDDING, 557 U.S. 364, (2009). • Facts: A 13 year old female Student, suspected of distributing pain meds on school grounds, had her backpack and outer clothing searched by the principal. • Next, the principal sent the student to the school nurse and an assistant, who searched the student’s bra and underwear. • Student’s mother filed suit against school employees alleging 4th Amendment violations. • On appeal to the Supreme Court, the Court determined that while the initial search was valid, the second search was unreasonable and in violation of the student’s 4th Amendment rights.

46. SAFFORD UNIFIED SCHOOL DISTRICT #1, et al., v. APRIL REDDING continued… • The Court stated the content of the suspicion failed to match the degree of intrusion imposed by the second more invasive search. • However, the Court held that “Although the strip search violated [the student’s] 4th Amendment rights, the [principal, nurse, and assistant] are protected from liability by qualified immunity because "clearly established law does not show that the search violated the 4thAmendment."

47. III. State constitutional tort cause of action • Under Hutchison v. City of Huntington, a common law constitutional tort action is allowed West Virginia. • Case law interpreting it is non-existent outside of the Hutchison decision • Requires artful pleading on the part of counsel, virtually all complaints alleging the cause of action set forth the same basic allegations

48. State constitutional tort cause of action • Provisions of the West Virginia Constitution frequently cited in support of the claim are: Article III, Sections 1 (Bill of rights), 5 (Excessive bail not required), 7 (Freedom of speech and press guaranteed), 10 (Safeguards for life, liberty and property), 11 (Political tests condemned) and 20 (Preservation of free government) • Complaints disavow any federal cause of under 42 U.S.C. § 1983 or other federal law • According to complaints alleging constitutional tort causes of action, the ostensible reason for referencing the provisions of the United States Constitution is for the limited purposes of allowing review by the United States Supreme Court

49. Advantages of state constitutional tort cause of action • Plaintiff defeats federal removal by disavowing violations of federal law • Plaintiffs may in certain circumstances circumvent statutory immunities, including the Tort Reform Act • By making Tort Reform Act inapplicable, plaintiff may prosecute a claim for punitive damages and seek vicarious liability of the employer for intentional employee action outside of mere negligence

50. Successfully remanded state constitutional tort cases Remanded Cases • At least 3 cases have been successfully remanded based on lack of federal jurisdiction in state constitutional tort action. • McGhee – mere “possible” questions of federal law is insufficient to confer jurisdiction • Lilly - “plaintiff disclaimed any reliance upon section 1983 ….. and further disavowed any federal basis for his claims • Taylor - attorney’s fees and costs awarded to the plaintiff on remand