IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1998 Term
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No. 25052
__________
BOBBY Z. JEFFREY, AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF KAREN JEAN JEFFREY,
Plaintiff Below, Appellant,
v.
WEST VIRGINIA DEPARTMENT OF PUBLIC SAFETY,
DIVISION OF CORRECTIONS; DONALD ERVIN,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY
AS DIRECTOR OF THE CHARLESTON WORK RELEASE
CENTER; DEBBIE COTTRELL, INDIVIDUALLY AND
IN HER OFFICIAL CAPACITY AS A COUNSELOR AT
THE HUTTONSVILLE CORRECTIONAL FACILITY,
BILLY JOE HOTTLE AND CRAIG S. SWICK,
Defendants Below, Appellees.
__________________________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Irene C. Berger, Judge
Civil Action No. 95-C-3022
AFFIRMED
__________________________________________________________________
Submitted: September 15, 1998
Filed: December 11, 1998
Daniel R. James
F. Cody Pancake, III
Barr & James
Keyser, West Virginia
P. Rodney Jackson
Lonnie C. Simmons
Charleston, West Virginia
Attorneys for the Appellant
David P. Cleek
Dwayne J. Adkins
Shuman, Annand & Poe
Charleston, West Virginia
Attorneys for West Virginia Department of Public Safety,
Division of Corrections, Donald Ervin and Debbie Cottrell
Timothy M. Sirk
Keyser, West Virginia
Guardian Ad Litem for Billy Joe Hottle
Lary D. Garrett
Garrett & Garrett
Moorefield, West Virginia
Guardian Ad Litem for Craig S. Swick
________________________________________________________________________
AND
________________________________________________________________________
_________
No. 25173
__________
HOOVER MILLER, ADMINISTRATOR AND
PERSONAL REPRESENTATIVE OF THE
ESTATE OF LEON F. MILLER, DECEASED,
Plaintiff Below, Appellant,
v.
STATE OF WEST VIRGINIA, DIVISION OF
CORRECTIONS, NICHOLAS J. HUN, COMMISSIONER,
DIVISION OF CORRECTIONS; LARY M. GARRETT,
GUARDIAN AD LITEM OF CRAIG S. SWICK; AND
TIMOTHY M. SIRK, GUARDIAN AD LITEM OF
BILLY JOE HOTTLE,
Defendants Below, Appellees.
__________________________________________________________________
Appeal from the Circuit Court of Grant County
Honorable Andrew Frye, Jr., Judge
Civil Action No. 94-C-30
AFFIRMED
__________________________________________________________________
Submitted: September 15, 1998
Filed: December 11, 1998
Daniel C. Staggers
Staggers & Staggers
Martinsburg, West Virginia
John W. Cooper
Cooper & Preston
Parsons, West Virginia
Attorneys for Appellant
Daniel C. Cooper
Steptoe & Johnson
Clarksburg, West Virginia
Attorney for State of West Virginia,
Division of Corrections
Timothy M. Sirk
Keyser, West Virginia
Guardian Ad Litem for Billy Joe Hottle
Lary D. Garrett
Garrett & Garrett
Moorefield, West Virginia
Guardian Ad Litem for Craig S. Swick
The Opinion of the Court was delivered Per Curiam.
JUSTICE MCGRAW did not participate in the decision of this case.
SYLLABUS BY THE COURT
1. "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." Syllabus Point 12, Parkulo v. West
Virginia Board of Probation and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996).
2. "The public duty
doctrine and its 'special relationship' exception apply to W.Va. Code § 29-12-5 actions
against the State and its instrumentalities, unless the doctrine is expressly waived or
altered by the terms of the applicable insurance contract." Syllabus Point 10, Parkulo
v. West Virginia Board of Probation and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996).
Per Curiam:
These two cases involve essentially the same question, that is,
whether the appellants, whose decedents were murdered as a result of the potential
negligence of the appellees, may maintain actions against the appellees, in spite of the
fact that the appellees were agents, officers, or employees of the State of West Virginia,
and were acting in official capacities at the time of their potential negligence. The
circuit courts concluded that the appellants could not maintain the actions because of the
"Public Duty Doctrine." Consequently, the circuit courts dismissed the actions.
FACTUAL BACKGROUND
These cases are related to, and are a sequel to this Court's
decision in Jeffrey v. West Virginia Department of Public Safety, Division of
Corrections, 198 W.Va. 609, 482 S.E.2d 226 (1997) (hereinafter referred to as Jeffrey
I). As was explained in Jeffrey I, Billie Joe Hottle and Craig Swick had been
convicted of grand larceny. They had been committed to the care and custody of the
appellee, West Virginia Department of Public Safety, Division of Corrections. Mr. Hottle
had been confined in the Huttonsville Correctional Center. Mr. Swick, who was Mr. Hottle's
first cousin, had been committed to the Charleston Work Release Center. While confined in
the Huttonsville Correctional Center, Mr. Hottle corresponded with Mr. Swick. They had
plotted revenge and had drafted a document entitled
"Global Federation Operations Manual for the Operation Strike"
in which Mr. Hottle detailed plans for killing and injuring certain people, destroying
property, and engaging in other illegal activities. This document came to the attention of
certain officials of the Department of Public Safety. Parts of the document were
subsequently shredded by an employee of the Department of Public Safety.
On August 5, 1993, Mr. Hottle escaped from
Huttonsville Correctional Center. While he was still loose, despite the fact that the
Department of Public Safety was aware of his escape, and despite concerns that Mr. Swick
might attempt to contact him, Mr. Swick was given a pass from the Charleston Work Release
Center on August 15, 1993. Mr. Swick, then did, in fact, contact Mr. Hottle. The two of
them subsequently murdered the appellants' decedents, Karen Jean Jeffrey and Leon F.
Miller.
After the murders, Mrs. Jeffrey's husband, the
appellant, Bobby Z. Jeffrey, and Mr. Miller's administrator, brought wrongful death
actions against the West Virginia Department of Public Safety, Division of Corrections,
and the other appellees. In their complaints, they claimed that the West Virginia
Department of Public Safety and the other appellees owed Mrs. Jeffrey and Mr. Miller a
special duty to exercise reasonable care in controlling Mr. Hottle and Mr. Swick. The
complaint also alleged that they had breached that duty. The Circuit Court of Kanawha
County and the Circuit Court of Grant County dismissed the actions on the ground that
appellants were precluded from prosecuting them by the "Public Duty Doctrine."
As we explained in Parkulo v. West Virginia
Board of Probation and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996), the "Public
Duty Doctrine" is a doctrine which, independent of the constitutional doctrine of
governmental immunity, holds in its common law form, that ordinarily a recovery for
negligence may be had against the State or governmental agent, officer, or employee,
acting in a non-fraudulent, non-malicious, or non- oppressive manner, only if the duty
which was negligently breached was owed to the particular person seeking recovery. In Parkulo
the Court also recognized that the Legislature has implicitly altered the common law form
"Public Duty Doctrine" by authorizing the State to purchase insurance to cover
certain actions that otherwise would be precluded by the doctrine and by authorizing the
State, in the procuring of such insurance, to waive or alter the "Public Duty
Doctrine."
After the Circuit Court of Kanawha County
dismissed Jeffrey I, we, on appeal, found that Mr. Jeffrey was, in fact, precluded
from maintaining his action by the "Public Duty Doctrine" unless he could show
that the doctrine was waived under the insurance exception discussed in Parkulo.
The Court noted that the question of insurance coverage had not been developed before the
circuit court. Consequently, the Court remanded the case for an inquiry into the possible
existence of applicable insurance coverage. The Court stated: "If the State has not
procured insurance indicating such coverage, the public duty doctrine serves as a bar to
the Appellant's suit. If the State's insurance does provide coverage, the action may
proceed, and liability will be limited only by the limits of insurance coverage." Jeffrey
I, 198 W.Va. at 615, 482 S.E.2d at 232.
Upon remand, the circuit court, after conducting a
hearing, concluded that the acts alleged in the Jeffrey I complaint were covered by
the State's insurance. The circuit court also noted that, since the State's insurance
policy specifically did not waive "any statutory or common law immunity," the
case had to be dismissed on that additional ground.
It is from that ruling, and a like ruling in the Miller
case, that the appellants now appeal.
DISCUSSION
As has been previously explained, the "Public Duty
Doctrine" is of common law origin. In its common law form, it precludes the
maintaining of an action against a governmental agency or officer unless a "special
relationship" exists between the State and the party injured. In Syllabus Point 12 of
Parkulo v. West Virginia Probation and Parole, supra, the Court, in
some detail, outlined what must be shown for a "special relationship" to exist
and to avoid the effect of the "Public Duty Doctrine." The Court said:
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.
The common law form of the "Public Duty
Doctrine" has been modified by the Legislature so that the doctrine does not preclude
a negligence action where there is State insurance which expressly waives or alters the
doctrine. Relating to this, we stated in Syllabus Point 10 of Parkulo:
The public duty doctrine and its "special relationship" exception apply to W.Va.
Code § 29-12-5 actions against the State and its instrumentalities, unless the doctrine
is expressly waived or altered by the terms of the applicable insurance contract.
After the appellant, Bobby Z. Jeffrey, as Personal Representative of the Estate of Karen Jean Jeffrey, filed the complaint instituting the first of the two cases involved in this appeal, the circuit court dismissed the action on the ground that it could not be maintained because of the "Public Duty Doctrine." In the opinion resolving the appeal in Jeffrey I, we said: "[I]n the present case, absent some special relationship between Corrections and Karen
Jeffrey, the public duty doctrine precludes the suit . . . ." We also
said, "[I]n the present case, there is no indication that Corrections had any
indication that escape of any inmate could result in harm specifically to Karen
Jeffrey." Jeffrey I, 198 W.Va. at 614, 482 S.E.2d at 231. In effect, we
found that the facts did not establish the "special relationship" discussed in
Syllabus Point 2 of Parkulo v. West Virginia Board of Probation and Parole, supra.
In the Jeffrey I appeal, however, we could
not determine whether there was State insurance which waived or altered the "Public
Duty Doctrine." We, therefore, stated:
We recognized in Parkulo that the public duty doctrine could be waived or altered
by the terms of the State's applicable insurance contract. 1997 WL 426201, ___ W.Va. at
____, 483 S.E.2d at 524. In syllabus point two of Pittsburgh Elevator Co. v. West
Virginia Board of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983), we explained that
"[s]uits which seek no recovery from state funds, but rather allege that recovery is
sought under and up to the limits of the State's liability insurance coverage, fall
outside the traditional constitutional bar to suits against the State." We therefore
remanded the matter in Parkulo to determine the precise parameters of the insurance
contract, and we further instructed the lower court to permit the action to proceed if
applicable insurance policies afforded coverage with respect to the claims asserted. 199
W.Va. at 180, 483 S.E.2d at 526.
Jeffrey I, 198 W.Va. at 615, 482 S.E.2d at 232.
We remanded Jeffrey I with directions that the circuit court determine if there was State insurance coverage which waived or altered the "Public Duty Doctrine."
Upon remand, the circuit court concluded that there was no such
insurance coverage. As a consequence, the circuit court concluded that appellant Jeffrey
was precluded from maintaining his action because of the "Public Duty Doctrine."
The Court reached the same conclusion in the appellant Miller's action.
In examining the documents in these cases, we
conclude that the circuit courts were correct. The State's insurance contract does not
expressly waive or alter the "Public Duty Doctrine." To the contrary, the
State's insurance contract contains the following language: "It is a condition
precedent of coverage under the policies that the additional insured does not waive any
statutory or common law immunity conferred upon it."
As indicated in Jeffrey I, the record does
not suggest that the State owed a special duty to Mrs. Jeffrey. Nor can we find that it
was owed in the Miller case. Consequently, the "special relationship"
provision of the "Public Duty Doctrine," does not apply. Further, the State's
insurance coverage does not expressly waive or alter the "Public Duty Doctrine."
As a consequence, the "Public Duty Doctrine" cannot be avoided under the
"insurance exception." In light of these circumstances, Parkulo v. West
Virginia Board of Probation and Parole, supra, dictates that the "Public Duty
Doctrine" preclude the appellants from maintaining their actions. Therefore, the
circuit courts correctly dismissed the action.
The Court notes that the appellants argue that
section 319 of the Restatement (Second) of Torts creates a special duty for a public
officer to control convicts such as Hottle and Swick. In effect, they claim that the
Restatement provisions create a "special relationship" sufficient to eliminate
the effect of the "Public Duty Doctrine" under the "special relationship
exception." They further appear to argue that we should alter or supplement the
requirements of Syllabus Point 12 of Parkulo v. West Virginia Board of Probation and
Parole, supra, to hold that if the circumstance set forth in the Restatement exists,
then a "special relationship" exists under our law. Restatement 319 provides
that:
One who takes charge of a third person whom he knows or should know to be likely to cause
bodily harm to others if not controlled is under a duty to exercise reasonable care to
control the third person to prevent him from doing such harm.
In Jeffrey I, we stated:
Section 319 establishes a duty. Assuming breach of that duty, there is negligence.
Having established negligence, however, liability does not automatically
ensue. The public duty doctrine does not state that the entity cannot be deemed negligent;
it simply states that the entity cannot be held liable. Even if Section 319
establishes negligence, the public duty doctrine precludes liability for such negligence;
thus, Section 319 is of no assistance to the Appellant in furthering his claim.
Jeffrey I, 198W.Va. at 615, 482 S.E.2d at 232.
We believe Jeffrey I and Parkulo to
be accurate. We find unpersuasive the argument of appellants that Restatement 319 somehow
alters or amends the "special relationship" requirements. In the present cases,
the "Public Duty Doctrine," applies and precludes the appellants from
maintaining their actions. The requirements of the "special relationship"
exception have been clearly set out in Syllabus Point 12 of Parkulo v. Board of
Probation and Parole, supra. Therefore, we decline to alter Parkulo.
For the reasons stated, the judgments of the
Circuit Court of Kanawha County and the Circuit Court of Grant County are affirmed.
Affirmed.