Brent E. Beveridge, Esquire
Daniel C. Cooper, Esquire
Beveridge Law Offices Robert E. Gifford, Esquire
Fairmont, West Virginia Steptoe & Johnson
Attorney for Appellants Clarksburg, West Virginia
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE SCOTT did not participate in the decision in this case.
JUDGE GARY L. JOHNSON, sitting by temporary assignment.
CHIEF JUSTICE STARCHER and JUSTICE McGRAW dissent, and reserve
the right to file dissenting opinions.
1. A motion for summary judgment should be granted only when it is
clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not
desirable to clarify the application of the law. Syl. pt. 3, Aetna Casualty & Surety Co. v.
Federal Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963).
2. 'The general rule of construction in governmental tort legislation cases
favors liability, not immunity. Unless the legislature has clearly provided for immunity
under the circumstances, the general common-law goal of compensating injured parties for
damages caused by negligent acts must prevail.' Syllabus Point 2, Marlin v. Bill Rich Const.,
Inc., 198 W. Va. 635, 482 S.E.2d 620 (1996). Syl. pt. 1, Brooks v. City of Weirton, 202 W.
Va. 246, 503 S.E.2d 814 (1998).
3. West Virginia Code § 29-12A-5(b) provides that employees of political
subdivisions are immune from personal tort liability unless '(1) [h]is or her acts or omissions
were manifestly outside the scope of employment or official responsibilities; (2) [h]is or her
acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless
manner; or (3) [l]iability is expressly imposed upon the employee by a provision of this
code.' Syl. pt. Beckley v. Crabtree, 189 W. Va. 94, 428 S.E.2d 317 (1993).
Appellants and plaintiffs below Gerald L. Reed, an injured telephone company
worker, and his wife Debra L. Reed, appeal a grant of summary judgment against them and
in favor of appellee and defendant below John L. Bord, in an action the Reeds filed for
injuries Mr. Reed sustained when installing a phone line in Mr. Bord's office. Because we
find that no genuine issue of material fact existed as to Mr. Bord's liability for the injuries,
we affirm the trial court's grant of summary judgment.
Mr. Bord arranged the space in the offices of Bord and Bord so that he could
maintain a separate office, or room, in which he conducted his prosecutorial duties, within
the larger space owned or rented by Bord and Bord. Mr. Bord used this separate, segregated
office to store files, meet with witnesses, and prepare for trials in conjunction with his duties
as assistant prosecuting attorney.
Although this arrangement suited the budgetary constraints of both the
Commission and Mr. Bord, in the fall of 1995, it became apparent that various county
employees who needed to communicate with Assistant Prosecutor Bord found it difficult to
contact him. In order to facilitate more reliable communications between Mr. Bord and the
courthouse, the Commission decided to have an additional telephone line installed in Mr.
Bord's separate prosecutor's office. The Commission requested Bell Atlantic, the local
telephone company, to perform this work.
Appellant Gerald L. Reed was employed by Bell Atlantic as a telephone
lineman. At the direction of his employer, Mr. Reed visited the offices of Bord and Bord on
November 28, 1995 to install the additional line in the separate prosecutor's office. While
working on the installation, Mr. Reed stepped on a set of automobile springs that were
resting on the floor of the office, fell, and injured himself. Mr. Reed subsequently filed a
successful Workers' Compensation claim for his injuries, and received payment for his
medical expenses and a period of temporary total disability.
On November 26, 1997, Mr. Reed, and his wife, Debra L. Reed, filed suit
against Mr. Bord, doing business as Bord and Bord, for the injuries Mr. Reed sustained in
his accident, on the theory that Mr. Bord's placement of the automobile springs was
negligent, and that this negligence was the cause of Mr. Reed's injuries.
Mr. Bord argued in his defense that he, Mr. Bord, was acting as an employee
of the Commission at the time of Mr. Reed's injuries, and that W. Va. Code § 29-12A-5(b)
provided him with immunity from suit. Mr. Bord also argued that W. Va. Code § 29-12A-
5(a)(11) provides political subdivisions with immunity for any claim that is also covered by
Workers' Compensation, and thus, because he was acting as an employee of the
Commission, that immunity should extend to him as well.
On October 23, 1998, the Circuit Court of Taylor County granted summary judgment in favor of Mr. Bord. The court found that Mr. Bord was acting in his capacity as an assistant prosecuting attorney, and thus as an employee of the Commission, at the time of the injury to Mr. Reed; that Mr. Reed was eligible to collect and did collect Workers' Compensation benefits as a result of his injuries; that W. Va. Code § 29-12A-5(a)(11) provided immunity from suit for the Commission for injuries that result from a claim covered by any Workers' Compensation law; and that under W. Va. Code § 29-12A-5(b), Mr. Bord was immune from liability in this action.
Syl. pt. 1, Brooks v. City of Weirton, 202 W. Va. 246, 503 S.E.2d 814 (1998). However, that
need not dissuade us from finding immunity when the facts of a case demand.
We also note that, although both the appellee and the lower court make
reference to Mr. Reed's award of Workers' Compensation benefits and how that award may
affect the Commission's liability, we need not address that line of argument to reach our
decision in this case. We decline for the somewhat conspicuous reason that the plaintiff
below never sued the Commission. Thus the effect of a Workers' Compensation award upon
the liability of a political subdivision is irrelevant to us in the instant matter.
Essentially this case turns upon the application of W. Va. Code § 29-12A-1 et
seq., also known as The Governmental Tort Claims and Insurance Reform Act, or more
concisely, The Tort Claims Act. Of specific concern to us in this case is W. Va. Code
§ 29-12A-5(b), which governs the liability of employees of a political subdivision, such as
the County Commission of Taylor County. We previously have summarized the relevant
portion of the statute:
West Virginia Code § 29-12A-5(b) provides that employees of political subdivisions are immune from personal tort liability unless (1) [h]is or her acts or omissions were manifestly outside the scope of employment or official responsibilities; (2) [h]is or her acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; or (3) [l]iability is expressly imposed upon the employee by a provision of this code.
Syl. pt. Beckley v. Crabtree, 189 W. Va. 94, 428 S.E.2d 317 (1993).See footnote 1
Thus our analysis is
fairly straightforward: provided that we may accurately characterize Mr. Bord as an
employee of a political subdivision, he is immune from personal tort liability unless his
actions fall within one of the three statutory exceptions.
The drafters of the Tort Claims Act have provided us with a definition of the
Employee means an officer, agent, employee, or servant, whether compensated or not, whether full-time or not, who is authorized to act and is acting within the scope of his or her employment for a political subdivision. Employee includes any elected or appointed official of a political subdivision.
Employee does not include an independent contractor of a
W. Va. Code § 29-12A-3(a)(1986).
It is clear from the record that the Commission permitted Mr. Bord to perform
many of his prosecutorial duties in the separate office he established. It is equally clear that
the Commission determined the need for the additional line, agreed to pay for the line, and
ordered its installation by Bell Atlantic. Thus it is apparent that Mr. Bord was authorized
to act and [was] acting within the scope of his . . . employment when Mr. Reed visited the
office to install the line.
Having found that Mr. Bord was an employee, and that he was acting within
the scope of employment, we still must exhaust the statutory exceptions to immunity
contained in W. Va. Code § 29-12A-5(b). We were faced with a similar analysis in the
Crabtree case, 189 W. Va. 94, 428 S.E.2d 317 (1993), where we considered whether a
Sheriff, who accidentally shot and injured another officer while on duty, could be found
personally liable for the resulting injury. In that case we noted:
None of the three exceptions in W. Va. Code § 29-12A-5(b) which would impose personal liability upon the sheriff are applicable in this case. The sheriff's actions in effectuating the arrest of a criminal suspect were clearly within the scope of his employment. Moreover, there is no indication that the sheriff committed any acts with malicious purpose, in bad faith, or in a wanton or reckless manner. No other statutory provision would impose liability upon Sheriff Crabtree.
Beckley v. Crabtree, 189 W. Va. 94, 96, 428 S.E.2d 317, 319 (1993). Our conclusion today
is similar. Nothing in the record suggests that Mr. Bord acted with malice, in bad faith,
wantonly or recklessly toward Mr. Reed. No separate statutory provision exists that would
strip Mr. Bord of his immunity. In short, Mr. Bord, as an employee of the Commission, is
immune from any liability for Mr. Reed's accident, and the lower court's grant of summary
judgment was appropriate.
Footnote: 1 1The complete text of the subsection reads:
W. Va. Code § 29-12A-5(b)(1986).