        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                               January 2017 Term                          FILED
                                _______________                       January 26, 2016
                                                                          released at 3:00 p.m.
                                  No. 15-0691                           RORY L. PERRY II, CLERK
                                                                      SUPREME COURT OF APPEALS
                                _______________                            OF WEST VIRGINIA


                  WEST VIRGINIA STATE POLICE,

          CORPORAL R.D. ESHBAUGH, CORPORAL Z.L. NINE, and

                  TROOPER FIRST CLASS J.D. SEE,

                     Defendants below, Petitioners


                                        v.

                  VICTORIA HUGHES, individually and as the

                 administratrix of the estate of Walter N. Hughes,

                  KRISTINA ARNTZ, KRISTAL HUGHES, and

                             KRISTIE CANFIELD,

                          Plaintiffs below, Respondents


      ____________________________________________________________

                Appeal from the Circuit Court of Berkeley County

                     The Honorable Gray Silver, III, Judge

                           Civil Action No. 13-C-578


                      REVERSED AND REMANDED

      ____________________________________________________________

                           Submitted: January 10, 2016
                             Filed: January 26, 2016

Michael D. Mullins, Esq.                     Harry P. Waddell, Esq.
Robert L. Bailey, Esq.                       Martinsburg, West Virginia
Steptoe & Johnson PLLC                       Counsel for the Respondents
Charleston, West Virginia
Tracey B. Eberling, Esq.
Steptoe & Johnson PLLC
Martinsburg, West Virginia
Counsel for the Petitioners

JUSTICE KETCHUM delivered the Opinion of the Court.
                            SYLLABUS BY THE COURT

              1.     “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.” Syllabus Point 2, Robinson v. Pack, 223 W.Va. 828, 679

S.E.2d 660 (2009).

              2.     “This Court reviews de novo the denial of a motion for summary

judgment, where such a ruling is properly reviewable by this Court.” Syllabus Point 1,

Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002).

              3.     “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.” Syllabus, in part, Bennett v. Coffman, 178 W.Va. 500, 361 S.E.2d 465 (1987).




                                             i
Justice Ketchum:


              In this appeal from the Circuit Court of Berkeley County, we apply the

doctrine of qualified immunity. The plaintiffs contend that several West Virginia State

Police employees were negligent in their duties.         Under the doctrine of qualified

immunity, state government employees are immune for negligent acts committed in the

exercise of discretion; government employees can be liable only if their actions violate

some clear legal or constitutional right. The doctrine shields officials from harassment,

distraction, and liability when they exercise their discretion within the bounds of the law.

              The record on appeal, even viewed in a light most favorable to the

plaintiffs, indicates that the plaintiffs failed to show how the actions of the State Police

employees violated any clear legal or constitutional right. However, the circuit court

refused to afford the State Police employees qualified immunity. As set forth below, we

reverse the circuit court’s decision and remand the case for entry of summary judgment in

favor of the State Police and its employees based on qualified immunity.




                                    I.

                   FACTUAL AND PROCEDURAL BACKGROUND


              Decedent Walter Hughes and plaintiff Victoria Hughes were married in

1962. It appears that, throughout the marriage, Mr. Hughes repeatedly engaged in extra­

marital affairs. In April 2012, Mrs. Hughes learned that her husband was engaging in




                                             1

another affair. Fearing her husband, because he had a propensity for verbal abuse and

often carried a gun, Mrs. Hughes moved out of the couple’s house.

              On April 13, 2012, two of the Hughes’s daughters (plaintiffs Kristina Arntz

and Kristal Hughes) met with their father at the family’s house to retrieve some of Mrs.

Hughes’s personal items. In the 15 minutes spent in the residence, both women say that

their father became argumentative and brandished a gun, pointing it at Kristina. Mr.

Hughes then pointed the gun at his chest and said, “I’m going to blow my f---g heart

out,” and, “You had better say goodbye to me Kristina. This is the last time you’ll ever

speak to me.” He also said he would be dead by midnight. The two daughters left the

Hughes’s residence and retreated to Kristal’s home across the street.

              Fearing that Mr. Hughes might follow and harm them (or might seek out

Mrs. Hughes and harm her), the two daughters collected their children and drove to the

barracks of the defendant, the West Virginia State Police. They encountered a State

Police office assistant, Barbara Boward, and told her they needed help. The daughters

assert they told the office assistant: (1) that Mr. Hughes was threatening to kill himself,

and (2) that Mr. Hughes had threatened Kristina with a gun, and that she feared for her

life. The office assistant, however, claims the daughters never told her that Mr. Hughes

had threatened Kristina. Regardless, when the office assistant contacted a dispatcher, she

only relayed information that Mr. Hughes had a gun and was threatening to commit

suicide.

              Three State Police troopers (hereafter identified as the “April Troopers”)

were dispatched to the Hughes’s residence at about 12:50 p.m. Mr. Hughes allegedly

                                            2

told the April Troopers that he had been caught cheating on his wife, but he repeatedly

denied planning to kill himself. He admitted to having guns in the house and a pat down

by the April Troopers found he was not carrying a weapon. The April Troopers spoke to

him for about 15 minutes, and concluded that Mr. Hughes was calm and did not appear to

be a threat to himself.

              As the April Troopers left the Hughes’s residence, they spoke to Kristal’s

boyfriend, Todd Jones, who also lived across the street. One of the April Troopers told

the boyfriend they could not detain Mr. Hughes or take his guns because he was not

threatening himself or others. The boyfriend asserts the trooper said, “He is 68 years old,

he can do what he wants.” The trooper told the boyfriend that the family could take the

guns if they could get Mr. Hughes out of the house, and may have suggested the family

could file a mental hygiene petition if they viewed Mr. Hughes as a threat to himself or

others.

              Back at the State Police barracks, the office assistant told the two

daughters, “Everything is okay.” When asked if Mr. Hughes had been taken to a hospital

or otherwise taken into custody, the office assistant said, “No, they said he was fine.”

The daughters left the barracks but, allegedly fearing their father, declined to go back to

the Hughes’s residence.

              At 2:39 p.m., Mr. Hughes sent a text message to Kristina’s phone saying,

“You can tell your mother that she can move back in tomorrow. There is an $82,000

check in her name on the table. I am so sorry this happened, Kristina. I love you.”

Kristina did not respond to the text.

                                            3

              Kristal returned to her home around 7:30 p.m., and she and her boyfriend

saw no lights or movement in the Hughes’s residence across the street. Between 8:00 and

8:30 p.m., the Hughes family phoned the State Police barracks and requested a check on

Mr. Hughes’s welfare. Troopers who responded inspected the residence and found a

typed suicide note, a cashier’s check for $82,000 made out to Mrs. Hughes, some

jewelry, a wallet, and Mr. Hughes’s cellphone. Mr. Hughes, however, was not found. At

the request of the troopers, Kristina filed a missing person report.

              Seven months later, on November 29, 2012, at about 1:10 p.m., the State

Police received a report about a human skull found in an old quarry near the Hughes’s

residence.1   Three troopers2 (hereafter referred to as the “November Troopers”)

responded to the quarry, a 20-plus-acre abandoned shale pit overgrown with foliage and

brush. The State Police aver that the November Troopers searched a 6,000 square foot

area at least three times. Beginning where the skull was found, the November Troopers

located concrete blocks covered by a wood plank that was set up like a seat. There, they

found a tan jacket, a black t-shirt, part of a rib cage, and arm bones. Within fifty feet of




              1
              A document in the record indicates the area where the skull was found is
approximately 630’ away from the Hughes’s residence.
              2
                 The three troopers were defendants R.D. Eshbaugh, Z.L. Nine, and J.D.
See. Trooper Eshbaugh was previously assigned to investigate the missing person report
for Mr. Hughes, and was immediately under the impression the remains could have been
Mr. Hughes. A fourth trooper, J.M. Walker, responded to the scene but was called away
shortly after arriving.


                                              4

the concrete blocks the troopers found shorts, a belt, the top half of a set of dentures, two

femur bones, vertebrae, part of a hip bone, and several other bones.

              The November Troopers photographed, documented, mapped, and bagged

the items found. When the shirt by the concrete blocks was moved, the troopers found a

handgun. Taken together, the evidence indicated Mr. Hughes was sitting on the cement

blocks prior to shooting himself and fell forward and slightly to the left. The plaintiffs

assert that the November Troopers only searched the quarry when they initially arrived.

The November Troopers allege they conducted several searches, and that they remained

on the scene until about 5:00 p.m., when it began to get dark. Thereafter, a trooper

visited the Hughes’s residence, told the family the evidence that was recovered, and said

he thought the remains were those of Mr. Hughes.

              The next day, November 30, 2012, the plaintiffs (and other family

members, including a third Hughes daughter, plaintiff Kristie Canfield) visited the

quarry. Soon after their arrival, they found the bottom half of Mr. Hughes’s dentures,

part of a jaw bone, an arm bone, finger bones, vertebrae, a rib, and pelvic bones. The

family called the medical examiner’s office, and a trooper responded to secure the

remains. The trooper allegedly “dug around more in that area, in that immediate area, to

try and locate anything else that may be behind,” but found nothing else. The bones were

transported to the funeral home.

              On December 3, 2012, the Hughes’s fourth daughter, Kristen (who was

visiting from Germany and is not a plaintiff), went to visit the quarry with the plaintiffs.



                                             5

While there, the family discovered another of Mr. Hughes’s bones. Troopers again

responded, secured the bone and took it to the funeral home.

             Several days later, a family friend searched the quarry using rakes and a

leaf blower. Six to eight feet from the concrete blocks the friend found the shell casing

for the bullet that appears to have killed Mr. Hughes. No other bones were found.

             Despite the searches of the quarry on four different days, a significant

portion of Mr. Hughes’s skeleton was never found. The defendants tactfully suggest that

wildlife may have disturbed the remains in the seven months before they were found.

             On August 12, 2013, the plaintiffs (Mrs. Hughes and three of her four

daughters) filed the instant case against the State Police.3 The plaintiffs asserted two

causes of action against the defendants. First, the plaintiffs claimed the defendants were

liable for the wrongful death of Mr. Hughes. The plaintiffs essentially contended that the

State Police office assistant, Ms. Boward, knew or should have known that Mr. Hughes

had the potential to harm himself or others, and because of her alleged

miscommunication the State Police negligently or recklessly breached a duty to protect

Mr. Hughes and others by failing to take him into custody. Second, the plaintiffs asserted

that the November Troopers negligently or recklessly mishandled the remains of Mr.

Hughes, thereby causing severe mental anguish to the plaintiffs.


             3
               The plaintiffs also brought suit against the three April Troopers and the
three November Troopers. The plaintiffs later consented to the dismissal of the April
Troopers by the circuit court. The plaintiffs conceded that the April Troopers had acted
properly based on the information provided by the office assistant to the dispatcher.


                                            6

              After the parties conducted discovery, the State Police filed a motion for

summary judgment. The State Police argued that the actions of the office assistant who

spoke to Mr. Hughes’s two daughters in April 2012, and the later actions of the

November Troopers who searched the quarry, were discretionary acts protected by the

doctrine of “qualified immunity.” Under the doctrine of qualified immunity, State Police

employees cannot be found liable for merely negligent acts caused in the exercise of

discretion.

              The circuit court, however, determined that the duties of the State Police

employees in this case were not discretionary but rather were ministerial and non­

discretionary. The circuit court further found that the State Police employees had taken

on a “special duty” toward the plaintiffs, and could be liable for negligently breaching

that duty. In an order dated July 13, 2015, because of the many material facts in

question, the circuit court denied the State Police’s motion for summary judgment, and

refused to afford the State Police and its employees qualified immunity. The circuit court

concluded that a jury should weigh the allegedly negligent actions of the State Police

employees.

              The State Police now appeals the circuit court’s interlocutory order

concerning qualified immunity.



                                      II.

                              STANDARD OF REVIEW





                                            7

             “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.”4 “This Court reviews de novo the denial of a motion for

summary judgment, where such a ruling is properly reviewable by this Court.”5



                                         III.

                                      ANALYSIS


             This appeal presents overlapping legal theories concerning governmental

immunity. On the one hand, the State Police asserts that the actions of its employees in

this case were discretionary, and therefore protected by the doctrine of qualified

immunity. On the other hand, the plaintiffs contend the actions of the State Police

employees were non-discretionary, ministerial responsibilities, and are therefore covered

by the “public duty” doctrine. Application of either doctrine reaches the same result, and

permits the government to avoid liability for its negligent actions. The latter doctrine,

however, has an exception that allows the government to be held liable if it assumes a

“special duty” toward an individual. The plaintiffs contend the State Police employees

assumed, and then breached, a special duty toward the plaintiffs.




             4
                 Syllabus Point 2, Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660
(2009).
             5
               Syllabus Point 1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va.
80, 576 S.E.2d 807 (2002).


                                            8

              Under the doctrine of qualified immunity, the discretionary actions of

government agencies, officials and employees performed in an official capacity are

shielded from civil liability so long as the actions do not violate a clearly established law

or constitutional duty. “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.”6

              Furthermore, “[a] public officer is entitled to qualified immunity for

discretionary acts, even if committed negligently.”7 Qualified immunity is broad and

protects “all but the plainly incompetent or those who knowingly violate the law.”8 As

this Court said:

                     4. If a public officer is either authorized or required, in
              the exercise of his judgment and discretion, to make a
              decision and to perform acts in the making of that decision,
              and the decision and acts are within the scope of his duty,
              authority, and jurisdiction, he is not liable for negligence or
              other error in the making of that decision, at the suit of a
              private individual claiming to have been damaged thereby.

              6
                  Syllabus, in part, Bennett v. Coffman, 178 W.Va. 500, 361 S.E.2d 465
(1987). See also Syllabus, in part, State v. Chase Sec., Inc., 188 W.Va. 356, 424 S.E.2d
591 (1992) (“A public executive official who is acting within the scope of his authority . .
. is entitled to qualified immunity from personal liability for official acts if the involved
conduct did not violate clearly established laws of which a reasonable official would have
known.”).
              7
                   Maston v. Wagner, 236 W.Va. 488, 500, 781 S.E.2d 936, 948 (2015).
              8
               Hutchison v. City of Huntington, 198 W.Va. 139, 148, 479 S.E.2d 649,
658 (1996) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).


                                              9

                                            ...

                      6. In the absence of an insurance contract waiving the
               defense, the doctrine of qualified or official immunity bars a
               claim of mere negligence against a State agency not within
               the purview of the West Virginia Governmental Tort Claims
               and Insurance Reform Act, W.Va.Code § 29–12A–1 et seq.,
               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.9

               The State Police contends that the office assistant and the November

Troopers exercised judgment and discretion in their actions. The State Police asserts

there is no question that in April 2012, the office assistant relayed information about Mr.

Hughes to a dispatcher; there is only a dispute about whether the office assistant erred in

the judgment and choices she made in relaying that information. Likewise, the State

Police asserts there is no question that the November Troopers searched the quarry and

photographed, documented, mapped and recovered some of Mr. Hughes’s remains. The

dispute concerns errors in the choices the November Troopers made when they searched

the quarry. The State Police argues that the conduct of its employees, while at worst

negligent, violated no clearly established statutory or constitutional duty toward the

plaintiffs.   Therefore, the exercise of discretion by the State Police employees was

protected by qualified immunity.




               9
                   Syllabus Points 4 and 6, Clark v. Dunn, 195 W.Va. 272, 465 S.E.2d 374
(1995).


                                             10

              The circuit court, however, found that the actions of the State Police

employees were not discretionary, and then applied a different legal theory: the public

duty doctrine. Under the public duty doctrine, a government entity or officer cannot be

held liable for breaching a general, non-discretionary duty owed to the public as a whole.

“Often referred to as the ‘duty to all, duty to no one’ doctrine, the public duty doctrine

provides that since government owes a duty to the public in general, it does not owe a

duty to any individual citizen.”10 For example, under the public duty doctrine, “the duty

to fight fires or to provide police protection runs to all citizens and is to protect the safety

and well-being of the public at large[.]”11 Generally, no private liability attaches when a

fire department or police department fails to provide adequate protection to an individual.

The public duty doctrine is restricted to “liability for nondiscretionary (or ‘ministerial’ or

‘operational’) functions[.]”12

              The exception to the public duty doctrine arises when a “special

relationship” exists between the government entity and a specific individual. “The state

may be liable where it has taken on a special duty to a specific person beyond that




              10
               John Cameron McMillan, Jr., “Government Liability and the Public Duty
Doctrine,” 32 Vill. L. Rev. 505, 509 (1987) (footnotes omitted).
              11
                   Wolfe v. City of Wheeling, 182 W.Va. 253, 256, 387 S.E.2d 307, 310
(1989).
              12
               Parkulo v. W.Va. Bd. of Prob. & Parole, 199 W.Va. 161, 174, 483 S.E.2d
507, 520 (1996) (quoting Randall v. Fairmont City Police Dep’t, 186 W.Va. 336, 346,
412 S.E.2d 737, 747 (1991)).


                                              11

extended to the general public.”13 In determining whether a “special relationship” or

“special duty” exists, a plaintiff must prove four factors:

              (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.14

                 “Qualified immunity is, quite simply, immunity from suit. The public

duty doctrine is a defense to negligence-based liability, i.e. an absence of duty.”15 A

government entity can assert qualified immunity when a government official’s duties

“derive from discretionary ‘judgments, decisions, and actions[.]’”16 The government

entity can interpose the public duty doctrine as a defense when it perceives a plaintiff is

attempting to hold the entity liable for breach of a non-discretionary duty owed to the

general public.17 When a duty owed to the general public is at issue, a plaintiff may then


              13
                   Barry A. Lindahl, 2 Modern Tort Law: Liability and Litigation § 16:20
(2d ed. 2008).
              14
              Syllabus Point 12, Parkulo v. West Virginia Bd. of Probation and Parole,
199 W.Va. 161, 483 S.E.2d 507 (1996).
              15
               W.Va. Dep’t of Health & Human Res. v. Payne, 231 W.Va. 563, 568, 746
S.E.2d 554, 559 (2013).
              16
                   Id., 231 W.Va. at 572, 746 S.E.2d at 563.
              17
                We recognize that our prior caselaw analyzing and applying the qualified
immunity doctrine and the public duty doctrine “has created a patchwork of holdings” in
which there is an “absence of harmony.” Payne, 231 W.Va. at 571, 746 S.E.2d at 562.


                                              12

respond with proof that the government entity adopted a special duty toward that specific

plaintiff.

              In the instant case, the circuit court ruled that the State Police was not

entitled to qualified immunity because the actions of its employees did not involve

discretion. The circuit court ruled that the plaintiffs’ case involved non-discretionary

general duties owed to the general public. The circuit court therefore applied the public

duty doctrine and found questions of fact existed regarding whether the plaintiffs could

establish that a “special relationship” existed. The circuit court determined that the office

assistant could not exercise discretion in her job, and that she had a ministerial duty to

transmit any information she received to a dispatcher.          Likewise, the circuit court

determined that the November Troopers had a ministerial, non-discretionary duty to

search the quarry, and equated the failure to find all of Mr. Hughes’s remains with a

failure to search.

              After careful examination of the record, we reject the circuit court’s

characterization of the actions of the State Police employees. The actions of the office

assistant and of the November Troopers clearly involved the exercise of discretion. The

plaintiffs are alleging that the State Police employees were negligent in their exercise of

that discretion, and have introduced no evidence to support a finding these actions

violated a clear legal or constitutional right. On this record, we find that the State Police

and its employees are entitled to qualified immunity.

              First, as to the office assistant, the plaintiffs have not directed us to any

constitutional provision, statute, case, regulation, or any other law requiring a State Police

                                             13

office assistant to transmit any particular information to a dispatcher.18       The office

assistant was tasked to help individuals who came into the State Police barracks, and the

evidence indicates that the office assistant did just that and spoke with Kristina and

Kristal. We cannot know precisely what the two plaintiffs said to the office assistant, or

how quickly and clearly it was said, and we likewise cannot know precisely what the

office assistant said or heard.     As Kristal said in her deposition, “[W]e were both

hysterical, telling the dispatcher we needed help.” What we do know is that the office

assistant exercised some form of discretion, collated and translated the information that

Kristina and Kristal presented, and passed that information to a dispatcher. In the office

assistant’s exercise of discretion, “[s]he is not liable for negligence or other error in the

making of that decision, at the suit of a private individual claiming to have been damaged

thereby.”19 The circuit court should therefore have granted qualified immunity to the

State Police for the actions of the office assistant.



              18
                 There is likewise no authority declaring that the State Police had a non­
discretionary duty to arrest Mr. Hughes for threatening his daughter Kristina. We can
find no constitutional, statutory, or common-law right for a person to be arrested to
prevent the person’s potential later suicide. See Hoffa v. United States, 385 U.S. 293, 310
(1966) (“There is no constitutional right to be arrested.”); State v. Steadman, 827 So.2d
1022, 1025 (Fla. Ct. App. 2002) (noting that “a defendant does not have a right to be
arrested in order to be prevented from committing further crimes”); State v. Monaco, 83
P.3d 553, 558 (Ariz. Ct. App. 2004) (There is no right to be arrested. “The decision of
when to arrest a person is not mandated by statute; the government must be permitted to
exercise its own judgment in determining at what point in an investigation enough
evidence has been obtained.” (Quotation omitted)).
              19
                   Syllabus Point 4, Clark v. Dunn, 195 W.Va. at 273, 465 S.E.2d at 375.


                                              14

              Second, as to the November Troopers’ search of the quarry, the plaintiffs

have not directed us to any constitutional provision, statute, case, regulation, or any other

law governing the length of time or the method by which a State Police trooper must

search a potential crime scene.      The record clearly establishes that the November

Troopers searched the quarry, and in that search found and recovered some of Mr.

Hughes’s remains. The November Troopers halted their search in the overgrown quarry

after nearly four hours as darkness fell. Exercising their judgment and discretion, the

November Troopers decided not to resume the search the next day and decided to apply

State Police resources to other tasks. As with the office assistant, the November Troopers

are not liable for negligence or other error in their decisions. The circuit court should

therefore have granted qualified immunity to the State Police for the actions of the

November Troopers.20


                                         IV.

                                     CONCLUSION



              20
                 The State Police also challenges the plaintiffs’ assertion of a cause of
action for “mishandling” Mr. Hughes’s remains. This Court has recognized “[a] cause of
action exists for negligently or intentionally mishandling or losing a dead body, even
when its disinterment and reinterment are authorized.” Syllabus Point 2, Whitehair v.
Highland Memory Gardens, Inc., 174 W.Va. 458, 327 S.E.2d 438 (1985). In this case,
the plaintiffs do not assert that the State Police mishandled or lost a dead body; they
assert the November Troopers were negligent in failing to discover the entirety of the
decedent’s bodily remains during their initial search of the quarry. On this record, we
decline to weigh whether the plaintiffs asserted a proper claim because we find the
discretionary actions of the November Troopers were protected by qualified immunity.




                                             15

              The State Police is entitled to qualified immunity to protect the

discretionary actions of its employees. The circuit court erred in holding otherwise.

              Accordingly, the circuit court’s July 13, 2015, order denying summary

judgment and denying qualified immunity to the State Police and its employees is

reversed. The case is remanded for entry of summary judgment in favor of the State

Police and its employees, and for any further proceedings consistent with this opinion.

                                                                  Reversed and remanded.




                                            16

