No. 13-0037 – West Virginia Jail and Correctional Facility Authority v. A.B.

                                                                            FILED
                                                                     November 18, 2014
                                                                       RORY L. PERRY II, CLERK

                                                                     SUPREME COURT OF APPEALS

                                                                         OF WEST VIRGINIA

Benjamin, Justice, concurring:

             While the result in the majority opinion undoubtedly is less than ideal, I

join the majority opinion because I am convinced that the result is compelled by this

Court’s application of established government immunity concepts to the specific facts of

this case. I write separately to emphasize two points made in the majority opinion.



             First, I wish to emphasize the limited nature of the majority opinion. As the

opinion makes clear, D.H. voluntarily dismissed all West Virginia Constitutional

violations and any Section 1983 claims which left only negligence-based claims for

supervision, training, and retention against the WVRJCFA. This Court’s review is limited

by the pleadings below.



             Second, as noted above, the majority opinion is based on long-standing

concepts of government immunity in West Virginia’s jurisprudence. The Legislature and

the Governor certainly have the authority to enact a statutory scheme regarding the

State’s liability in tort which would mandate a different result in cases like the instant

one. I encourage our sister branches to give consideration to such a change.
             Thus, having concluded that the majority opinion is faithful to the

established law of this Court and West Virginia, I concur.
