                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


West Virginia Division of Corrections, an                                         FILED
Agency of the State of West Virginia                                           April 10, 2015
Defendant Below, Petitioner                                                  RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
vs) No. 14-0368 (Kanawha County 10-C-830)

Tracy Jividen,

Plaintiff Below, Respondent



                              MEMORANDUM DECISION
         Petitioner West Virginia Division of Corrections (“WVDOC”) by counsel Lou Ann
Cyrus and Kimberly M. Bandy, filed an interlocutory appeal of the January 31, 2014, order of
the Circuit Court of Kanawha County that denied, in part, petitioner’s Motion for Summary
Judgment on the grounds of qualified immunity with respect to the negligence claims asserted
against it. Respondent Tracy Jividen, by counsel Kerry A. Nessel, filed a response. Petitioner
filed a reply and supplemental brief.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the Court finds that the circuit
court erred in denying petitioner’s motion for summary judgment. This case satisfies the “limited
circumstances” requirement of Rule 21(d) of the Revised Rules of Appellate Procedure and is
appropriate for a memorandum decision rather than an opinion.

       David Rees began working for the WVDOC in April of 2003. He was shortly afterward
promoted to sergeant, and lieutenant. Lt. Rees attended the WVDOC Training Academy for six
weeks, and one week of firearm training. He also received extensive on-sight training.
Respondent alleges that between 2005 and 2007, while she was an inmate on the night crew and
Lt. Rees was employed at Lakin Correctional Center, Lt. Rees repeatedly made inappropriate
sexual comments to her. She also claims that she engaged in oral sex with Lt. Rees, at his
request, approximately ten times from 2007 to 2008. Respondent further alleged that Lt. Rees
watched her and other inmates while engaged in sexual situations between May and August of
2008.

        On May 5, 2010, respondent filed a complaint in the Circuit Court of Kanawha County
alleging, among other claims, that the WVDOC negligently supervised and retained Lt. Rees and
negligently failed to intervene on respondent’s behalf, which proximately caused Lt. Rees to
engage in sexual misconduct with respondent. The WVDOC filed an answer, denying all
negligence allegations on July 22, 2010, and after conducting discovery, filed a motion for
summary judgment on November 14, 2011. On December 5, 2011, a hearing was held on the

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WVDOC’s motion. In an order entered January 31, 2014, the circuit court granted, in part, and
denied, in part, the WVDOC’s motion. The circuit court found that “a genuine question of fact
exists as to the [respondent]’s theories of negligent supervision, retention and failure to intervene
because it believes that inferences can be drawn in support of each.” The circuit court
specifically rejected the WVDOC’s argument that it was entitled to qualified immunity on the
negligence claims asserted.

        The WVDOC now appeals the circuit court’s January 31, 2014, order that denied its
Motion for Summary Judgment on respondent’s negligence claims1. The WVDOC asserts that
the circuit court erred when it denied its motion because it is entitled to qualified immunity as a
matter of law.

       This Court’s review of the circuit court order is de novo. Syl. Pt. 1, Painter v. Peavy, 192
W.Va. 189, 451 S.E.2d 755 (1994). This Court has further explained that “[w]hen undertaking
our plenary review, we apply the same standard for granting summary judgment as would be
applied by a circuit court.” Subcarrier Commc'ns, Inc. v. Nield, 218 W.Va. 292, 296, 624 S.E.2d
729, 733 (2005). Accordingly, we observe that,

                “‘[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.’ Syllabus Point 3, Aetna
       Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160,
       133 S.E.2d 770 (1963)” Syllabus Point 1, Andrick v. Town of Buckhannon, 187
       W.Va. 706, 421 S.E.2d 247 (1992).

Syl. Pt. 2, Painter, 192 W.Va. at 190, 451 S.E.2d at 756. Finally, we note that “[t]he circuit
court’s function at the summary judgment stage is not to weigh the evidence and determine the
truth of the matter, but is to determine whether there is a genuine issue for trial.” Syl. Pt. 3, id.
With these standards in mind we address petitioner’s assignment of error.

        The WVDOC argues that the circuit court’s reason for denying summary judgment on the
defense of qualified immunity is clearly erroneous and is flawed in several major respects. First,
the circuit court’s vague and conclusory statement that “questions of fact exist” is insufficient to
support its ruling and further fails to comply with the mandate of this Court in W.Va. Dep’t of
Health and Human Res. v. Payne, 231 W.Va. 563, 746 S.E.2d 554 (2013)2. Next, the WVDOC



       1
        The WVDOC also appeals the March 19, 2014, order that denied petitioner’s Motion to
Alter or Amend Judgment. We decline to address that order as moot for the reasons described
herein.
       2
           The circuit court found with respect to the negligence claims:

       The Court finds and concludes that questions of fact exist as to whether the
       WVDOC negligently supervised and retained David Rees, and whether the
       WVDOC negligently failed to intervene on the Plaintiff’s behalf, such that the
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contends that the circuit court improperly relied upon its finding of negligence in making its
ruling, and that negligence is not a sufficient legal basis to deny qualified immunity. The
WVDOC further asserts that the circuit court’s rationale for denying summary judgment is
unclear, and that there is no basis in the record sufficient to support the circuit court’s decision.3
Finally, the WVDOC argues that the correct analysis regarding the application of qualified
immunity to negligence claims is set forth in Syllabus Point 10 of W.Va. Reg’l Jail and Corr.
Facility Auth. v. A.B., ___ W.Va. ____, 766 S.E.2d 751 (2014), which held as follows:

               To determine whether the State, its agencies, officials, and/or employees
       are entitled to immunity, a reviewing court must first identify the nature of the
       governmental acts or omissions which give rise to the suit for purposes of
       determining whether such acts or omissions constitute legislative, judicial,
       executive or administrative policy-making acts or involve otherwise discretionary
       governmental functions. To the extent that the cause of action arises from judicial,
       legislative, executive or administrative policy-making acts or omissions, both the
       State and the official involved are absolutely immune pursuant to Syl. Pt. 7 of
       Parkulo v. W. Va. Bd. of Probation and Parole, 199 W.Va. 161, 483 S.E.2d 507
       (1996).

        The WVDOC asserts that, under A.B., the categories of supervision and employee
retention fall under the auspices of discretionary governmental functions, and that the failure to
intervene to address or alter the conduct of a correctional officer should also be considered a
discretionary governmental function. With respect to the claim of negligent failure to intervene,
given that respondent did not report the alleged sexual misconduct prior to filing suit, the
WVDOC argues that a claim for “failure to intervene” cannot arise in the absence of a report or
other knowledge or awareness of conduct.

        We agree with the WVDOC that the circuit court erred by finding that “questions of fact
exist” which require the denial of petitioner’s motion for summary judgment. “[T]he doctrine of
qualified or official immunity bars a claim of mere negligence against a State agency . . . and


       WVDOC’s argument that qualified immunity shields the WVDOC from the
       Plaintiff’s claim should be denied.
       3
         We find that the order of the circuit court fails to provide the requisite, factual detail in
support of its decision to deny summary judgment.

               “A circuit court’s order denying summary judgment on qualified
       immunity grounds on the basis of disputed issues of material fact must contain
       sufficient detail to permit meaningful appellate review. In particular, the court
       must identify those material facts which are disputed by competent evidence and
       must provide a description of the competing evidence or inferences therefrom
       giving rise to the dispute which preclude summary disposition.”

Syl. Pt. 4, Payne. In spite of this, we find our de novo review of the record allows this Court to
review the order without further elaboration from the circuit court.
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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.” Syl. Pt. 7, in part,
A.B. (quoting syl. pt. 6, Clark v. Dunn, 195 W.Va. 272, 465 S.E.2d 374 (1995)). In A.B., this
Court held,

       [T]he broad categories of training, supervision, and employee retention, as
       characterized by respondent, easily fall within the category of “discretionary”
       governmental functions. Accord Stiebitz v. Mahoney, 144 Conn. 443, 134 A.2d
       71, 73 (1957) (the duties of hiring and suspending individuals require “the use of
       a sound discretion”); McIntosh v. Becker, 111 Mich. App. 692, 314 N.W.2d 728,
       729 (1981) (school board immune for negligent hiring and supervision); Gleason
       v. Metro. Council Transit Operations, 563 N.W.2d 309, 320 (Minn. Ct. App.
       1997) (claims for negligent supervision, hiring, training and retention are immune
       as discretionary acts); Doe v. Jefferson Area Local Sch. Dist., 97 Ohio App.3d 11,
       646 N.E.2d 187 (1994) (school board is immune from negligent hiring and
       supervision claims); Dovalina v. Nuno, 48 S.W.3d 279, 282 (Tex. App. 2001)
       (hiring, training, and supervision discretionary acts); Uinta Cnty. v. Pennington,
       286 P.3d 138, 145 (Wyo. 2012) (“hiring, training, and supervision of employees
       involve the policy judgments protected by the discretionary requirement”).

__ W.Va. at __, 766 S.E.2d at 773. Further,

              To the extent that governmental acts or omissions which give rise to a
       cause of action fall within the category of discretionary functions, a reviewing
       court must determine whether the plaintiff has demonstrated that such acts or
       omissions are in violation of clearly established statutory or constitutional rights
       or laws of which a reasonable person would have known or are otherwise
       fraudulent, malicious, or oppressive . . .

Syl. Pt. 11, in part, id. In the absence of such a showing, the State and its officials or employees
charged with such acts or omissions are immune from liability.

        Respondent asserts that the WVDOC is liable under a theory of respondeat superior for
the alleged actions of Lt. Rees, which, if true, would have undisputedly violated West Virginia
Code 61-8B-104. However, as this Court held in A.B., “[i]n some cases, the relationship between
an employee’s work and wrongful conduct is so attenuated that a jury could not reasonably
conclude that the act was within the scope of employment.” __ W.Va. at __, 766 S.E.2d at 768.
Similarly, we hold that the alleged actions of Lt. Rees fall outside of the scope of his
employment with the WVDOC. Additionally, respondent fails to identify any clearly established
law that was violated by the WVDOC regarding its hiring, training, and supervision of




       4
        West Virginia Code § 61-8B-10, Imposition of sexual acts on persons incarcerated or
under supervision; penalties, is a criminal statute which provides penalties for sexual conduct
between correctional personnel and incarcerated persons.
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employees, or in the retention of Lt. Rees.5 Consequently, we find the WVDOC is entitled to
summary judgment with respect to the negligence claims, because the acts complained of
constitute discretionary government functions, for which the WVDOC is entitled to qualified
immunity.

       For the foregoing reasons we reverse, in part, the circuit court’s June 4, 2014 order.


                                                                Reversed, in part, and Remanded.


ISSUED: April 10, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




       5
          Respondent argues, for the first time on appeal, that the WVDOC violated West
Virginia Code §§ 25-1-1a, 25-1-11a, and 25-1-11c. “‘In the exercise of its appellate jurisdiction,
this Court will not decide nonjurisdictional questions which were not considered and decided by
the court from which the appeal has been taken.’ Syllabus Point 1, Mowery v. Hitt, 155 W.Va.
103, 181 S.E.2d 334 (1971).” Syl. Pt. 1, Lin v. Lin, 224 W.Va. 620, 687 S.E.2d 403 (2009).
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