                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Wilma D. Miller, Administratrix,                                                  FILED
Plaintiff Below, Petitioner                                                    June 12, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 14-0929 (Randolph County 12-C-31)                                      OF WEST VIRGINIA


Elkins-Randolph County Emergency Squad Inc.,
Defendant Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Wilma D. Miller, by counsel D. Aaron Rihn and C. Richard Wilson, appeals
the August 14, 2014, order of the Circuit Court of Randolph County, that granted summary
judgment to Respondent Elkins-Randolph County Emergency Squad, Incorporated. Respondent
by counsel, Steven K. Nord and Michael R. Dockery, filed a response. Petitioner filed a reply.

        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 briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        On February 6, 2010, petitioner and her husband called Randolph County 911 for
assistance when their daughter, Melanie Miller, (“the decedent”) who was ill, fell in the
bathroom. Randolph County 911 then called Respondent Elkins-Randolph Emergency Squad
(EMS) for assistance. However, neither petitioner nor her husband spoke directly to anyone
employed by respondent, at any time, during the incident. All of the conversations took place
between respondent and/or her husband and Randolph County 911. Approximately six minutes
after the first call, petitioner called again, asking EMS to hurry and reporting that her daughter
was unconscious.

        When EMS arrived at petitioner’s residence, twenty-two minutes after the initial call for
help, petitioner and her husband had already transported their daughter to the hospital in their
private vehicle. When the decedent arrived at Davis Memorial Hospital, she had no pulse or
respiration. Despite best efforts, the decedent was pronounced dead less than three hours after
her arrival. The cause of death was myocardial infarction.

       Petitioner filed suit against the Randolph County 911, and Respondent Elkins-Randolph




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County EMS.1 Respondent is a separate statutory and governmental entity/subdivision with its
own Board of Directors, budget, rules and regulations. Petitioner’s amended complaint alleges
that respondent was negligent in failing to have proper equipment on their vehicles, failing to
train employees, and failing to respond properly to the calls from Randolph County 911, and that
respondent’s negligence caused Ms. Miller’s death.

       Respondent filed a motion for summary judgment at the close of discovery. After hearing
oral argument, the circuit court entered an order on August 14, 2014, granting respondent’s
motion. The circuit court found that West Virginia Code § 29-12A-5(a)(1) and (5) of the West
Virginia Governmental Tort Claims and Reform Act provide that political subdivisions are
immune from allegations related to quasi-legislative functions and the method of providing
emergency services. The circuit court further found that decisions by political subdivisions
concerning budgets and funding are quasi-legislative functions for which immunity is provided
under West Virginia Code § 29-12A-5(a)(1), and that respondent was “immune from decisions
concerning the purchase of ambulances or GPS systems, the hiring of additional personnel, or the
manner in which emergency services are provided.” Petitioner appeals the August 14, 2014,
order that granted summary judgment in favor of respondent and dismissed petitioner’s claim
with prejudice.

        “A circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v.
Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). We have held 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. Further,

               [a] motion for summary judgment        should be granted if the pleadings,
       exhibits and discovery depositions upon        which the motion is submitted for
       decision disclose that the case involves no    genuine issue as to any material fact
       and that the party who made the motion is      entitled to a judgment as a matter of
       law.

Syl. Pt. 5, Wilkinson v. Searls, 155 W.Va. 475, 184 S.E.2d 735 (1971).

       Petitioner asserts that the circuit court erred in granting summary judgment to respondent,
because respondent is liable to petitioner under the “special relationship” doctrine.2 Petitioner

       1
           Randolph County 911 settled separately with petitioner.
       2
          Petitioner also asserts as an assignment of error that the circuit court erred in granting
summary judgment in favor of respondent, as respondent had waived its immunity under the
West Virginia Governmental Tort Claims Act to the extent of any available liability insurance
coverage. See W.Va. Code § 29-12A-9. However, we decline to address this assignment of error
as petitioner did not introduce the subject insurance policy into evidence at the trial court level,
or include a copy of the subject insurance policy in the appendix record of this case for our
review. Pursuant to Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure, in pertinent
part,
(continued . . .)
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argues that there was a special relationship between EMS and the decedent which created an
exception to the statutory immunity provided by the West Virginia Governmental Tort Claims
Act. Petitioner asserts that because the only way to contact respondent is through Randolph
County 911, then contact with Randolph County 911 should be constructively considered to be
direct contact, or a form of direct contact, in the interest of equity and fairness.

        A governmental entity’s duty in the context of an alleged failure to provide any, or
sufficient, emergency public service to a particular individual is defined at common law by the
public duty doctrine. See Randall v. Fairmont City Police Dep’t, 186 W.Va. 336, 346, 412
S.E.2d 737, 747 (1991). See also Parkulo v. W.Va. Bd. of Prob. and Parole, 199 W.Va. 161, 483
S.E.2d 507 (1996). Under the public duty doctrine, “a local governmental entity’s liability . . .
may not be predicated upon the breach of a general duty owed to the public as a whole, instead,
only the breach of a duty owed to the particular person injured is actionable.” Holsten v. Massey,
200 W.Va. 775, 780, 490 S.E.2d 864, 869 (1997). However, “‘[i]f a special relationship exists
between a local governmental entity and an individual which gives rise to a duty to such
individual, and the duty is breached causing injuries, then a suit may be maintained against such
entity.’ Syl. pt. 3, Benson v. Kutsch, 181 W.Va. 1, 380 S.E.2d 36 (1989).” Syl. Pt. 1, Wolfe v.
City of Wheeling, 182 W.Va. 253, 387 S.E.2d 307 (1989).

               To establish that a special relationship exists between a local
       governmental entity and an individual, which is the basis for a special duty of care
       owed to such individual, the following elements must be shown: (1) an
       assumption by the local 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 local governmental entity’s agents that inaction could lead to harm;


       argument must contain appropriate and specific citations to the record on appeal,
       including citations that pinpoint when and how the issues in the assignments of
       error were presented to the lower tribunal. The Court may disregard errors that are
       not adequately supported by specific references to the record on appeal.

In addition, “[t]his Court will not consider an error which is not properly preserved in the record
nor apparent on the face of the record.” Syl. Pt. 4, State v. Browning, 199 W.Va. 417, 485 S.E.2d
1 (1997). Further, our cases have held:

       [a]n appellant must carry the burden of showing error in the judgment of which he
       complains. This Court will not reverse the judgment of a trial court unless error
       affirmatively appears from the record. Error will not be presumed, all
       presumptions being in favor of the correctness of the judgment. State v. Myers,
       229 W.Va. 238, 241, 728 S.E.2d 122, 130 (2012) (internal quotations and
       citations omitted).

State v. Larry A.H., 230 W.Va. 709, 716, 742 S.E.2d 125, 132 (2013). Accordingly, petitioner’s
objections to summary judgment on this ground are deemed waived.



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        (3) some form of direct contact between the local governmental entity’s agents
        and the injured party; and (4) that party’s justifiable reliance on the local
        governmental entity’s affirmative undertaking.

Syl. Pt. 2, Wolfe.

        The circuit court found that there were genuine issues of material fact regarding three of
the elements of the special relationship test, but also found that petitioners could not establish
that there was “some form of direct contact” between the petitioner and respondent. Although we
decline to opine whether the other elements of the special relationship test were met by the facts
of this case, we agree with the circuit court that petitioner could not establish that there was
direct contact between the respondent and the decedent. Direct contact, “[a]s a general rule . . .
contemplates actual contact between a government entity and an injured party.” Barbina v.
Curry, 221 W.Va. 41, 49, 650 S.E.2d 140, 148 (2007). Here, the record is devoid of any
evidence of direct contact between respondent and petitioner, her husband, or the decedent.
Further, there is no evidence in the record on appeal to support the contention that respondent or
any of its agents ever contracted, promised, or by its actions, assumed, an affirmative duty to
provide emergency medical services to the decedent. In fact, petitioner admitted on the record
that neither she nor her husband, nor the decedent, spoke with anyone employed with respondent
on the day of the subject incident. Accordingly, we find the circuit court did not err in finding
that a special relationship did not exist between the decedent and respondent, and consequently,
find that the circuit court did not err in granting respondent summary judgment to respondent in
this case.

        For the foregoing reasons, we affirm.

                                                                                       Affirmed.

ISSUED: June 12, 2015

CONCURRED IN BY:

Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis




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