          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                  January 2014 Term
                                                                           FILED
                                                                      March 27, 2014
                                                                        released at 3:00 p.m.
                                     No. 13-0037                      RORY L. PERRY II, CLERK
                                                                    SUPREME COURT OF APPEALS
                                                                         OF WEST VIRGINIA


                     WEST VIRGINIA REGIONAL JAIL AND
                    CORRECTIONAL FACILITY AUTHORITY,
                      an agency of the State of West Virginia,
                           Defendant Below, Petitioner

                                          v.

                                         A. B.,
                             Plaintiff Below, Respondent


                  Appeal from the Circuit Court of Kanawha County

                       The Honorable Carrie Webster, Judge

                            Civil Action No. 10-C-2131


                           REVERSED AND REMANDED



                             Submitted: February 4, 2014

                               Filed: March 27, 2014


M. Andrew Brison, Esq.                                Kerry A. Nessel, Esq.
Ryan L. Bostic, Esq.                                  THE NESSEL LAW FIRM
Allen, Kopet, and Associates, PLLC                    Huntington, West Virginia
Charleston, West Virginia                             Attorney for Respondent
Attorneys for Petitioner


JUSTICE WORKMAN delivered the Opinion of the Court.

CHIEF JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.

                              SYLLABUS BY THE COURT



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

judgment, where such a ruling is properly reviewable by this Court.” Syl. Pt. 1, Findley

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



              2.    “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.” Syl. Pt. 2, Robinson v. Pack, 223 W. Va. 828, 679 S.E.2d

660 (2009).



              3.    “The ultimate determination of whether qualified or statutory

immunity bars a civil action is one of law for the court to determine. Therefore, unless

there is a bona fide dispute as to the foundational or historical facts that underlie the

immunity determination, the ultimate questions of statutory or qualified immunity are

ripe for summary disposition.” Syl. Pt. 1, Hutchison v. City of Huntington, 198 W. Va.

139, 479 S.E.2d 649 (1996).



              4.    “In cases arising under W. Va. Code § 29-12-5, and in the absence

of express provisions of the insurance contract to the contrary, the immunity of the State

is coterminous with the qualified immunity of a public executive official whose acts or

omissions give rise to the case. However, on occasion, the State will be entitled to

immunity when the official is not entitled to the same immunity; in others, the official

                                            i
will be entitled to immunity when the State is not. The existence of the [] immunity of

the State must be determined on a case-by-case basis.” Syl. Pt. 9, Parkulo v. W. Va. Bd.

of Probation and Parole, 199 W. Va. 161, 483 S.E.2d 507 (1996).



              5.     “A public executive official who is acting within the scope of his

authority and is not covered by the provisions of W. Va. Code 29-12A-1, et seq. [the

West Virginia Governmental Tort Claims and Insurance Reform Act], 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. There

is no immunity for an executive official whose acts are fraudulent, malicious, or

otherwise oppressive.” Syllabus, in part, State v. Chase Securities, Inc., 188 W. Va. 356,

424 S.E.2d 591 (1992).



              6.     “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.” Syl. Pt. 4, Clark

v. Dunn, 195 W. Va. 272, 465 S.E.2d 374 (1995).



               7.    “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


                                              ii
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.” Syl. Pt. 6, Clark v. Dunn,

195 W.Va. 272, 465 S.E.2d 374 (1995).



              8.     “Unless the applicable insurance policy otherwise expressly

provides, a State agency or instrumentality, as an entity, is immune under common-law

principles from tort liability in W. Va. Code § 29-12-5 actions for acts or omissions in the

exercise of a legislative or judicial function and for the exercise of an administrative

function involving the determination of fundamental governmental policy.” Syl. Pt. 6,

Parkulo v. W. Va. Bd. of Probation and Parole, 199 W. Va. 161, 483 S.E.2d 507 (1996).



              9.     “The common-law immunity of the State in suits brought under the

authority of W. Va. Code § 29-12-5 (1996) with respect to judicial, legislative, and

executive (or administrative) policy-making acts and omissions is absolute and extends to

the judicial, legislative, and executive (or administrative) official when performing those

functions.” Syl. Pt. 7, Parkulo v. W. Va. Bd. of Probation and Parole, 199 W. Va. 161,

483 S.E.2d 507 (1996).



              10.    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


                                            iii
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).



              11.    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 in accordance with State v. Chase Securities, Inc., 188 W. Va. 356, 424

S.E.2d 591 (1992). In absence of such a showing, both the State and its officials or

employees charged with such acts or omissions are immune from liability.



              12.    If the plaintiff identifies a clearly established right or law which has

been violated by the acts or omissions of the State, its agencies, officials, or employees,

or can otherwise identify fraudulent, malicious, or oppressive acts committed by such

official or employee, the court must determine whether such acts or omissions were

within the scope of the public official or employee’s duties, authority, and/or

                                              iv
employment. To the extent that such official or employee is determined to have been

acting outside of the scope of his duties, authority, and/or employment, the State and/or

its agencies are immune from liability, but the public employee or official is not entitled

to immunity in accordance with State v. Chase Securities, Inc., 188 W. Va. 356, 424

S.E.2d 591 (1992) and its progeny. If the public official or employee was acting within

the scope of his duties, authority, and/or employment, the State and/or its agencies may

be held liable for such acts or omissions under the doctrine of respondeat superior along

with the public official or employee.




                                            v
WORKMAN, Justice:



               The West Virginia Regional Jail and Correctional Facility Authority

(hereinafter “the WVRJCFA”) appeals the December 3, 2012, order of the Circuit Court

of Kanawha County denying its motion for summary judgment on qualified immunity

grounds. The circuit court found that the WVRJCFA was not entitled to qualified

immunity because 1) disputed issues of material fact precluded a determination as to

whether the WVRJCFA is vicariously liable for the alleged sexual assaults committed by

its employee; and 2) respondent’s claims of negligent supervision, training, and retention

do not encompass discretionary decisions in the administration of fundamental

government policy.     Upon careful review of the briefs, the appendix record, the

arguments of the parties, and the applicable legal authority, we find that the WVRJCFA

is entitled to qualified immunity; therefore, we reverse the order of the circuit court and

remand the case for entry of an order granting summary judgment and dismissing the

action against it.



                     I. FACTS AND PROCEDURAL HISTORY

               Respondent/plaintiff below, A. B. (hereinafter “respondent”), was

convicted in 2006 of two counts of third degree sexual assault for having intercourse with

her boyfriend’s fourteen-year-old son; she was sentenced to one to five years for each

count, to run consecutively. Respondent was paroled in August 2008, but violated her

parole and was reconfined.      She was booked into the Southern Regional Jail in

                                            1

September, 2009. Respondent alleges that beginning in October, 2009 while housed at

the Southern Regional Jail, she was vaginally and orally raped seventeen times by

Correctional Officer D. H. (non-participant in this appeal),1 who denies all allegations of

sexual contact with respondent.        Shortly after respondent claims the alleged sexual

assaults commenced, on November 2, 2009, D. H. filed an incident report against

respondent indicating that she had improperly propositioned him, asking if he would be

willing to “trade a favor for a favor” in exchange for “anything.”



                On November 23, 2009, a fellow inmate in transit to a court hearing

advised Sgt. Michael Francis and Correctional Officer Brian Ewing that respondent and

others had assaulted her in the pod, resulting in a black eye; she further advised that

respondent and Correctional Officer D. H. were having a sexual relationship.          Sgt.

Francis and C. O. Ewing each filed incident reports with their superior, Lt. Bunting. Lt.

Bunting convened a meeting between Sgt. Francis, C. O. Ewing, and D. H., to advise D.

H. of the allegations. C. O. Ewing testified in his deposition that D. H. responded to the

allegations with “a snicker, you know, like, you know I can’t believe that” and that

Francis responded, “I knew when I heard it was your name, it wasn’t you.” No further

investigation was conducted and respondent was never questioned about the allegations

of sexual contact between her and D. H. It is undisputed that respondent never reported




       1
           D. H. does not assert that he is entitled to qualified immunity.


                                                2

any inappropriate conduct by D. H. Respondent remained at the Southern Regional Jail

until April, 2010, when she was transferred to Lakin Correctional Center.



                Respondent filed suit against D. H. 2 and the WVRJCFA alleging 1)

violation of 42 U.S.C. §1983 3 and the West Virginia Governmental Tort Claims and

Insurance Reform Act against D. H.; 2) intentional infliction of emotional distress against

D. H.; 3) invasion of privacy against all defendants; 4) negligent hiring, retention,

supervision, staffing, and training against the WVRJCFA; 5) a variety of common law

intentional torts against D. H.; and 6) civil conspiracy between the defendants.        The

complaint expressly asserted that it was making no claims against the WVRJCFA under

Section 1983 or for intentional infliction of emotional distress. During the pendency of

the matter, respondent agreed to voluntarily dismiss her claims against the WVRJCFA

       2
         Respondent also named a “John Doe” employee of the WVRJCFA, who
“negligently allowed” the conduct of D. H. John Doe was dismissed by agreement of the
parties.
       3
           42 U.S.C. § 1983 provides:

               Every person who, under color of any statute, ordinance,
               regulation, custom, or usage, of any State or Territory or the
               District of Columbia, subjects, or causes to be subjected, any
               citizen of the United States or other person within the
               jurisdiction thereof to the deprivation of any rights,
               privileges, or immunities secured by the Constitution and
               laws, shall be liable to the party injured in an action at law . . .
               .
In short, “[t]o state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law.” West v. Atkins,
487 U. S. 42, 48 (1988).

                                             3

for negligent hiring, invasion of privacy, violation of the Tort Claims Act, all West

Virginia Constitutional violations, and any Section 1983 claims (which were expressly

not pled in the complaint in the first instance), leaving only the negligent supervision,

training, and retention “direct” claims against the WVRJCFA.4



                At the close of discovery, the WVRJCFA moved for summary judgment on

the basis of qualified immunity, arguing 1) that it could not be held vicariously liable for

the intentional, illegal acts of its employee and respondent had not demonstrated a

“clearly established” right which the WVRJCFA violated; and 2) respondent’s negligence

claims were barred because they involved the discretionary decisions involving the

administration of a fundamental government policy. Respondent contended that 1) the

WVRJCFA was vicariously liable for the acts of D. H. because the sexual assaults were

within the scope of his employment; 2) the WVRJCFA, through its employee, violated

West Virginia Code § 61-8B-105 and the federal Prison Rape Elimination Act of 2003;6




       4
        Although not expressly dismissed, no further mention of the negligent staffing
and civil conspiracy claims was made in the pleadings below. At a minimum, no
evidence beyond mere allegations was adduced on these claims.
       5
           West Virginia Code § 61-8B-10(a) provides, in pertinent part, that

               Any person employed by . . . a jail or by the Regional Jail
               and Correctional Facility Authority . . . who engages in sexual
               intercourse, sexual intrusion or sexual contact with a person
               who is incarcerated in this state is guilty of a felony and, upon
               conviction thereof, shall be confined in a state correctional
               facility under the control of the Commissioner of Corrections
(continued . . .)
                                              4

and 3) the allegedly negligent acts of the WVRJCFA were neither “administrative” nor

involved “fundamental governmental policy.” The circuit court agreed with respondent

and denied summary judgment. The circuit court’s order specifically found that 1)

disputed issues of material fact precluded a determination as to whether the WVRJCFA

was vicariously liable for the alleged sexual assaults committed by its employee; and 2)

respondent’s claims of negligent supervision, training, and retention do not encompass

“discretionary decisions in the administration of fundamental government policy.” This

appeal followed.



                             II. STANDARD OF REVIEW

               It is well-established that “[t]his Court reviews de novo the denial of a

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

Syl. Pt. 1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807

(2002). Moreover, “[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.” Syl. Pt. 2, Robinson v. Pack, 223 W. Va. 828, 679 S.E.2d

660 (2009).      This review, however, is guided by the following principle regarding

qualified immunity:




               for not less than one nor more than five years or fined not
               more than $5,000.
      6
          42 U.S.C. § 15601 et seq. (hereinafter “PREA”).

                                            5
             [t]he ultimate determination of whether qualified or statutory
             immunity bars a civil action is one of law for the court to
             determine. Therefore, unless there is a bona fide dispute as to
             the foundational or historical facts that underlie the immunity
             determination, the ultimate questions of statutory or qualified
             immunity are ripe for summary disposition.

Syl. Pt. 1, Hutchison v. City of Huntington, 198 W. Va. 139, 479 S.E.2d 649 (1996).

With these standards in mind, we proceed to the parties’ arguments.



                                  III. DISCUSSION

             The WVRJCFA assigns as error the circuit court’s determination that 1) the

WVRJCFA is vicariously liable for the allegedly intentional, criminal acts of its

employee, D. H.; and 2) employee supervision, training, and retention are not

discretionary functions subject to immunity.



                                           A.

           Immunity and the Vicarious Liability of the State and Its Agencies

             In the instant case, the WVRJCFA argues that it is not vicariously liable for

the alleged acts of its employee, D. H., because the sexual assaults alleged herein were

outside the scope of his duties as a correctional officer and therefore, it is entitled to

immunity. Respondent, on the other hand, suggests that the following portion of Syllabus

Point 9 of Parkulo v. W. Va. Bd. of Probation and Parole, 199 W. Va. 161, 483 S.E.2d

507 (1996), settles the issue: “[T]he immunity of the State is coterminous with the

qualified immunity of a public executive official whose acts or omissions give rise to the

case.” Respondent contends, in essence, that this passage from Parkulo establishes a rote
                                               6

respondeat superior liability for the State and its agencies since the State’s immunity is

“coterminous” with that of the public official whose acts give rise to the case. In other

words, respondent contends that where the official has no immunity (as in the instant

case), the State likewise has no immunity. Respondent argues, in the alternative, since

the sexual assaults allegedly occurred while D. H. was on-duty and abetted by his

position as a correctional officer, such acts were within the scope of his employment.



              The circuit court, relying primarily on common-law master-servant

principles, found that a jury question existed as to whether D. H. was acting within the

scope of his employment. In so finding, the court relied on a case from the Eastern

District of Virginia, Heckenlaible v. Va. Peninsula Regional Jail Authority, 491 F.

Supp.2d 544 (E.D. Va. 2007), which held that because a correctional officer was required

to look at an inmate unclothed while she showered, his employment put him a particular

position to commit the alleged sexual assault; therefore, a jury could reasonably conclude

that he was within the scope of his employment.7



1.     The “Coterminous” Immunity of the State and its officials or employees

              We begin our analysis by addressing respondent’s position that Syllabus

Point 9 of Parkulo stands for the proposition that where a State employee is not entitled

       7
         However, we note that there was no discussion of the issue of qualified immunity
in that case because Virginia expressly allows actions against the State for the negligence
of its employees committed within the scope of their employment pursuant to its State
Tort Claims Act. Va. Code Ann. § 8.01-195.3 (2007).

                                            7

to qualified immunity, the State is likewise not immune. In point of fact, it is precisely

the remainder of this syllabus point which militates squarely against respondent’s

position:

              . . . However, on occasion, the State will be entitled to
              immunity when the official is not entitled to the same
              immunity; in others, the official will be entitled to immunity
              when the State is not. The existence of the [] immunity of the
              State must be determined on a case-by-case basis.

Syl. Pt. 9, in part, Parkulo. See also Restatement (Second) of Torts § 895B cmt. h (1979)

(“The existence of immunity on the part of the State or its agencies does not necessarily

imply immunity on the part of its public officers, or vice versa.”). In fact, Parkulo further

specifically notes that “the vicarious liability of the State for its officer’s conduct is not to

be presumed merely from the absence of qualified immunity to protect the public

executive official from personal liability for that conduct.” 199 W. Va. at 177, 483

S.E.2d at 523. As such, it is clear in our jurisprudence that the immunity of the State

and/or its agency is not necessarily circumscribed by the extent of the public official’s

immunity or lack thereof.         The question which Parkulo and its progeny leave

tantalizingly unanswered is what standards are to be utilized to determine the extent of

the State’s immunity, irrespective of that of its employee? 8 Simply relegating this




       8
         The Court in Parkulo stated that “[b]ecause we do not have before us a factual
situation requiring further development of this approach to the scope of qualified
immunity for the governmental entities represented by public officials entitled to its
benefit, we leave the full development of that approach to another day.” Id. at 178, 483
S.E.2d at 524.

                                               8

determination to a “case-by-case” basis without further guidance is particularly

unedifying to both practitioners and the lower courts.



              This appeal, in effect, presents this Court with an issue of first impression

inasmuch as our existing caselaw provides little to no guidance on the scope and extent of

the vicarious liability of the State and its agencies for its officials and employees. The

paucity of guidance, both in West Virginia and other jurisdictions, is occasioned almost

entirely by the fact most other jurisdictions have enacted some form of tort claims act

which governs actions against the state and its agencies. In West Virginia, however, the

Governmental Tort Claims and Insurance Reform Act, West Virginia Code § 29-12A-1 et

seq., is limited to political subdivisions and their employees and does not cover claims

made against the State or its agencies.    W. Va. Code § 29-12A-3(c) and (e); see also

Hess v. W. Va. Div. of Corr., 227 W. Va. 15, 705 S.E.2d 125 (2010).



              As one commentator noted many years ago,

              the relationship between governmental and officer liability
              remains to a large extent ill-defined.          The failure of
              legislatures to resolve many of the problems that flow from
              the coexistence of these two bodies of law has had the effect
              both of transferring basic policy decisions to the courts and of
              greatly complicating governmental tort claims litigation.
              Furthermore, if there is any substance to the notion that the
              prospect of personal liability instills an unhealthy insecurity
              in public officials, uncertainty over the relationship between
              governmental and officer liability probably only aggravates
              the situation.




                                             9

George A. Bermann, Integrating Governmental and Officer Tort Liability, 77 Colum. L.

Rev. 1175, 1213 (1977).9 Unfortunately, at least in West Virginia, little has transpired in

the intervening thirty-seven years to better define this relationship in absence of a

statutory tort claims act applicable to the State, its agencies, officials, and employees. In

most instances where immunity was addressed, where both the State and an individual

officer or employee were named defendants, this Court has simply ruled on the more

central issue of whether the complained of conduct underlying the case warranted

immunity and treated individual defendants and their employers collectively, without

separate analysis of whether the State or State agency is necessarily entitled to like

treatment and why. See, e.g., State v. Chase Securities, Inc., 188 W. Va. 356, 424 S.E.2d

591 (1992); Clark v. Dunn, 195 W. Va. 272, 465 S.E.2d 374 (1995); Jarvis v. W. Va.

State Police, 227 W. Va. 472, 711 S.E.2d 542 (2010).



2.     The Evolution of Immunity in West Virginia

              In absence of any action by our Legislature to enact a statutory scheme

which would outline the scope of the State’s liability in tort, we are left to examine the

state of our law with respect to the immunity of the State, its agencies, officials, and

       9
         Professor Bermann’s law review article is quoted liberally throughout this
opinion and represents a particularly thorough treatment of this subject, more recent
discussion of which has been largely obviated by the passage of statutory tort claims acts
throughout the country. In fact, this article was commended for use in further
development of the principles herein by the Court in Parkulo: “A guideline for use in the
case-by-case approach to the problem of the interplay of governmental and public officer
personal tort liability . . . has been well-stated in [Professor Bermann’s] article[.]” 199
W. Va. at 178 n.14, 483 S.E.2d at 524 n.14.

                                             10

employees, as well as the policy implications attendant to governmental immunity, in an

attempt to formulate a workable rule for State-level governmental and employee

immunities.10 It is clear that relegating these issues to the lower courts to decide on a

“case-by-case” basis as instructed in Parkulo has compelled practitioners and the lower

courts to indiscriminately borrow phrases from what this Court has described as a

“patchwork of holdings” to cobble together an applicable rule. W. Va. Dept. of Health

and Human Resources v. Payne, 231 W. Va. 563, ___, 746 S.E.2d 554, 562 (2013).



             As Professor Bermann noted, “[b]ecause the doctrines of sovereign and

officer immunity spring from distinct, if related, concerns, each has evolved

independently.”     Bermann, supra at 1181.           This independent evolution has

unquestionably occurred in West Virginia, as evidenced by the following brief history.

Our modern immunity law began to take a more clearly identifiable form in 1992 with

State v. Chase Securities, Inc., 188 W. Va. 356, 424 S.E.2d 591. In Chase Securities, this

Court noted that “our law with regard to public official immunity is meager,” 188 W. Va.

at 358, 424 S.E.2d at 593, and borrowed from federal public official immunity caselaw11


      10
           Without question, “the task of balancing the interests relevant to governmental
tort litigation is legislative in character.” Bermann, supra at 1189. Nearly twenty-two
years ago, Justice Miller first raised the specter of legislative enactment which would
obviate the necessity for such issues to be foisted upon this Court by the Legislature’s
silence. See Chase Securities, 188 W. Va. at 365 n.28, 424 S.E.2d at 600 n.28.
      11
         This Court has encouraged the use of federal precedent to guide our immunity
analysis because “it would seem appropriate to construct, if possible, an immunity
standard that would not conflict with the federal standard.” Chase Securities, 188 W. Va.
(continued . . .)
                                           11

to craft the following syllabus point regarding the immunity of a public official “acting

within the scope of his authority”:

              A public executive official who is acting within the scope of
              his authority and is not covered by the provisions of W. Va.
              Code, 29-12A-1, et seq. 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. There is no immunity for an
              executive official whose acts are fraudulent, malicious, or
              otherwise oppressive. . . .

Syllabus, in part, Chase Securities. This standard was thereafter extended to cover the

discretionary judgments of “rank-and-file” employees in 1995 in Clark v. Dunn, 195 W.

Va. 272, 465 S.E.2d 374.12 In Clark, plaintiff brought a negligence action against the


at 360, 424 S.E.2d at 595. Unfortunately, however, with respect to the interplay between
the immunity of the State and its public official and employees, federal caselaw provides
little assistance for several reasons. Factually similar cases addressing immunity found in
federal caselaw are cases brought pursuant to 42 U.S.C. § 1983, which actions do not lie
against the State. See Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989)
(“[N]either a state nor its officials acting in their official capacities are ‘persons’ under §
1983.”). Further, attempting to draw analogies between the contours of actionable claims
pursuant to § 1983 and those alleged herein are inadequate since § 1983 jurisprudence is
constrained by the federal courts’ interpretation of the language of § 1983 itself. Nothing
herein serves to supplant the federal § 1983 jurisprudence regarding immunity or
actionable claims thereunder inasmuch as “in Section 1983 litigation a state may not
create an immunity for state officials that is greater than the federal immunity.” Chase
Securities, 188 W. Va. at 359, 424 S.E.2d at 594; see also Hutchison v. City of
Huntington, 198 W.Va. 139, 152 n.17, 479 S.E.2d 649, 662 n.17 (1996) (“[S]tate
immunity laws are not applicable to § 1983 actions.”); Howlett v. Rose, 496 U.S. 356
(1990) (in § 1983 litigation in state courts, a state may not create an immunity greater
than the federal immunity).
       12
         The Court summarily concluded that “Officer Dunn is properly considered a
public officer” without discussion as to whether the immunity of the “public official”
described in Chase Securities (which involved the Governor, the Treasurer, and the
Auditor—all high-ranking elected officials) perhaps differed in character from the type of
(continued . . .)
                                              12

Department of Natural Resources and a DNR officer, who was found to be “engaged in

the performance of discretionary judgments and actions within the course of his

authorized law enforcement duties.” Id. at 278, 465 S.E.2d at 380. Noting that the

officer did not violate a “clearly established . . . statutory law or constitutional right[],”

195 W. Va. at 278, 465 S.E.2d at 380, the Court reaffirmed the above syllabus point from

Chase Securities and established what is now referred to as the “discretionary function”

immunity:13

              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

immunity afforded a rank-and-file employee such as Officer Dunn. Clark, 195 W. Va. at
278, 465 S.E.2d at 380 (emphasis added). Our subsequent caselaw likewise has made no
such distinction.
       13
         This type of immunity is characterized by the Restatement (Second) of Torts as
somewhat “derivative” of the executive or administrative immunity: “A public officer
acting within the general scope of his authority is not subject to tort liability for an
administrative act or omission if [] he is immune because engaged in the exercise of a
discretionary function[.]” § 895D. However, in West Virginia, the type of immunity
afforded by the discretionary acts immunity, which is a qualified immunity, should not be
conceptually commingled with the executive/administrative act immunity for policy-
making acts which is absolute. Syl. Pt. 7, Parkulo, 199 W. Va. 161, 483 S.E.2d 507.

         This is the trap into which respondent and the circuit court fell as evidenced by
their rejection of WVRJCFA’s “discretionary acts” immunity argument by concluding
that training, supervision, and retention were not acts which involved the “determination
of fundamental governmental policy.” It is clear that this Court has established, akin to
the federal courts, a distinct immunity for “discretionary” acts or functions of
governmental actors from the highest level down to the rank-and-file; it is wholly at odds
with the goal of this immunity to require that these discretionary acts must also rise to the
level of “policy-making” before such immunity may be invoked. See, e.g., Clark, 195 W.
Va. 272, 465 S.E.2d 374; but see Hess, 227 W. Va. at 20, 705 S.E.2d at 130 (dispensing
as premature the issue of whether the acts giving rise to the cause of action arise from
“discretionary, administrative policy-making” acts).

                                             13

              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.

Syl. Pt. 4, Clark, 195 W. Va. 272, 465 S.E.2d 374 (emphasis added). Speaking for the

first time specifically to the immunity of the State and its agencies, as opposed to merely

its public officials, the Court further held:

              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.

Syl. Pt. 6, Clark, 195 W.Va. 272, 465 S.E.2d 374 (emphasis added).



              The following year (in our only reported case to discuss in any meaningful

fashion the immunity of the State and its agencies), the Court in Parkulo set out to recast

a “reasoned statement” of the current posture of common law immunities. 199 W. Va. at

175, 483 S.E.2d at 512. This “reasoned statement,” albeit well-intentioned and sorely

needed, resulted in a wandering, historical overview of immunity that unfortunately has

done little to clarify matters. The Court began by reiterating that the State and its public

officials are absolutely immune with respect to “judicial, legislative, and executive (or

administrative) policy-making acts and omissions.” Syl. Pts. 6 and 7, in part, Parkulo,

199 W. Va. 161, 483 S.E.2d 507. With respect to the immunity of the State and its

officials for matters falling outside the scope of judicial, legislative, or executive policy­

                                                14

making acts, the Court “endorsed” the Chase Securities rule regarding a public official’s

personal, qualified immunity for discretionary judgments and functions which are neither

in violation of a “clearly established law” nor “fraudulent, malicious, or otherwise

oppressive.” Syl. Pt. 8, in part, Parkulo.        As noted above, the Parkulo Court then

obliquely passed along the “general rule” of the “coterminous” immunity between a

public official and the State before allowing its undefined exceptions to quite literally

swallow and render meaningless this “rule.” See Syl. Pt. 9, Parkulo.



3.     Respondeat Superior and the Immunity of the State

              Turning now to the specific issues presented in the case herein, the

WVRJCFA maintains that because any alleged sexual assault by D. H. would fall well

outside of the scope of his duties as a correctional officer, the WVRJCFA is entitled to

immunity. As previously noted, rather than exploring the issue of the scope of the State’s

immunity relative to that of its public officials and employees, the parties and lower court

relegated this issue to ordinary respondeat superior principles. While we reject a blind

application of common-law master-servant principles which fail to accommodate the

policy interests at play with respect to the immunity of the State and its agencies, we do

agree that the issue of whether the public official or employee’s actions are within the

scope of his duties, authority, or employment has long been a relevant inquiry in our

immunity law. As indicated above, beginning in Chase Securities and thereafter in

Clark, this Court has utilized the phrases “scope of authority” and “scope of



                                            15

employment” at least as pertains to the immunity of the public official. Moreover, the

Restatement (Second) of Torts § 895D, provides that

              [a] public officer acting within the general scope of his
              authority is immune from tort liability for an act or omission
              involving the exercise of a judicial or legislative function . . .
              [or] administrative act or omission if . . . he is . . . engaged in
              the exercise of a discretionary function . . . .

(emphasis added). Comment g to the Restatement notes that when an officer goes

“entirely beyond [the general scope of his official authority] and does an act that is not

permitted at all by that duty, he is not acting in his capacity as a public officer or

employee and he has no more immunity than a private citizen.” Id.



              The rationale for stripping a public official of his immunity informs the

issue of whether the State should likewise lose its immunity for and be vicariously liable

for acts of its officials or employees when they act outside of the scope of their authority.

Most tort claims acts include not merely exclusions for acts outside of the employee’s

scope of employment, but many specifically enumerate intentional torts for which the

government is expressly immune.         Such exclusions are necessary to “reliev[e] the

government of liability where its connection to the tort is too remote.” Bermann, supra at

1186. The rationale behind imposing personal liability upon a public official where his

acts are beyond the scope of his authority has been aptly described as follows:

              First, the harm resulting from such conduct is probably more
              easily avoided than the harm caused by simple negligence and
              is therefore a poorer candidate for consideration as an
              ordinary cost of government. Second, if the threat of personal
              liability serves some deterrent purpose, its imposition would

                                              16
              seem particularly useful where willful or wanton misconduct
              is concerned. Finally, even if such conduct cannot readily be
              eliminated, it does not follow that the public should have to
              pay for its consequences. On the contrary, retributive justice
              would seem to demand that public officials answer personally
              for egregious conduct.

Id. at 1197 (emphasis added). We can perceive no public policy which is justifiably

advanced by allocating to the citizens of West Virginia the cost of wanton official or

employee misconduct by making the State and its agencies vicariously liable for such

acts which are found to be manifestly outside of the scope of his authority or

employment. Such conduct is notable for being driven by personal motives which in no

way benefit the State or the public, nor is it reasonably incident to the official or agent’s

duties.14



              Such a conclusion, however, necessarily implies that where a public official

or employee’s conduct which properly gives rise to a cause of action is found to be

within the scope of his authority or employment, neither the public official nor the State

is entitled to immunity and the State may therefore be liable under the principles of


       14
         See Syl. Pt. 6, Courtless v. Jolliffe, 203 W.Va. 258, 507 S.E.2d 136 (1998)
(“‘An act specifically or impliedly directed by the master, or any conduct which is an
ordinary and natural incident or result of that act, is within the scope of the employment.’
Syllabus, Cochran v. Michaels, 110 W.Va. 127, 157 S.E. 173 (1931)”); see also Griffith
v. George Transfer & Rigging, Inc., 157 W.Va. 316, 326, 201 S.E.2d 281, 288 (1973)
(“‘Scope of employment’ is a relative term and requires a consideration of surrounding
circumstances including the character of the employment, the nature of the wrongful
deed, the time and place of its commission and the purpose of the act.” (emphasis
added)).


                                             17

respondeat superior. We find that this approach is consistent with the modern view that

“the cost of compensating for many such losses is regarded as an ordinary expense of

government to be borne indirectly by all who benefit from the services that government

provides.” Bermann, supra at 1176. Much like the negligent performance of ministerial

duties for which the State enjoys no immunity, we believe that situations wherein State

actors violate clearly established rights while acting within the scope of their authority

and/or employment, are reasonably borne by the State.15



              In Dunn v. Rockwell, 225 W.Va. 43, 62 n.20, 689 S.E.2d 255, 274 n.20

(2009), we noted with approval the policy rationale historically underlying respondeat

superior liability as stated by the California Supreme Court: “(1) to prevent recurrence of

the tortious conduct; (2) to give greater assurance of compensation for the victim; and (3)

to ensure that the victim’s losses will be equitably borne by those who benefit from the

enterprise that gave rise to the injury.” (quoting Mary M. v. City of Los Angeles, 814 P.2d

1341, 1343 (1991)). The Mary M. court observed that

              [t]he doctrine is a departure from the general tort principle
              that liability is based on fault. It is “‘a rule of policy, a
              deliberate allocation of a risk[]’” [and] . . . based on “‘a
              deeply rooted sentiment’” that it would be unjust for an
              enterprise to disclaim responsibility for injuries occurring in
              the course of its characteristic activities.

       15
          The mere fact that liability hinges upon the violation of a “clearly established”
right does not, in itself, suggest that the acts which give rise to a case are within the realm
of “fraudulent, malicious, or oppressive” acts for which a public official loses his
immunity. Rather, violations of clearly established rights frequently occur in absence of
any ill-intent which might militate against the imposition of vicarious liability.

                                              18

Id. (citations omitted). Likewise, with respect to governmental liability, it has been

observed that “the government through taxation can more easily distribute such losses

among all who benefit from its services.” Bermann, supra at 1194.             Further, “[b]y

encouraging higher standards of care in the selection, training, equipment, and

supervision of personnel, such a system can have at least as positive an effect on

governmental performance as one based upon liability of the individual official.” Id. at

1195. We find that such policy considerations well-justify extension of liability to the

State in such instances. Moreover, we agree that the public interest in ensuring that

public officials are “not [] impaired by constant concern about personal liability . . . need

not always prevent the attachment of liability to the State.” Parkulo, 199 W. Va. at 178,

483 S.E.2d at 524. As further noted by the Restatement (Second) of Torts: “With respect

to some government functions, the threat of individual liability would have a devastating

effect, while the threat of governmental liability would not significantly impair

performance.” § 895D cmt. j.



4.	    Reconciliation of Existing Immunity Principles to Determine Coextensiveness of
       Immunity

              We therefore take this opportunity to harmonize our existing syllabus

points with respect to the immunity of the State, its agencies, officials and employees,

and further elaborate on the procedural analysis required to determine whether immunity

flows to an individual employee or official defendant, the State and its agencies, neither,


                                             19

or both. 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 otherwise involve discretionary governmental functions. This critical first

step may be evident from the nature of the allegations themselves or may be effectively

accomplished by identifying the official or employee whose acts or omissions give rise to

the cause of action. This individual identification may more easily permit a proper

examination of that particular official or employee’s duties and responsibilities and any

statutes, regulations, or other “clearly established” laws which are applicable to his or her

duties. This approach is compelled by the well-settled precept that “[g]overnmental

entities can act only through their officers, agents, and employees.” 57 Am. Jur. 2d

Municipal, County, School, and State Tort Liability § 145.



              We recognize, however, that

              some losses occasioned by governmental activity may not be
              traceable to any particular official. For example, legislation
              may impose duties upon the government that the latter simply
              fails to implement. . . . More generally, however, a
              governmental operation may suffer from inefficiency, delay
              or other systemic disorders that cannot be laid at the feet of
              any particular official yet still cause injury that warrants
              compensation.

Bermann, supra at 1187.        Moreover, “duties or obligations may be placed on the

government that are not imposed on the officer, and statutes sometime make the


                                             20

government liable when its employees are immune.” Parkulo, 199 W. Va. at 177, 483

S.E.2d at 523 (quoting Restatement (Second) of Torts 2d § 895D, cmt. j, in part (1979)).

More importantly, however, “immunity is justified and defined by the functions it

protects and serves, not by the person to whom it attaches.” Forrester v. White, 484 U.S.

219, 227 (1988). As such, identifying a particular official or employee whose actions

give rise to a cause of action is necessary only to the extent needed to guide the lower

court’s analysis of whether the complained of actions are legislative, judicial, executive

or administrative policy-making acts, or 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).



              However, 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 further 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 in accordance with State v. Chase Securities, Inc., 188 W. Va. 356, 424

S.E.2d 591 (1992). In absence of such a showing, both the State and its officials or

employees charged with such acts or omissions are immune from liability. If the plaintiff

identifies a clearly established right or law which has been violated by the acts or

                                             21

omissions of the State, its agencies, officials, or employees, or can otherwise identify

fraudulent, malicious, or oppressive acts committed by such official or employee, the

court must then determine whether such acts or omissions were within the scope of the

public official or employee’s duties, authority, and/or employment. Such determination

may or may not turn on disputed issues of material fact. In the event of a genuine dispute

of material fact the court may submit for resolution by a jury the issue of whether the

State actor was in fact within the scope of his duty, authority, and employment when

committing the acts which give rise to the case in accord with our admonitions in

Hutchison. See Syl. Pt. 1, in part, Hutchison, 198 W. Va. 139, 479 S.E.2d 649 (holding

that immunity is ripe for summary disposition except where there is a “bona fide dispute

as to the foundational or historical facts that underlie the immunity determination”).



              To the extent that such official or employee is determined to have been

acting outside of the scope of his duties, authority, and/or employment, the State and/or

its agencies are immune from liability, but the public employee or official is not entitled

to immunity in accordance with State v. Chase Securities, Inc., 188 W. Va. 356, 424

S.E.2d 591 (1992) and its progeny. If the public official or employee was acting within

the scope of his duties, authority, and/or employment, the State and/or its agencies may

be held liable for such acts or omissions under the doctrine of respondeat superior, along

with the public official or employee. We observe that our holdings today in no way

represent a seismic shift in this Court’s handling of governmental immunities, but rather,

reflect a clarification and elaboration on the scope of the State’s immunity vis-a-vis its

                                            22

officials and employees, as reflected in our precedent and long-standing public policy

concerns. 16



5.     Application of Immunity Paradigm to Case Sub Judice

               Turning now to the application of the foregoing to the facts of this

particular case, we find that D. H.’s general functions as a correctional officer, like most

law enforcement officers, are broadly characterized as discretionary, requiring the use of

his discretionary judgments and decisions. Having made that determination, however, it

is undisputed that D. H. is alleged to have violated a clearly established law, West

Virginia Code § 61-8B-10(a), leaving us only to determine whether he was acting within

the general scope of his authority and employment. As noted above, while fact questions

may on occasion preclude summary determination of this prong, we find that D. H.’s

alleged acts fall manifestly outside the scope of his authority and duties as a correctional

officer. There can be no question that these acts, as alleged, are in no way an “ordinary

and natural incident” of the duties with which he was charged by the WVRJCFA.

Respondent has failed to adduce any evidence bringing these alleged acts within the

       16
           Nor do our holdings expressly affect the liability of the State, its agencies,
officials, and employees for actions based upon breach of so-called “ministerial” duties,
which have been historically exempted from the realm of governmental functions for
which the State, its officials, and employees are entitled to immunity. See Clark, 195 W.
Va. at 278 n.2, 465 S.E.2d at 380 n.2 (“This opinion does not address causes of action
arising out of ministerial functions of government agencies or officers.”). However, in
Payne, we recognized and agreed with the observation of the Chase Securities Court that
application of the “clearly established law” principle “will ordinarily have the same effect
as the invocation of the ‘ministerial acts’ principle.” 231 W. Va. at __ n.26, 746 S.E.2d
at 565 n.26 (citing Chase Securities, 188 W. Va. at 364, 424 S.E.2d at 599).

                                            23

ambit of his employment beyond merely suggesting that his job gave him the opportunity

to commit them. As such, we conclude that the WVRJCFA is entitled to immunity for

respondent’s claims based on vicarious liability for D. H.’s acts.



                                             B.

                      Negligent Training, Supervision, and Retention

                With the foregoing framework in mind, we turn now to the WVRJCFA’s

claim of immunity for respondent’s negligent training, supervision, and retention

allegations.    The WVRJCFA contends that training, supervision, and retention are

inherently discretionary acts for which the State enjoys immunity and that respondent has

failed to identify a “clearly established” right or law which the WVRJCFA violated in its

supervision, training, and retention of D. H. Respondent counters that if employee

training, supervision, and retention are found to be discretionary functions, then the State

will have a de facto absolute immunity from suit. Respondent further argues that West

Virginia expressly recognizes a claim of negligent hiring/supervision/retention against a

State agency.



                We begin by observing that it is of no consequence to our analysis that the

parties characterize this as a “direct” claim against the WVRJCFA; in fact, this claim too

is based on vicarious liability despite the absence of specifically named “bad actor(s)”

who allegedly negligently supervised, trained, and retained D. H. See n.2, supra. This

claim does not present a scenario where some general duty was statutorily or otherwise

                                             24

imposed upon the State17 or where the negligence alleged in the complaint cannot be

traced to a particular individual(s). The training, supervision, and retention of D. H.

unquestionably fell to some public officer(s) or employee(s), from whose alleged

negligence respondent’s claim derives.     However, since respondent did not name a

specific individual defendant with respect to this claim, we are faced only with the issue

of whether immunity bars such a claim against the State in accordance with the principles

previously and herein enunciated.



             Having clarified that this claim likewise derives from the alleged

negligence of some public officer(s) or employee(s) responsible for the training,

supervision, and retention of D. H., we are again guided by the principle first enunciated

in Clark:

             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.




      17
         This is potentially the basis for a scenario where a public official or employee
may enjoy immunity, but the State would not—the sole configuration not otherwise
developed and analyzed herein. Given the clarification which we endeavor to provide
herein, we are loathe to leave this aspect of the public official/governmental immunity
paradigm untouched; however, such a scenario has seldom presented itself before this
Court and we resign ourselves to review of that issue at a later date.

                                           25

Syl. Pt. 4, Clark, 195 W. Va. 272, 465 S.E.2d 374. More specifically as pertains to the

immunity of the State or its agencies for negligence of its public officers and as placed

into proper context above:

               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.

Syl. Pt. 6, Id. (emphasis added). However, as this Court noted last year in Payne and as

we have clarified herein:

               [O]nce the “judgments, decisions, and actions” of a
               governmental official are determined to be discretionary, the
               analysis does not end. Rather, even if the complained-of
               actions fall within the discretionary functions of an agency or
               an official’s duty, they are not immune if the discretionary
               actions violate “clearly established laws of which a
               reasonable official would have known[.]”

231 W.Va. at ___, 746 S.E.2d at 563 (citing Syl. Pt. 3, Clark, 195 W. Va. 272, 465

S.E.2d 374).



               In Payne, we noted further that “certain governmental actions or functions

may involve both discretionary and non-discretionary or ministerial aspects, the latter of

which may constitute a ‘clearly established law of which a reasonable public official

would have known.’” Id. at ___ n.26, 746 S.E.2d at 565 n.26. For instance, a broadly-

characterized governmental action or function may fall under the umbrella of a


                                             26

“discretionary” function; but within this discretionary function there are nonetheless

particular laws, rights, statutes, or regulations which impose ministerial duties on the

official charged with these functions. We believe that the 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, 134

A.2d 71, 73 (Conn. 1957) (the duties of hiring and suspending individuals require “the

use of a sound discretion”); McIntosh v. Becker, 314 N.W.2d 728, 729 (Mich. App. 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., 646 N.E.2d 187 (Oh. Ct. App. 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”).18




       18
          A number of federal courts are likewise in accord that hiring, training,
supervision, and retention are discretionary acts. See Doe v. Holy See, 557 F.3d 1066,
1084 (9th Cir. 2009); Sydnes v. United States, 523 F.3d 1179, 1186 (10th Cir. 2008);
Bolduc v. United States, 402 F.3d 50, 61 (1st Cir. 2005); Vickers v. United States, 228
F.3d 944, 950 (9th Cir. 2000); Nurse v. United States, 226 F.3d 996 (9th Cir. 2000);
Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1216–17 (D.C. Cir. 1997);
Tonelli v. United States, 60 F.3d 492, 496 (8th Cir. 1995); Gordon v. Ottumwa Comm.
(continued . . .)
                                            27

              Moreover, we disagree with respondent that this Court has previously held

that negligent hiring, supervision, and retention claims are per se viable causes of action

against the State or its agencies. In the cases relied upon by respondent, State ex rel. W.

Va. State Police v. Taylor, 201 W. Va. 554, 499 S.E.2d 283 (1997) and McCormick v. W.

Va. Dep’t of Pub. Safety, 202 W. Va. 189, 503 S.E.2d 502 (1998), the negligent hiring,

supervision, and retention claims were asserted against private entities who were also

parties to the litigation and not the State agency named in the suit.19



              However, as explained more fully above, the conclusion that employee

training, supervision, and retention are discretionary governmental functions is not

necessarily fatal to respondent’s claim.        To the extent that she can nonetheless

demonstrate that the WVRJCFA violated a “clearly established” right or law with respect

to its training, supervision, or retention of D. H., the WVRJCFA is not entitled to




Sch. Dist., 115 F. Supp.2d 1077, 1088 (S.D. Iowa 2000); Hughes v. City of Hartford, 96
F. Supp.2d 114, 119 (D. Conn. 2000); Jackson v. Katy Ind. Sch. Dist., 951 F. Supp. 1293,
1306 (S.D. Tex. 1996); Newsome v. Webster, 843 F. Supp. 1460, 1468 (S.D. Ga. 1994).
       19
         We likewise find the West Virginia federal court cases cited by respondent in
support of this proposition inapposite inasmuch as they were filed against political
subdivisions, the liability of which is governed by the West Virginia Tort Claims and
Insurance Reform Act. See, e.g. Woods v. Town of Danville, W. Va., 712 F. Supp.2d 502
(S.D.W. Va. 2010); Gilco v. Logan Cnty. Comm’n, No. 2:11-0032, 2012 WL 3580056
(S.D.W. Va. Aug. 17, 2012).


                                             28

immunity.20 In an effort to identify such a law, respondent contends that the WVRJCFA

violated the PREA; the WVRJCFA, however, claims that the PREA was not in effect at

the time of the alleged incidents underlying this action.



              The PREA became effective September 4, 2003; as such, it appears that the

WVRJCFA is actually asserting that the “national standards” to be developed by the

Commission created under the PREA were not yet in effect.             42 U.S.C. § 15607

(“Adoption and effect of national standards”). The final rule was published in the federal

register on June 20, 2012, and became effective on August 20, 2012. 77 Fed. Reg.

37106-01 (June 20, 2012) (to be codified at 28 C.F.R. pt. 115). Certain standards do not

go into effect until a later date. The acts alleged in the underlying suit occurred in 2009

through 2010. We find, however, that the PREA merely “authorizes grant money, and

creates a commission to study the [prison rape] issue. . . . The statute does not grant

prisoners any specific rights.”     De’Lonta v. Clarke, No. 7:11-cv-00483, 2013 WL

209489, at *3 (W.D. Va. Jan. 14, 2013) (quoting Chinnici v. Edwards, No. 1:07-cv-229,

2008 WL 3851294, at *3 (D. Vt. Aug. 13, 2008). As such, neither the PREA, nor the

standards promulgated at its direction, provide respondent with a “clearly established

right” sufficient to strip the WVRJCFA of its immunity.




       20
          The WVRJCFA does not claim that any such alleged negligence with respect to
training, supervision, or retention would fall outside of the scope of the authority of any
official or employee charged with such responsibilities.

                                             29

              There are, nevertheless, existing state regulations which govern certain

aspects of the training, supervision, and retention of jail employees as set forth in the

“West Virginia Minimum Standards for Construction, Operation, and Maintenance of

Jails”, West Virginia C.S.R. § 95-1-1 et seq. In the instant case, however, respondent has

failed to identify a single regulation which the WVRJCFA has violated as pertains to

training, supervision, or retention. 21 Moreover, respondent voluntarily dismissed her

West Virginia constitutional claims and expressly exempted the WVRJCFA from the

scope of the United States constitutional claims alleged in her complaint. Respondent’s

case suffers from the same fundamental flaw as did the case in Payne: “[A]t no time do

respondents identify a specific law, statute, or regulation which the DHHR defendants

violated.” 221 W. Va. at __, 746 S.E.2d at 565. As such, we find that respondent’s

failure to identify a “clearly established” right which the WVRJCFA violated through its

training, supervision, and retention of D. H. is likewise fatal to her claim.

       21
          In her briefing before this Court in a further attempt to identify a “clearly
established law,” respondent argues that the WVRJCFA was obliged and failed to
conduct an annual psychological examination of D. H., pursuant to Harrah v. Leverette,
165 W. Va. 665, 271 S.E.2d 322 (1980). Prior to the creation of the Regional Jail and
Correctional Facility Authority, the Court in Harrah held that annual psychological
testing was required for corrections officers within the Division of Corrections. 165 W.
Va. at 681, 271 S.E.2d at 332.

       However, West Virginia Code of State Regulations § 95-1-4.2, effective June 3,
1996, provides that psychological testing is only required prior to employment and “when
a justifiable need exists during their employment.” This Court has held that “[a]
regulation that is proposed by an agency and approved by the Legislature is a ‘legislative
rule’ as defined by the State Administrative Procedures Act, W. Va. Code, 29A–1–2(d)
[1982], and such a legislative rule has the force and effect of law.” Syl. Pt. 5, Smith v.
West Virginia Human Rights Comm’n., 216 W.Va. 2, 602 S.E.2d 445 (2004).


                                              30

                                           C.


               Respondent’s “Special Relationship” with the WVRJCFA



             Before dispensing with this matter altogether, we pause briefly to address

respondent’s contention that, as an inmate at a correctional facility, respondent was owed

a “special duty” by the State entitling her to escape the immunity shield of the

WVRJCFA. Respondent haphazardly tosses around the phrase “special duty” in an

attempt to bolster her claim of the WVRJCFA’s negligence, without ever stopping to

place the concept into its proper context. This failure has resulted in an error we have

had repeated occasion to mention in our immunity cases which involve the related issue

of the “public duty doctrine.”    In sum, the “special relationship” or “special duty”

doctrine is an exception to the liability defense known as the public duty doctrine; it is

neither an immunity concept, nor a stand-alone basis of liability. We have made plain

that,

             [q]ualified immunity is, quite simply, immunity from suit.
             The public duty doctrine is a defense to negligence-based
             liability, i.e. an absence of duty. See Holsten v. Massey, 200
             W. Va. 775, 782, 490 S.E.2d 864, 871 (1997) (“The public
             duty doctrine, however, is not based on immunity from
             existing liability. Instead, it is based on the absence of duty
             in the first instance.”). This Court dedicated an extensive
             discussion to the similarities, yet fundamental difference,
             between the two concepts in Parkulo v. West Virginia Bd. Of
             Probation and Parole, 199 W. Va. 161, 172, 483 S.E.2d 507,
             518 (1996): “[The public duty doctrine] is not a theory of
             governmental immunity, ‘although in practice it achieves
             much the same result’” (quoting Syl. Pt. 1, Benson v. Kutsch,
             181 W. Va. 1, 380 S.E.2d 36 (1989). Although both defenses
             are frequently raised, as in this case, only qualified immunity,

                                           31
              if disposed of by way of summary judgment, is subject to
              interlocutory appeal. All other issues are reviewable only
              after they are subject to a final order[.]

Payne, 231 W. Va. at __ n.10, 746 S.E.2d at 559-60 n.10; see also Jones v. Wilcox, 476

N.W.2d 473, 476 (Mich. Ct. App. 1991) (“The public duty doctrine is premised on the

existence of an element of a cause of action for negligence. On the other hand, the

governmental immunity issue concerns the creation of exceptions to liability based on the

functions of a governmental actor.”). As in Payne, the attempt to invoke the special duty

exception to the public duty doctrine in this interlocutory appeal is improper inasmuch as

only the immunity issue is before this Court.          Moreover, there is no suggestion

whatsoever in the underlying allegations that the WVRJCFA is asserting the public duty

doctrine as a defense to liability, to which respondent could then properly invoke the

special duty exception. This is likely because respondent has alleged no breach of a duty

to the general public such as to give rise to a public duty doctrine defense.22




       22
         To the extent, however, that respondent is attempting to use the “special duty”
concept to evade the scope of immunity by suggesting that she is owed a heightened duty
of care by virtue of her placement in a correctional facility, we find it unnecessary to
carve out an exception for prison inmates and create a special rule of liability for them.
While respondent is correct that she stands in a different relation to the State as a
confined inmate, to whatever extent she is entitled to different or “heightened” standards
of care, such standards exist in countless forms not the least of which are the United
States and West Virginia Constitutional prohibitions against cruel and unusual
punishment and the plentiful administrative regulations governing correctional facilities.
As noted before, respondent has established no violation of any clearly established law
and expressly dismissed her West Virginia constitutional claims as against the
WVRJCFA.

                                             32

             Accordingly, we find that the WVRJCFA is entitled to immunity for

respondent’s claims of negligent training, supervision, and retention, and therefore, the

circuit court erred in failing to grant summary judgment to the WVRJCFA.



                                 IV. CONCLUSION

             For the foregoing reasons, the December 3, 2012, order denying summary

judgment is reversed, and we remand for the entry of an order granting the WVRJCFA’s

motion for summary judgment and dismissing the action against it.



                                                                Reversed and remanded.




                                           33

