        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 September 2013 Term

                                                                FILED
                                                            October 24, 2013
                                     No. 12-0824              released at 3:00 p.m.
                                                              RORY L. PERRY II, CLERK
                                                            SUPREME COURT OF APPEALS
                                                                OF WEST VIRGINIA



                         LORRAINE M. UPCHURCH,
                    ADMINISTRATRIX OF THE ESTATE OF
                    JOE EDWARD MALLORY, DECEASED,
                          Plaintiff Below, Petitioner

                                          V.

                         MCDOWELL COUNTY 911 AND
                           JANE DOE DISPATCHER,
                          Defendants Below, Respondents



                Appeal from the Circuit Court of Kanawha County
                        Honorable James C. Stucky, Judge
                            Civil Action No. 10-C-72

                                     AFFIRMED


                              Submitted: October 16, 2013
                                Filed: October 24, 2013


JB Akers                                       M. Andrew Brison
Akers Law Offices, PLLC                        Anspach Meeks Ellenberger, LLP
Charleston, West Virginia                      Charleston, West Virginia
Attorney for the Petitioner                    Attorney for the Respondents


The Opinion of the Court was delivered PER CURIAM.
                             SYLLABUS BY THE COURT



              1.     “A circuit court’s entry of summary judgment is reviewed de novo.”

Syllabus point 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).



              2.     “W. Va. Code, 29-12A-5(a)(5) [1986], which provides, in relevant part,

that a political subdivision is immune from tort liability for ‘the failure to provide, or the

method of providing, police, law enforcement or fire protection[,]’ is coextensive with the

common-law rule not recognizing a cause of action for the breach of a general duty to

provide, or the method of providing, such protection owed to the public as a whole. Lacking

a clear expression to the contrary, that statute incorporates the common-law special duty rule

and does not immunize a breach of a special duty to provide, or the method of providing,

such protection to a particular individual.” Syllabus point 8, Randall v. Fairmont City Police

Department, 186 W. Va. 336, 412 S.E.2d 737 (1991).



              3.     “If 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.” Syllabus point 3, Benson v.

Kutsch, 181 W. Va. 1, 380 S.E.2d 36 (1989).



              4.     “To establish that a special relationship exists between a local

                                              i
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; (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.” Syllabus point 2, Wolfe v. City

of Wheeling, 182 W. Va. 253, 387 S.E.2d 307 (1989).




                                             ii
Per Curiam:

              The petitioner herein and plaintiff below, Lorraine M. Upchurch (“Ms.

Upchurch”), Administratrix of the Estate of Joe Edward Mallory (“Mr. Mallory”), appeals

from orders entered June 6, 2012, and June 12, 2012, by the Circuit Court of Kanawha

County. By the June 6, 2012, order, the circuit court found that the respondents herein and

defendants below, McDowell County 911 and Jane Doe Dispatcher1 (collectively “McDowell

County 911”), were entitled to summary judgment because Ms. Upchurch had failed to prove

that they owed a special duty to her decedent, Mr. Mallory. Thereafter, by order entered June

12, 2012, the circuit court extended the time within which Ms. Upchurch was required to file

her notice of appeal to this Court. Before this Court, Ms. Upchurch challenges the circuit

court’s award of summary judgment to the respondents. Upon our review of the parties’

arguments, the appendix record, and the pertinent authorities, we affirm the circuit court’s

decision. In summary, we find that Ms. Upchurch failed to prove that the respondents,

McDowell County 911 and Jane Doe Dispatcher, owed a special duty of care to her decedent,

Mr. Mallory, as contemplated by Syllabus point 2 of Wolfe v. City of Wheeling, 182 W. Va.

253, 387 S.E.2d 307 (1989).2




              1
                  The referenced 911 dispatcher has been identified as Martha Heffner (“Ms.
Heffner”).
              2
              The text of Syllabus point 2 of Wolfe v. City of Wheeling, 182 W. Va. 253, 387
S.E.2d 307 (1989), is set forth in Section III, infra.

                                              1
                                             I.

                    FACTUAL AND PROCEDURAL HISTORY

             The facts giving rise to the instant proceeding are not generally disputed by the

parties. At approximately 10:00 a.m., on Saturday, January 19, 2008, Mr. Mallory3 called

McDowell County 911 to request assistance at his residence because a man,4 who was later

identified as Robert Wayne Johnson, Jr. (“Mr. Johnson”),5 was banging on the front door of

his home and threatening to harm him.6 McDowell County 911 dispatcher, Ms. Heffner,

answered Mr. Mallory’s call. Ms. Heffner obtained Mr. Mallory’s name, address,7 and

telephone number, and asked him the nature of his problem. Mr. Mallory reported that a man

was threatening to kick in his door and harm him. During the call, Ms. Heffner could hear

the man yelling, and Mr. Mallory gave Ms. Heffner a description of the man and the man’s


             3
              Mr. Mallory was seventy-one years old at the time of the events at issue
herein.
             4
              Although Mr. Mallory was familiar with the man, he did not know the man’s
name. It was later determined that the man banging on Mr. Mallory’s front door on the
morning of January 19, 2008, was Mr. Johnson.
             5
              It is not clear how old Mr. Johnson was at the time of these events.
             6
              Some time earlier, Mr. Mallory apparently had sold a hunting rifle to Mr.
Johnson’s father, who was a neighbor of Mr. Mallory. After the sale, the Johnsons
discovered that the gun was defective and needed a part. Thus, Mr. Johnson went to Mr.
Mallory’s home to recover the cost of said part, which was estimated to be approximately
$25.00. At some point, it appears that Mr. Mallory’s brother went to the home of Mr.
Johnson’s father and paid him this disputed sum, but it is not apparent when this payment
was made or whether Mr. Johnson or Mr. Mallory was aware of it.
             7
               Mr. Mallory’s residence was located approximately thirty minutes away from
the closest law enforcement detachment.

                                             2
vehicle. Ms. Heffner told Mr. Mallory that she would alert the police.



              After the call from Mr. Mallory ended, Ms. Heffner called West Virginia State

Police Trooper Jason Keffer (“Trooper Keffer”), who was stationed in McDowell County.8

Trooper Keffer informed Ms. Heffner that he was between shifts and was not yet ready for

duty, and he asked Ms. Heffner to call Mr. Mallory back to obtain more information about

his request for assistance.



              Ms. Heffner then called Mr. Mallory and informed him a trooper was on the

way to his house. After learning that the man had left, Ms. Heffner explained to Mr. Mallory

that there was no longer a need for a trooper to come to his home. Mr. Mallory expressed

fear that the man would return and hurt him, and indicated that he had a shotgun that he could

use to protect himself. Ms. Heffner cautioned Mr. Mallory not to shoot anyone and

instructed him to call her back if the man returned. Ms. Heffner also told Mr. Mallory that

she would have a trooper call him so he could explain why he had requested assistance.



              After her second conversation with Mr. Mallory, Ms. Heffner called Trooper

Keffer and relayed that the man had left Mr. Mallory’s residence, that she had warned him


              8
                Ms. Heffner did not call the McDowell County Sheriff’s Department
(“Sheriff’s Department”) because the deputy that she believed to be on duty was having car
problems, and she told Trooper Keffer that she had not contacted the Sheriff’s Department
for this reason.

                                              3
not to shoot anyone, and that she had instructed him to call her back if the man returned.



              Following this exchange, the parties dispute whether Trooper Keffer also called

Mr. Mallory to check on his safety and to ascertain whether he needed to go to his home.

This telephone call was not recorded. However, it is undisputed that Trooper Keffer did not

travel to Mr. Mallory’s home on Saturday, January 19, 2008. Moreover, Mr. Mallory did not

call McDowell County 911 for further assistance on January 19, 2008.



              The next morning, Sunday, January 20, 2008, Pat Johnson (“Mrs. Johnson”),

Mr. Johnson’s stepmother, called McDowell County 911 to report that she believed that Mr.

Johnson had killed a man. It was later determined that Mr. Johnson had broken into Mr.

Mallory’s home through his back door at approximately 11:30 p.m., on Saturday, January 19,

2008, and had robbed and killed him. Mr. Johnson allegedly killed Mr. Mallory by stabbing

him over thirty times in the head, face, and arms, which wounds indicated that Mr. Mallory

had tried to defend himself.9



              Thereafter, Ms. Upchurch filed the instant wrongful death action against the

West Virginia Department of Military Affairs and Public Safety; James W. Spears; West




              9
                Mr. Johnson was convicted of the first degree murder of Mr. Mallory and
currently is incarcerated for this crime.

                                             4
Virginia State Police; Colonel Timothy S. Pack; John Doe State Trooper;10 McDowell

County Commission; McDowell County Sheriff’s Department; John Doe McDowell County

Deputy Sheriff; McDowell County 911; Jane Doe Dispatcher;11 Robert Wayne Johnson, Sr.;12

and Pat Johnson. In her complaint, Ms. Upchurch alleged that the named defendants had

contributed to Mr. Mallory’s death through their negligence and wanton and reckless conduct

and sought wrongful death damages. McDowell County 911 moved for summary judgment

arguing that it did not owe a special duty to Mr. Mallory. By order entered June 6, 2012, the

circuit court granted summary judgment to McDowell County 91113 concluding that

              Plaintiff [Ms. Upchurch] can present no evidence at trial to
              support the legal position that [Mr.] Mallory justifiably relied
              upon any conduct of [Ms.] Heffner that created a special
              relationship between the two. As a result, Plaintiff [Ms.
              Upchurch] cannot, as a matter of law, demonstrate that a special
              duty was created upon Defendant [McDowell County 911] that
              resulted in any harm to [Mr.] Mallory.

                        Because no special relationship was created between

              10
                   John Doe State Trooper has been identified as Trooper Keffer.
              11
                   See supra note 1.
              12
                   Robert Wayne Johnson, Sr., is Mr. Johnson’s father.
              13
                During the underlying proceedings, the West Virginia State Police defendants
settled Ms. Upchurch’s claims against them. Additional defendants below, the McDowell
County Commission; McDowell County Sheriff’s Department; and John Doe McDowell
County Deputy Sheriff, were dismissed by agreement of the parties prior to the circuit court’s
summary judgment ruling. Finally, as part of its June 12, 2012, order, the circuit court
dismissed defendants Robert Wayne Johnson, Sr., and Pat Johnson. Thus, although the style
of the circuit court’s June 6, 2012, order references additional defendants who had been
dismissed, the only defendants who were parties to the summary judgment proceedings were
McDowell County 911 and Jane Doe Dispatcher.

                                               5
              [Mr.] Mallory and [Ms.] Heffner, Defendant [McDowell County
              911] is immune from this litigation pursuant to West Virginia
              Code, § 29-12A-5.

By subsequent order entered June 12, 2012, the circuit court extended the time within which

Ms. Upchurch was required to file her appeal from the circuit court’s earlier summary

judgment order to this Court.14 From these orders, Ms. Upchurch now appeals to this Court.



                                              II.

                               STANDARD OF REVIEW

              The orders from which Ms. Upchurch appeals involve an award of summary

judgment to the respondents. Our review of the lower court’s summary judgment order is

plenary: “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). In light of this standard, we

proceed to consider the parties’ arguments.




              14
                Although the circuit court’s June 12, 2012, order is entitled “Order Granting
Plaintiff’s Rule 59(e) Motion [sic] Dismissing Pat Johnson and Robert Wayne Johnson, Sr.
and Extending Timeframe for Filing Notice of Appeal,” the only substantive rulings
contained therein pertain to the dismissal of defendants Pat Johnson and Robert Wayne
Johnson, Sr., and the extension of the appeal period. The circuit court’s order does not
contain a specific ruling upon Ms. Upchurch’s Rule 59(e) motion to alter or amend its June
6, 2012, summary judgment order. Neither can we ascertain the precise relief requested by
Ms. Upchurch in her Rule 59(e) motion insofar as said motion is not contained in the
appendix record presented to this Court for consideration on appeal.

                                              6
                                             III.

                                       DISCUSSION

              The sole dispositive issue in this case15 is whether McDowell County 911 owed

Mr. Mallory a special duty of care. If such a special duty of care exists, then McDowell

County 911 is amenable to suit for Mr. Mallory’s wrongful death. If no such special duty

of care exists, then McDowell County 911 is immune from suit as a political subdivision.

We find, under the facts of this case, that Ms. Upchurch has failed to prove that McDowell

County 911 owed Mr. Mallory a special duty of care.



              Pursuant to W. Va. Code § 29-12A-5(a) (1986) (Repl. Vol. 2013),

                     [a] political subdivision is immune from liability if a loss
              or claim results from:

                     ....

                      (4) Adoption or failure to adopt a law, including, but not
              limited to, any statute, charter provision, ordinance, resolution,
              rule, regulation or written policy; [or]



              15
                While Ms. Upchurch also assigns error to the circuit court’s consideration of
Trooper Keffer’s testimony regarding his alleged telephone conversation with Mr. Mallory
because such testimony is inadmissible pursuant to the Dead Man’s Statute, W. Va. Code
§ 57-3-1 (1937) (Repl. Vol. 2012), we find this argument to lack merit in light of our recent
decision invalidating this provision. See Syl. pt. 6, State Farm Fire & Cas. Co. v. Prinz, 231
W. Va. 96, 743 S.E.2d 907 (2013) (“Because it addresses evidentiary matters that are
reserved to and regulated by this Court pursuant to the Rule-Making Clause, Article VIII, § 3
of the West Virginia Constitution, West Virginia Code § 57-3-1 (1937), commonly referred
to as the Dead Man’s Statute, is invalid, as it conflicts with the paramount authority of the
West Virginia Rules of Evidence.”).

                                              7
                      (5) Civil disobedience, riot, insurrection or rebellion or
              the failure to provide, or the method of providing, police, law
              enforcement or fire protection[.]

We have interpreted this provision as follows:

                      W. Va. Code, 29-12A-5(a)(5) [1986], which provides, in
              relevant part, that a political subdivision is immune from tort
              liability for “the failure to provide, or the method of providing,
              police, law enforcement or fire protection[,]” is coextensive with
              the common-law rule not recognizing a cause of action for the
              breach of a general duty to provide, or the method of providing,
              such protection owed to the public as a whole. Lacking a clear
              expression to the contrary, that statute incorporates the common-
              law special duty rule and does not immunize a breach of a
              special duty to provide, or the method of providing, such
              protection to a particular individual.

Syl. pt. 8, Randall v. Fairmont City Police Dep’t, 186 W. Va. 336, 412 S.E.2d 737 (1991).

Thus, “[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). We further have held that,

                      [t]o 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; (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 v. City of Wheeling, 182 W. Va. 253, 387 S.E.2d 307 (1989). Finally, “[t]he

                                               8
question of whether a special duty arises to protect an individual from a local governmental

entity’s negligence in the performance of a nondiscretionary . . . function is ordinarily a

question of fact for the trier of the facts.” Syl. pt. 3, in part, id. (emphasis added).



              Applying these holdings to the facts of the case sub judice, we conclude that

Ms. Upchurch has failed to prove the existence of a special relationship between McDowell

County 911 and Mr. Mallory such as would form the basis of a special duty of care to him.

See Syl. pt. 2, Wolfe, id. While it is undisputed that Ms. Heffner had direct contact with Mr.

Mallory, Ms. Upchurch is unable to establish the existence of the remaining elements of the

special relationship test. Although Ms. Heffner initially informed Mr. Mallory that she

would send a law enforcement officer to his home during their first telephone conversation,

when Ms. Heffner spoke to Mr. Mallory a second time and learned that Mr. Johnson was no

longer at Mr. Mallory’s home, she explained to Mr. Mallory that there was no longer a need

for a law enforcement officer to come to his home. Likewise, insofar as Ms. Heffner had

advised Mr. Mallory that a law enforcement officer would not be coming to his home since

Mr. Johnson had vacated the premises, Mr. Mallory could not have justifiably relied upon

Ms. Heffner’s statement during their first conversation that a law enforcement officer would

be dispatched to his home.16 Finally, in light of the fact that Mr. Johnson had left Mr.


              16
               To the extent that Ms. Upchurch asserts an inadequate response by law
enforcement in this case, her arguments tend to focus more upon Trooper Keffer’s failure to
travel to Mr. Mallory’s home to investigate his complaints that led him to call McDowell
                                                                            (continued...)

                                                9
Mallory’s property, and given that Mr. Mallory did not call back for further assistance, Ms.

Heffner could not have known that her failure to take further action would result in Mr.

Mallory’s death.17




              16
                 (...continued)
County 911 rather than upon perceived shortcomings in McDowell County 911’s response
to his call. Insofar as Trooper Keffer and the West Virginia State Police have settled Ms.
Upchurch’s claims against them, any action or failure to act by Trooper Keffer is not relevant
to whether McDowell County 911 acted or failed to act in response to Mr. Mallory’s call for
emergency assistance. Rather, having reviewed the McDowell County 911 recordings of the
events of Saturday, January 19, 2008, we find that Ms. Heffner accurately relayed the
information she obtained from Mr. Mallory to Trooper Keffer and that Trooper Keffer then
exercised his discretion as to whether Mr. Mallory’s call warranted a law enforcement officer
to travel to his home.
              17
                We further find that McDowell County 911 and Ms. Heffner also are immune
from suit in this case pursuant to W. Va. Code § 24-6-8 (1997) (Repl. Vol. 2013), which
provides as follows:

                     A public agency or a telephone company participating in
              an emergency telephone system or a county which has
              established an enhanced emergency telephone system, and any
              officer, agent or employee of the public agency, telephone
              company or county is not liable for damages in a civil action for
              injuries, death or loss to persons or property arising from any act
              or omission, except willful or wanton misconduct, in connection
              with developing, adopting or approving any final plan or any
              agreement made pursuant to this article, or otherwise bringing
              into operation or participating in the operation of an emergency
              telephone system or an enhanced emergency telephone system
              pursuant to this article.

Simply stated, Ms. Upchurch has not proven that either McDowell County 911 or Ms.
Heffner exhibited “willful or wanton misconduct,” id., in response to Mr. Mallory’s call for
emergency assistance.

                                              10
                                           IV.

                                    CONCLUSION

             For the foregoing reasons, we conclude that the circuit court correctly awarded

summary judgment to the respondents herein, McDowell County 911 and Jane Doe

Dispatcher, because Ms. Upchurch failed to establish that they owed a special duty of care

to her decedent, Mr. Mallory, as contemplated by Syllabus point 2 of Wolfe v. City of

Wheeling, 182 W. Va. 253, 387 S.E.2d 307 (1989). Accordingly, the June 6, 2012, and June

12, 2012, orders of the Circuit Court of Kanawha County are hereby affirmed.



                                                                                 Affirmed.




                                            11
