No. 13-0037 - West Virginia Regional Jail and Correctional Facility Authority v. A.B.
                                                                        FILED
                                                                   March 27, 2014
                                                                       released at 3:00 p.m.
                                                                       RORY L. PERRY II, CLERK
                                                                     SUPREME COURT OF APPEALS
                                                                         OF WEST VIRGINIA
Davis, C.J., dissenting:

              While confined at the Southern Regional Jail, the plaintiff alleged that she was

raped on seventeen (17) different occasions by a correctional officer. The plaintiff sued the

rapist and his employer, the West Virginia Regional Jail and Correctional Facility Authority

(“the Regional Jail”). The Regional Jail moved for summary judgment on the grounds of

qualified immunity. The trial court denied the motion, and the Regional Jail appealed. The

majority opinion reversed after determining, in essence, that the Regional Jail does not have

a duty to protect female prisoners from being raped by the correctional officers it employs.

The majority opinion also tersely rejected the circuit court’s determination that the special

relationship doctrine precluded summary judgment. For the reasons set out below, I dissent.



                                  A. Qualified Immunity

              In order to find that the Regional Jail is immune from liability when female

inmates are raped with impunity by correctional officials, the majority opinion recast our law

on qualified immunity in such a manner as to make it now virtually impossible for any state

agency, not just the Regional Jail, to ever be held accountable for tortious conduct committed

by employees within the scope of their employment. I do not make this accusation lightly.


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The decision in Heckenlaible v. Virginia Peninsula Regional Jail Authority, 491 F. Supp. 2d

544 (E.D. Va. 2007), helps to illustrate the true impact of the majority opinion.



              Before examining Heckenlaible, it is appropriate to review the constitutionally

recognized “liberty interest in the integrity of the human body.” Farrell, ex rel. Farrell v.

Transylvania Cnty. Bd. of Educ., 682 S.E.2d 224, 230 (N.C. Ct. App. 2009). “The liberty

interest protected by substantive due process encompasses the right to be free from state

intrusion upon one’s bodily security and personal privacy. State action which ‘shocks the

conscience’ or runs counter to ‘certain decencies of civilized conduct’ violates the due

process clause.” Jane Doe A v. Special Sch. Dist. of St. Louis Cnty., 682 F. Supp. 451, 457

(E.D. Mo. 1988). “[C]ourts uniformly hold that the right to be free from sexual abuse–the

logical extension of the right to bodily security-is well established.” Arbaugh v. Board of

Educ., County of Pendleton, 329 F. Supp. 2d 762, 770 (N.D. W. Va. 2004). Accord Doe ex

rel. Doe v. City of Roseville, 296 F.3d 431, 435, 438 (6th Cir. 2002); Doe v. Gooden, 214

F.3d 952, 956 (8th Cir. 2000); Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 451 (5th

Cir.1994); Hinkley v. Baker, 122 F. Supp. 2d 48, 51 (D. Me. 2000). Indeed, the United States

Supreme Court has commented that "[a]mong the historic liberties so protected [by the Fifth

and Fourteenth Amendments] was a right to be free from, and to obtain judicial relief for,

unjustified intrusions on personal security.” Ingraham v. Wright, 430 U.S. 651, 673, 97

S. Ct. 1401, 1413, 51 L. Ed. 2d 711 (1977). In the context of corporal punishment of


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children by school officials, the Fourth Circuit summarized the constitutional protection

afforded the human body in Hall v. Tawney, 621 F.2d 607 (4th Cir. 1980):

              [Citizens have] the right to be free of state intrusions into realms
              of personal privacy and bodily security through means so brutal,
              demeaning, and harmful as literally to shock the conscience of
              a court. The existence of this right to ultimate bodily security
              the most fundamental aspect of personal privacy is unmistakably
              established in our constitutional decisions as an attribute of the
              ordered liberty that is the concern of substantive due process.
              Numerous cases in a variety of contexts recognize it as a last
              line of defense against those literally outrageous abuses of
              official power whose very variety makes formulation of a more
              precise standard impossible. Clearly recognized in persons
              charged with or suspected of crime and in the custody of police
              officers[.]

Hall, 621 F.2d at 613. In the instant case, the plaintiff’s constitutional right to be free “from

invasion of her personal security through sexual abuse, was well-established at the time the

assaults upon her occurred.” Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 726 (3rd

Cir. 1989). As a result of this well recognized constitutional protection, the majority opinion

should have applied the analysis and reasoning in Heckenlaible in order to affirm the circuit

court’s decision in the instant case.



              The plaintiff in Heckenlaible sued a correctional officer and his employer,

Virginia Peninsula Regional Jail Authority, for sexual assault while she was confined in jail.

The defendant, Peninsula Regional Jail, moved for summary judgment on several grounds,

including the contention that it could not be held liable under the theory of respondent


                                               3

superior.1 The federal district court disagreed with the defendant as follows:

                 [A] jury issue may exist as to whether an employee’s wrongful
                 act occurred within the scope of employment notwithstanding
                 the fact that the employee’s act violated an employer's rules or
                 directives. Ultimately, the issue for the court to resolve is
                 whether the service itself, in which the tortious act was done,
                 was within the ordinary course of [the employer’s] business.

                        ....

                 [T]his was not a case where a wrongful act occurred in the
                 workplace merely because an employee was in a particular
                 location at a particular time as a result of his employment.
                 Steele’s duties as a correctional officer required him to observe
                 inmates in the shower, and the alleged sexual assault occurred
                 after he observed Heckenlaible showering and during a “cell
                 search” thereafter. Steele’s impulse to have sexual contact with
                 Heckenlaible may well have arisen, at least in part, from the fact
                 that he was required to view Heckenlaible while she was
                 unclothed in the shower. In light of these circumstances, a
                 reasonable juror could conclude that the alleged sexual assault
                 arose out of Steele’s performance of his duties.

                         Moreover, viewing the facts in the light most favorable
                 to Heckenlaible, Steele was actively engaged in the performance
                 of his job duties, which included supervising Heckenlaible and
                 the other inmates in the medical unit, when the wrongful act
                 occurred. Steele was supervising Heckenlaible when he
                 accompanied her to the shower, looked at her while she
                 showered, and returned her to her cell afterwards. In addition,
                 he ultimately entered her cell on the pretense of conducting a
                 cell search, and cell searches are also among the duties of a
                 correctional officer. It follows that a reasonable juror could
                 conclude that when the wrongful act occurred, Steele was
                 engaged in a service, namely, the supervision of Heckenlaible,
                 that was within the ordinary course of the Jail Authority’s


       1
           Other issues were raised that are not relevant.

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              business. A reasonable juror could reach this conclusion
              notwithstanding the fact that Steele violated the Jail Authority’s
              policies when he had a sexual encounter with Heckenlaible.

                     Furthermore, the instant case reflects a situation where
              special circumstances related to employment facilitated the
              alleged intentional tort. Steele could not have reached
              Heckenlaible within the confines of her cell were it not for his
              employment with the Jail Authority. Also, in announcing that
              he was entering her cell to conduct a search, Steele arguably
              used the authority of his office to accomplish the wrongful act.
              Such facts weigh strongly against resolving the scope of
              employment issue, as a matter of law, in favor of the Jail
              Authority. In sum, having carefully reviewed the relevant case
              law and studied the arguments set forth by the parties, this court
              concludes, for the several reasons discussed above, that whether
              Steele was acting within the scope of his employment when he
              allegedly assaulted Heckenlaible is an issue for the jury to
              resolve.

Heckenlaible, 491 F. Supp. 2d at 549-52 (internal quotations and citations omitted).



              The majority opinion summarily rejected Heckenlaible on the grounds that

Virginia did not extend qualified immunity to itself. The majority opinion’s rejection of

Heckenlaible is misguided. The fact that Virginia did not extend qualified immunity under

the facts of Heckenlaible was irrelevant. The most important issue addressed in Heckenlaible

and completely omitted from the majority opinion was an understanding of how to analyze

“scope of employment.” In other words, both Virginia and West Virginia require that a state

employee’s conduct fall within the scope of employment in order to extend liability to the

State.


                                              5

              Under Heckenlaible, the mere fact that an employee’s wrongful conduct

violated an employer’s rules or directives does not automatically mean that the employee’s

wrongful act occurred outside the scope of his/her employment. Instead, Heckenlaible

requires the fact finder to determine “whether the service itself, in which the tortious act was

done, was within the ordinary course of [the employer’s] business.” Heckenlaible, 491

F. Supp. 2d at 549-52 (internal quotations and citations omitted). Stated simplistically, the

issue for a jury is whether “the employee’s wrongful conduct was related to the nature of the

employment.” Blair v. Defender Servs., Inc., 386 F.3d 623, 628 (4th Cir. 2004).



              Although the majority opinion repeatedly mentions that proof is required to

show that the wrongful conduct was committed during the scope of employment, the opinion

totally failed to provide any analysis of how to apply the phrase “scope of employment.” It

is the absence of such analysis that makes the majority opinion dangerous. The majority

opinion stands for the proposition that any wrongful act not authorized by a State agency will

immunize the State from liability. This new standard can never be overcome by a plaintiff,

because no State agency ever authorizes wrongful conduct.



              To add insult to injury, the majority opinion also has concluded specifically that

liability cannot be imposed on the Regional Jail merely because it did not have any

regulations designed to protect female inmates from being raped. According to the majority


                                               6

opinion, such regulations “easily fall within the category of ‘discretionary’ governmental

functions.” The majority opinion requires a rape victim to specifically point to “a ‘clearly

established’ right or law with respect to . . . supervision[.]” In the final analysis, under the

majority opinion, the Regional Jail simply has to bury its head in the sand and never

promulgate any regulation designed to protect the bodily integrity of female inmates to

ensure its continued impunity from liability.



              “Although mere failure to supervise is not a basis for liability under [the law],

liability will result if delinquent supervision is so severe as to amount to gross negligence or

deliberate indifference to constitutional violations.” Holland v. Breen, 623 F. Supp. 284, 290

(D. Mass. 1985) (internal quotations and citation omitted). The majority opinion promotes

and rewards “gross negligence and deliberate indifference” to the constitutional right of

female inmates to be free of sexual assaults. But, the State cannot be granted absolute

immunity merely because no regulation was violated when its employee raped an inmate

seventeen times. Just what will it take to protect women from such assaults? Simply put,

the Regional Jail was grossly negligent in not having regulations in place that would have

protected the plaintiff from being alone with any male correctional officer on seventeen

separate occasions.



              Finally, I wish to point out that the decision in J.H. v. West Virginia Division


                                                7

of Rehabilitation Services, 224 W. Va. 147, 680 S.E.2d 392 (2009), supports the trial court’s

decision in the instant case. In J.H., the plaintiff was a resident in a rehabilitation center

operated by a State agency. While at the facility, the plaintiff was raped by another resident

living at the facility. The plaintiff sued the State agency on various grounds of negligence,

including negligent supervision and failure to provide adequate protection. The State moved

to dismiss the case on the grounds of qualified immunity.2 The circuit court granted the

State’s motion. This Court, in summary fashion, found that qualified immunity did not exist:

                      The Division argues that because qualified immunity
              protects governmental entities from tort liability for alleged
              negligence in the exercise of “discretionary” functions, the
              Appellant’s Amended Complaint alleging mere negligence
              rather than a violation of any clearly established law failed to
              state a claim against the Division for which relief could be
              granted.

                     ....

                      [T]he first issue that must be determined in analyzing the
              issue of qualified immunity and the applicability of this
              immunity to a State agency is whether the State’s insurance
              policy expressly waives common-law immunity for tort liability.
              In the instant matter, no such waiver exists. Thus, the second
              inquiry is whether the State entity was exercising a legislative or
              judicial function or an administrative function involving the
              determination of a fundamental governmental policy. There are
              no allegations made by the Appellant of any type of legislative,
              judicial, or administrative functions involving the determination
              of a fundamental governmental policy, which are the types of
              functions susceptible to the application of qualified immunity.


       2
        The State also sought dismissal under the public duty doctrine, which I will discuss
in the next section of my dissent.

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                 Thus, the doctrine of qualified immunity does not preclude this
                 claim.

J.H., 224 W. Va. at 156-57, 680 S.E.2d at 401-02 (citation omitted). Even though J.H.

summarily addressed the issue of qualified immunity, the opinion nonetheless should have

been followed because it was factually similar to the instant case. In both cases, the victims

were raped. At the time of the rapes, both victims were under the care and supervision of the

State. In both cases, the plaintiffs alleged that the State failed to properly supervise their

assailants and failed to provide adequate protection to safeguard them from being raped. The

decision in J.H. correctly found this set of facts was sufficient to defeat a claim of qualified

immunity. In the instant case, the majority opinion has taken these same facts and concluded

that the State did not have a duty to protect the plaintiff from being raped by its employee.



                B. Special Relationship Exception to the Public Duty Doctrine

                 The final issue I wish to address involves the majority opinion’s terse treatment

of the special relationship exception to the public duty doctrine.3 We have held that, under

the public duty doctrine, “a local governmental entity’s liability for nondiscretionary . . .

functions may not be predicated upon the breach of a general duty owed to the public as a

whole.” Walker v. Meadows, 206 W. Va. 78, 83, 521 S.E.2d 801, 806 (1999) (internal

quotations and citation omitted). The public duty doctrine is different from the principle of



       3
           The special relationship exception is also called the special duty doctrine.

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governmental immunity. That is, the public duty doctrine “does not rest squarely on the

principle of governmental immunity, but rests on the principle that recovery may be had for

negligence only if a duty has been breached which was owed to the particular person seeking

recovery.” Parkulo v. West Virginia Bd. of Prob. & Parole, 199 W. Va. 161, 172, 483 S.E.2d

507, 518 (1996). If the public duty doctrine applies, there is no duty owed by the government

and therefore no need to inquire as to the existence of governmental immunity. However,

the public duty doctrine may be defeated under the special relationship exception. This Court

set forth the following test for determining when the “special relationship” exception to the

public duty doctrine gives rise to a cause of action:

                       To establish that a special relationship exists between a
               local governmental entity and an individual, which is the basis
               for a special duty of care owed to such individual, the following
               elements must be shown: (1) an assumption by the local
               governmental entity, through promises or actions, of an
               affirmative duty to act on behalf of the party who was injured;
               (2) knowledge on the part of the local governmental entity’s
               agents that inaction could lead to harm; (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).



               Turning now to the instant case, the first matter I am compelled to address

involves the majority opinion’s assertion that the plaintiff injected the issue of the public duty

doctrine and special relationship exception into this appeal. The record clearly shows that


                                                10

the Regional Jail injected this issue as a specific assignment of error.4 Consequently, the

plaintiff had a right to respond to the assignment of error. Moreover, the Regional Jail

addressed the issue as an assignment of error because the trial court ruled that the special

relationship exception applied in this case.



              The second issue I must address concerns the majority opinion’s unsupported

assertion that the special relationship exception cannot be invoked until a government entity

raises the public duty doctrine as a defense. Specifically, the majority opinion states that the

record does not show that the Regional Jail “assert[ed] the public duty doctrine as a defense

to liability, to which respondent could then properly invoke the special duty exception.” This

erroneous limitation on the invocation of the special relationship exception was compounded

by the majority opinion’s unsupported assertion that the special relationship exception is not

“a stand-alone basis of liability.”5



              Our prior cases have clearly held that the special relationship “exception gives

rise to a cause of action in certain situations when there is a special relationship between an

individual and a governmental entity.” Holsten v. Massey, 200 W. Va. 775, 780-81, 490

       4
       The Regional Jail entitled the assignment of error as follows: “The Trial Court Erred
By Finding A Special Duty Existed Between Petitioner And Respondent.”
       5
        I will note that “[i]f immunity exists . . . no inquiry into the public duty doctrine and
its special relationship exception is necessary.” Moats v. Preston Cnty. Comm’n., 206
W. Va. 8, 14, 521 S.E.2d 180, 186 (1999).

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S.E.2d 864, 869-70 (1997) (emphasis added). This Court held in syllabus point 3 of Benson

v. Kutsch, 181 W. Va. 1, 380 S.E.2d 36 (1989), that “[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.”

The decision in J.H., discussed supra, illustrates the application of the special relationship

exception.



              As previously pointed out, the plaintiff in J.H. was a resident in a State

rehabilitation center when he was raped by another resident living at the facility. After the

plaintiff filed the action, the State moved to dismiss the action under several defenses that

included the public duty doctrine. The circuit court found that the public duty doctrine

prevented imposition of liability against the State. This Court reversed the circuit court’s

ruling and reasoned as follows:

                     [W]e direct our attention to the pivotal issue in this
              matter, which is the public duty doctrine and whether the special
              relationship exception applies in this case. Generally, the duty
              imposed upon a governmental entity is one owed to the general
              public, and unless the injured party can demonstrate that some
              special relationship existed between the injured person and the
              allegedly negligent entity, the claim is barred. As the Court has
              previously recognized the public duty doctrine is a principle
              independent of the doctrine of governmental immunity, although
              in practice it achieves much the same result. The Appellant
              maintains that as a resident of the attendant care unit at the
              Rehabilitation Center, he had a special relationship with the
              Division beyond the relationship with the general public. The
              Appellant maintains that the Division had full knowledge of the

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Appellant’s compromised mobility and had knowledge of Jeff
Bell’s prior sexual predator acts at the Rehabilitation Center.
The Appellant also maintains that at the time of the alleged
molestation, the Division allowed Mr. Bell private access to the
Appellant’s bedroom.

        Contrariwise, the Division argues that the public duty
doctrine only applies to an alleged breach of a nondiscretionary
duty to provide fire or police or other public safety protection to
an individual, and the Division maintains that it has no
nondiscretionary statutory duty to provide police, fire, or other
public safety protection to disabled individuals or the general
public. The Division, therefore, asserts that the Appellant failed
to allege operative facts that would support the application of
the public duty doctrine or its special relationship exception to
avoid dismissal of his negligence claims under the doctrine of
qualified immunity.

        First, it is important to note that the public duty doctrine
is not an immunity; but, rests on the principle that recovery may
be had for negligence only if a duty has been breached which
was owed to the particular person seeking recovery.

       ....

        Finally, this Court previously held that . . . the question
of whether a special duty arises to protect an individual from a
State governmental entity’s negligence is ordinarily a question
of fact for the trier of facts.

        In the instant case, the Court concludes that the circuit
court erred in granting the Division’s Motion to Dismiss. A de
novo review of the allegations contained in the Appellant’s
Amended Complaint reflects that sufficient allegations are
present to allow the Appellant’s claims to go forward against the
Division. It is for a jury to determine, under appropriate
instruction of law, whether a special duty arises to protect the
Appellant from the Division's alleged negligence. We,
therefore, reverse the decision of the circuit court and remand
this case for reinstatement of the Appellant’s claims based upon

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              the allegations of a special relationship and a special duty.

J.H., 224 W. Va. at 158-59, 680 S.E.2d at 403-04 (internal quotations and citations omitted).



              Clearly the decision in J.H. recognizes a claim may be maintained against the

State under the special relationship exception. Therefore it was legally wrong for the

majority opinion to suggest otherwise. See McCormick v. West Virginia Dep’t. of Pub.

Safety, 202 W. Va. 189, 503 S.E.2d 502 (1998) (holding that a jury could find that the

Department of Corrections owed a duty to a social worker killed in her apartment by an

inmate she once counseled in a prison).



              Based upon the foregoing, I dissent.




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