                                                                                 FILED
No. 18-0211 – Goodwin v. Fayette County Board of Education, et al.          November 12, 2019
                                                                                  released at 3:00 p.m.
                                                                              EDYTHE NASH GAISER, CLERK
WORKMAN, J., dissenting:                                                      SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA



              Once again, under the guise of appellate review, the majority resolves issues

which are underdeveloped below and in so doing renders this Court an adjudicatory body.1

I dissent from the majority’s cursory disposition of this case because it effectively blankets

all local boards of education under any degree of state intervention with absolute immunity

from suit. The majority’s new syllabus point states that whether a local school board is a

State actor depends upon the “degree of control” the West Virginia State Board of

Education (“State Board”) “exercises over the county’s school system.” Yet it provides no

further guidance on factors to consider in making that determination; nor does it conduct a

meaningful analysis of this issue. Instead, it concludes that the local board was a State

actor without any factual development of the instant situation on that issue below. After

summarily declaring the Fayette County Board of Education (“BOE”) to be a State actor

and therefore entitled to assert qualified immunity, the majority then makes a sharp left

turn (providing no further immunity analysis), and reaches the clearly inaccurate




       1
         See Cochran v. River Road PSD, No. 18-0302, 2019 WL 5849372 (W. Va. Nov.
7, 2019) (memorandum decision) (Workman, J., dissenting) (criticizing affirmance of
dismissal on grounds not ruled on by circuit court); State ex rel. Universal Underwriters
Ins. Co. v. Wilson, 241 W. Va. 335, 355, 825 S.E.2d 95, 115 (2019) (Workman, J.,
dissenting) (encouraging “full processing of a . . . legal issue by its being fully considered
by a lower court, a lower court making a ruling, the parties then briefing and arguing the
issue at the appellate level”); State ex rel. Gallagher Bassett Servs., Inc. v. Webster, 242
W. Va. 88, ___, 829 S.E.2d 290, 301 (2019) (Workman, J., dissenting) (discouraging
premature resolution of “legal issues that hinge on facts” in prohibition).
                                               1
conclusion that local school boards owe no duties to 18-year-old students injured on school

property, but outside of the four walls of the school building. For these reasons, I must

dissent.



               In this case, petitioner alleges the BOE, by and through its employees, was

negligent in its supervision of students at Oak Hill High School, which negligence

proximately caused petitioner’s injuries on a school soccer field. Since the State Board

had intervened in the BOE, the threshold issue in this case was whether the BOE was 1)

rendered an arm of the State by virtue of this takeover and could therefore raise qualified

immunity to petitioner’s suit; or 2) whether it continued to be governed by the

Governmental Tort Claims and Insurance Reform Act (“Tort Claims Act”), which

expressly provides for liability for negligent acts by employees such as those alleged by

petitioner.2



               This distinction is obviously critical to petitioner’s claim: if the BOE is

found to be an arm of the State and therefore may assert qualified immunity, petitioner’s

claim would almost certainly fail inasmuch as the general notion of “supervision”—in



       2
         See W. Va. Code § 29-12A-4(c) (1986) (establishing liability for injuries caused
by political subdivision employees for negligence in operating motor vehicle, negligence
in “performance of acts” within scope of employment, negligence in failing to “keep”
public areas and grounds, negligence which occurs “within or on the grounds of [public]
buildings”).


                                             2
absence of any well-established mandates—has been found to be an inherently

discretionary act for which the State is immune. 3 See W. Va. Reg’l Jail & Corr. Facility

Auth. v. A.B., 234 W. Va. 492, 514, 766 S.E.2d 751, 773 (2014) (stating that “broad

categories of training, supervision, and employee retention . . . fall within the category of

‘discretionary’ governmental functions” and collecting cases). On the other hand, if not

found to be an arm of the State, the BOE continues to be subject to the Tort Claims Act

and petitioner’s negligence claim clearly survives. Under the Tort Claims Act, political

subdivisions such as the BOE are expressly “liable for injury, death, or loss to persons or

property caused by the negligent performance of acts by their employees while acting

within the scope of employment.” W. Va. Code § 29-12A-4(c)(2).



              On this issue, the circuit court, without citation or analysis, declared

summarily that

              while the [BOE] was in [State Board] intervention, the [BOE]
              is necessarily part of the “State” defined in pertinent part as “all
              boards, offices, commissions, agencies . . . and other
              instrumentalities of the state of West Virginia.” W. Va. Code
              §29-12A-3 and not within the purview of the West Virginia


       3
         In fact, petitioner concedes that “implementation and administration of compliance
with the duty to supervise may constitute a discretionary function” and that the “manner in
which the duty to supervise is maintained may be a question of discretion.” Nevertheless,
as is well-established, even if an act is discretionary, if an injured plaintiff establishes 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,” qualified immunity will not lie. Syl. Pt. 11, in part, A. B., 234
W. Va. 492, 766 S.E.2d 751. Petitioner identifies no such clearly established rights or
laws, i.e. a specific directive regarding supervision which was violated, in order to
overcome qualified immunity.
                                                3
                 Governmental Tort Claims and Insurance Reform Act, W. Va.
                 Code §29-12A-l et seq.

Without addressing the circuit court’s complete lack of factual or legal analysis for this

conclusion, the majority examines two cases from the Southern District of West Virginia

wherein the District Court found two local boards of education to be arms of the State for

purposes of Eleventh Amendment immunity. See Workman v. Mingo Cty. Schs., 667 F.

Supp.2d 679 (S.D.W. Va. 2009); B. E. v. Mount Hope High Sch., No. 2:11-CV-00679,

2012 WL 3580190 (S.D.W. Va. Aug. 17, 2012). The majority then notes that in Workman,

the District Court evaluated whether the Mingo County Board of Education was a State

actor under the factors identified by the Fourth Circuit in Cash v. Granville County Board

of Education, 242 F.3d 219 (4th Cir. 2001):

                 The principal factor, upon which courts have virtually always
                 relied, is whether a judgment against the governmental entity
                 would have to be paid from the States treasury. . . .

                 ....

                         . . . [W]e keep the State treasury factor in the calculus
                 and look to three additional factors: (1) the degree of control
                 that the State exercises over the entity or the degree of
                 autonomy from the State that the entity enjoys; (2) the scope of
                 the entity’s concerns—whether local or statewide—with which
                 the entity is involved; and (3) the manner in which State law
                 treats the entity.

Id. at 223-24.



                 Despite tacitly endorsing the use of these factors to determine whether a

political subdivision has been rendered an arm of the State, the majority adopts a relatively

                                                4
perfunctory new syllabus point stating that the determination of whether a local board is

an arm of the State is dependent upon the “degree of control” exercised by the State Board.

It ignores the state treasury factor entirely. Moreover, neither the syllabus point nor

opinion itself gives even the slightest guidance regarding what “degree of control” actually

means: whether the State’s “control” must actually be exercised or if the State Board must

merely have the authority to control; whether the “control” must be exercised over the

specific function of the local board at issue or the board and school system as a whole.

More importantly, the majority apparently finds no fault whatsoever with the circuit court’s

failure to conduct any such analysis below, nor is it concerned with petitioner’s inability to

conduct discovery on this specific issue.4



              Rather, the majority substitutes its own equally empty analysis of the issue

and concludes that on the sole basis of the State Board’s pro forma meeting minutes that it

“exercised extensive, almost complete control” over the BOE. In reality and as readily

apparent to even a casual reader, the meeting minutes from the BOE authorizing the



       4
          Petitioner and the BOE debated during oral argument whose burden it was to
develop the record on this issue below. As this Court has stated, “Qualified immunity is
an affirmative defense to liability, which under the Rules of Civil Procedure must be pled.”
W. Va. of Educ. v. Marple, 236 W. Va. 654, 667-68, 783 S.E.2d 75, 88-89 (2015). As such,
it is the BOE’s burden to establish a record sufficient to establish itself as an arm of the
State and therefore entitled to assert the affirmative defense of qualified immunity.
Discovery on the underlying facts, however, appears to have been complete and revealed
disputed issues of material fact regarding the BOE’s liability and the comparative
negligence of petitioner.


                                              5
intervention simply parrot the language of West Virginia Code § 18-2E-5(p)(4)(C)5 which

outlines the broad areas in which the State Board “may” intervene to “cause

improvements” to the BOE. Aside from these minutes, the record is completely devoid of

any evidence regarding the State Board’s control of the BOE and more importantly, devoid

of evidence regarding the areas of control actually exercised by the State Board. The bases

for state intervention in local school boards are varied and extensive and while the State

Board may have reserved its right to intervene in any of the areas permitted by statute, it

may well have exercised little to no control over the school functions which underlie

petitioner’s claim. In that event, there is simply no purpose in extending a blanket of

immunity for actions which are otherwise expressly subject to liability without even

examining the parameters of authority or control the State actually exercised over that

function.6



              The reason the exercise of actual authority is critical is because what we are

actually determining in conducting this analysis is the applicability of qualified immunity.

What the majority’s scant analysis fails to recognize is that qualified immunity for the State

serves as protection for distinct functions of the State and its actors and that, unless those



       5
          Now W. Va. Code § 18-2E-5(m)(2) (2017).
       6
          For example, if the State Board intervened and exercised control only over the
high-level matters of curriculum, school closure or consolidation, or budget expenditures,
it certainly does not follow that the State Board was likewise necessarily involved in the
day-to-day minutiae of the mechanics of student supervision or isolated end-of-year
attendance issues. In fact, the likelihood of the State Board becoming involved in such
situational and ad hoc particulars on an individual school level appears slim indeed.
                                             6
functions were actually undertaken by the State and proximately relate to the allegations

asserted, there is no reasoned purpose for the extension of immunity. Qualified immunity

serves to insulate the State and its actors from limitless liability for their discretionary and

proprietary decisions for which there is no clear-cut and determinative guidance: “[T]he

doctrine of qualified or official immunity bars a claim of mere negligence against a State

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

(emphasis added).7 This purpose quite simply does not translate in an action which is based

upon a local school board’s simple negligence, unless the underlying function which

proximately caused the plaintiff’s injury was, in fact, being controlled by the State and

should be protected with the cloak of immunity.



                Instead, in this case, so fundamental is the right of recovery for claims as

those at least asserted by petitioner, that school boards are expressly made liable for such

allegations, if proven, by virtue of the Tort Claims Act. Therefore, the analysis of whether

the BOE is a State actor for qualified immunity purposes must be assessed in light of the

specific conduct at issue in the case.        Our qualified immunity caselaw makes this

fundamental precept clear. See A. B., 234 W. Va. at 507, 766 S.E.2d at 766 (“‘[I]mmunity

is justified and defined by the functions it protects and serves, not by the person to whom



       7
           But see n.2 supra regarding violations of clearly established rights.
                                               7
it attaches.’” (quoting Forrester v. White, 484 U.S. 219, 227, 108 S.Ct. 538, 98 L.Ed.2d

555 (1988) (emphasis in original)).



              As inadequate as the majority’s analysis of the State actor issue is, perhaps

more puzzling is its dispositive conclusion: that 18-year old students are owed no duties

outside of the school building. The majority’s conclusion that since petitioner (age

eighteen but still a junior in high school) left the building, “the duty to supervise [him]

terminated” is abject nonsense. If an unsupervised child is struck by a car after escaping a

school building, does the school escape liability because he was struck outside? The entire

issue is whether petitioner was improperly supervised such that he could leave the building

and injure himself. Furthermore, the property on which he was allegedly injured was

school property.



              The majority seemingly believes it is justified in this conclusion by virtue of

the definition of “student” contained in West Virginia Code § 18A-5-1(g)(1):

              “Student” includes any child, youth or adult who is enrolled in
              any instructional program or activity conducted under board
              authorization and within the facilities of or in connection with
              any program under public school direction: Provided, That, in
              the case of adults, the student-teacher relationship shall
              terminate when the student leaves the school or other place of
              instruction or activity[.]




                                             8
(emphasis added). 8 First, nowhere in this definitional provision are adult students

exempted from the duty and authority to supervise established in West Virginia Code §

18A-5-1: “The teacher shall stand in the place of the parent(s), guardian(s) or custodian(s)

in exercising authority over the school and has control of all students enrolled in the school

from the time they reach the school until they have returned to their respective homes[.]”

(emphasis added). Secondly, West Virginia Code § 18A-5-1(g)(1) specifically states that

the student-teacher relationship does not end until the student leaves the school “or other

place of instruction or activity.” It is difficult to conceive of a place more emblematic of

an “other place of . . . activity” than an adjacent school athletic field. Other than including

this phrase in their citation of the statute, the majority does not address this phrase of the

statute in any fashion. In fact, it inexplicably declares itself “not concerned by the fact that

the Petitioner was on Respondent’s property, the soccer field, when he was injured.”



              Instead, the majority boldly declares that the BOE “did not owe a duty of

supervision to the Petitioner once he left the school building without authorization.”9 That

is, of course, exactly the point: petitioner alleges he should not have been permitted to

leave the building and escape to an unsupervised school area where he was injured. For



       8
         The suggestion that half of the statutory definition of “student” and a singular
sentence in a 1985 case definitively establishes the parameters of a school board’s duties
to adult students is a disturbingly sparse analysis.
       9
         The majority’s use of the limiting phrases “[i]n light of the unique facts of this
case” and “under the narrow facts of this case” signals a result-oriented approach,
particularly when there are disputed facts below.
                                             9
purposes of supervisory negligence, the issue of duty is not defined by the location of an

injury, but the scope of the employee’s duties and authority relative to supervising the

injured party. And while the majority may bristle at the notion that an 18-year-old seeks

to recover for what it perceives is his own negligence, that issue is for a jury to determine

under proper instruction of law by the trial court. It is, in fact, no different than any other

adult who is comparatively negligent in contributing to his or her own injury—this does

not serve as a bar to recovery unless and until a jury finds him or her fifty percent negligent.



              While not suggesting that petitioner has necessarily established a right of

recovery, this dissent does find that the majority has injected itself into the undeveloped

issue of whether the BOE was a State actor and then insinuated itself into the disputed

underlying facts by summarily declaring that 18-year old students are owed no duty outside

of the school building, even if on school property.          The majority’s holding herein

encourages local boards of education and their employees to act with complete impunity

when under State intervention. It further decimates any semblance of duty owed to adult

students who happen to turn eighteen before graduating in contravention of clear statutory

law. This case should have been reversed and remanded for factual development of the

areas of control the State Board exercised over the BOE and a determination as to whether

that control rendered the BOE an arm of the State for purposes of these allegations. If the

case survived the immunity analysis, a jury should have been permitted to decide the issues

of negligence and comparative negligence under proper instruction of law. For these

reasons, I respectfully dissent.
                                              10
