                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


WEST VIRGINIA BOARD OF EDUCATION,                                               FILED
Defendant Below, Petitioner
                                                                              May 17, 2017
                                                                                released at 3:00 p.m.
vs.) No. 16-0532 (Mingo County Civil Action No. 15-C-11)                      RORY L. PERRY, II CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

ZELDA CROAFF,

Plaintiff Below, Respondent


                             MEMORANDUM DECISION

               Petitioner, defendant below, the West Virginia Board of Education (“WVBE”),
by counsel J. Victor Flanagan, Julie Meeks Greco, and Katie L. Hicklin, appeals from an
order entered May 4, 2016, by the Circuit Court of Mingo County. By that order, the circuit
court denied the motion to dismiss of the WVBE in the underlying case alleging a cause of
action for negligence resulting in personal injury. On appeal to this Court, the WVBE
contends that the circuit court erred on multiple grounds. The WVBE raises nine
assignments of error that can be distilled as follows: (1) improper venue; (2) lack of duty
owed to the plaintiff; (3) workers’ compensation-related immunity; (4) sovereign
constitutional immunity; and (5) qualified immunity. Respondent, plaintiff below, Zelda
Croaff (“Ms. Croaff”), by counsel Brian L. Ooten, Nathan D. Brown, and Joshua S. Ferrell,
filed a timely response seeking to have this Court affirm the order of the circuit court.

               This Court has considered the parties’ briefs, the appendix record designated
for our review, the pertinent authorities, and oral argument. We find no new or significant
questions of law. However, our de novo review compels the conclusion that the circuit court
clearly erred in failing to recognize and apply developed principles of law regarding the
application of qualified immunity when it denied the WVBE’s motion to dismiss. For this
reason, this case satisfies the “limited circumstances” requirement and a memorandum
decision reversing the decision of the circuit court is appropriate pursuant to Rule 21(d) of
the Rules of Appellate Procedure.

               On January 15, 2015, Ms. Croaff filed her complaint alleging a workplace
injury that occurred on or about October 16, 2014, during the course of her employment as
a full-time cook at the Mingo Central High School (“MCHS”). Ms. Croaff was an employee
of the Mingo County Board of Education (“MCBE”). Her claim was that she suffered injury
from an electric shock after touching the door of a malfunctioning freezer. Initially, Ms.
Croaff named Statewide Heating and Air Conditioning Services, Inc. (“Statewide”) and the

                                             1

MCBE as defendants. She asserted negligence claims against both Statewide, which
allegedly serviced the freezer, and the MCBE for failing to properly inspect, repair, and
maintain the freezer in safe condition for use by employees.

              Thereafter, on or about March 11, 2015, the Circuit Court of Mingo County
entered an agreed order dismissing the MCBE. The basis for the dismissal was MCBE’s
immunity from the injury claims due to the fact that the claims were covered by workers’
compensation. See W. Va. Code § 29-12A-5(11) (1986) (Repl. Vol. 2013) (political
subdivisions are immune from liability if a loss or claim results from a claim covered by
workers’ compensation or any employers’ liability law).

               Subsequently, on August 24, 2015, the circuit court entered an order granting
Ms. Croaff’s motion for leave to file an amended complaint. The amended complaint
substituted the WVBE as a party defendant based on the theory that the WVBE had assumed
control of and responsibility for the Mingo County public school system, including MCHS,
when it intervened in the school system pursuant to W. Va. Code § 18-2E-5 (2016) (Repl.
Vol. 2016), which provides for the process of improving education, establishing education
standards, conducting statewide assessments, requiring accountability measures, creating
audit systems, establishing school accreditation levels, assigning school system approval
levels, and intervening to correct low performance.

               In her amended complaint, Ms Croaff asserted that, upon information and
belief, the freezer did not properly seal when the door was shut, which caused water and/or
ice condensation to accumulate inside the freezer. This condition is alleged to have resulted
in the freezer retaining moisture in its chamber and in the area where the electrical panel of
the freezer was located. Ms. Croaff further alleged that this condition caused water to come
in contact with a “naked” wire inside the freezer’s electrical panel. She asserted that this
resulted in the freezer door becoming “live” or electrified. Additionally, Ms. Croaff alleged
that freezer safety mechanisms for the prevention of a shocking hazard due to water or ice
build-up were not properly maintained. According to Ms. Croaff, the build-up of water and
ice condensation had been reported to the MCHS principal, other MCHS supervisors, the
MCHS maintenance department, and other school employees prior to the time Ms. Croaff
was injured. As to the WVBE, Ms. Croaff alleged a duty to provide a safe workplace
including a duty to exercise reasonable care to ensure the safety of the freezer. Ms. Croaff
claimed the WVBE breached its duty by failing to inspect, repair, and maintain the freezer.
In addition to the negligence cause of action against the WVBE, Ms. Croaff pled an
“alternative” cause of action sounding in deliberate intent pursuant to W. Va. Code § 23-4­
2(d)(2)(ii) (2005) (Repl. Vol. 2010).



                                              2

              The WVBE filed a motion to dismiss pursuant to Rule 12(b) of the W. Va.
Rules of Civil Procedure. The motion to dismiss raised the defenses of insufficiency of
service of process, improper venue, lack of duty owed, statutory immunity due to the
application of workers’ compensation, sovereign immunity, and qualified immunity. Upon
briefing by the parties, a hearing, and the submission of various proposed orders, the circuit
court entered an order denying the motion to dismiss.

               The circuit court found that Ms. Croaff successfully accomplished service of
process upon the WVBE. As to venue, the circuit court concluded that, given the facts,
venue was appropriate in Mingo County where the cause of action arose. Additionally, the
circuit court found that the WVBE was not Ms. Croaff’s employer and therefore did not
enjoy the immunity afforded employers pursuant to the workers’ compensation statutes.
With respect to the issue of duty owed, the circuit court concluded that, due to its
intervention, the WVBE had the authority to hire personnel at MCBE schools and require
expenditures of the MCBE be approved by the WVBE. The circuit court reasoned that both
matters could relate to the adequate maintenance and repair of the freezer such that Ms.
Croaff had adequately pled a duty on the part of the WVBE, either directly or indirectly. As
to the deliberate intent count, the circuit court found that Ms. Croaff pled it sufficiently as
an alternative cause of action and observed that, should it “trigger,” the WVBE could move
for summary judgment following the close of discovery. Regarding the defense of sovereign
immunity, the circuit court found that Ms. Croaff, by limiting her sought-after recovery under
and up to any applicable insurance coverage for the alleged injuries, sufficiently pled her
cause of action. The circuit court also rejected the WVBE’s assertion that there was no
insurance coverage. Finally, the circuit court rejected the WVBE’s argument that it enjoyed
qualified immunity, finding, among other things, that qualified immunity protects individual
government officials rather than State agencies.

               We are undertaking to review a denial of a motion to dismiss in a setting
raising the issue of qualified immunity. As this Court observed in Hutchison v. City of
Huntington, 198 W. Va. 139, 479 S.E.2d 649 (1996), “[o]rdinarily, this Court does not
entertain nor discuss a denial of a motion for failure to state a claim under Rule 12(b)(6), in
that such an order is interlocutory in nature.” However, there are special circumstances, such
as those raising the issue of official immunity, under which review of the denial of a motion
to dismiss is proper. As we stated in Hutchison, the State’s entitlement to immunity “is an
immunity from suit rather than a mere defense to liability,” which is “effectively lost if the
case is erroneously permitted to go to trial.” Id., 198 W. Va. at 147, 479 S.E.2d at 657
(quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815, 86 L. Ed. 2d 411
(1985)). Thus, we have held that “[a] circuit court’s denial of a motion to dismiss that is
predicated on qualified immunity is an interlocutory ruling which is subject to immediate
appeal under the ‘collateral order’ doctrine.” Syl. pt. 1, West Virginia Bd. of Educ. v. Marple,

                                               3

236 W. Va. 654, 783 S.E.2d 75 (2015). Accordingly, the fact that the circuit court’s order
was not a final order does not preclude our review of this appeal.

               Moreover, we review the circuit court’s order denying the motion to dismiss
de novo. Syl. pt. 4, Ewing v. Board of Educ. of Cnty. of Summers, 202 W. Va. 228, 503
S.E.2d 541 (1998). “The purpose of a motion under Rule 12(b)(6) is to test the formal
sufficiency of the complaint.” Collia v. McJunkin, 178 W. Va. 158, 159, 358 S.E.2d 242,
243 (1987) (citations omitted). In reviewing the sufficiency of a complaint under Rule
12(b)(6), this Court is required to accept the factual allegations as true and to draw all
reasonable inferences in the light most favorable to the plaintiff. John W. Lodge Distrib. Co.,
Inc. v. Texaco, Inc., 161 W. Va. 603, 605, 245 S.E.2d 157, 158-59 (1978). Additionally,
dismissal for failure to state a claim is proper only where it is clear beyond doubt that no
relief could be granted under any set of facts that could be proved consistent with the
allegations in the complaint. Syl. pt. 3, Chapman v. Kane Transfer Co., Inc., 160 W. Va.
530, 236 S.E.2d 207 (1977). A plaintiff’s complaint must “set forth sufficient information
to outline the elements of his claim.” Price v. Halstead, 177 W. Va. 592, 594, 355 S.E.2d
380, 383 (1987). A complaint need not have detailed factual allegations. But, the plaintiff
must set forth the basis for entitlement to relief, which requires more than labels,
conclusions, and mere recitations of the elements of the causes of action. We have remarked
that “sketchy generalizations of a conclusive nature unsupported by operative facts” do not
set forth a cause of action. Fass v. Nowsco Well Serv., Ltd., 177 W. Va. 50, 52-53, 350
S.E.2d 562, 563-64 (1986). “In civil actions where immunities are implicated, the trial court
must insist on heightened pleading by the plaintiff.” Hutchison, 198 W. Va. at 149, 479
S.E.2d at 659.

              With these standards in mind, we proceed to consider the merits of the parties’
arguments and turn our discussion to the question of whether the WVBE is entitled to the
protection of qualified immunity. We undertake our analysis of the application of qualified
immunity by assuming arguendo that, at this stage, Ms. Croaff has adequately alleged that
the extent of authority, control, and decision-making exercised by the WVBE in its
intervention in the MCBE operations included a general duty to maintain a safe workplace.1


       1
       We observe that in Workman v. Mingo County Schools, 667 F. Supp. 2d 679 (S.D.
W. Va. 2009), the district court found that the MCBE was entitled to the State’s eleventh
amendment immunity protection due to the intervention of the WVBE in the operations of
Mingo County schools. The district court reasoned that the intervention significantly limited
the power of the MCBE and delegated authority to the West Virginia State Superintendent
of Schools such that the MCBE had little, to no, right of autonomy and self-control.
Additionally, in B.E. v. Mount Hope High School, No. 2:11-CV-00679, 2012 WL 3580190

                                              4

               With respect to the issue of qualified immunity, the circuit court found, among
other things, that it “is a device that protects individual government officials–as opposed to
State agencies–from lawsuits for the performance of certain duties during the course of their
employment.” The WVBE argues that the circuit court erred in concluding that qualified
immunity is unavailable to state agencies. It is further asserted by the WVBE that it is
immune from simple negligence claims because the relevant insurance contract does not
waive qualified immunity, the acts of the purported agents relating to the freezer were
discretionary and there has been no allegation of any conduct that violates a clearly
established statutory or constitutional law or right.

               In contrast, Ms. Croaff argues that qualified immunity is a device that protects
only individual governmental officials from lawsuits for performing discretionary duties
during the course of their employment. Ms. Croaff contends that qualified immunity protects
specifically identified individuals for specific actions such that state agencies have no
entitlement to blanket claims of qualified immunity in the absence of specific allegations.
Ms. Croaff argues that, since she made no allegations against a specific individual and
claimed only a negligent breach of a duty to maintain a safe workplace, there can be no
qualified immunity protection for the WVBE. She further asserts that, even if the WVBE is
able to claim qualified immunity, the allegations would afford no protection to the WVBE
because the duty to maintain a safe workplace is not discretionary but, rather, is mandatory.

               We find that the circuit court clearly erred in concluding that qualified
immunity is unavailable to state agencies. It is well-settled that West Virginia law provides
for a state agency’s protection through qualified immunity. This Court has held:




(S.D. W. Va. Aug. 13, 2012), the district court denied, in part, a motion to dismiss the WVBE
in a student-on-student rape case in a high school in the Fayette County school system that,
like Mingo County, was under intervention by the WVBE. The decision stressed the broad
and extensive authority of the WVBE in intervention and focused on its authority with
respect to personnel, rules in schools, and control over administrators and principals. We
decline to entertain an analysis regarding the nature and scope of the intervention statute as
it was carried out in the Mingo County school system during the relevant timeframe. The
nature of the allegations would require factual development. Ms. Croaff alleged that WVBE
had “taken-over” the MCBE. The WVBE minutes of record reflecting the intervention
establish, in part, that the authority of the MCBE was “limited” as to the expenditure of
funds; the employment, discipline, and dismissal of personnel; the school calendar; and
instructional programs. What those limitations amounted to in individual schools with
respect to day-to-day operations is uncertain.

                                              5

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

               We observe that Ms. Croaff does not adequately distinguish between principles
of sovereign immunity and those of qualified immunity. Specifically, Ms. Croaff argues
throughout her brief that pleading within the context of available insurance affords her the
ability to advance her claims. However, the state insurance policy exception applies only to
sovereign immunity. We have held:

                      The state insurance policy exception to sovereign
               immunity, created by West Virginia Code § 29-12-5(a)(4)
               [2006] and recognized in Syllabus Point 2 of Pittsburgh
               Elevator Co. v. W. Va. Bd. of Regents, 172 W. Va. 743, 310
               S.E.2d 675 (1983), applies only to immunity under the West
               Virginia Constitution and does not extend to qualified immunity.
               To waive the qualified immunity of a state agency or its official,
               the insurance policy must do so expressly, in accordance with
               Syllabus Point 5 of Parkulo v. W. Va. Bd. of Probation &
               Parole, 199 W. Va. 161, 483 S.E.2d 507 (1996).

Syl. pt. 2, W. Va. Bd. of Educ. v. Marple, 236 W. Va. 654, 783 S.E.2d 75.

         Clearly, the fact that a plaintiff seeks recovery against a state agency up to the limits
of the State’s liability insurance does not waive qualified immunity. The qualified immunity
of a state agency is waived only if the insurance policy expressly so states. In the instant
matter, the applicable insurance policy does not waive the WVBE’s qualified immunity. In
fact, the Certificate of Liability Insurance expressly provides as an amendatory endorsement
“it is a condition precedent of coverage under this policy that the additional insured does not
waive any statutory or common law immunities conferred upon it.” This Court has declined
to extend the state insurance policy exception under W. Va. Code § 29-12-5 to qualified
immunity. Marple, 236 W. Va. at 662, 783 S.E.2d at 83.


                                                6

             With regard to the standards for determining whether qualified immunity
applies we have stated:

                     To determine whether the State, its agencies, officials
              and/or employees are entitled to immunity, a reviewing court
              must 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 discretionary
              governmental functions. . . .

Syl. pt. 10, in part, West Virginia Reg’l Jail & Corr. Facility Auth. v. A.B., 234 W. Va. 492,
766 S.E.2d 751 (2014). The circuit court clearly erred in rejecting the applicability of A.B.
and in failing to apply this controlling syllabus point.

                Ms. Croaff contends that she avoids the qualified immunity bar by the lack of
specificity in her amended complaint. She argues that she did not make specific allegations
regarding any particular individual officer, employee, or agent, which pleading affords her
the opportunity to proceed. This argument amounts to an improper attempt to bootstrap
liability with vague and conclusory pleadings grounded only in a general duty of workplace
safety.

               While we have not required identification of any officer or employee, we have
not suggested that the lack of such identification affords plaintiffs an escape hatch for
avoiding application of qualified immunity. Regarding the critical first step of identifying
the nature of the governmental acts or omissions, this Court has indicated that it “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.”
A.B., 234 W. Va. at 507, 766 S.E.2d at 766. Additionally, we have indicated that “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 those duties. Id. Nevertheless, we have found that
“‘immunity is justified and defined by the functions it protects and serves, not by the person
to whom it attaches.’” Id. (quoting Forrester v. White, 484 U.S. 219, 227, 108 S. Ct. 538,
544, 98 L. Ed. 2d 555 (1988)). Identification of the official or employee whose actions or
omissions give rise to the cause of action is not always necessary, but can help “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.” A.B., 234 W. Va. at 507, 766 S.E.2d at 766.


                                              7

              As is well-established, when the cause of action arises from judicial, executive,
or administrative policy-making acts, both the State and the official or employee involved
are absolutely immune. Id. (citing Syl. pt. 7, Parkulo v. West Virginia Bd. of Probation &
Parole, 199 W. Va. 161, 483 S.E.2d 507 (1996)). As to discretionary functions, we have
held:

                     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.

Syl. pt. 11, A.B., 234 W. Va. 492, 766 S.E.2d 751.

                The act of maintaining a safe workplace falls within the category of
discretionary functions rather than legislative, judicial, executive, or administrative policy-
making. Ms. Croaff’s argument that the duty of maintaining a safe workplace is mandatory
rather than discretionary misapprehends the required analysis. Providing a safe workplace
for individuals working at MCHS is a general duty. The actions or omissions of various
officers and/or employees in meeting that duty, whether principals, maintenance staff,
supervisors, or other employees, are wholly discretionary requiring the use of discretionary
judgments and decisions often made on a day-to-day basis. While there may be a duty to
inspect, repair, and maintain a freezer for safety purposes, the method and manner in which
such duty is carried out involves an exercise of discretion. Indeed, here, the allegations of
the amended complaint clearly assert that some officer or employee allegedly exercised such
discretion by hiring or contracting with Statewide to inspect, repair, and maintain the freezer.
We note, for instance, that Ms. Croaff did not plead, and has not identified, any legal,
statutory, or regulatory requirements as to the scope, nature, timing, or frequency of freezer
inspection and maintenance. Nor has our review of authorities identified any such
requirements, although we observe that we have identified various requirements for school
kitchens relating to fixtures and bulbs, lock plugs, fire safety and suppression, waste control,
wall finishes, flooring materials, aisle widths, and requirements for school kitchen freezers
addressing size, temperature, safety doors for walk-in freezer units, and lighting. W. Va. Bd.
of Educ. Policy 6200, Handbook on Planning School Facilities, 126 W. Va. C.S.R. § 172.

                                               8

              Simply stated, Ms. Croaff has not pled, or otherwise identified, any clearly
established statutory or constitutional right or law violated by the acts or omissions of the
WVBE, its officials, or employees.2 Furthermore, Ms. Croaff has not pled or identified any
fraudulent, malicious, or oppressive acts committed by such officials or employees. We note
that this Court “takes the pleadings and record as it finds them and the adversarial process
makes it incumbent on the parties to plead the causes of action and present the requisite
evidence necessary to maintain viability of their case.” A.B., 234 W. Va. at 516, 766 S.E.2d
at 775.

               Our straightforward review commands the conclusion that Ms. Croaff’s case
suffers a fatal flaw in that it lacks identification of a specific law, statute, or regulation
violated by the WVBE. See, e.g., West Virginia State Police v. Hughes, __ W. Va. __ , 796
S.E.2d 193 (2017) (qualified immunity served as bar to liability for negligent acts of state
agency, officers, and/or employees in the absence of the identification of violations of clear
legal or constitutional rights); West Virginia Bd. of Educ. v. Marple, 236 W. Va. at 667, 783
S.E.2d at 88 (failure to identify violations of clearly established statutory or constitutional
right in an action for defamation, false light, and breach of contract such that qualified
immunity barred the claims); A.B., 234 W. Va. at 516, 766 S.E.2d at 755 (failure to identify
a clearly established law, statute, or right that the state agency violated through its training,
supervision, and retention of an employee was fatal to the claim); West Virginia Dep’t of
Health & Human Res. v. Payne, 231 W. Va. 563, 574, 746 S.E.2d 554, 565 (2013) (state
agencies entitled to qualified immunity regarding claims of negligent licensure, monitoring,
and enforcement of a day habilitation center because no specific law, statute, or regulation
was identified that was violated by the agencies). Inasmuch as Ms. Croaff, in her amended
complaint, failed to identify a clearly established law, statute, or regulation that the WVBE
violated, she has failed to state a claim. Our finding that the WVBE enjoys the protection
of qualified immunity is dispositive such that we need not address the other assignments of




       2
        We note that, upon recognizing the challenge facing the cause of action, Ms. Croaff
made an effort during oral argument to otherwise identify a statute or law that had been
violated. That effort was unavailing. W. Va. Code § 18-2-5d (1995) (Repl. Vol. 2016)
addressing productive and safe schools relates to issues associated with discipline,
suspension, expulsion, working with local emergency services, preventive discipline, student
codes of conduct, and peer programs. The statute does not apply to school kitchen
operations. Additionally, W. Va. Code § 21-3-1 (1937) (Repl. Vol. 2013) establishes a
general requirement of providing reasonably safe workplaces and lacks the specificity
necessary to avoid application of qualified immunity for discretionary acts.

                                               9

error advanced by the WVBE.3 Accordingly, the action against the WVBE must be
dismissed.

              For the foregoing reasons, the May 4, 2016, order of the Circuit Court of
Mingo County is reversed with respect to the finding that the WVBE did not enjoy the
protection afforded by the doctrine of qualified immunity and remanded for the entry of an
order dismissing the WVBE as a party defendant.

                                                                                  Reversed.

ISSUED: May 17, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




       3
        Moreover, so that there is no confusion upon remand, the “alternative” deliberate
intent claim must also be dismissed. Ms. Croaff stated that the alternative deliberate intent
claim against the WVBE “only applies in the unlikely scenario Ms. Croaff is determined to
be a de facto employee of the WVBOE.” Additionally, Ms. Croaff represented that “the
heart of this case is a personal injury and negligence action against a non-employer entity,
the WVBOE.” The amended complaint sets forth no operative factual allegations supporting
the “unlikely scenario” that Ms. Croaff was a de facto employee of the WVBE. Recall that,
as an employee of the MCBE, Ms. Croaff received workers’ compensation benefits. Thus,
the alternative claim is “sketchy” and “conclusive” such that it does not set forth a viable
cause of action.

                                             10
