          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA



                                September 2017 Term
                                    __________               FILED
                                                         November 1, 2017
                                    No. 17-0300               released at 3:00 p.m.
                                                          EDYTHE NASH GAISER, CLERK
                                    __________            SUPREME COURT OF APPEALS
                                                               OF WEST VIRGINIA


                  LARRY D. PYLES, JR. AND PAMELA PYLES,

                                 Petitioners


                                          v.

                   MASON COUNTY FAIR, INC. AND THE
                 COUNTY COMMISSION OF MASON COUNTY,
                             Respondents

          ______________________________________________________

              Certified Questions from the Circuit Court of Mason County

                         QUESTIONS ANSWERED
         _______________________________________________________

                            Submitted: September 20, 2017

                              Filed: November 1, 2017



Harvey D. Peyton, Esq.                         Wendy E. Greve, Esq.
Thomas H. Peyton, Esq.                         Drannon L. Adkins, Esq.
Peyton Law Firm, PLLC                          Pullin, Fowler, Flanagan,
 Office of Legal Services                       Brown & Poe, PLLC
Nitro, West Virginia                           Charleston, West Virginia
Counsel for Petitioners                        Counsel for Mason County Commission




CHIEF JUSTICE LOUGHRY delivered the Opinion of the Court.
                                        SYLLABUS




              1. “The appellate standard of review of questions of law answered and

certified by a circuit court is de novo.” Syl. Pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197

W.Va. 172, 475 S.E.2d 172 (1996).



              2. “When a certified question is not framed so that this Court is able to fully

address the law which is involved in the question, then this Court retains the power to

reformulate questions certified to it under both the Uniform Certification of Questions of

Law Act found in W.Va. Code, 51-1A-1, et seq. and W.Va. Code, 58-5-2 [1967], the statute

relating to certified questions from a circuit court of this State to this Court.” Syl. Pt. 3,

Kincaid v. Mangum. 189 W.Va. 404, 432 S.E.2d 74 (1993).



              3. The agreement of a county commission to permit a private, non-profit entity

to hold a county fair on land owned by the county commission which fails to provide for the

sharing of both profits and losses and coequal control over the fair operations does not

constitute a joint venture.
LOUGHRY, Chief Justice:



                 Through three certified questions, the Circuit Court of Mason County seeks

clarification from this Court regarding the applicability of the West Virginia Governmental

Tort Claims and Insurance Reform Act (the “Act”)1 to claims made by an individual injured

while attending the Mason County Fair (“fair”). At the center of each of the inquiries

propounded by the circuit court is the petitioners’ (hereinafter “plaintiffs”) attempt to assert

vicarious liability against the Mason County Commission (“Commission”) based on a

purported joint venture between the Commission and the Mason County Fair, Inc. (“Fair

Board”).2 After reformulating the questions submitted to us to conform to the facts of this

case, we determine that either the immunity provisions of the Act or the public duty doctrine

operates to prevent the plaintiffs from seeking liability against the Commission under the

facts of this case.



                           I. Factual and Procedural Background

                 On August 9, 2013, the plaintiffs, Larry D. and Pamela Pyles, were paid

admission attendees at the fair. At approximately 9:45 p.m., Mr. Pyles was savagely beaten

by three teenagers while standing in the midway area of the fair. As a result of the attack,


       1
           See W.Va. Code §§ 29-12A-1 to -18 (2013).

       2
           The Fair Board is a domestic, non-profit corporation.


                                               1

Mr. Pyles suffered a traumatic brain injury. Lasting effects from that brain injury are alleged

to include post-concussion syndrome and other non-specified permanent disabilities.



                 On December 5, 2014, the plaintiffs filed a complaint against the Fair Board

seeking damages for negligence and loss of consortium. In answering the complaint, the

Fair Board filed a third-party complaint against the three individuals who attacked Mr.

Pyles3 seeking contribution and indemnity for any liability assessed against it in connection

with Mr. Pyles’ injuries. Following initial discovery, the plaintiffs amended their original

complaint to add the Commission as a defendant.4            The plaintiffs averred that the

Commission was negligent for its alleged failure to prevent Mr. Pyles from being injured at

the fair.



                 On January 4, 2017, the plaintiffs sought leave to file a second amended

complaint to insert an allegation that the Fair Board and the Commission were engaged in

a joint venture with regard to the staging and operation of the annual fair. Based on this

alleged joint venture, the plaintiffs asserted that the Commission “owed a duty to the

Plaintiffs that exceeded any general duty owed by any law enforcement agency to the public

at large.” The Commission opposed the plaintiffs’ attempt to reamend the complaint,

       3
           Each of those individuals is a citizen of Pomeroy, Ohio.
       4
       The circuit court granted the plaintiff’s motion to file an amended complaint on June
15, 2015.

                                               2

arguing that such amendment would be futile because the additional theory of recovery

“does not obviate the public duty doctrine.”5 Given that the plaintiffs second amended

complaint lacked any allegations that a special relationship existed between the plaintiffs and

the Commission, the Commission reasoned that the amendment was pointless as the

plaintiffs’ joint venture theory could not defeat the public duty doctrine or abrogate the Act’s

provisions of immunity.



                 The circuit court heard arguments of counsel on the plaintiffs’ motion to

reamend the complaint on February 22, 2017. Finding it unnecessary to resolve any factual

issues regarding the alleged joint venture to decide the motion to amend, the circuit court

denied the motion on the grounds that such amendment would be futile.6 The circuit court

reasoned that, even assuming the existence of a joint venture for the purpose of ruling on the

motion, the Act affords immunity to the Commission for the injuries sustained by Mr. Pyles

while at the fair. In addition, the circuit court ruled that the Commission only owed Mr.


       5
           See infra note 9.
       6
        See Bowyer v. HI-LAD, Inc., 216 W.Va. 634, 653-54, 609 S.E.2d 895, 914-15 (2004)
(upholding circuit court’s decision to grant summary judgment and denying request to
amend pleadings on grounds of futility in view of indemnification clause); see also Perkins
v. U.S., 55 F.3d 910, 917 (4th Cir. 1995) (upholding district court’s denial of widow’s
attempt to amend wrongful death action as proposed amendments could not survive motion
to dismiss); see generally 6 Charles Alan Wright et al., Fed’l Practice and Procedure §
1487 (3rd ed. 2010) (recognizing that numerous courts have denied proposed amendments
where such amendments were viewed as frivolous or advancing claim or defense that is
legally insufficient on its face).

                                               3

Pyles the general duty of care that any political subdivision owes to the public at large.



              As part of its ruling, the circuit court, with the agreement of counsel, certified

the following three questions to this Court:

              1. If a political subdivision enters into a joint venture with a
              private entity to conduct an annual county fair on real property
              owned by the political subdivision, does the West Virginia
              Governmental Tort Claims and Insurance Reform Act provide
              the political subdivision with immunity from vicarious liability
              for injuries suffered by a non-trespassing entrant on the real
              property caused by the negligent acts of the private entity?

              2. If a political subdivision enters into a joint venture with a
              private entity to conduct an annual county fair on real property
              owned by the political subdivision, does the political
              subdivision assume the same legal duty to non-trespassing
              entrants on the real property as that of the private entity?

              3. Does the existence of a joint venture between a political
              subdivision and a private entity to conduct an annual county fair
              on real property owned by the political subdivision,
              void/abrogate any of the immunities provided by the West
              Virginia Governmental Tort Claims and Insurance Reform Act?

The circuit court answered the first question in the affirmative and the second and third

questions in the negative.



                                  II. Standard of Review

              As this Court stated in syllabus point one of Gallapoo v. Wal-Mart Stores,

Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996): “The appellate standard of review of


                                               4

questions of law answered and certified by a circuit court is de novo.” We proceed to

consider and address the questions presented by the circuit court.



                                     III. Discussion

              Upon our review of the certified questions, we conclude that those queries

must be reframed in order that the issues presented in this case may be fully and properly

addressed. As we recognized in syllabus point three of Kincaid v. Mangum. 189 W.Va. 404,

432 S.E.2d 74 (1993),

                     When a certified question is not framed so that this Court
              is able to fully address the law which is involved in the
              question, then this Court retains the power to reformulate
              questions certified to it under both the Uniform Certification of
              Questions of Law Act found in W.Va. Code, 51-1A-1, et seq.
              and W.Va. Code, 58-5-2 [1967], the statute relating to certified
              questions from a circuit court of this State to this Court.

Accordingly, we will address the following inquiries:

              1. When a county commission enters into a usage agreement
              with a private, non-profit entity pursuant to which the private
              entity conducts an annual county fair on land owned by the
              commission and the county commission has no control with
              regard to the operations of the fair and does not receive any
              monetary compensation from the operation of the fair, does the
              agreement between the county commission and the private
              entity constitute a joint venture?

              2. Do individuals engaged by a private entity to work at a
              county fair on land owned by a county commission qualify as
              “employees” of the county commission for purposes of the West
              Virginia Governmental Tort Claims and Insurance Reform Act?


                                             5

              3. Where a county fair is operated by a private entity on
              property owned by a county commission, does the commission
              owe a special duty of care to individuals who attend the fair or
              merely the same duty of care that is owed to the public in
              general?

Each of the reframed questions will be addressed in turn.



                                      A. Joint Venture

              At the core of the plaintiffs’ motion to reamend their complaint at this juncture

is their attempt to inject a new theory upon which to attach liability to the Commission for

the injuries Mr. Pyles sustained at the fair.7 Pursuant to that theory, the plaintiffs aver that

              the County Commission, as part of its joint venture with the
              County Fair to stage an annual outdoor festival, voluntarily
              undertook to provide for the reasonable safety of non-
              trespassing entrants on the premises of the Mason County
              Fairgrounds by exercising reasonable care under the
              circumstances then and there existing to guard against and
              prevent severe injury to the Plaintiffs . . . ; [B]ecause of this
              joint venture between the County Commission and the County
              Fair, both of the parties to their joint venture owed a duty to the
              Plaintiffs that exceeded any general duty owed by any law
              enforcement agency to the public at large.



              As the basis for its joint venture claim, the plaintiffs rely on the fact that the

Commission and the Fair Board entered into an agreement on April l3, 2006, whereby the


       7
       In answering the first amended complaint, the Commission raised the affirmative
defense of immunity and specifically averred that the Act barred any claims of the plaintiffs
predicated on simple negligence or vicarious liability.

                                               6

Commission granted to the Fair Board “the right to control, maintain, improve and utilize

the Mason County Fairgrounds for its purposes as set forth in its Charter and By-laws.”8

Pursuant to that agreement the Fair Board agreed to expend its own funds “to maintain and

improve” the fairgrounds. While the agreement acknowledges the Commission’s authority

“to charge and collect fees for the use of its property herein granted,” it further provides that

the Commission “agrees to charge no fee to Fair [Board] in return for the practice of Fair

[Board] in expending its own funds in the improvement and maintenance of the

Fairgrounds.”



              Seeking to circumvent the “public duty doctrine”9 with the aim of imposing

liability against the Commission, the plaintiffs argue that the Commission was involved in

a joint venture with the Fair Board. Both the law and the facts of this case prove otherwise.


       8
        The Commission had purchased the fairgrounds from the federal government in the
mid-1960s. Prior to that purchase, the Fair Board had utilized the grounds under a special
permit from the federal government.
       9
         Pursuant to the public duty doctrine, 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.” Jeffrey v. W.Va. Dep’t of Pub. Safety, 198 W.Va. 609, 614, 482 S.E.2d
226, 231 (1996); see Randall v. Fairmont City Police Dep’t, 186 W.Va. 336, 346, 412
S.E.2d 737, 747 (1991) (“The public duty doctrine is that a local governmental entity’s
liability for non-discretionary . . . functions may not be predicated upon the breach of a
general duty owed to the public as a whole; instead only the breach of a duty owed to the
particular person injured is actionable.”); see also Holsten v. Massey, 200 W.Va. 775, 782,
490 S.E.2d 864, 871 (1997) (explaining that public duty doctrine “is not based upon
immunity from existing liability [but] . . . on the absence of duty in the first instance”).

                                               7

A joint venture is defined as “an association of two or more persons to carry out a single

business enterprise for profit, for which purpose they combine their property, money,

effects, skill, and knowledge. It arises out of a contractual relationship between the parties.”

Syl. Pt. 2, in part, Price v. Halstead, 177 W.Va. 592, 355 S.E.2d 380 (1987) (emphasis

supplied). Borrowing from language that suits the plaintiffs’ purposes, they cite our decision

in Armor v. Lantz, 207 W.Va. 672, 535 S.E.2d 737 (2000), for the proposition that

“members of a joint venture are . . . jointly and severally liable for all obligations pertaining

to the venture.” What the plaintiffs omit from that partial quote, however, is this Court’s

prefatory and foundational explanation that “joint ventures and partnerships are governed

generally by the same basic legal principles.” Id. at 678, 535 S.E.2d 743. Having initially

set forth this legal tenet, we proceeded to articulate the critical antecedent omitted by the

plaintiffs: “Thus, since all partners are jointly liable for all debts and obligations of a

partnership, see W.Va. Code § 47B-3-6(a) (1996), members of a joint venture are likewise

jointly and severally liable for all obligations pertaining to the venture.” Id.



              Further ignored by the plaintiffs is the fact that the requisite agreement “to

carry out a single business enterprise for profit” is wholly absent from this case. Price, 177

W.Va. at 593, 355 S.E.2d at 382, syl. pt. 2, in part. The Fair Board is a non-profit

organization and the Commission–a governmental entity–did not receive, nor did it

anticipate receiving, any financial return in connection with the holding of the annual fair.


                                               8

According to the plaintiffs, the benefit that inured to the Commission from the Fair Board’s

maintenance of the property constitutes the obligatory element of “profit.” Rather than

evidencing a business venture created for commercial purposes, this type of non-cash benefit

tends instead to disprove the existence of such an arrangement.10 When discussing the

absence of a litmus test for demonstrating a joint venture in Armor, we observed the

common-law requirement that “there must be an agreement to share in both the profits and

the losses.’” 207 W.Va. at 678, 535 S.E.2d at 743 (quoting Pownall v. Cearfoss, 129 W.Va.

487, 497-98, 40 S.E.2d 886, 893-94 (1946)). That the focus on the “presence or absence of

an agreement to share in the profits and losses of an enterprise” remains a critical component

of the joint venture analysis today is clear from our discussion in Armor. In reviewing our

decisions in this area, we observed that the absence of evidence demonstrating that two firms

performing mining operations had “‘agreed to share profits and losses’” was determinative

with regard to the plaintiff’s failed attempt to establish a joint venture. 207 W.Va. at 679,

535 S.E.2d at 744 (analyzing Kerns v. Slider Augering & Welding, Inc., 202 W.Va. 548,

556, 505 S.E.2d 611, 619 (1997)).



              In addition to evidence of a profit-sharing agreement, this Court recognized

in Armor that courts “have also emphasized the necessity of joint venturers having equal


       10
         See Armor, 207 W.Va. at 680, 535 S.E.2d at 745 (“‘[T]he mere fact that one party
is to receive benefits in consideration of services rendered or for capital contribution does
not, as a matter of law, make him a partner or joint venturer.’”) (citation omitted).

                                              9

control over the common commercial pursuit.” 207 W.Va. at 680, 535 S.E.2d at 745. The

record in this case makes clear that the Commission did not have any control with regard to

the operations of the fair.11 The Fair Board, not the Commission, had complete control with

regard to all matters pertinent to the operations of the fair. See id. (discussing fact that

“‘control required for imputing negligence under a joint enterprise theory is not actual

physical control, but the legal right to control the conduct of the other with respect to the

prosecution of the common purpose’”) (citation omitted). As the land usage agreement

makes clear, the Fair Board has the right “to utilize the Mason County Fairgrounds for its

purposes as set forth in its Charter and By-laws.” Importantly, there are no provisions in the

agreement that grant the Commission coextensive control of the fair operations. Moreover,

as discussed above, the pursuit at issue–an annual county fair–cannot qualify as a

“commercial pursuit.”



              Upon analysis, there are no facts in the record of this case that support the

plaintiffs’ joint venture theory. First and foremost, there was no agreement between the

Commission and the Fair Board to engage in a commercial enterprise for the purpose of

generating profits. And, as discussed, the Commission lacked any control whatsoever with

regard to the operations of the fair. Given the facts of this case, the plaintiffs’ attempt to


       11
       While the Mason County Sheriff’s office assigned deputies to provide a law
enforcement presence at the fair, the plaintiffs have made clear that their case against the
Commission is not predicated on law enforcement efforts.

                                             10

elude the public duty doctrine12 or specific provisions of immunity afforded the Commission

under the Act13 through its assertion of a joint venture theory was ill-advised. Furthermore,

this Court is not persuaded by the plaintiffs’ contention that the joint venture allegations are

necessarily unassailable.14 Based on the record presented in this case, both the existence of

a joint venture and the applicability of immunity under the Act are legal determinations

capable of and demanding resolution at this juncture of the litigation rather than at the

appellate stage.15 Because the principles of governmental immunity clearly apply to the facts

of this case, we would be violating our well-established rule of not requiring parties who are



       12
            See supra note 9.
       13
            See W.Va. Code §§ 29-12A-4(b)(1), -5.
       14
          The plaintiffs argue that a decision to deny a motion to amend a complaint is subject
to the same standard as a motion to dismiss under Rule 12(b)(6) and requires the allegations
of the proposed amended pleading to be viewed as veracious. See West Virginia Bd. of
Educ. v. Marple, 236 W.Va. 654, 660, 783 S.E.2d 75, 81 (2015) (recognizing that for
purposes of motion to dismiss, complaint is construed in light most favorable to plaintiff and
allegations are taken as true). However, where an amended pleading would be subject to
a motion to dismiss on other grounds, such as immunity, it should be denied as futile. See
Perkins, 55 F.3d at 917 (“Because the United States would still be immune and the suit
properly dismissed even if the new claim were taken as true, the district court did not abuse
its discretion in denying the motion to amend.”); accord Kirk v. Heppt, 423 F.Supp.2d 147,
149 (S.D. N.Y. 2006) (“A proposed amendment to a pleading is deemed to be futile if the
amended pleading fails to state a claim or would be subject to a successful motion to dismiss
on some other basis.”).
       15
        See Hutchison v. City of Huntington, 198 W.Va. 139, 148, 479 S.E.2d 649, 658
(1996) (observing that “very heart of the immunity defense is that it spares the defendant
from having to go forward with an inquiry into the merits of the case” and that “[i]mmunities
under West Virginia law are more than a defense to a suit in that they grant governmental
bodies and public officials the right not to be subject to the burden of trial at all”).

                                              11

clearly entitled to statutory immunity to remain in an action if we required the Commission

to remain in this case based on unprovable pleadings. See Hutchison v. City of Huntington,

198 W.Va. 139, 149, n.13, 479 S.E.2d 649, 659, n.13 (1996) (explaining that “assertion of

qualified or absolute immunity should be heard and resolved prior to any trial”); see also

Robinson v. Pack, 223 W.Va. 828, 831, 679 S.E.2d 660, 663 (2009) (affirming “need for

early resolution of immunity rulings” and holding that summary judgment ruling predicated

on qualified immunity is subject to immediate appeal under “collateral order” doctrine). As

recognized in Glick v. Koenig, 766 F.2d 265, 268-69 (7th Cir. 1985), “[t]he liberal

amendment rules under Rule 15(a) do not require the courts to indulge in futile gestures.”



              Accordingly, we hold that the agreement of a county commission to permit a

private, non-profit entity to hold a county fair on land owned by the county commission

which fails to provide for the sharing of both profits and losses and coequal control over the

fair operations does not constitute a joint venture. We further find that the circuit court did

not abuse its discretion in denying the plaintiffs’ motion to amend their complaint given that

the existence of immunity under the Act or the public duty doctrine compelled the dismissal

of the Commission from this case. See Perkins, 55 F.3d at 917. Accordingly, we answer

the first reframed certified question in the negative.




                                              12

                                B. Commission Employees

              Seeking to avoid the bar of immunity presented by the Act, the plaintiffs

maintain that the individuals selected by the Fair Board to work at the fair’s entrance gate

were necessarily employees of the County Commission.16 While the plaintiffs’ objective in

seeking to cast the gate workers as employees of the County Commission is clear, the

collection of admission fares while standing on county-owned property did not make them

employees of the County Commission. Critical to any attempt to impose liability premised

on the actions of the fair workers, is proof by the plaintiffs that those individuals fall within

the employment-related definition provided by the Act. An “employee” is defined as “an

officer, agent, employee, or servant, whether compensated or not, . . . who is authorized to

act and is acting within the scope of his or her employment for a political subdivision.”

W.Va. Code § 29-12A-3(a).



              Implicitly acknowledging their inability to meet the Act’s description of an

employee, the plaintiffs proceed down a separate path. They simply announce that anyone

selected by the Fair Board to work at the fair is necessarily an agent (i.e. employee) of the

other joint venturer (i.e. County Commission) based on their assumption that the County

Commission and the Fair Board are joint venturers. This premise is wholly untenable given


       16
        Under the Act, “[p]olitical subdivisions are liable for injury, death, or loss to
persons or property that is caused by the negligence of their employees. . . .” W.Va. Code
§ 29-12A-4(c)(4).

                                               13

that the plaintiffs cannot prove that the County Commission and the Fair Board were

engaged in a joint venture.17



                 Just as there was no basis in the record to establish the existence of a joint

venture, there is absolutely no basis for the plaintiffs’ claim that the workers chosen by the

Fair Board to work at the fair qualified as employees of the County Commission within the

meaning of the Act. See W.Va. Code § 29-12A-3(a). The County Commission did not

select, hire, or have any control whatsoever with regard to the individuals the Fair Board

utilized to work at the fair. Absent any evidence that the fair workers came within the Act’s

definition of an “employee,” the plaintiffs cannot proceed on its theory that the County

Commission is liable for Mr. Pyles’ injuries due to the negligence of the fair workers. See

W.Va. Code §§ 29-12A-3(a), -4(c)(4). Accordingly, we answer the second reframed

certified question in the negative.



                                       C. Duty of Care

                 In their attempt to attach liability to the County Commission for the injuries

sustained by Mr. Pyles, the plaintiffs sought to create an elevated duty of care on the part of

the County Commission with regard to the fair patrons. Unable to demonstrate that the

County Commission had a special relationship with Mr. Pyles that required it to supply him


       17
            See supra Section III.B.

                                               14

with a greater duty than that owed to the general public,18 the plaintiffs sought to sidestep

the effects of the public duty doctrine by imposing vicarious liability against the County

Commission under its theory of joint venture.19 As discussed above, the plaintiffs cannot

succeed against the County Commission under a theory of joint venture.



                 As the record of this case makes clear, the only duty owed by the County

Commission to the plaintiffs is the general duty that it owed to the public. The plaintiffs’

own expert, Dr. R. Paul McCauley, testified that the Mason County Sheriff’s Department,

and by extension the County Commission, only owed a general duty to the plaintiffs. As this

Court explained in West Virginia State Police v. Hughes, 238 W.Va. 406, 796 S.E.2d 193

(2017):

                 Under the public duty doctrine, a government entity or officer
                 cannot be held liable for breaching a general, non-discretionary
                 duty owed to the public as a whole. “Often referred to as the
                 ‘duty to all, duty to no one’ doctrine, the public duty doctrine
                 provides that since government owes a duty to the public in
                 general, it does not owe a duty to any individual citizen.”

Id. at 412, 796 S.E.2d at 199 (citation omitted). Because the plaintiffs have failed to identify


       18
            See supra note 9.
       19
        While unnecessary to our decision, we agree with the County Commission that the
Act does not permit a political subdivision to be held vicariously liable for the negligence
of a non-employee. See Zirkle v. Elkins Road Pub. Serv. Dist., 221 W.Va. 409, 414, 655
S.E.2d 155, 160 (2007) (recognizing that political subdivisions are not liable for any acts
with respect to both governmental and proprietary functions unless the acts complained of
come within the specific liability provisions of W.Va. Code § 29-12A-4(c)).

                                               15

any basis for holding the County Commission to any duty other than the general duty that

is owed to the public at large, we are compelled to answer the third reframed certified

question in the negative.



                                    IV. Conclusion

              Based on the foregoing, we answer each of the reframed certified questions

in the negative.

                                                                   Questions answered.




                                           16

