                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


James Childers,                                                                    FILED
Plaintiff Below, Petitioner                                                       April 26, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 12-0639 (Mercer County 10-C-513)                                       OF WEST VIRGINIA


City of Bluefield,

Defendant Below, Respondent



                              MEMORANDUM DECISION
         Petitioner James Childers, by counsel, Harold Robertson, appeals the Circuit Court of
Mercer County’s order granting respondent’s motion for summary judgment entered on April 12,
2012. Respondent City of Bluefield (“City”), by counsel, Chip Williams and Jessica L. Cook,
filed a response in support of the circuit court’s order. Petitioner did not file a reply.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        On July 3, 2010, petitioner lost control of his vehicle and wrecked as he led the City’s
police officers on a high-speed chase. As a result of the incident, petitioner pled guilty to the
felony offense of fleeing from an officer while driving under the influence, in violation of West
Virginia Code § 61-5-17. On or about October 15, 2010, petitioner filed a civil action against the
City as a result of the injuries he sustained in the single-car accident. By order entered April 12,
2012, the circuit court granted the City’s motion for summary judgment. Petitioner now appeals
to this Court.

       Under Rule 56(c) of the West Virginia Rules of Civil Procedure, summary judgment is
proper only where the moving party shows that there is no genuine issue as to any material fact
and that it is entitled to judgment as a matter of law. See Syl. Pt. 1, Andrick v. Town of
Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992); Syl. Pt. 3, Aetna Casualty & Surety Co. v.
Federal Insurance Company of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

        On appeal, petitioner argues that the circuit court erred in concluding as a matter of law
that the City’s officers did not act with gross negligence and with reckless disregard during the
pursuit of petitioner. As support, petitioner asserts that the officers knew him and immediate
apprehension was not necessary. The City responds that the record is devoid of evidence that
supports the claim against the City. Specifically, the City argues that police officers who pursue

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law breakers are immune from liability unless they act with gross negligence or reckless conduct.
The City further argues that even if the officers were grossly negligent, the petitioner’s own
criminal act of fleeing from the officers while under the influence was the proximate cause of his
injuries.

        “‘A circuit court’s entry of summary judgment is reviewed de novo.’ Syllabus Point 1,
Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).” Syl. Pt. 1, Hicks ex rel. Saus v. Jones,
217 W.Va. 107, 617 S.E.2d 457 (2005). Upon our review of the record, the Court finds no error
in the circuit court’s entry of summary judgment in favor of the City. The circuit court’s order
clearly documents both the petitioner’s reckless conduct and the precautions taken by the officer.
We hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to
the single assignment of error raised in this appeal. The Clerk is directed to attach a copy of the
circuit court’s order to this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: April 26, 2013

CONCURRED IN BY:

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




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