                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                 FILED
City of Marmet, a municipal corporation,                                       May 17, 2018
Defendant/Third Party Plaintiff below, Petitioner,                               released at 3:00 p.m.
                                                                             EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 17-0493 (Kanawha County Civil Action No. 15-C-1789)                       OF WEST VIRGINIA



Anthony Hunter, Administrator of the Estate of Kareem Hunter, Deceased,
Plaintiff below, Respondent.


                             MEMORANDUM DECISION

               The City of Marmet (hereinafter “Marmet”), by attorneys Duane J. Ruggier II,
Jacob D. Layne, and Evan S. Olds, appeals the decision of the Circuit Court of Kanawha
County denying its motion for summary judgment. On appeal to this Court, Marmet
contends the circuit court erred by failing to recognize its immunity from suit based upon the
actions of a Marmet police officer in the underlying civil action. Anthony Hunter
(hereinafter “the respondent”), by attorney Michael T. Clifford, filed a timely response.

                This Court has carefully reviewed the arguments of counsel, appendix record,
and applicable precedent, and this case is mature for consideration. This case satisfies the
“limited circumstances” requirement of Rule 21(d) of the West Virginia Rules of Appellate
Procedure and is appropriate for a memorandum decision rather than an opinion. For the
reasons expressed below, we reverse the decision of the circuit court and remand this case
for entry of an order granting Marmet’s motion for summary judgment, finding that Marmet
is entitled to statutory immunity under West Virginia Code § 29-12A-5(a)(5) (2013), and
finding no special relationship between the decedent and Marmet.

                             I. Factual and Procedural History

              On the evening of September 24, 2013, Marmet police were summoned to an
apartment building in Marmet, West Virginia, by a 911 telephone call from an individual
named “Wendy”1 reporting “people outside yelling and screaming.” This telephone call was
apparently prompted by the brother of resident Kelsey Legg based upon a disturbance he had


       1
        The record indicates that the individual’s real name may be Lindy Saunders, but the
call report identifies her as “Wendy.”

                                              1

heard in his sister’s apartment. Kareem Hunter (hereinafter “the decedent”), the son of the
respondent, was visiting Ms. Legg’s apartment.2 The 911 caller did not report an altercation
or other issues of concern inside the apartment building. She simply reported a noise
disturbance outside the building.

              When a Marmet police officer arrived outside the apartment building, one of
                  3
the two men who allegedly fatally beat the decedent spoke with the officer and explained,
“Me and my girlfriend had an argument. I’m leaving.” The police officer thereafter departed
the premises. The decedent’s body was later discovered buried in a shallow grave in Raleigh
County, West Virginia. The decedent had apparently been attacked by Miguel Quinones and
Deveron Patterson while at Ms. Legg’s apartment and thereafter transported and buried in
Raleigh County.4

                On September 22, 2015, the respondent filed a civil action against Marmet,
asserting a single cause of action for negligence. The respondent alleged that Marmet had
caused the death of his son by failing to more fully investigate the 911 call and failing to
enter the residence where the decedent was allegedly murdered. Subsequent to discovery,
Marmet filed a motion for summary judgment, asserting immunity pursuant to West Virginia
Code § 29-12A-5(a)(5) and (10) (2013).5 Marmet further argued that the respondent had
failed to offer evidence of a special relationship between the decedent and Marmet sufficient
to overcome statutory immunity. The circuit court denied Marmet’s motion for summary
judgment by order entered April 28, 2017. Marmet now appeals, contending that the circuit
court erred in denying its motion for summary judgment.




          2
              According to information provided in the record, the decedent was twenty-nine years
of age.
          3
              The two men were later identified as Miguel Quinones and Deveron Patterson.
          4
        The record in this civil action does not clearly indicate the status of the criminal
investigations of Mr. Quinones and Mr. Patterson.
          5
         The purposes of the West Virginia Governmental Tort Claims and Insurance Reform
Act “are to limit liability of political subdivisions and provide immunity to political
subdivisions in certain instances and to regulate the costs and coverage of insurance available
to political subdivisions for such liability.” W.Va. Code § 29-12A-1 (2013).

                                                   2

                                  II. Standard of Review

               As this Court explained in City of Saint Albans v. Botkins, 228 W.Va. 393, 719
S.E.2d 863 (2011), the denial of a motion for summary judgment is interlocutory and
appealable only in certain circumstances. Id. at 397-98, 719 S.E.2d at 867-68; see also Syl.
Pt. 8, Aetna Cas. & Surety v. Fed. Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770
(1963). We have recognized that where denial of summary judgment is predicated on issues
of immunity, permitting an appeal “is the only way to preserve the intended goal of an
immunity ruling: to afford public officers more than a defense to liability by providing them
with ‘the right not to be subject to the burden of trial.’” 228 W.Va. at 397, 719 S.E.2d at 867
(quoting Robinson v. Pack, 223 W.Va. 828, 833, 679 S.E.2d 660, 665 (2009)).

               Syllabus point one of Findley v. State Farm Mutual Automobile Insurance Co.,
213 W.Va. 80, 576 S.E.2d 807 (2002), provides the applicable standard of review for this
circumstance: “This Court reviews de novo the denial of a motion for summary judgment,
where such a ruling is properly reviewable by this Court.” We also utilize the standard
generally employed in review of summary judgment efficacy: “A motion for summary
judgment should be granted only when it is clear that there is no genuine issue of fact to be
tried and inquiry concerning the facts is not desirable to clarify the application of the law.”
Syl. Pt. 3, Aetna, 148 W.Va. at 160, 133 S.E.2d at 771. With these standards as guidance,
we examine the arguments of the parties.

                                       III. Discussion

              The dispositive issue in this case is whether Marmet is entitled to statutory
immunity under West Virginia Code § 29-12A-5(a)(5), essentially codifying the common law
public duty doctrine, for “the failure to provide, or the method of providing, police, law
enforcement or fire protection.”6 Explaining the concepts underlying that statutory provision,
this Court has emphasized the interaction between statutory immunity and the common law
public duty doctrine, holding as follows in syllabus point eight of Randall v. Fairmont City
Police Department, 186 W.Va. 336, 412 S.E.2d 737 (1991):


       6
       Marmet also claims entitlement to statutory immunity under West Virginia Code §
29-12A-5(a)(10), regarding immunity for failure to make an inspection to determine whether
the property “complies with or violates any law or contains a hazard to health or safety.”
Based upon this Court’s conclusion that immunity applies to the claims asserted against
Marmet under West Virginia Code § 29-12A-5(a)(5), it is unnecessary to address potential
immunity under other sections.


                                              3

                     W. Va. Code, 29-12A-5(a)(5) [1986], which provides, in
             relevant part, that a political subdivision is immune from tort
             liability for “the failure to provide, or the method of providing,
             police, law enforcement or fire protection[,]” is coextensive with
             the common-law rule not recognizing a cause of action for the
             breach of a general duty to provide, or the method of providing,
             such protection owed to the public as a whole. Lacking a clear
             expression to the contrary, that statute incorporates the
             common-law special duty rule and does not immunize a breach
             of a special duty to provide, or the method of providing, such
             protection to a particular individual.

186 W.Va. at 339, 412 S.E.2d at 740 (emphasis added).

             This Court has also articulated the basis for the public duty doctrine, as
follows:

             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.” For
             example, under the public duty doctrine, “the duty to fight fires
             or to provide police protection runs to all citizens and is to
             protect the safety and well-being of the public at large[.]”
             Generally, no private liability attaches when a fire department or
             police department fails to provide adequate protection to an
             individual. The public duty doctrine is restricted to “liability for
             nondiscretionary (or ‘ministerial’ or ‘operational’) functions[.]”

W. Va. State Police v. Hughes, 238 W.Va. 406, 412, 796 S.E.2d 193, 199 (2017) (footnotes
omitted).

               Thus, the appropriate method of analysis is quite clear; where a plaintiff’s
injury has its genesis in alleged “failure to provide, or the method of providing” police
protection, the political subdivision is immune unless a special relationship had been
established between the political subdivision and the injured party. W.Va. Code § 29-12A­
5(a)(5), in part. This concept was traditionally embodied as an exception to public duty


                                              4

doctrine and is now recognized as an exception to statutory immunity. In syllabus point
seven of Randall, this Court explained the special relationship principle as follows:

                      “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).

Randall, 186 W.Va. at 339, 412 S.E.2d at 740; see also Jeffrey v. W.Va. Dep’t of Pub. Safety,
198 W.Va. 609, 614, 482 S.E.2d 226, 231 (1996) (explaining “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.”).

               This Court has evaluated several instances in which this scenario has arisen.
For example, we addressed the special relationship issue in Upchurch v. McDowell Co., 232
W.Va. 91, 750 S.E.2d 644 (2013), within the context of a wrongful death suit against a
county 911 dispatch after a victim’s murder. We examined the special relationship exception
and ultimately found that the plaintiff had “failed to prove the existence of a special
relationship between McDowell County 911 and [the plaintiff] such as would form the basis
of a special duty of care to him.” Id. at 96, 750 S.E.2d at 649; see also Miller v.
Elkins-Randolph Cty. Emergency Squad Inc., No. 14-0929, 2015 WL 3677209, at *3 (W.Va.
June 12, 2015) (memorandum decision) (holding “there is no evidence in the record on
appeal to support the contention that respondent or any of its agents ever contracted,
promised, or by its actions, assumed, an affirmative duty to provide emergency medical
services to the decedent.”).

              Similarly, in Rhodes v. Putnam County Sheriff’s Department, 207 W.Va. 191,
530 S.E.2d 452 (1999), this Court analyzed the arguments of a former employer of a jail
inmate who had been shot when that inmate escaped from jail. Id. at 193, 530 S.E.2d at 454.
The Court rejected the plaintiff’s argument that a special relationship existed, reasoning that

                                               5

although there had been direct contact between the injured party and the Sheriff’s
Department, there was no evidence that anyone at the Sheriff’s Department had reason to
know that the inmate was going to harm the plaintiff. Moreover, there was no evidence that
the Sheriff’s Department had promised the injured party that it would prevent harm to the
injured party and no evidence that the injured party relied on any alleged promises or
protection. Id. at 194, 530 S.E.2d at 455.

              In the present case, Marmet contends that the special relationship exception is
not applicable because the respondent failed to satisfy the requirement of demonstrating any
relationship between the decedent and the Marmet police department. Conversely, the
respondent contends that genuine issues of material fact exist on that issue, precluding
summary judgment.

               We find no merit to the respondent’s arguments. There are no genuine issues
of material fact precluding summary judgment in this case. Issues of fact surrounding the
presence of a special relationship exist in circumstances wherein there has been some degree
of relationship established by the evidence. For example, in Bowden v. Monroe County
Commission, 239 W.Va. 214, 800 S.E.2d 252 (2017), this Court held that genuine issues of
material fact did exist where a dog warden had been informed of the vicious nature of dogs
that subsequently caused injury. Id. at 220, 800 S.E.2d at 260. Similarly, in Walker v.
Meadows, 206 W.Va. 78, 521 S.E.2d 801 (1999), this Court held that genuine issues of
material fact existed regarding whether a county sheriff and commission had a special
relationship with parents whose daughter had been scheduled to be taken into custody for
mental hygiene evaluation. Id. at 80, 521 S.E.2d at 803.

               Unlike the scenarios encountered in Bowden and Walker, there is no evidence
of a special relationship in this case. The respondent has not presented any facts supporting
an assumption of duty to act on behalf of the decedent, knowledge that inaction could lead
to his harm, direct contact with him, or justifiable reliance by the decedent upon Marmet.
Each of those components must be demonstrated to establish a special relationship. Syl. Pt.
7, Randall, 186 W.Va. at 339, 412 S.E.2d at 740. This Court has observed that

              [t]he injured party’s reliance is as critical in establishing the
              existence of a “special relationship” as is the local governmental
              entity’s voluntary affirmative undertaking of a duty to act
              toward the injured party. The element of reliance provides the
              essential causative link between the special duty assumed by the
              local governmental entity and the injury.

Wolfe, 182 W.Va. at 257, 387 S.E.2d at 311 (citations omitted).

                                              6

               The respondent concedes that he is not sure whether the decedent was still alive
at the time the officer arrived outside the building, that the officer had no knowledge of the
decedent or his assault, and that the officer had no reason to suspect that the decedent was
in danger. The officer responded to a noise disturbance call and was informed that a man had
been arguing with his girlfriend and was leaving.7 The officer had no reason to attempt to
gain entrance into any of the apartments. This is precisely the situation the public duty
doctrine envisions; the police do not have a duty to a particular member of the public with
whom the police have no special relationship. “[P]ublic officials are not guarantors of public
safety and, as such, do not have a duty of universal care to protect the general public from
harm or accident.” McCuiston v. Butler, 509 S.W.3d 76, 80 (Ky. Ct. App. 2017).

              For the foregoing reasons, we reverse the decision of the circuit court and
remand for entry of an order granting Marmet’s motion for summary judgment, finding that
Marmet is entitled to statutory immunity under West Virginia Code § 29-12A-5(a)(5), and
finding no special relationship between the decedent and Marmet.

                                                                     Reversed and remanded.


CONCURRED IN BY:

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



       7
        The respondent also attempts to persuade this Court that the officer had a duty to
investigate based upon guidelines contained in West Virginia Code of State Regulations §
149-3-1 to -12 (2017), permitting law enforcement to conduct a walk-through of the premises
where domestic violence has been reported among family or household members. The most
obvious flaw in the respondent’s argument is that this was not a domestic violence call; it
was simply a noise disturbance call, and the officer had no reasonable basis to assume that
a domestic violence situation was unfolding. The 911 caller did not report an assault or
battery among family or household members. Moreover, even if those regulations did apply,
they do not require a walk-through; they simply provide that an officer “may enter and
conduct a search of the premises relevant to the incident when written or verbal consent has
been given to do so or when exigent circumstances exist.” W.Va. C.S.R. § 149-3-6.2.b.

                                              7

