Transcript Political Subdivision Immunities

Political Subdivision Immunities
Charles R. Bailey, Esq.
Bailey & Wyant, PLLC
• Bailey & Wyant, PLLC was formed in 2000. Since its inception, the firm has
grown from only a handful of attorneys to its current mark of over
thirty. We have offices in both Charleston and Wheeling, West Virginia,
and provide representation to clients throughout West Virginia, Ohio,
Kentucky, and Pennsylvania.
• Bailey & Wyant serves as general counsel to several state and county
agencies and commissions. Our experience and dedication in representing
governmental agencies and officials is a source of pride for all of our
attorneys.
• Our philosophy is simple. We provide aggressive and effective legal
representation, while being ever mindful of each client's individual needs,
goals, and economic interests. No matter how complex or novel, our focus
in a case is always to reach the right resolution for our client.
Purpose:
Enacted in 1986, the West
Virginia Governmental Tort
Claims and Insurance Reform Act
limits tort liability of political
subdivisions, provides tort
immunity to political
subdivisions, and regulates the
costs and coverage of liability
insurance. W. Va. Code § 29-12A1 et seq., (1986).
Governmental Tort
Claims and Insurance
Reform Act
Legislative Intent,§29-12A-2:
• Political subdivisions in WV were unable to procure
adequate liability insurance coverage at a reasonable
cost
• The Tort Reform Act provides certain immunities and
limitations with regard to the [tort] liability of political
subdivisions and employees
• Regulates the insurance industry providing liability
insurance to political subdivisions
Political subdivision, employee defined,§29-12A-3:
Political Subdivision
• “Political subdivisions”
include municipalities,
county commissions,
county boards of
education, and other local
governmental entities
▫ Act does not apply to the
state of WV, state agencies,
or state officers
Employee
• “Employee” means an
officer, agent, employee,
servant of a political
subdivision.
Political Subdivisions
• Private corporations who enter into service contracts with
state agencies are not covered under the Tort Reform Act.
▫ A private corporation that enters into a contract with the state to
provide mental health services is not a “political subdivision”
under the Tort Reform Act and is not entitled to immunities set
forth in Act. Moats v. Preston County Com’n.
▫ Likewise, a private corporation that enters into a contract with a
state agency for juvenile detention services is not a political
subdivision. State ex rel Youth Service Systems, Inc. v. Wilson
Governmental and proprietary
functions of political
subdivisions, liability for
damages, §29-12A-4:
Political subdivisions
are generally immune
from liability for
damages in a civil
action for death, injury,
or loss to persons or
property caused by any
of acts or omissions of
the political
subdivision or an
employee.
However, a political subdivision is liable for negligent acts
or omissions, §29-12A-4:
▫ negligent operation of any
vehicle when employees are
acting within the scope of
their employment
▫ negligent performance of
acts by employees acting
within the scope of
employment
▫ negligent failure to keep
public roads, highways,
streets, avenues, alleys,
sidewalks, etc. in good
repair
▫ negligence of employees
that occurs within or on the
grounds of buildings that
are used by political
subdivisions
Political subdivision immunities under §29-12A-5:
• W. Va. Code §29-12A-5 lists 17 specific instances under
which political subdivisions are immune from liability:
• The following slides will highlight examples of specific
immunities provided under W. Va. Code §29-12A-5:
Examples of specific immunities provided under W. Va.
Code §29-12A-5:
• Civil rights, § 29-12A-5(a):
▫ Goines v. James. Officer entered home without permission
to make a warrantless arrest. Arrest was later determined to
be unconstitutional
▫ In Goines, the Supreme Court held that government
officials performing discretionary functions are shielded
from liability for civil damages insofar as their conduct does
not violate clearly established rights of which a reasonable
person would have known.
Execution or enforcement of a court order, §29-12A5(3):
Execution of arrest warrant
▫ Court found that a political subdivision is immune
from liability if a loss or claim results from the
execution or enforcement of the lawful orders of any
court, even if such loss or claim is caused by the
negligent performance of acts by the political
subdivision's employees while acting within the scope
of employment. Mallamo v. Town of Rivesville
The method of providing police, law
enforcement or fire protection, civil
disobedience, § 29-12A-5(a)(5):
Public duty doctrine:
Public duty doctrine
holds that a local
government entity is
not liable for a failure
to enforce regulatory or
penal statutes. Randall
v. Fairmount City
Police Department
• Under the public duty doctrine,
the duty to fight fires or to
provide police protection runs to
all citizens and the public at
large. Wolfe v. City of Wheeling.
• Absent a special duty to a
particular plaintiff, no private
liability attaches to a fire
department’s failure to provide
adequate fire protection to the
particular plaintiff. Id.
Public Duty Doctrine
continued
Public Duty Doctrine
• Immunity only for “discretionary” and not for
“mandatory” government functions
• Randall v Fairmount City Police Department
▫ “…a local governmental entity’s liability for nondiscretionary (or 'ministerial' or 'operational’
functions) may not be predicated upon the breach of a
general duty owed to public as a whole.” Randall v
Fairmount City Police Department
Public Duty Doctrine
• Special relationship exception. Randall v. City of
Fairmount
• The public duty doctrine is abrogated only if a special
relationship exists between the parties. The test for
special relationship requires:
1.
2.
3.
4.
Affirmative duty to act
Knowledge that inaction could lead to loss
Direct contact between government and injured party
Injured parties’ reliance
Special Relationship in Randall
• Facts: Zachary Lewis had history of violence against plaintiff, once beating
her so severely she required hospitalization
• From June to August 1988, plaintiff made numerous calls to city police
stating that Lewis had threatened plaintiff and she feared for life
• An arrest warrant was issued for Lewis after he failed to appear in court
• Despite phone calls and warrant, police took no actions to apprehend Lewis
• Subsequently, plaintiff noticed Lewis following her while driving. She drove
to the City police station and repeatedly blew car horn in attempt to alert
police.
• While still in her vehicle, Lewis approached on foot, and, using a pistol, shot
and killed the plaintiff
Randall continued…
• The trial court granted City’s motion to dismiss under the Tort
Reform Act
• On appeal, Court agreed with the circuit court that the qualified tort
immunity provisions of the Tort Reform Act are constitutional
• However, dismissal was not proper as question of material fact was
present as to special relationship exception.
• The court pointed to the plaintiff’s numerous phone calls and
attempts to seek police protection, holding that the Complaint states
a claim based on the negligent acts of employees of a political
subdivision within the scope of their employment.
Examples of specific immunities provided under W. Va.
Code §29-12A-5 continued:
• Snow, ice, and weather
conditions, unless
affirmatively caused by the
negligent act of a political
subdivision, § 29-12A-5(a)(6):
• Collection of taxes, § 29-12A5(a)(8):
Examples of specific immunities provided under W. Va.
Code §29-12A-5:
• Licensing powers or
functions, § 29-12A5(a)(9):
▫ A political subdivision is
immune from liability if a loss
or claim results from licensing
powers or functions. Hose v.
Berkeley County Planning
Comm'n,
Licensing powers or functions, § 29-12A-5(a)(9):
• Licensing powers or functions include the issuance,
denial, suspension or revocation of or failure or refusal
to issue, deny, suspend or revoke any permit, license,
certificate, approval, order or similar authority
• In Hose, the court held that the planning commission
and county engineer, even if they were negligent in
approving building plans, were immune from liability
pursuant to Tort Reform Act. Hose v. Berkeley County
Planning Comm'n.
Examples of specific immunities provided
under W. Va. Code §29-12A-5:
• Inspection powers or functions, § 29-12A5(a)(10):
▫ Supreme Court of Appeals of West Virginia has held
that §29-12A-5(a)(10) provides immunity for a
political subdivision's inspection functions related to
assuring compliance with a law or ordinance of the
political subdivision including, but not limited to,
housing, fire, zoning and health. Marlin v. Bill Rich
Constr., Inc.
Examples of specific immunities provided
under W. Va. Code §29-12A-5:
• Workers' compensation
law and deliberate intent;
§29-12A-5 (a)(11):
• Act provides immunity for
political subdivisions from tort
liability in actions involving
claims covered by workers'
compensation even though the
plaintiff was not employed by the
defendant political subdivision at
the time of the injury. O'Dell v.
Town of Gauley Bridge.
Workers' compensation law and deliberate
intent; §29-12A-5 (a)(11):
• Regarding Deliberate Intent claims, the Supreme
Court of Appeals of West Virginia in Michael v Marion
County Bd. Of Educ., clarified that the immunity from
liability extended to political subdivisions under the Act.
• The court held that if legislature intended to provide an
exception for DI claims, they easily could have included
language to that effect.
Examples of specific immunities provided under W. Va.
Code §29-12A-5:
• Dumps, sanitary landfills,
and facilities, § 29-12A5(a)(16):
• Immunity if dump, landfill, or
sewer system is located on
government property.
Calabrese v. city of Charleston
• Recently the Supreme Court of
Appeals of W.Va. found that a
“transfer station” qualified for
immunity under the Tort
Reform Act. Posey v. City of
Buckhannon, January 2012
Employee Immunity under §29-12A-5(b)(1) to
(3):
Employees of political subdivisions are immune from
personal tort liability unless:
1.
His or her acts or omissions were manifestly outside the scope
of employment;
2. His or her acts or omissions were with malicious purpose, in
bad faith, or in a wanton or reckless manner; or
3. Liability is expressly imposed upon the employee by a provision
of WV code.
Employee Immunity under §29-12A-5(b)(1) to (3)
Acts outside the scope of employment:
Mallamo v. Town of Rivesville
▫ Police chief entered a home
pursuant to a capias for plaintiff’s
arrest. Plaintiff was shot an injured
while he was hiding in a storage
closet.
▫ The court ruled that the Town was
immune from liability because the
police chief was in the course of
executing a valid capias when
plaintiff was shot
▫ Chief held immune from liability
because he was acting within the
scope of his employment when he
served the capias on plaintiff.
▫ But, the Court reversed a
dismissal of a conspiracy claim
against the police chief, as it
reasoned a question of material
fact existed as to chief’s attempts
to conceal the facts of the
shooting. If proven, such
conduct is not related to
execution of capias and is clearly
outside the scope of employment.
• Moore By and Through Knight v.
Wood County Bd. Of Educ.
▫ Facts: Student waiting for a bus on
school property claims injury due to
the principal’s negligent supervision.
Student was picked up and slammed
to ground by another student.
▫ Held: Student was unable to show
that the principal acted “outside the
scope of his employment” or that he
acted with a malicious purpose, in
bad faith, or in a reckless manner.
Malicious purpose, bad faith,
or in wanton or recklessness
manner §29-12A-5(b)(2):
.
Malicious purpose, bad faith, or in wanton or
recklessness manner §29-12A-5(b)(2)
▫ Sergent v. City of Charleston: Supreme Court of Appeals of
W. Va. held that police officers were not “negligent, wanton, or
reckless” in their pursuit by automobile of suspected drug
dealers; therefore, the officers were not liable to the estate of a
cyclist who was struck by the suspects’ fleeing car during the
pursuit. The officers repeatedly attempted to avoid confrontation
before suspects caused the accident in question.
▫ Reed v. Bord: Finding nothing in the record below suggested an
assistant prosecuting attorney acted with malice, bad faith,
wantonly, or recklessly toward worker who was injured when he
stepped on automobile parts that were left on the attorney’s office
floor.
Moving on from exceptions to immunity …
• Limitations of actions, specification of damages
amounts prohibited. § 29-12A-6:
▫ Two year period of limitations
▫ Claims shall not specify an exact sum of monetary
damages sought
Limits on liability; prohibiting punitive damages
against political subdivisions but not political
subdivision employees, Joint and Several Liability, § 29
-12A-7:
▫ $500,000 cap on non-economic loss
▫ Act does not place any limitations on
compensatory damages
▫ Punitive damages specifically prohibited
Joint and several liability and the twenty five
percent rule
▫ Joint and several liability
against every defendant
who bears twenty-five
percent or more of the
negligence attributable to
all defendants
▫ Right to contribution
available
▫ Defendants who bear less
than 25% fault are only
responsible for own
obligation
Settlement or defense of suit; effect of liability insurance, §29-12A9(a): Bender v. Glendenning
• Facts: Defendant, a teacher, sexually abused plaintiff and other elementary
students
• Issue: Whether defendant’s “wrongful acts” were covered by BOE’s insurance
policy
• The court stated that (despite various limitations of liability under the Tort
Reform Act) when a policy of insurance provides coverage for a political
subdivision, the terms of such insurance contract determine the rights and
responsibilities of the insurer and its insured(s) under W. Va. Code § 29-12A9(a)
• Bender held when an insurance policy issued to a BOE did not contain
language specifically preserving the immunity provisions of the West Virginia
Governmental Tort Claims and Insurance Reform Act, a claim against the
defendant employee for sexually abusing students was controlled by the terms
of the policy
• Bender resulted in changes in insurance policy language excluding coverage in
similar instances
▫ The real or personal property of a
political subdivision is not made
available or subject to attachment
or sale to satisfy judgment in any
civil action against a political
subdivision
▫ Political subdivisions are directed
by this section of the Act to
appropriate funds for the
purposes of paying such
judgments.
Enforcement of
judgments, §29-12A-10:
Defense and indemnification of employees, settlement,
§29-12A-11:
• A political subdivision will provide for the defense of an employee,
and shall indemnify and hold harmless, if employee was acting in
good faith and within scope of employment
• Defense normally provided through insurance policy, but
subdivision may choose to self insure
• Political Subdivision can recover from employee if conduct leading
to adverse judgment was outside the scope of employment. §2912A-12
Venue, parties, real parties in interest, service of
process, §29-12A-13:
• All suits against political
subdivisions within the scope
of the act must be brought in
the county in which the situs
of the political subdivision is
located or in which the cause
of action arose
• Filings shall name as
defendant the political
subdivision
▫ Employee can only be
named if exception to
immunity is present
Procurement of liability insurance and self
insurance, § 29-12a-16:
▫ A political subdivision may use public funds to secure
insurance
▫ Includes the option to obtain insurance coverage through
the State Board of Risk and Insurance Management (BRIM)
▫ Political Subdivisions can establish and maintain a selfinsurance program
Custom designed policies under § 29-12A-16:
• In Cook v. McDowell County Emergency Ambulance Serv. Auth.,
the Court stated “when a policy is a custom- designed policy
procured by a body subject to the Governmental Tort Claims and
Insurance Reform Act, the broad discretion granted the West
Virginia State Board of Risk and Insurance Management authorizes
that body to incorporate language absolutely limiting liability under
the policy, even if such language would ordinarily be in violation of
the provisions of W.Va. Code § 33-6-31.
Liability insurance rates, rate filings; cancellations,
group insurance, § 29-12A-17
• Policy premiums for coverage shall not be increased by
more than ten percent per annum
• Cancellation only for :
(1) Failure to make premium payments
(2) Fraud or substantial misrepresentation
(3) Substantial increase in the risk of loss
Claims to which the Act does not apply
§ 29-12A-18.
(1) civil actions seeking to recover damages for
contractual liability;
(2) any civil action that evolves out of the employment
relationship, including disputes as to wages hours and
terms of employment;
(3) civil rights claims based on alleged violations of U.S.
Constitution.
II. Qualified immunity for political subdivisions
• Qualified Immunity Government officials performing
discretionary functions are shielded from liability for civil damages
insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known.” Hutchinson v. City of Huntington
• Therefore, “Public officials and local government units should be
entitled to qualified immunity from suit under §1983, or statutory
immunity under W.Va. Code, 29-12A-5(a) [Governmental Tort
Claims and Insurance Reform Act], unless it is shown by specific
allegations that the immunity does not apply. Id.
Qualified immunity continued
• There is no immunity for a executive official who acts are
fraudulent, malicious, or otherwise oppressive. State v. Chase
Securities, Inc.
• The court will ask, “whether a objectively reasonable official…could
have believed that his conduct did not violate the plaintiff’s
constitutional rights. Id.
• Test:
▫ Does the alleged conduct set out a constitutional or statutory
violation?
▫ Were the constitutional standards clearly established at the time
in question?
Recent Qualified Immunity Decisions
City of St. Albans v. Botkins, 719 S.E.2d 863 (2011)
• Facts: Officers approach a confrontation between 6 adult males; officer orders
plaintiff to ground , strikes him in head with but of gun and places him under
arrest
• Defendant City moved for summary judgment on qualified immunity grounds as
officers’ actions were not clearly unlawful; the Kanawha Co. Circuit Court
denied the motion
• An interlocutory appeal from Circuit Court ruling followed.
• The Court stated “A circuit court's denial of summary judgment that is
predicated on qualified immunity is an interlocutory ruling which is subject to
immediate appeal under the 'collateral order' doctrine.”
• Continued…
City of St. Albans v. Botkins continued…
• Qualified immunity "is an immunity from suit rather than a mere
defense to liability… it is effectively lost if a case is erroneously
permitted to go to trial
• In reviewing the record, the Supreme Court of Appeals stated “A
reasonable officer in the same situation … could have believed a
crime was in progress or about to be committed… and a reasonable
officer could determine that force was necessary”
• Court held qualified immunity should have been found as the facts
show no constitutional violation was present and a reasonable
officer would have considered the actions lawful given the
circumstances
Recent Qualified Immunity Cases
• Samantha Jones, et al., v. City of Charleston, Civil Action No.
2:11-cv-00612 (March 2012)
• Facts: Suspect, after a high speed pursuit, attempted to escape by ramming officers
with his vehicle
• Officers at the scene opened fire, and tragically, one bullet hit and fatally wounded
Officer Jones.
• Plaintiff alleged violations of 4th and 14th amendments were committed by City and
its officer.
• Court dismissed both claims as 4th amendment did not apply and Officer Jones due
process rights were not violated
• Notably, Court states that whether “it was appropriate for the officer to discharge his
weapon without accounting for location of fellow officer…and whether his actions in
doing so may have been negligent or reckless are questions that are not before the
court.”
SAFFORD UNIFIED SCHOOL DISTRICT #1, et al., v. APRIL
REDDING, 557 U.S. 364, (2009).
• Facts: A 13 year old female Student, suspected of distributing pain
meds on school grounds, had her backpack and outer clothing
searched by the principal.
• Next, the principal sent the student to the school nurse and an
assistant, who searched the student’s bra and underwear.
• Student’s mother filed suit against school employees alleging 4th
Amendment violations.
• On appeal to the Supreme Court, the Court determined that while
the initial search was valid, the second search was unreasonable and
in violation of the student’s 4th Amendment rights.
SAFFORD UNIFIED SCHOOL DISTRICT #1, et al., v. APRIL
REDDING continued…
• The Court stated the content of the suspicion failed to match the
degree of intrusion imposed by the second more invasive search.
• However, the Court held that “Although the strip search violated
[the student’s] 4th Amendment rights, the [principal, nurse, and
assistant] are protected from liability by qualified immunity because
"clearly established law does not show that the search violated the
4th Amendment."
III. State constitutional tort cause of
action
• Under Hutchison v. City of
Huntington, a common law
constitutional tort action is
allowed West Virginia.
• Case law interpreting it is
non-existent outside of the
Hutchison decision
• Requires artful pleading on
the part of counsel, virtually
all complaints alleging the
cause of action set forth the
same basic allegations
State constitutional tort cause of
action
• Provisions of the West Virginia
Constitution frequently cited
in support of the claim are:
Article III, Sections 1 (Bill of
rights), 5 (Excessive bail not
required), 7 (Freedom of
speech and press guaranteed),
10 (Safeguards for life, liberty
and property), 11 (Political
tests condemned) and 20
(Preservation of free
government)
• Complaints disavow any
federal cause of under 42
U.S.C. § 1983 or other federal
law
• According to complaints
alleging constitutional tort
causes of action, the ostensible
reason for referencing the
provisions of the United States
Constitution is for the limited
purposes of allowing review by
the United States Supreme
Court
Advantages of state constitutional tort
cause of action
1. Plaintiff defeats federal removal by disavowing
violations of federal law
2. Plaintiffs may in certain circumstances circumvent
statutory immunities, including the Tort Reform Act
3. By making Tort Reform Act inapplicable, plaintiff may
prosecute a claim for punitive damages and seek
vicarious liability of the employer for intentional
employee action outside of mere negligence
Successfully remanded state constitutional tort
cases
Remanded Cases
• At least 3 cases have been
successfully remanded
based on lack of federal
jurisdiction in state
constitutional tort action.
▫ McGhee – mere “possible”
questions of federal law is
insufficient to confer
jurisdiction
▫ Lilly - “plaintiff disclaimed
any reliance upon section
1983 ….. and further
disavowed any federal basis
for his claims
▫ Taylor - attorney’s fees and
costs awarded to the
plaintiff on remand
• Those who defend political
subdivisions vehemently disagree
with these holdings
• Allows plaintiffs to strip a
political subdivision defendant of
the protections of both state
statutory immunities and federal
jurisdiction
• Exposes political subdivisions to
punitive damages and potentially
larger verdicts
State Constitutional
Tort Claims continued
IV. Recent Tort Reform Act opinions
• Posey v. City of Buckhannon, September 2012 term No. 11-0565
(January 2012).
▫ The court found that a “transfer station” for waste disposal qualified for
immunity under the Governmental Tort Claims Act
• Harrison v. City of Charleston, 2011 W. Va. LEXIS 557
▫ Facts: Suspect rammed a police cruiser; an officer on foot feared he might be
run over and opened fire on suspect, killing him.
▫ Court held that the City was immune from liability as W. Va. Code § 29-12A-4
permitted recovery against a political subdivision only when the political
subdivision's employee negligently caused injury or death, not when the
employee acted intentionally.
▫ Immunity was found as the purposeful firing of a weapon at a dangerous
suspect is an “intentional” and not a negligent act.
IV. Recent Tort Reform Act opinions
• Woods v. Town of Danville, 712 F. Supp. 2d 502 (S.D.W.
Va. 2010).
▫ Police Officer mistakenly detained cross country student who was
jogging, handcuffing the student and causing personal injuries
▫ Officer was denied immunity as his conduct in seizing a 14 year old
student with excessive force, outside the town limits, was an act outside
his scope of employment.
▫ The court further held that the Town of Danville was not entitled to
immunity because W. Va. Code § 29-12A-5(a)(5) did not contemplate
immunity on a theory negligent hiring and supervision of an employee.
V. Conclusion
• The Governmental Tort Claims and Insurance Reform Act has
provided immunities to political subdivisions in West Virginia
for more than twenty five years
• The Act has been successful in accomplishing its stated
purposes of providing limited immunity and tort liability to
West Virginia’s municipalities and counties
• Act maintains accountability with local government while
ensuring tax payers will not indirectly be exposed to large jury
verdicts and high insurance premiums
Charles R. Bailey, Esq.
Bailey & Wyant, PLLC
500 Virginia Street East, Suite 600
P.O. Box 3710
Charleston, West Virginia 25337-3710
T: 304.345.4222 | F: 304.343.3133