DREAMA BOWDEN, AS ADMINISTRATRIX OF THE ESTATE OF LOWELL BOWDEN, Plaintiff Below, Petitioner
MONROE COUNTY COMMISSION, A POLITICAL SUBDIVISION; AND PATRICIA GREEN, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, Defendants Below, Respondents
Submitted: April 19, 2017
from the Circuit Court of Monroe County Honorable Robert A.
Irons, Judge Civil Action No. CC-32-2011-C-18
Michael A. Olivio Stephanie H. D. Mullett Olivio Law Firm,
PLLC Charleston, West Virginia Attorneys for the Petitioner.
Victor Flanagan Daniel J. Burns Pullin, Fowler, Flanagan,
Brown & Poe, PLLC Beckley, West Virginia Attorneys for
BY THE COURT
" W.Va. Code, 29-12 A-5(a)(5) , 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." Syllabus point 8,
Randall v. Fairmont City Police Department, 186
W.Va. 336, 412 S.E.2d 737 (1991).
"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." Syllabus point 2,
Wolfe v. City of Wheeling, 182 W.Va. 253, 387 S.E.2d
instant matter is before this Court on appeal by Mrs. Dreama
Bowden (hereinafter "Mrs. Bowden"), as
administratrix of the estate of her late husband, Lowell
Bowden (hereinafter "Mr. Bowden"), plaintiff below
and petitioner herein. Mrs. Bowden appeals two orders entered
by the Circuit Court of Monroe County. The first order
granted summary judgement in favor of respondents herein and
defendants below, Patricia Green and the Monroe County
Commission (hereinafter collectively "the County"),
based upon the circuit court's conclusion that the
evidence presented by Mrs. Bowden was insufficient to
establish a disputed issue of material fact in relation to
the special relationship exception to the public duty
doctrine. In its second order, the circuit court, sua
sponte, summarily dismissed all of Mrs. Bowden's
remaining claims against all defendants. We find the circuit
court's rulings in both orders to be erroneous.
Accordingly, we reverse the orders and remand this case for
FACTUAL AND PROCEDURAL HISTORY
undisputed that, on November 27, 2009, petitioner's
decedent, Mr. Bowden, who was seventy years old at the time,
was viciously attacked by four or five American Pit Bull
Terriers (hereinafter "pit bulls") while he was
taking a walk near Landside, Monroe County, West Virginia, an
area in which he resided. Mr. Bowden later died from his
injuries. The pit bulls involved in the attack were kept at
the home of Kim Blankenship. Four of the dogs apparently were
owned by her son, Justin Blankenship, who resided in her
home. The remaining dog, a black-and-white pit
bull named Echo, was in the care of Justin Blankenship and
was allegedly owned by Anna Hughes and Mose
Christian.At the time of the attack, Patricia Green
(hereinafter "Dog Warden Green"), a defendant below
and a respondent herein, served as the Monroe County Dog
Bowden, as administratrix of her husband's estate, filed
a complaint against the County and others alleging, in
relevant part, negligence in performing statutory duties
imposed by W.Va. Code § 19-20-1 et seq. thereby
allowing the vicious dogs to remain at large, and wrongful
death. Dog Warden Green was sued both individually and in her
official capacity as dog warden. Mrs. Bowden also sough
punitive damages alleging willful, wanton, and reckless
conduct by Dog Warden Green that was outside her scope of
County filed a motion to dismiss the complaint pursuant to
Rule 12(b)(6) of the West Virginia Rules of Civil Procedure,
asserting a defense based upon the public duty doctrine. Mrs.
Bowden responded by asserting the special relationship
exception to the public duty doctrine. Mrs. Bowden also
sought leave from the circuit court to file an amended
complaint to incorporate additional allegations of fact in
support of the special relationship exception to the public
duty doctrine. However, the circuit court granted the motion
to dismiss that had been filed by the County without ruling
on Mrs. Bowden's motion to amend her complaint. Mrs.
Bowden appealed the dismissal to this Court. See Bowden
v. Monroe Cty. Comm'n, 232 W.Va. 47');">232 W.Va. 47, 750 S.E.2d 263
(2013). Finding the circuit court erred in dismissing the
matter, this Court remanded for additional discovery and to
allow Mrs. Bowden to file her amended complaint. Id.
On remand, Mrs. Bowden filed her amended complaint, and the
parties engaged in discovery.
the County filed a motion seeking summary judgment again
based, in relevant part, upon the public duty doctrine. After
receiving Mrs. Bowden's response and conducting a
hearing, the circuit court granted summary judgment in favor
of the County, by order entered on May 5, 2016. In doing so,
the circuit court found that Mrs. Bowden had failed to
produce facts sufficient to establish the special
relationship exception. The parties asked the circuit court
for a certification that the summary judgment ruling was
final as to the parties and issues addressed therein pursuant
to Rule 54(b) of the West Virginia Rules of Civil Procedure.
In response, the circuit court instead entered, sua
sponte, a "Dismissal Order" dated June 2,
2016, which order dismissed the action in its entirety and
removed it from the circuit court's docket. This appeal
STANDARD OF REVIEW
respect to our consideration on appeal of a circuit
court's summary judgment ruling, it is well established
that "[a] circuit court's entry of summary judgment
is reviewed de novo." Syl. pt. 1, Painter
v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). It is
equally clear that,
[i]n reviewing a circuit court's order granting summary
judgment this Court, like all reviewing courts, engages in
the same type of analysis as the circuit court. That is
"'we apply the same standard as a circuit court,
' reviewing all facts and reasonable inferences in the
light most favorable to the nonmoving party."
Powderidge Unit Owners Ass 'n v. Highland Properties,
Ltd., 196 W.Va. 692, 698, 474 S.E.2d 872, 878 (1996),
quoting Williams v. Precision Coil, Inc., 194 W.Va.
52, 58, 459 S.E.2d 329, 335-36 (1995), citing Matsushita
Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587-88, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538, 553
Fayette Cty. Nat'l Bank v. Lilly, 199 W.Va. 349,
353 n.8, 484 S.E.2d 232, 236 n.8 (1997), overruled on
other grounds by Sostaric v. Marshall, 234 W.Va. 449,
766 S.E.2d 396 (2014). See also Painter, 192 W.Va.
at 192, 451 S.E.2d at 758 (observing that, in deciding motion
for summary judgment, this Court "must draw any
permissible inference from the underlying facts in the light
most favorable to the party opposing the motion"
are cognizant that "[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 Cas. & Sur. Co.
v. Federal Ins. Co. of New York, 148 W.Va. 160, 133
S.E.2d 770 (1963). In other words, summary judgment is proper
"if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." W.Va. R. Civ. P. 56(c).
See also Syl. pt. 2, Williams v. Precision
Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995)
("Summary judgment is appropriate if, from the totality
of the evidence presented, the record could not lead a
rational trier of fact to find for the nonmoving party, such
as where the nonmoving party has failed to make a sufficient
showing on an essential element of the case that it has the
burden to prove."). Thus,
[i]f the moving party makes a properly supported motion for
summary judgment and can show by affirmative evidence that
there is no genuine issue of a material fact, the burden of
production shifts to the nonmoving party who must either (1)
rehabilitate the evidence attacked by the moving party, (2)
produce additional evidence showing the existence of a
genuine issue for trial, or (3) submit an affidavit
explaining why further discovery is necessary as provided in
Rule 56(f) of the West Virginia Rules of Civil Procedure.
Syl. pt. 3, id.
the foregoing standards in mind, we address the dispositive
issues herein raised.
Bowden raises seven assignments of error that present two
dispositive issues to this Court: (1) whether the circuit
court erred in its application of the special relationship
exception to the public duty doctrine; and (2) whether
the circuit court erred by sua sponte entering a
dismissal order disposing of the entire case when issues
remained that were not addressed in the summary judgment
order. We address these issues in turn.
Special Relationship Exception to the Public Duty
circuit court based its award of summary judgment on its
conclusion that Mrs. Bowden failed to satisfactorily prove
the elements of the special relationship
exception to the public duty doctrine. In other
words, the circuit court ruled that Mrs. Bowden had failed to
establish any genuine issue of material fact with respect to
the existence of a special relationship so as to overcome a
motion for summary judgment. Mrs. Bowden claims the circuit
court erred. We agree.
this Court succinctly explained the public duty doctrine in
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." [John
Cameron McMillan, Jr., "Government Liability and the
Public Duty Doctrine, " 32 Vill. L. Rev. 505, 509 (1987)
(footnotes omitted)]. 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[.]" [Wolfe v.
City of Wheeling, 182 W.Va. 253, 256, 387 S.E.2d 307,
310 (1989)]. 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[.]" [Parkulo v.
West Virginia Bd. of Prob. & Parole, 199 W.Va. 161');">199 W.Va. 161,
174, 483 S.E.2d 507, 520 (1996) (quoting Randall v.
Fairmont City Police Dep't, 186 W.Va. 336, 346, 412
S.E.2d 737, 747 (1991))].
West Virginia State Police v. Hughes, 238 W.Va. 406,
___, 796 S.E.2d 193, 199 (2017) (footnotes
exception to the public duty doctrine, which Mrs. Bowden
seeks to apply in this case, "arises when a 'special
relationship' exists between the government entity and a
specific individual. 'The state may be liable where it
has taken on a special duty to a specific person beyond that
extended to the general public.'" Id.
(quoting Barry A. Lindahl, 2 Modern Tort Law: Liability
and Litigation § 16:20 (2d ed. 2008)) (footnote
this Court in Hughes was addressing liability of the
State, this Court has made clear that the special
relationship exception to the public ...