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Bowden v. Monroe County Commission

Supreme Court of West Virginia

May 18, 2017

DREAMA BOWDEN, AS ADMINISTRATRIX OF THE ESTATE OF LOWELL BOWDEN, Plaintiff Below, Petitioner
v.
MONROE COUNTY COMMISSION, A POLITICAL SUBDIVISION; AND PATRICIA GREEN, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, Defendants Below, Respondents

          Submitted: April 19, 2017

         Appeal 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.

          J. Victor Flanagan Daniel J. Burns Pullin, Fowler, Flanagan, Brown & Poe, PLLC Beckley, West Virginia Attorneys for the Respondents.

         SYLLABUS BY THE COURT

         1. " W.Va. Code, 29-12 A-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." Syllabus point 8, Randall v. Fairmont City Police Department, 186 W.Va. 336, 412 S.E.2d 737 (1991).

         2. "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 307 (1989).

          OPINION

          DAVIS, JUSTICE

         The 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 further proceedings.

         I. FACTUAL AND PROCEDURAL HISTORY

         It is 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.[1] Four of the dogs apparently were owned by her son, Justin Blankenship, who resided in her home.[2] 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.[3]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 Warden.

         Mrs. Bowden, as administratrix of her husband's estate, filed a complaint against the County and others[4] 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 employment.

         The 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.

         Thereafter, 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 followed.

         II. STANDARD OF REVIEW

         With 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 (1986).

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" (citations omitted)).

         We also 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.

         With the foregoing standards in mind, we address the dispositive issues herein raised.

         III. DISCUSSION

         Mrs. 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;[5] 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.

         A. Special Relationship Exception to the Public Duty Doctrine

         The 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[6] 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.

         Recently, this Court succinctly explained the public duty doctrine in this way:

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 omitted).[7]

         An 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 omitted).

         Although this Court in Hughes was addressing liability of the State, this Court has made clear that the special relationship exception to the public ...


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