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City of Marmet v. Hunter

Supreme Court of West Virginia

May 17, 2018

City of Marmet, a municipal corporation, Defendant/Third Party Plaintiff below, Petitioner,
v.
Anthony Hunter, Administrator of the Estate of Kareem Hunter, Deceased, Plaintiff below, Respondent.

          Kanawha County Civil Action No. 15-C-1789

          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 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 the two men[3] 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.

         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 immunityunder West Virginia Code § 29-12A-5(a)(5), essentiallycodifying 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 statutoryprovision, 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):

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 ...

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