Smith v. Clark

1

JOAN STILNER, as Administratrix of the Estate of David M. Smith, Plaintiff, v. EDWARD W. CLARK, JR. et al., Defendants.

CIVIL No. 2:20-CV-47

United States District Court, N.D. West Virginia

April 4, 2024

AMENDED MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT [ECF NO. 116] ^[1]

THOMAS S. KLEEH, CHIEF JUDGE

Pending before the Court is a motion for partial summary judgment filed by Defendants Edward W. Clark (“Clark”), Bo D. Hendershot (“Hendershot”), Jason Carey (“Carey”), and the Lewis County Commission (the “County Commission”) [ECF No. 116]. For the reasons discussed herein, the Court GRANTS IN PART and DENIES IN PART the motion.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff Joan Stilner (“Plaintiff”) is the Administratrix of the Estate of David M. Smith (“Smith”). In her Amended Complaint, she brought suit against Clark Hendershot, Carey, the County Commission, the Lewis County Sheriff's Department (the “Sheriff's Department”), the Weston Lewis County Emergency Ambulance Authority (the “Ambulance Authority”), Rocky Shackleford (“Shackleford”), and Nancy Ryder (“Ryder”).

On October 22, 2021, Plaintiff voluntarily dismissed the claims against the Sheriff's Department. See ECF No. 75. On May 2, 2022, the Court was notified that Plaintiff settled with the Ambulance Authority, Shackleford, and Ryder (together, the “EMS Defendants”). The Court held a hearing on July 28, 2022, and approved the settlement. See ECF No. 135. The EMS Defendants have now been dismissed from the case. See ECF No. 136. Clark, Hendershot, Carey, and the County Commission (together, “Defendants”) have moved for partial summary judgment.

II. STANDARD OF REVIEW

Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Summary judgment is proper “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there [being] no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted).

III. FACTUAL BACKGROUND

Clark, Hendershot, and Carey were, at all relevant times, law enforcement officers with the Sheriff's Department. On November 12, 2018, Smith was on parole. He had failed to check in with his parole officer, and authorities had issued a warrant for his arrest. Clark, Hendershot, and Carey sought to arrest Smith, and a chase ensued. Smith was apprehended and injured during the encounter. Ultimately, Smith was taken to the hospital, placed on life support, and provided other treatment, but he died on November 17, 2018. The parties disagree about many of the details surrounding his arrest.

Plaintiff asserts the following causes of action:

• (Count 1) Negligence (against Clark, Hendershot, Carey);

• (Count 2) Negligence (against the County Commission);

• (Count 3) Negligence (against the County Commission); • (Count 4) Outrage (against all Defendants);

• (Count 5) Negligent Infliction of Emotional Distress (against all Defendants);

• (Count 6) Assault (against Clark, Hendershot, Carey, County Commission);

• (Count 7) Battery (against Clark, Hendershot, Carey, County Commission);

• (Count 8) Excessive Force, Fourth Amendment, 42 U.S.C. § 1983 (against Clark, Hendershot, Carey, County Commission);

• (Count 9) Excessive Force, Fourteenth Amendment, 42 U.S.C. § 1983 (against Clark, Hendershot, Carey, County Commission); and

• (Count 10) Constitutional Violations (against the County Commission).

IV. DISCUSSION

Defendants admit that there are genuine issues of material fact as to Plaintiff's state and federal claims of excessive force, but they argue that they are entitled to judgment as a matter of law on the remaining claims. The Court will discuss each of Defendants' arguments in turn.

A. Counts One through Seven of the Amended Complaint shall be construed as one wrongful death claim under various theories of liability.

In Counts One through Seven, Plaintiff brings state law claims of negligence, outrage, negligent infliction of emotional distress, assault, and battery. Each tort is separately alleged to have caused the wrongful death of Smith. Defendants argue that Counts One through Seven are actually one wrongful death claim based on different theories of liability.

The West Virginia Code provides,

In addition to the causes of action which survive at common law, causes of action for injuries to property, real or personal, or injuries to the person and not resulting in death, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled to recover or the death of the person liable.

W.Va. Code § 55-7-8a(a) (emphasis added). West Virginia law does not permit “survival of actions for personal injuries which do not result in death.” Jones v. George, 533 F.Supp. 1293, 1301 (S.D. W.Va. 1982) (Staker, J.). “Section 55-7-8a(a) will only effect survival if ‘one, the death of the injured person occurs prior to the institution of the suit, and two, his or her death is from causes unrelated to the suit's complaints.'” Myers v. City of Charleston, No. 2:19-cv-00757, 2020 WL 4195005, at *11 (S.D. W.Va. July 21, 2020) (Johnston, J.).

Here, in the Amended Complaint, for each of Plaintiff's state law tort claims, Plaintiff asserts that the tort caused Smith's wrongful death. See Am. Compl., ECF No. 3, at ¶¶ 50, 61, 73, 82, 91, 97, 103. As such, the state law tort claims do not survive separately from a claim of wrongful death. See Myers, 2020 WL 4195005, at *11, 13, 15 (finding that claims of assault, battery, outrage, negligence, negligent infliction of emotional distress, and negligent supervision and training brought on behalf of decedent's estate did not survive decedent's death, based in part on the plaintiff's assertions that the actions caused a wrongful death).

The Court agrees with Defendants that Plaintiff is asserting one claim of wrongful death under a variety of theories of liability. To this extent, the motion for summary judgment is GRANTED. Plaintiff may not alternatively argue that the seven state law tort claims did not cause Smith's wrongful death. The Court will address this issue further when it crafts the verdict form in this case.

B. To the extent that Plaintiff's wrongful death claim is based on the negligence of Clark, Hendershot, and Carey, these Defendants are not entitled to absolute immunity because Plaintiff has produced facts that could support a finding of malicious, bad faith, wanton, or reckless conduct.

In Count One, Plaintiff asserts a negligence claim against Clark, Hendershot, and Carey, arguing that their negligence caused Smith's wrongful death. Defendants argue that Clark, Hendershot, and Carey are entitled to absolute immunity for any alleged negligence because there is no evidence that their conduct was malicious, in bad faith, wanton, or reckless.

Under West Virginia law, employees of a political subdivision generally are immune from liability unless one of the following applies:

(1) His or her acts or omissions were manifestly outside the scope of employment or official responsibilities;

(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 this code.

W.Va. Code § 29-12A-5(b). The Supreme Court of Appeals of West Virginia has held that in the context of this statute, the terms “willful,” “wanton,” and “reckless” mean that

the actor has intentionally done an act of an unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to the consequences, amounting almost to willingness that they shall follow; and it has been said that this is indispensable.

Holsten v. Massey, 490 S.E.2d 864, 877 (W.Va. 1997).

Here, Plaintiff has alleged that while Smith remained face down on the ground with three officers on top and surrounding him, Clark made repeated blows with his fist to what Clark said was the back of Smith's right shoulder. Clark Dep. at 56:20-57:5. The autopsy report indicates that the blows were more likely to the back of Smith's head. See Exh. 4 to Response, ECF No. 124-5. Clark testified that it is not proper to punch the back of the head of someone who is face-down on the ground. Clark Dep. at 57:7-14. This could support a finding of malicious, bad faith, wanton, or reckless conduct.

Hendershot denied that his knee was on Smith's neck while Smith was on the ground. Viewing the video, however, the jury could find that his knee was, at one point, on his neck. Video Exh. 8 to Motion. Smith was groaning and saying “help” and “I can't breathe.” Id.; Clark Dep. at 110:17-20. Clark testified that it would have been improper to kneel on Smith's neck. Clark Dep. at 109:14-21. According to the Sheriff's Department's policies, it would be improper for a deputy or officer to place his knee on the back or on the heck of an arrestee when the arrestee's stomach is on the ground. Cayton Dep. at 95:16-22. Plaintiff argues that Hendershot said, ...