W. Va. Dep't of Hum. Serv. v. A.R.

900 S.E.2d 16

WEST VIRGINIA DEPARTMENT OF HUMAN SERVICES, Defendant Below/Petitioner,

v.A.R., Plaintiff Below/Respondent.

No. 22-0389

Supreme Court of Appeals of West Virginia.

Submitted: January 10, 2024

Filed: March 5, 2024

Syllabus by the Court

1. "A circuit court’s denial of a motion to dismiss that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the ‘collateral order’ doctrine." Syllabus Point 1, West Virginia Board of Education, v. Marple, 236 W. Va. 654, 783 S.E.2d 75 (2015).

2. " ‘When a party … assigns as error a circuit court’s denial of a motion to dismiss, the circuit court’s disposition of the motion to dismiss will be reviewed de novo.’ Syllabus point 4, in part, Ewing v. Board of Education of County of Summers, 202 W. Va. 228, 503 S.E.2d 541 (1998)." Syllabus Point 4,

West Virginia State Police, Department of Military Affairs & Public Safety v. J.H. by & through L.D., 244 W. Va. 720, 856 S.E.2d 679 (2021).

3. " ‘The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).’ Syllabus Point 3, Chapman v. Kane Transfer Co., 160 W. Va. 530, 286 S.E.2d 207 (1977)." Syllabus Point 2, Mountaineer Fire & Rescue Equipment, LLC v. City National Bank of W. Va., 244 W. Va. 508, 854 S.E.2d 870 (2020).

4. "The ultimate determination of whether qualified or statutory immunity bars a civil action is one of law for the court to determine. Therefore, unless there is a bona fide dispute as to the foundational or historical facts that underlie the immunity determination, the ultimate questions of statutory or qualified immunity are ripe for summary disposition." Syllabus Point 1, Hutchison v. City of Huntington, 198 W. Va. 139, 479 S.E.2d 649 (1996).

5. "If a public officer is either authorized or required, in the exercise of his judgment and discretion, to make a decision and to perform acts in the making of that decision, and the decision and acts are within the scope of his duty, authority, and jurisdiction, he is not liable for negligence or other error in the making of that decision, at the suit of a private individual claiming to have been damaged thereby." Syllabus Point 4, Clark v. Dunn, 195 W. Va. 272, 465 S.E.2d 374 (1995).

6. "In the absence of an insurance contract waiving the defense, the doctrine of qualified or official immunity bars a claim of mere negligence against a State agency not within the purview of the West Virginia Governmental Tort Claims and Insurance Reform Act, W.Va.Code § 29–12A–1, et seq., and against an officer of that department acting within the scope of his or her employment, with respect to the discretionary judgments, decisions, and actions of the officer." Syllabus Point 6, Clark v. Dunn, 195 W. Va. 272, 465 S.E.2d 374 (1995).

7. "To the extent that governmental acts or omissions which give rise to a cause of action fall within the category of discretionary functions, a reviewing court must determine whether the plaintiff has demonstrated that such acts or omissions are in violation of clearly established statutory or constitutional rights or laws of which a reasonable person would have known or are otherwise fraudulent, malicious, or oppressive in accordance with State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992). In absence of such a showing, both the State and its officials or employees charged with such acts or omissions are immune from liability." Syllabus Point 11, West Virginia Regional Jail & Correctional Facility Authority v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014).

Appeal from the Circuit Court of Kanawha County, The Honorable Kenneth D. Ballard, Judge, Consolidated Cases Nos. 20-C-571 & 20-C-963

Jan L. Fox, Esq., Mark C. Dean, Esq., Steptoe & Johnson PLLC, Charleston, West Virginia, Counsel for Petitioner

W. Jesse Forbes, Esq., Jennifer N. Taylor, Esq., FORBES LAW OFFICES, PLLC, Charleston, West Virginia, L. Dante diTrapano, Esq., Calwell Luce diTrapano, PLLC, Charleston, West Virginia, Counsel for Respondent

WALKER, Justice:

In April 2022, the Circuit Court of Kanawha County denied a motion by the Department of Human Services¹ to dismiss two counts of A.R.’s² amended complaint, in which she alleged that she suffered injuries due to the Department’s negligence. On appeal, the Department argues that the circuit court erroneously denied its motion because it is qualifiedly immune from claims of negligence. A.R. responds that she has alleged more than mere negligence; she has alleged violations of clearly established statutory or constitutional rights or laws. But that is the not the case. Having carefully reviewed the amended complaint, we do not see that A.R. has alleged a violation of a clearly established statutory or constitutional right or law by the Department. Consequently, we reverse that part of the circuit court’s order denying the Department’s motion to dismiss Counts VI (negligence) and VII (negligent hiring/supervision) and remand this matter for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

In July 2020, A.R. sued Dustin Kinser, a Child Protective Services worker; the Department; Child Protective Services; and Capitol Hotels, Inc. d/b/a/ Knights Inn in the Circuit Court of Kanawha County. According to the complaint, A.R. (then, a minor) "was in a placement approved by CPS," when, in July 2018, she notified CPS worker Kinser of "concerns she had about her home life and circumstances." A.R. alleged that Kinser used his position with CPS to gain information about her, groom her, and convince her to leave her allegedly neglectful home for her safety.

A.R. alleged that once with Kinser, he took her to the Knights Inn in Kanawha City where he used illegal drugs, supplied her with alcohol, and sexually assaulted her. A.R. also alleged that Kinser later did the same at various homes in Kanawha County. A.R. alleged that she accompanied Kinser as he performed his work for CPS, and that he was under the influence of illegal drugs when he did so. She also alleged that Kinser took her with him to a CPS office in Kanawha County, then used illegal drugs in the parking lot before entering the office to work. Based on those allegations, A.R. asserted nine claims. Relevant to this matter, A.R. claimed that she was harmed by the Department’s negligence, generally, and by its negligent hiring and supervision of Kinser.

The Department moved to dismiss AR.’s claims, citing A.R.’s failure to serve pre-suit notice. The court granted that motion and dismissed the Department from the case. Meanwhile, A.R. filed a second suit against the Department only. In January 2021, the Department moved to strike one count of that complaint as duplicative of another and to dismiss five other counts. While the Department’s motion was pending, A.R. successfully moved to consolidate the two cases.

In January 2022, A.R. filed an eight-count, amended complaint in the consolidated cases.³ A.R. named the Department in seven counts: I. Violation of the Child Welfare Act;⁴ III. Infliction of Emotional Distress;⁵ IV. Extreme and Outrageous Conduct; V. Violations of the West Virginia Human Trafficking Statute; VI. Negligence; VII. Negligent Hir- ing/Supervision; and VIII. Vicarious Liability. In response, the Department moved to strike portions of the amended complaint and dismiss others. Relevant here, the Department asserted that it was qualifiedly immune from AR.’s negligence claims (Counts VI and VII). A.R. responded that resolution of the Department’s immunity defense was best left for summary judgment, and that the amended complaint contained allegations that the Department "violated ‘mandatory’ (not ‘discretionary’) duties required by statutory mandates and/or violated Constitutional laws" and engaged in "willful, wanton, deceitful, [and] outrageous conduct …. " The court denied the Department’s motion by order entered on April 20, 2022, reasoning that,

[A.R.] has alleged that the actions (and inactions) of Defendants involved mandatory, non-discretionary duties and discovery is in its infancy. Further, [A.R.]’s Complaint includes, but is not limited to, allegations of "gross negligence, gross dereliction of duty, willful, wanton, deceitful, outrageous conduct, all of which clearly establishes [A.R.]’s claims are not simply based on "mere negligence" as Defendants contend. Further, assuming, arguendo, that [AR.’s] Complaint alleged "mere negligence", [sic] for Defendants’ "qualified immunity" defense to bar such claim, it would first need to be clearly established that the actions (or inactions) of Defendants were discretionary in nature and not in violation of clearly established statutory or constitutional laws that a reasonable person would know, or were not otherwise fraudulent, malicious, or oppressive.

The Department now appeals the circuit court’s order insofar as the court denied its motion to dismiss Counts VI and Counts VII premised on qualified immunity.⁶

II. STANDARD OF REVIEW

[1–5] "A circuit court’s denial of a motion to dismiss that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the ‘collat- eral order’ doctrine."⁷ " ‘When a party … assigns as error a circuit court’s denial of a motion to dismiss, the circuit court’s disposition of the motion to dismiss will be reviewed de novo.’ "⁸ In our de novo review, this Court takes the allegations in the amended complaint as true, construes them in the light most favorable to A.R.,⁹ and tests their sufficiency by the same rubric applied by the circuit court:

"The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff

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