STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

West Virginia Division of Corrections, an FILED 

Agency of the State of West Virginia April 10, 2015 

Defendant Below, Petitioner RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA vs) No. 14-0368 (Kanawha County 10-C-830) 

Tracy Jividen,
 

Plaintiff Below, Respondent
 

MEMORANDUM DECISION 

Petitioner West Virginia Division of Corrections (“WVDOC”) by counsel Lou Ann 

Cyrus and Kimberly M. Bandy, filed an interlocutory appeal of the January 31, 2014, order of 

the Circuit Court of Kanawha County that denied, in part, petitioner’s Motion for Summary 

Judgment on the grounds of qualified immunity with respect to the negligence claims asserted 

against it. Respondent Tracy Jividen, by counsel Kerry A. Nessel, filed a response. Petitioner 

filed a reply and supplemental brief. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the Court finds that the circuit 

court erred in denying petitioner’s motion for summary judgment. This case satisfies the “limited 

circumstances” requirement of Rule 21(d) of the Revised Rules of Appellate Procedure and is 

appropriate for a memorandum decision rather than an opinion. 

David Rees began working for the WVDOC in April of 2003. He was shortly afterward 

promoted to sergeant, and lieutenant. Lt. Rees attended the WVDOC Training Academy for six 

weeks, and one week of firearm training. He also received extensive on-sight training. 

Respondent alleges that between 2005 and 2007, while she was an inmate on the night crew and 

Lt. Rees was employed at Lakin Correctional Center, Lt. Rees repeatedly made inappropriate 

sexual comments to her. She also claims that she engaged in oral sex with Lt. Rees, at his 

request, approximately ten times from 2007 to 2008. Respondent further alleged that Lt. Rees 

watched her and other inmates while engaged in sexual situations between May and August of 

2008. 

On May 5, 2010, respondent filed a complaint in the Circuit Court of Kanawha County 

alleging, among other claims, that the WVDOC negligently supervised and retained Lt. Rees and 

negligently failed to intervene on respondent’s behalf, which proximately caused Lt. Rees to 

engage in sexual misconduct with respondent. The WVDOC filed an answer, denying all 

negligence allegations on July 22, 2010, and after conducting discovery, filed a motion for 

summary judgment on November 14, 2011. On December 5, 2011, a hearing was held on the 

1
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

WVDOC’s motion. In an order entered January 31, 2014, the circuit court granted, in part, and 

denied, in part, the WVDOC’s motion. The circuit court found that “a genuine question of fact 

exists as to the [respondent]’s theories of negligent supervision, retention and failure to intervene 

because it believes that inferences can be drawn in support of each.” The circuit court 

specifically rejected the WVDOC’s argument that it was entitled to qualified immunity on the 

negligence claims asserted. 

The WVDOC now appeals the circuit court’s January 31, 2014, order that denied its 

Motion for Summary Judgment on respondent’s negligence claims1

. The WVDOC asserts that 

the circuit court erred when it denied its motion because it is entitled to qualified immunity as a 

matter of law. 

This Court’s review of the circuit court order is de novo. Syl. Pt. 1, Painter v. Peavy, 192 

W.Va. 189, 451 S.E.2d 755 (1994). This Court has further explained that “[w]hen undertaking 

our plenary review, we apply the same standard for granting summary judgment as would be 

applied by a circuit court.” Subcarrier Commc'ns, Inc. v. Nield, 218 W.Va. 292, 296, 624 S.E.2d 

729, 733 (2005). Accordingly, we observe 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.’ Syllabus Point 3, Aetna 

Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 

133 S.E.2d 770 (1963)” Syllabus Point 1, Andrick v. Town of Buckhannon, 187 

W.Va. 706, 421 S.E.2d 247 (1992). 

Syl. Pt. 2, Painter, 192 W.Va. at 190, 451 S.E.2d at 756. Finally, we note that “[t]he circuit 

court’s function at the summary judgment stage is not to weigh the evidence and determine the 

truth of the matter, but is to determine whether there is a genuine issue for trial.” Syl. Pt. 3, id. 

With these standards in mind we address petitioner’s assignment of error. 

The WVDOC argues that the circuit court’s reason for denying summary judgment on the 

defense of qualified immunity is clearly erroneous and is flawed in several major respects. First, 

the circuit court’s vague and conclusory statement that “questions of fact exist” is insufficient to 

support its ruling and further fails to comply with the mandate of this Court in W.Va. Dep’t of 

Health and Human Res. v. Payne, 231 W.Va. 563, 746 S.E.2d 554 (2013)2

. Next, the WVDOC 

1

The WVDOC also appeals the March 19, 2014, order that denied petitioner’s Motion to 

Alter or Amend Judgment. We decline to address that order as moot for the reasons described 

herein. 

2 The circuit court found with respect to the negligence claims: 

The Court finds and concludes that questions of fact exist as to whether the 

WVDOC negligently supervised and retained David Rees, and whether the 

WVDOC negligently failed to intervene on the Plaintiff’s behalf, such that the 

2 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

contends that the circuit court improperly relied upon its finding of negligence in making its 

ruling, and that negligence is not a sufficient legal basis to deny qualified immunity. The 

WVDOC further asserts that the circuit court’s rationale for denying summary judgment is 

unclear, and that there is no basis in the record sufficient to support the circuit court’s decision.3 

Finally, the WVDOC argues that the correct analysis regarding the application of qualified 

immunity to negligence claims is set forth in Syllabus Point 10 of W.Va. Reg’l Jail and Corr. 

Facility Auth. v. A.B., ___ W.Va. ____, 766 S.E.2d 751 (2014), which held as follows: 

To determine whether the State, its agencies, officials, and/or employees 

are entitled to immunity, a reviewing court must first identify the nature of the 

governmental acts or omissions which give rise to the suit for purposes of 

determining whether such acts or omissions constitute legislative, judicial, 

executive or administrative policy-making acts or involve otherwise discretionary 

governmental functions. To the extent that the cause of action arises from judicial, 

legislative, executive or administrative policy-making acts or omissions, both the 

State and the official involved are absolutely immune pursuant to Syl. Pt. 7 of 

Parkulo v. W. Va. Bd. of Probation and Parole, 199 W.Va. 161, 483 S.E.2d 507 

(1996). 

The WVDOC asserts that, under A.B., the categories of supervision and employee 

retention fall under the auspices of discretionary governmental functions, and that the failure to 

intervene to address or alter the conduct of a correctional officer should also be considered a 

discretionary governmental function. With respect to the claim of negligent failure to intervene, 

given that respondent did not report the alleged sexual misconduct prior to filing suit, the 

WVDOC argues that a claim for “failure to intervene” cannot arise in the absence of a report or 

other knowledge or awareness of conduct. 

We agree with the WVDOC that the circuit court erred by finding that “questions of fact 

exist” which require the denial of petitioner’s motion for summary judgment. “[T]he doctrine of 

qualified or official immunity bars a claim of mere negligence against a State agency . . . and 

WVDOC’s argument that qualified immunity shields the WVDOC from the 

Plaintiff’s claim should be denied. 

3 We find that the order of the circuit court fails to provide the requisite, factual detail in 

support of its decision to deny summary judgment. 

“A circuit court’s order denying summary judgment on qualified 

immunity grounds on the basis of disputed issues of material fact must contain 

sufficient detail to permit meaningful appellate review. In particular, the court 

must identify those material facts which are disputed by competent evidence and 

must provide a description of the competing evidence or inferences therefrom 

giving rise to the dispute which preclude summary disposition.” 

Syl. Pt. 4, Payne. In spite of this, we find our de novo review of the record allows this Court to 

review the order without further elaboration from the circuit court. 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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.” Syl. Pt. 7, in part, 

A.B. (quoting syl. pt. 6, Clark v. Dunn, 195 W.Va. 272, 465 S.E.2d 374 (1995)). In A.B., this 

Court held, 

[T]he broad categories of training, supervision, and employee retention, as 

characterized by respondent, easily fall within the category of “discretionary” 

governmental functions. Accord Stiebitz v. Mahoney, 144 Conn. 443, 134 A.2d 

71, 73 (1957) (the duties of hiring and suspending individuals require “the use of 

a sound discretion”); McIntosh v. Becker, 111 Mich. App. 692, 314 N.W.2d 728, 

729 (1981) (school board immune for negligent hiring and supervision); Gleason 

v. Metro. Council Transit Operations, 563 N.W.2d 309, 320 (Minn. Ct. App. 

1997) (claims for negligent supervision, hiring, training and retention are immune 

as discretionary acts); Doe v. Jefferson Area Local Sch. Dist., 97 Ohio App.3d 11, 

646 N.E.2d 187 (1994) (school board is immune from negligent hiring and 

supervision claims); Dovalina v. Nuno, 48 S.W.3d 279, 282 (Tex. App. 2001) 

(hiring, training, and supervision discretionary acts); Uinta Cnty. v. Pennington, 

286 P.3d 138, 145 (Wyo. 2012) (“hiring, training, and supervision of employees 

involve the policy judgments protected by the discretionary requirement”). 

__ W.Va. at __, 766 S.E.2d at 773. Further, 

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 . . . 

Syl. Pt. 11, in part, id. In the absence of such a showing, the State and its officials or employees 

charged with such acts or omissions are immune from liability. 

Respondent asserts that the WVDOC is liable under a theory of respondeat superior for 

the alleged actions of Lt. Rees, which, if true, would have undisputedly violated West Virginia 

Code 61-8B-104

. However, as this Court held in A.B., “[i]n some cases, the relationship between 

an employee’s work and wrongful conduct is so attenuated that a jury could not reasonably 

conclude that the act was within the scope of employment.” __ W.Va. at __, 766 S.E.2d at 768. 

Similarly, we hold that the alleged actions of Lt. Rees fall outside of the scope of his 

employment with the WVDOC. Additionally, respondent fails to identify any clearly established 

law that was violated by the WVDOC regarding its hiring, training, and supervision of 

4 West Virginia Code § 61-8B-10, Imposition of sexual acts on persons incarcerated or 

under supervision; penalties, is a criminal statute which provides penalties for sexual conduct 

between correctional personnel and incarcerated persons. 

4
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

employees, or in the retention of Lt. Rees.5 Consequently, we find the WVDOC is entitled to 

summary judgment with respect to the negligence claims, because the acts complained of 

constitute discretionary government functions, for which the WVDOC is entitled to qualified 

immunity. 

For the foregoing reasons we reverse, in part, the circuit court’s June 4, 2014 order. 

Reversed, in part, and Remanded. 

ISSUED: April 10, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

5 Respondent argues, for the first time on appeal, that the WVDOC violated West 

Virginia Code §§ 25-1-1a, 25-1-11a, and 25-1-11c. “‘In the exercise of its appellate jurisdiction, 

this Court will not decide nonjurisdictional questions which were not considered and decided by 

the court from which the appeal has been taken.’ Syllabus Point 1, Mowery v. Hitt, 155 W.Va. 

103, 181 S.E.2d 334 (1971).” Syl. Pt. 1, Lin v. Lin, 224 W.Va. 620, 687 S.E.2d 403 (2009). 

5