No. 13-0037 - West Virginia Regional Jail and Correctional Facility Authority v. A.B. FILED March 27, 2014 released at 3:00 p.m. RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA Davis, C.J., dissenting:
While confined at the Southern Regional Jail, the plaintiff alleged that she was
raped on seventeen (17) different occasions by a correctional officer. The plaintiff sued the
rapist and his employer, the West Virginia Regional Jail and Correctional Facility Authority
(“the Regional Jail”). The Regional Jail moved for summary judgment on the grounds of
qualified immunity. The trial court denied the motion, and the Regional Jail appealed. The
majority opinion reversed after determining, in essence, that the Regional Jail does not have
a duty to protect female prisoners from being raped by the correctional officers it employs.
The majority opinion also tersely rejected the circuit court’s determination that the special
relationship doctrine precluded summary judgment. For the reasons set out below, I dissent.

A. Qualified Immunity
In order to find that the Regional Jail is immune from liability when female
inmates are raped with impunity by correctional officials, the majority opinion recast our law
on qualified immunity in such a manner as to make it now virtually impossible for any state
agency, not just the Regional Jail, to ever be held accountable for tortious conduct committed
by employees within the scope of their employment. I do not make this accusation lightly.

1The decision in Heckenlaible v. Virginia Peninsula Regional Jail Authority , 491 F. Supp. 2d
544 (E.D. Va. 2007), helps to illustrate the true impact of the majority opinion.

Before examining Heckenlaible , it is appropriate to review the constitutionally
recognized “liberty interest in the integrity of the human body.” Farrell, ex rel. Farrell v.
Transylvania Cnty. Bd. of Educ ., 682 S.E.2d 224, 230 (N.C. Ct. App. 2009). “The liberty
interest protected by substantive due process encompasses the right to be free from state
intrusion upon one’s bodily security and personal privacy. State action which ‘shocks the

conscience’ or runs counter to ‘certain decencies of civilized conduct’ violates the due
process clause.” Jane Doe A v. Special Sch. Dist. of St. Louis Cnty. , 682 F. Supp. 451, 457
(E.D. Mo. 1988). “[C]ourts uniformly hold that the right to be free from sexual abuse–the
logical extension of the right to bodily security-is well established.” Arbaugh v. Board of
Educ., County of Pendleton , 329 F. Supp. 2d 762, 770 (N.D. W. Va. 2004). Accord Doe ex
rel. Doe v. City of Roseville , 296 F.3d 431, 435, 438 (6th Cir. 2002); Doe v. Gooden , 214
F.3d 952, 956 (8th Cir. 2000); Doe v. Taylor Indep. Sch. Dist ., 15 F.3d 443, 451 (5th
Cir.1994); Hinkley v. Baker , 122 F. Supp. 2d 48, 51 (D. Me. 2000). Indeed, the United States
Supreme Court has commented that "[a]mong the historic liberties so protected [by the Fifth
and Fourteenth Amendments] was a right to be free from, and to obtain judicial relief for,
unjustified intrusions on personal security.” Ingraham v. Wright , 430 U.S. 651, 673, 97

S. Ct. 1401, 1413, 51 L. Ed. 2d 711 (1977). In the context of corporal punishment of

2children by school officials, the Fourth Circuit summarized the constitutional protection
afforded the human body in Hall v. Tawney , 621 F.2d 607 (4th Cir. 1980):
[Citizens have] the right to be free of state intrusions into realms of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience of a court. The existence of this right to ultimate bodily security the most fundamental aspect of personal privacyis unmistakably established in our constitutional decisions as an attribute of the ordered liberty that is the concern of substantive due process. Numerous cases in a variety of contexts recognize it as a last line of defense against those literally outrageous abuses of official power whose very variety makes formulation of a more precise standard impossible. Clearly recognized in persons charged with or suspected of crime and in the custody of police officers[.]

Hall , 621 F.2d at 613. In the instant case, the plaintiff’s constitutional right to be free “from
invasion of her personal security through sexual abuse, was well-established at the time the
assaults upon her occurred.” Stoneking v. Bradford Area Sch. Dist ., 882 F.2d 720, 726 (3rd
Cir. 1989). As a result of this well recognized constitutional protection, the majority opinion
should have applied the analysis and reasoning in Heckenlaible in order to affirm the circuit

court’s decision in the instant case.

The plaintiff in Heckenlaible sued a correctional officer and his employer,
Virginia Peninsula Regional Jail Authority, for sexual assault while she was confined in jail.
The defendant, Peninsula Regional Jail, moved for summary judgment on several grounds,
including the contention that it could not be held liable under the theory of respondent

3superior. 1 The federal district court disagreed with the defendant as follows:

[A] jury issue may exist as to whether an employee’s wrongful act occurred within the scope of employment notwithstanding the fact that the employee’s act violated an employer's rules or directives. Ultimately, the issue for the court to resolve is whether the service itself, in which the tortious act was done, was within the ordinary course of [the employer’s] business.

. . . . [T]his was not a case where a wrongful act occurred in the workplace merely because an employee was in a particular location at a particular time as a result of his employment. Steele’s duties as a correctional officer required him to observe inmates in the shower, and the alleged sexual assault occurred after he observed Heckenlaible showering and during a “cell search” thereafter. Steele’s impulse to have sexual contact with Heckenlaible may well have arisen, at least in part, from the fact that he was required to view Heckenlaible while she was unclothed in the shower. In light of these circumstances, a reasonable juror could conclude that the alleged sexual assault arose out of Steele’s performance of his duties.
Moreover, viewing the facts in the light most favorable to Heckenlaible, Steele was activelyengaged in the performance of his job duties, which included supervising Heckenlaible and the other inmates in the medical unit, when the wrongful act occurred. Steele was supervising Heckenlaible when he accompanied her to the shower, looked at her while she showered, and returned her to her cell afterwards. In addition, he ultimately entered her cell on the pretense of conducting a cell search, and cell searches are also among the duties of a correctional officer. It follows that a reasonable juror could conclude that when the wrongful act occurred, Steele was engaged in a service, namely, the supervision of Heckenlaible, that was within the ordinary course of the Jail Authority’s

1 Other issues were raised that are not relevant.

4business. A reasonable juror could reach this conclusion notwithstanding the fact that Steele violated the Jail Authority’s policies when he had a sexual encounter with Heckenlaible.

Furthermore, the instant case reflects a situation where special circumstances related to employment facilitated the alleged intentional tort. Steele could not have reached Heckenlaible within the confines of her cell were it not for his employment with the Jail Authority. Also, in announcing that he was entering her cell to conduct a search, Steele arguably used the authority of his office to accomplish the wrongful act. Such facts weigh strongly against resolving the scope of employment issue, as a matter of law, in favor of the Jail Authority. In sum, having carefully reviewed the relevant case law and studied the arguments set forth by the parties, this court concludes, for the several reasons discussed above, that whether Steele was acting within the scope of his employment when he allegedly assaulted Heckenlaible is an issue for the jury to resolve.

Heckenlaible , 491 F. Supp. 2d at 549-52 (internal quotations and citations omitted).

The majority opinion summarily rejected Heckenlaible on the grounds that
Virginia did not extend qualified immunity to itself. The majority opinion’s rejection of

Heckenlaible is misguided. The fact that Virginia did not extend qualified immunity under

the facts of Heckenlaible was irrelevant. The most important issue addressed in Heckenlaible
and completely omitted from the majority opinion was an understanding of how to analyze
“scope of employment.” In other words, both Virginia and West Virginia require that a state
employee’s conduct fall within the scope of employment in order to extend liability to the

State.

5Under Heckenlaible , the mere fact that an employee’s wrongful conduct
violated an employer’s rules or directives does not automatically mean that the employee’s
wrongful act occurred outside the scope of his/her employment. Instead, Heckenlaible
requires the fact finder to determine “whether the service itself, in which the tortious act was
done, was within the ordinary course of [the employer’s] business.” Heckenlaible , 491

F. Supp. 2d at 549-52 (internal quotations and citations omitted). Stated simplistically, the
issue for a jury is whether “the employee’s wrongful conduct was related to the nature of the
employment.” Blair v. Defender Servs., Inc ., 386 F.3d 623, 628 (4 th Cir. 2004).

Although the majority opinion repeatedly mentions that proof is required to
show that the wrongful conduct was committed during the scope of employment, the opinion
totally failed to provide any analysis of how to apply the phrase “scope of employment.” It
is the absence of such analysis that makes the majority opinion dangerous. The majority
opinion stands for the proposition that any wrongful act not authorized by a State agency will
immunize the State from liability. This new standard can never be overcome by a plaintiff,
because no State agency ever authorizes wrongful conduct.

To add insult to injury, the majorityopinion also has concluded specificallythat
liability cannot be imposed on the Regional Jail merely because it did not have any
regulations designed to protect female inmates from being raped. According to the majority

6opinion, such regulations “easily fall within the category of ‘discretionary’ governmental
functions.” The majority opinion requires a rape victim to specifically point to “a ‘clearly
established’ right or law with respect to . . . supervision[.]” In the final analysis, under the
majority opinion, the Regional Jail simply has to bury its head in the sand and never
promulgate any regulation designed to protect the bodily integrity of female inmates to
ensure its continued impunity from liability.

“Although mere failure to supervise is not a basis for liability under [the law],
liability will result if delinquent supervision is so severe as to amount to gross negligence or

deliberate indifference to constitutional violations.” Holland v. Breen , 623 F. Supp. 284, 290
(D. Mass. 1985) (internal quotations and citation omitted). The majority opinion promotes
and rewards “gross negligence and deliberate indifference” to the constitutional right of
female inmates to be free of sexual assaults. But, the State cannot be granted absolute
immunity merely because no regulation was violated when its employee raped an inmate
seventeen times. Just what will it take to protect women from such assaults? Simply put,
the Regional Jail was grossly negligent in not having regulations in place that would have
protected the plaintiff from being alone with any male correctional officer on seventeen
separate occasions.

Finally, I wish to point out that the decision in J.H. v. West Virginia Division

7of Rehabilitation Services , 224 W. Va. 147, 680 S.E.2d 392 (2009), supports the trial court’s

decision in the instant case. In J.H., the plaintiff was a resident in a rehabilitation center
operated by a State agency. While at the facility, the plaintiff was raped by another resident
living at the facility. The plaintiff sued the State agency on various grounds of negligence,
including negligent supervision and failure to provide adequate protection. The State moved
to dismiss the case on the grounds of qualified immunity. 2 The circuit court granted the
State’s motion. This Court, in summary fashion, found that qualified immunity did not exist:
The Division argues that because qualified immunity protects governmental entities from tort liability for alleged negligence in the exercise of “discretionary” functions, the Appellant’s Amended Complaint alleging mere negligence rather than a violation of any clearly established law failed to state a claim against the Division for which relief could be granted.

. . . . [T]he first issue that must be determined in analyzing the issue of qualified immunity and the applicability of this immunity to a State agency is whether the State’s insurance policyexpresslywaives common-law immunityfor tort liability. In the instant matter, no such waiver exists. Thus, the second inquiry is whether the State entity was exercising a legislative or judicial function or an administrative function involving the determination of a fundamental governmental policy. There are no allegations made by the Appellant of any type of legislative, judicial, or administrative functions involving the determination of a fundamental governmental policy, which are the types of functions susceptible to the application of qualified immunity.

2 The State also sought dismissal under the public duty doctrine, which I will discuss in the next section of my dissent.

8Thus, the doctrine of qualified immunity does not preclude this claim.

J.H. , 224 W. Va. at 156-57, 680 S.E.2d at 401-02 (citation omitted). Even though J.H.
summarily addressed the issue of qualified immunity, the opinion nonetheless should have
been followed because it was factually similar to the instant case. In both cases, the victims
were raped. At the time of the rapes, both victims were under the care and supervision of the
State. In both cases, the plaintiffs alleged that the State failed to properly supervise their
assailants and failed to provide adequate protection to safeguard them from being raped. The

decision in J.H. correctly found this set of facts was sufficient to defeat a claim of qualified
immunity. In the instant case, the majority opinion has taken these same facts and concluded
that the State did not have a duty to protect the plaintiff from being raped by its employee.

B. Special Relationship Exception to the Public Duty Doctrine

The final issue I wish to address involves the majorityopinion’s terse treatment
of the special relationship exception to the public duty doctrine. 3 We have held that, under
the public duty doctrine, “a local governmental entity’s liability for nondiscretionary . . .
functions may not be predicated upon the breach of a general duty owed to the public as a

whole.” Walker v. Meadows , 206 W. Va. 78, 83, 521 S.E.2d 801, 806 (1999) (internal
quotations and citation omitted). The public duty doctrine is different from the principle of

3 The special relationship exception is also called the special duty doctrine.

9governmental immunity. That is, the public duty doctrine “does not rest squarely on the
principle of governmental immunity, but rests on the principle that recovery may be had for
negligence only if a duty has been breached which was owed to the particular person seeking
recovery.” Parkulo v. West Virginia Bd. of Prob. & Parole , 199 W. Va. 161, 172, 483 S.E.2d
507, 518 (1996). If the public duty doctrine applies, there is no duty owed by the government
and therefore no need to inquire as to the existence of governmental immunity. However,
the public dutydoctrine may be defeated under the special relationship exception. This Court
set forth the following test for determining when the “special relationship” exception to the
public duty doctrine gives rise to a cause of action:
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.
Syl. pt. 2, Wolfe v. City of Wheeling , 182 W. Va. 253, 387 S.E.2d 307 (1989).

Turning now to the instant case, the first matter I am compelled to address
involves the majorityopinion’s assertion that the plaintiff injected the issue of the public duty
doctrine and special relationship exception into this appeal. The record clearly shows that

10the Regional Jail injected this issue as a specific assignment of error. 4 Consequently, the
plaintiff had a right to respond to the assignment of error. Moreover, the Regional Jail
addressed the issue as an assignment of error because the trial court ruled that the special
relationship exception applied in this case.

The second issue I must address concerns the majority opinion’s unsupported
assertion that the special relationship exception cannot be invoked until a government entity
raises the public duty doctrine as a defense. Specifically, the majority opinion states that the
record does not show that the Regional Jail “assert[ed] the public duty doctrine as a defense
to liability, to which respondent could then properly invoke the special duty exception.” This
erroneous limitation on the invocation of the special relationship exception was compounded
by the majority opinion’s unsupported assertion that the special relationship exception is not
“a stand-alone basis of liability.” 5

Our prior cases have clearly held that the special relationship “ exception gives
rise to a cause of action in certain situations when there is a special relationship between an
individual and a governmental entity.” Holsten v. Massey , 200 W. Va. 775, 780-81, 490

4 The Regional Jail entitled the assignment of error as follows: “The Trial Court Erred By Finding A Special Duty Existed Between Petitioner And Respondent.”

5 I will note that “[i]f immunity exists . . . no inquiry into the public duty doctrine and its special relationship exception is necessary.” Moats v. Preston Cnty. Comm’n. , 206 W. Va. 8, 14, 521 S.E.2d 180, 186 (1999).

11S.E.2d 864, 869-70 (1997) (emphasis added). This Court held in syllabus point 3 of Benson

v. Kutsch , 181 W. Va. 1, 380 S.E.2d 36 (1989), that “[i]f a special relationship exists between
a local governmental entity and an individual which gives rise to a duty to such individual,
and the duty is breached causing injuries, then a suit may be maintained against such entity.”

The decision in J.H. , discussed supra , illustrates the application of the special relationship
exception.

As previously pointed out, the plaintiff in J.H . was a resident in a State
rehabilitation center when he was raped by another resident living at the facility. After the
plaintiff filed the action, the State moved to dismiss the action under several defenses that
included the public duty doctrine. The circuit court found that the public duty doctrine
prevented imposition of liability against the State. This Court reversed the circuit court’s
ruling and reasoned as follows:
[W]e direct our attention to the pivotal issue in this matter, which is the public duty doctrine and whether the special relationship exception applies in this case. Generally, the duty imposed upon a governmental entity is one owed to the general public, and unless the injured party can demonstrate that some special relationship existed between the injured person and the allegedly negligent entity, the claim is barred. As the Court has previously recognized the public duty doctrine is a principle independent of the doctrine of governmental immunity, although in practice it achieves much the same result. The Appellant maintains that as a resident of the attendant care unit at the Rehabilitation Center, he had a special relationship with the Division beyond the relationship with the general public. The Appellant maintains that the Division had full knowledge of the

12Appellant’s compromised mobility and had knowledge of Jeff Bell’s prior sexual predator acts at the Rehabilitation Center. The Appellant also maintains that at the time of the alleged molestation, the Division allowed Mr. Bell private access to the Appellant’s bedroom.
Contrariwise, the Division argues that the public duty doctrine only applies to an alleged breach of a nondiscretionary duty to provide fire or police or other public safety protection to an individual, and the Division maintains that it has no nondiscretionary statutory duty to provide police, fire, or other public safety protection to disabled individuals or the general public. The Division, therefore, asserts that the Appellant failed to allege operative facts that would support the application of the public duty doctrine or its special relationship exception to avoid dismissal of his negligence claims under the doctrine of qualified immunity.
First, it is important to note that the public duty doctrine is not an immunity; but, rests on the principle that recovery may be had for negligence only if a duty has been breached which was owed to the particular person seeking recovery.

. . . . Finally, this Court previously held that . . . the question of whether a special duty arises to protect an individual from a State governmental entity’s negligence is ordinarily a question of fact for the trier of facts.

In the instant case, the Court concludes that the circuit court erred in granting the Division’s Motion to Dismiss. A de

novo review of the allegations contained in the Appellant’s Amended Complaint reflects that sufficient allegations are present to allow the Appellant’s claims to go forward against the Division. It is for a jury to determine, under appropriate instruction of law, whether a special duty arises to protect the Appellant from the Division's alleged negligence. We, therefore, reverse the decision of the circuit court and remand this case for reinstatement of the Appellant’s claims based upon

13the allegations of a special relationship and a special duty.

J.H. , 224 W. Va. at 158-59, 680 S.E.2d at 403-04 (internal quotations and citations omitted).

Clearly the decision in J.H . recognizes a claim may be maintained against the
State under the special relationship exception. Therefore it was legally wrong for the
majority opinion to suggest otherwise. See McCormick v. West Virginia Dep’t. of Pub.
Safety , 202 W. Va. 189, 503 S.E.2d 502 (1998) (holding that a jury could find that the
Department of Corrections owed a duty to a social worker killed in her apartment by an
inmate she once counseled in a prison).

Based upon the foregoing, I dissent.

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