____________________________________________________________ 

 

 

 

 

____________________________________________________________ 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2017 Term FILED _______________ January 26, 2016 

No. 15-0691 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS _______________ OF WEST VIRGINIA 

WEST VIRGINIA STATE POLICE,
 

CORPORAL R.D. ESHBAUGH, CORPORAL Z.L. NINE, and
 

TROOPER FIRST CLASS J.D. SEE,
 

Defendants below, Petitioners
 

v. 

VICTORIA HUGHES, individually and as the
 

administratrix of the estate of Walter N. Hughes,
 

KRISTINA ARNTZ, KRISTAL HUGHES, and
 

KRISTIE CANFIELD,
 

Plaintiffs below, Respondents
 

Appeal from the Circuit Court of Berkeley County
 

The Honorable Gray Silver, III, Judge
 

Civil Action No. 13-C-578
 

REVERSED AND REMANDED
 

Submitted: January 10, 2016 

Filed: January 26, 2016 

Michael D. Mullins, Esq. Harry P. Waddell, Esq. 

Robert L. Bailey, Esq. Martinsburg, West Virginia 

Steptoe & Johnson PLLC Counsel for the Respondents 

Charleston, West Virginia 

Tracey B. Eberling, Esq. 

Steptoe & Johnson PLLC 

Martinsburg, West Virginia 

Counsel for the Petitioners 

JUSTICE KETCHUM delivered the Opinion of the Court. 
 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT 

1. “A circuit court’s denial of summary judgment that is predicated on 

qualified immunity is an interlocutory ruling which is subject to immediate appeal under 

the ‘collateral order’ doctrine.” Syllabus Point 2, Robinson v. Pack, 223 W.Va. 828, 679 

S.E.2d 660 (2009). 

2. “This Court reviews de novo the denial of a motion for summary 

judgment, where such a ruling is properly reviewable by this Court.” Syllabus Point 1, 

Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002). 

3. “Government officials performing discretionary functions are 

shielded from liability for civil damages insofar as their conduct does not violate clearly 

established statutory or constitutional rights of which a reasonable person would have 

known.” Syllabus, in part, Bennett v. Coffman, 178 W.Va. 500, 361 S.E.2d 465 (1987). 

i 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Justice Ketchum: 

In this appeal from the Circuit Court of Berkeley County, we apply the 

doctrine of qualified immunity. The plaintiffs contend that several West Virginia State 

Police employees were negligent in their duties. Under the doctrine of qualified 

immunity, state government employees are immune for negligent acts committed in the 

exercise of discretion; government employees can be liable only if their actions violate 

some clear legal or constitutional right. The doctrine shields officials from harassment, 

distraction, and liability when they exercise their discretion within the bounds of the law. 

The record on appeal, even viewed in a light most favorable to the 

plaintiffs, indicates that the plaintiffs failed to show how the actions of the State Police 

employees violated any clear legal or constitutional right. However, the circuit court 

refused to afford the State Police employees qualified immunity. As set forth below, we 

reverse the circuit court’s decision and remand the case for entry of summary judgment in 

favor of the State Police and its employees based on qualified immunity. 

I.
 

FACTUAL AND PROCEDURAL BACKGROUND
 

Decedent Walter Hughes and plaintiff Victoria Hughes were married in 

1962. It appears that, throughout the marriage, Mr. Hughes repeatedly engaged in extramarital affairs. In April 2012, Mrs. Hughes learned that her husband was engaging in 

1
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

another affair. Fearing her husband, because he had a propensity for verbal abuse and 

often carried a gun, Mrs. Hughes moved out of the couple’s house. 

On April 13, 2012, two of the Hughes’s daughters (plaintiffs Kristina Arntz 

and Kristal Hughes) met with their father at the family’s house to retrieve some of Mrs. 

Hughes’s personal items. In the 15 minutes spent in the residence, both women say that 

their father became argumentative and brandished a gun, pointing it at Kristina. Mr. 

Hughes then pointed the gun at his chest and said, “I’m going to blow my f---g heart 

out,” and, “You had better say goodbye to me Kristina. This is the last time you’ll ever 

speak to me.” He also said he would be dead by midnight. The two daughters left the 

Hughes’s residence and retreated to Kristal’s home across the street. 

Fearing that Mr. Hughes might follow and harm them (or might seek out 

Mrs. Hughes and harm her), the two daughters collected their children and drove to the 

barracks of the defendant, the West Virginia State Police. They encountered a State 

Police office assistant, Barbara Boward, and told her they needed help. The daughters 

assert they told the office assistant: (1) that Mr. Hughes was threatening to kill himself, 

and (2) that Mr. Hughes had threatened Kristina with a gun, and that she feared for her 

life. The office assistant, however, claims the daughters never told her that Mr. Hughes 

had threatened Kristina. Regardless, when the office assistant contacted a dispatcher, she 

only relayed information that Mr. Hughes had a gun and was threatening to commit 

suicide. 

Three State Police troopers (hereafter identified as the “April Troopers”) 

were dispatched to the Hughes’s residence at about 12:50 p.m. Mr. Hughes allegedly 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

told the April Troopers that he had been caught cheating on his wife, but he repeatedly 

denied planning to kill himself. He admitted to having guns in the house and a pat down 

by the April Troopers found he was not carrying a weapon. The April Troopers spoke to 

him for about 15 minutes, and concluded that Mr. Hughes was calm and did not appear to 

be a threat to himself. 

As the April Troopers left the Hughes’s residence, they spoke to Kristal’s 

boyfriend, Todd Jones, who also lived across the street. One of the April Troopers told 

the boyfriend they could not detain Mr. Hughes or take his guns because he was not 

threatening himself or others. The boyfriend asserts the trooper said, “He is 68 years old, 

he can do what he wants.” The trooper told the boyfriend that the family could take the 

guns if they could get Mr. Hughes out of the house, and may have suggested the family 

could file a mental hygiene petition if they viewed Mr. Hughes as a threat to himself or 

others. 

Back at the State Police barracks, the office assistant told the two 

daughters, “Everything is okay.” When asked if Mr. Hughes had been taken to a hospital 

or otherwise taken into custody, the office assistant said, “No, they said he was fine.” 

The daughters left the barracks but, allegedly fearing their father, declined to go back to 

the Hughes’s residence. 

At 2:39 p.m., Mr. Hughes sent a text message to Kristina’s phone saying, 

“You can tell your mother that she can move back in tomorrow. There is an $82,000 

check in her name on the table. I am so sorry this happened, Kristina. I love you.” 

Kristina did not respond to the text. 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Kristal returned to her home around 7:30 p.m., and she and her boyfriend 

saw no lights or movement in the Hughes’s residence across the street. Between 8:00 and 

8:30 p.m., the Hughes family phoned the State Police barracks and requested a check on 

Mr. Hughes’s welfare. Troopers who responded inspected the residence and found a 

typed suicide note, a cashier’s check for $82,000 made out to Mrs. Hughes, some 

jewelry, a wallet, and Mr. Hughes’s cellphone. Mr. Hughes, however, was not found. At 

the request of the troopers, Kristina filed a missing person report. 

Seven months later, on November 29, 2012, at about 1:10 p.m., the State 

Police received a report about a human skull found in an old quarry near the Hughes’s 

residence.1 Three troopers2 (hereafter referred to as the “November Troopers”) 

responded to the quarry, a 20-plus-acre abandoned shale pit overgrown with foliage and 

brush. The State Police aver that the November Troopers searched a 6,000 square foot 

area at least three times. Beginning where the skull was found, the November Troopers 

located concrete blocks covered by a wood plank that was set up like a seat. There, they 

found a tan jacket, a black t-shirt, part of a rib cage, and arm bones. Within fifty feet of 

1 A document in the record indicates the area where the skull was found is 

approximately 630’ away from the Hughes’s residence. 

2 The three troopers were defendants R.D. Eshbaugh, Z.L. Nine, and J.D. 

See. Trooper Eshbaugh was previously assigned to investigate the missing person report 

for Mr. Hughes, and was immediately under the impression the remains could have been 

Mr. Hughes. A fourth trooper, J.M. Walker, responded to the scene but was called away 

shortly after arriving. 

4
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

the concrete blocks the troopers found shorts, a belt, the top half of a set of dentures, two 

femur bones, vertebrae, part of a hip bone, and several other bones. 

The November Troopers photographed, documented, mapped, and bagged 

the items found. When the shirt by the concrete blocks was moved, the troopers found a 

handgun. Taken together, the evidence indicated Mr. Hughes was sitting on the cement 

blocks prior to shooting himself and fell forward and slightly to the left. The plaintiffs 

assert that the November Troopers only searched the quarry when they initially arrived. 

The November Troopers allege they conducted several searches, and that they remained 

on the scene until about 5:00 p.m., when it began to get dark. Thereafter, a trooper 

visited the Hughes’s residence, told the family the evidence that was recovered, and said 

he thought the remains were those of Mr. Hughes. 

The next day, November 30, 2012, the plaintiffs (and other family 

members, including a third Hughes daughter, plaintiff Kristie Canfield) visited the 

quarry. Soon after their arrival, they found the bottom half of Mr. Hughes’s dentures, 

part of a jaw bone, an arm bone, finger bones, vertebrae, a rib, and pelvic bones. The 

family called the medical examiner’s office, and a trooper responded to secure the 

remains. The trooper allegedly “dug around more in that area, in that immediate area, to 

try and locate anything else that may be behind,” but found nothing else. The bones were 

transported to the funeral home. 

On December 3, 2012, the Hughes’s fourth daughter, Kristen (who was 

visiting from Germany and is not a plaintiff), went to visit the quarry with the plaintiffs. 

5
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

While there, the family discovered another of Mr. Hughes’s bones. Troopers again 

responded, secured the bone and took it to the funeral home. 

Several days later, a family friend searched the quarry using rakes and a 

leaf blower. Six to eight feet from the concrete blocks the friend found the shell casing 

for the bullet that appears to have killed Mr. Hughes. No other bones were found. 

Despite the searches of the quarry on four different days, a significant 

portion of Mr. Hughes’s skeleton was never found. The defendants tactfully suggest that 

wildlife may have disturbed the remains in the seven months before they were found. 

On August 12, 2013, the plaintiffs (Mrs. Hughes and three of her four 

daughters) filed the instant case against the State Police.3 The plaintiffs asserted two 

causes of action against the defendants. First, the plaintiffs claimed the defendants were 

liable for the wrongful death of Mr. Hughes. The plaintiffs essentially contended that the 

State Police office assistant, Ms. Boward, knew or should have known that Mr. Hughes 

had the potential to harm himself or others, and because of her alleged 

miscommunication the State Police negligently or recklessly breached a duty to protect 

Mr. Hughes and others by failing to take him into custody. Second, the plaintiffs asserted 

that the November Troopers negligently or recklessly mishandled the remains of Mr. 

Hughes, thereby causing severe mental anguish to the plaintiffs. 

3 The plaintiffs also brought suit against the three April Troopers and the 

three November Troopers. The plaintiffs later consented to the dismissal of the April 

Troopers by the circuit court. The plaintiffs conceded that the April Troopers had acted 

properly based on the information provided by the office assistant to the dispatcher. 

6
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

After the parties conducted discovery, the State Police filed a motion for 

summary judgment. The State Police argued that the actions of the office assistant who 

spoke to Mr. Hughes’s two daughters in April 2012, and the later actions of the 

November Troopers who searched the quarry, were discretionary acts protected by the 

doctrine of “qualified immunity.” Under the doctrine of qualified immunity, State Police 

employees cannot be found liable for merely negligent acts caused in the exercise of 

discretion. 

The circuit court, however, determined that the duties of the State Police 

employees in this case were not discretionary but rather were ministerial and nondiscretionary. The circuit court further found that the State Police employees had taken 

on a “special duty” toward the plaintiffs, and could be liable for negligently breaching 

that duty. In an order dated July 13, 2015, because of the many material facts in 

question, the circuit court denied the State Police’s motion for summary judgment, and 

refused to afford the State Police and its employees qualified immunity. The circuit court 

concluded that a jury should weigh the allegedly negligent actions of the State Police 

employees. 

The State Police now appeals the circuit court’s interlocutory order 

concerning qualified immunity. 

II.
 

STANDARD OF REVIEW
 

7
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“A circuit court’s denial of summary judgment that is predicated on 

qualified immunity is an interlocutory ruling which is subject to immediate appeal under 

the ‘collateral order’ doctrine.”4 “This Court reviews de novo the denial of a motion for 

summary judgment, where such a ruling is properly reviewable by this Court.”5 

III.
 

ANALYSIS
 

This appeal presents overlapping legal theories concerning governmental 

immunity. On the one hand, the State Police asserts that the actions of its employees in 

this case were discretionary, and therefore protected by the doctrine of qualified 

immunity. On the other hand, the plaintiffs contend the actions of the State Police 

employees were non-discretionary, ministerial responsibilities, and are therefore covered 

by the “public duty” doctrine. Application of either doctrine reaches the same result, and 

permits the government to avoid liability for its negligent actions. The latter doctrine, 

however, has an exception that allows the government to be held liable if it assumes a 

“special duty” toward an individual. The plaintiffs contend the State Police employees 

assumed, and then breached, a special duty toward the plaintiffs. 

4 Syllabus Point 2, Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660 

(2009). 

5 Syllabus Point 1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 

80, 576 S.E.2d 807 (2002). 

8
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Under the doctrine of qualified immunity, the discretionary actions of 

government agencies, officials and employees performed in an official capacity are 

shielded from civil liability so long as the actions do not violate a clearly established law 

or constitutional duty. “Government officials performing discretionary functions are 

shielded from liability for civil damages insofar as their conduct does not violate clearly 

established statutory or constitutional rights of which a reasonable person would have 

known.”6 

Furthermore, “[a] public officer is entitled to qualified immunity for 

discretionary acts, even if committed negligently.”7 Qualified immunity is broad and 

protects “all but the plainly incompetent or those who knowingly violate the law.”8 As 

this Court said: 

4. 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. 

6 Syllabus, in part, Bennett v. Coffman, 178 W.Va. 500, 361 S.E.2d 465 

(1987). See also Syllabus, in part, State v. Chase Sec., Inc., 188 W.Va. 356, 424 S.E.2d 

591 (1992) (“A public executive official who is acting within the scope of his authority . . 

. is entitled to qualified immunity from personal liability for official acts if the involved 

conduct did not violate clearly established laws of which a reasonable official would have 

known.”). 

7 Maston v. Wagner, 236 W.Va. 488, 500, 781 S.E.2d 936, 948 (2015). 

8 Hutchison v. City of Huntington, 198 W.Va. 139, 148, 479 S.E.2d 649, 

658 (1996) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). 

9
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

. . . 

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 

officer.9 

judgments, decisions, and actions of the 

The State Police contends that the office assistant and the November 

Troopers exercised judgment and discretion in their actions. The State Police asserts 

there is no question that in April 2012, the office assistant relayed information about Mr. 

Hughes to a dispatcher; there is only a dispute about whether the office assistant erred in 

the judgment and choices she made in relaying that information. Likewise, the State 

Police asserts there is no question that the November Troopers searched the quarry and 

photographed, documented, mapped and recovered some of Mr. Hughes’s remains. The 

dispute concerns errors in the choices the November Troopers made when they searched 

the quarry. The State Police argues that the conduct of its employees, while at worst 

negligent, violated no clearly established statutory or constitutional duty toward the 

plaintiffs. Therefore, the exercise of discretion by the State Police employees was 

protected by qualified immunity. 

9 Syllabus Points 4 and 6, Clark v. Dunn, 195 W.Va. 272, 465 S.E.2d 374 

(1995). 

10
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The circuit court, however, found that the actions of the State Police 

employees were not discretionary, and then applied a different legal theory: the public 

duty doctrine. Under the public duty doctrine, a government entity or officer cannot be 

held liable for breaching a general, non-discretionary duty owed to the public as a whole. 

“Often referred to as the ‘duty to all, duty to no one’ doctrine, the public duty doctrine 

provides that since government owes a duty to the public in general, it does not owe a 

duty to any individual citizen.”10 For example, under the public duty doctrine, “the duty 

to fight fires or to provide police protection runs to all citizens and is to protect the safety 

and well-being of the public at large[.]”11 Generally, no private liability attaches when a 

fire department or police department fails to provide adequate protection to an individual. 

The public duty doctrine is restricted to “liability for nondiscretionary (or ‘ministerial’ or 

‘operational’) functions[.]”12 

The exception to the public duty doctrine arises when a “special 

relationship” exists between the government entity and a specific individual. “The state 

may be liable where it has taken on a special duty to a specific person beyond that 

10 John Cameron McMillan, Jr., “Government Liability and the Public Duty 

Doctrine,” 32 Vill. L. Rev. 505, 509 (1987) (footnotes omitted). 

11 Wolfe v. City of Wheeling, 182 W.Va. 253, 256, 387 S.E.2d 307, 310 

(1989). 

12 Parkulo v. W.Va. Bd. of Prob. & Parole, 199 W.Va. 161, 174, 483 S.E.2d 

507, 520 (1996) (quoting Randall v. Fairmont City Police Dep’t, 186 W.Va. 336, 346, 

412 S.E.2d 737, 747 (1991)). 

11
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

extended to the general public.”13 In determining whether a “special relationship” or 

“special duty” exists, a plaintiff must prove four factors: 

(1) An assumption by the state 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 

state governmental entity’s agents that inaction could lead to 

harm; (3) some form of direct contact between the state 

governmental entity’s agents and the injured party; and (4) 

that party’s justifiable reliance on the state governmental 

entity’s affirmative undertaking.14 

“Qualified immunity is, quite simply, immunity from suit. The public 

duty doctrine is a defense to negligence-based liability, i.e. an absence of duty.”15 A 

government entity can assert qualified immunity when a government official’s duties 

“derive from discretionary ‘judgments, decisions, and actions[.]’”16 The government 

entity can interpose the public duty doctrine as a defense when it perceives a plaintiff is 

attempting to hold the entity liable for breach of a non-discretionary duty owed to the 

general public.17 When a duty owed to the general public is at issue, a plaintiff may then 

13 Barry A. Lindahl, 2 Modern Tort Law: Liability and Litigation § 16:20 

(2d ed. 2008). 

14 Syllabus Point 12, Parkulo v. West Virginia Bd. of Probation and Parole, 

199 W.Va. 161, 483 S.E.2d 507 (1996). 

15 W.Va. Dep’t of Health & Human Res. v. Payne, 231 W.Va. 563, 568, 746 

S.E.2d 554, 559 (2013). 

16 Id., 231 W.Va. at 572, 746 S.E.2d at 563. 

17 We recognize that our prior caselaw analyzing and applying the qualified 

immunity doctrine and the public duty doctrine “has created a patchwork of holdings” in 

which there is an “absence of harmony.” Payne, 231 W.Va. at 571, 746 S.E.2d at 562. 

12
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

respond with proof that the government entity adopted a special duty toward that specific 

plaintiff. 

In the instant case, the circuit court ruled that the State Police was not 

entitled to qualified immunity because the actions of its employees did not involve 

discretion. The circuit court ruled that the plaintiffs’ case involved non-discretionary 

general duties owed to the general public. The circuit court therefore applied the public 

duty doctrine and found questions of fact existed regarding whether the plaintiffs could 

establish that a “special relationship” existed. The circuit court determined that the office 

assistant could not exercise discretion in her job, and that she had a ministerial duty to 

transmit any information she received to a dispatcher. Likewise, the circuit court 

determined that the November Troopers had a ministerial, non-discretionary duty to 

search the quarry, and equated the failure to find all of Mr. Hughes’s remains with a 

failure to search. 

After careful examination of the record, we reject the circuit court’s 

characterization of the actions of the State Police employees. The actions of the office 

assistant and of the November Troopers clearly involved the exercise of discretion. The 

plaintiffs are alleging that the State Police employees were negligent in their exercise of 

that discretion, and have introduced no evidence to support a finding these actions 

violated a clear legal or constitutional right. On this record, we find that the State Police 

and its employees are entitled to qualified immunity. 

First, as to the office assistant, the plaintiffs have not directed us to any 

constitutional provision, statute, case, regulation, or any other law requiring a State Police 

13
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

office assistant to transmit any particular information to a dispatcher.18 The office 

assistant was tasked to help individuals who came into the State Police barracks, and the 

evidence indicates that the office assistant did just that and spoke with Kristina and 

Kristal. We cannot know precisely what the two plaintiffs said to the office assistant, or 

how quickly and clearly it was said, and we likewise cannot know precisely what the 

office assistant said or heard. As Kristal said in her deposition, “[W]e were both 

hysterical, telling the dispatcher we needed help.” What we do know is that the office 

assistant exercised some form of discretion, collated and translated the information that 

Kristina and Kristal presented, and passed that information to a dispatcher. In the office 

assistant’s exercise of discretion, “[s]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.”19 The circuit court should therefore have granted qualified immunity to the 

State Police for the actions of the office assistant. 

18 There is likewise no authority declaring that the State Police had a nondiscretionary duty to arrest Mr. Hughes for threatening his daughter Kristina. We can 

find no constitutional, statutory, or common-law right for a person to be arrested to 

prevent the person’s potential later suicide. See Hoffa v. United States, 385 U.S. 293, 310 

(1966) (“There is no constitutional right to be arrested.”); State v. Steadman, 827 So.2d 

1022, 1025 (Fla. Ct. App. 2002) (noting that “a defendant does not have a right to be 

arrested in order to be prevented from committing further crimes”); State v. Monaco, 83 

P.3d 553, 558 (Ariz. Ct. App. 2004) (There is no right to be arrested. “The decision of 

when to arrest a person is not mandated by statute; the government must be permitted to 

exercise its own judgment in determining at what point in an investigation enough 

evidence has been obtained.” (Quotation omitted)). 

19 Syllabus Point 4, Clark v. Dunn, 195 W.Va. at 273, 465 S.E.2d at 375. 

14
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Second, as to the November Troopers’ search of the quarry, the plaintiffs 

have not directed us to any constitutional provision, statute, case, regulation, or any other 

law governing the length of time or the method by which a State Police trooper must 

search a potential crime scene. The record clearly establishes that the November 

Troopers searched the quarry, and in that search found and recovered some of Mr. 

Hughes’s remains. The November Troopers halted their search in the overgrown quarry 

after nearly four hours as darkness fell. Exercising their judgment and discretion, the 

November Troopers decided not to resume the search the next day and decided to apply 

State Police resources to other tasks. As with the office assistant, the November Troopers 

are not liable for negligence or other error in their decisions. The circuit court should 

therefore have granted qualified immunity to the State Police for the actions of the 

November Troopers.20 

IV.
 

CONCLUSION
 

20 The State Police also challenges the plaintiffs’ assertion of a cause of 

action for “mishandling” Mr. Hughes’s remains. This Court has recognized “[a] cause of 

action exists for negligently or intentionally mishandling or losing a dead body, even 

when its disinterment and reinterment are authorized.” Syllabus Point 2, Whitehair v. 

Highland Memory Gardens, Inc., 174 W.Va. 458, 327 S.E.2d 438 (1985). In this case, 

the plaintiffs do not assert that the State Police mishandled or lost a dead body; they 

assert the November Troopers were negligent in failing to discover the entirety of the 

decedent’s bodily remains during their initial search of the quarry. On this record, we 

decline to weigh whether the plaintiffs asserted a proper claim because we find the 

discretionary actions of the November Troopers were protected by qualified immunity. 

15
 
 

 

 

 

 

 

 

The State Police is entitled to qualified immunity to protect the 

discretionary actions of its employees. The circuit court erred in holding otherwise. 

Accordingly, the circuit court’s July 13, 2015, order denying summary 

judgment and denying qualified immunity to the State Police and its employees is 

reversed. The case is remanded for entry of summary judgment in favor of the State 

Police and its employees, and for any further proceedings consistent with this opinion. 

Reversed and remanded. 

16