IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 

January 2024 Term 

_____________________ 

No. 22-0428 

_____________________ 

TODD KENT, MARK SPESSERT, CHRISTOPHER KUTCHER, 

CITY OF CHARLES TOWN, BRADLEY MEACHAM, GLENNA HOSBY-BROWN, 

WILLIAM ROPER, and CITY OF RANSON 

Defendants Below, Petitioners, 

v. 

CHRISTOPHER SULLIVAN, 

Plaintiff Below, Respondent. 

___________________________________________________________ 

Appeal from the Circuit Court of Jefferson County 

The Honorable Debra McLaughlin, Judge 

Civil Action No. 21-C-136 

REVERSED AND REMANDED 

_________________________________________________________ 

Submitted: March 13, 2024 

Filed: May 9, 2024 

Matthew R. Whitler, Esq. 

PULLIN, FOWLER, FLANIGAN, 

BROWN & POE, LLC 

Martinsburg, West Virginia 

Counsel for Petitioners Todd Kent, 

Mark Spessert, Christopher Kutcher, 

and the City of Charles Town 

Michael T. Logsdon, II, Esq. 

Sutton & Janelle, PLLC

Martinsburg, West Virginia 

Counsel for Respondent 

FILED

May 9, 2024

released at 3:00 p.m.

C. CASEY FORBES, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
Keith C. Gamble, Esq.

PULLIN, FOWLER, FLANIGAN,

BROWN & POE, LLC

Morgantown, West Virginia

Counsel for Petitioners Bradley Meacham,

Glena Hosby-Brown, William Roper, and 

the City of Ranson

JUSTICE WOOTON delivered the Opinion of the Court.

CHIEF JUSTICE ARMSTEAD AND JUSTICE BUNN concur and reserve the right to file 

separate opinions.
i

SYLLABUS BY THE COURT

1. “Under Rule 12 of the West Virginia Rules of Civil Procedure, a 

circuit court’s denial of a motion to dismiss a complaint that is predicated on the statutory 

immunity conferred by the Governmental Tort Claims and Insurance Reform Act is an 

interlocutory ruling that is subject to immediate appeal under the ‘collateral order’

doctrine.” Syl. Pt. 5, State ex rel. Grant Cnty. Comm’n v. Nelson, 244 W. Va. 649, 856 

S.E.2d 608 (2021).

2. “‘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).” Syl. Pt. 1, W. Va. Reg’l Jail and Corr.

Facility v. Estate of Grove, 244 W. Va. 273, 852 S.E.2d 773 (2020). 

3. “When a party, as part of an appeal from a final judgment, 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.” Syl. Pt. 4, Ewing v. Bd. of Educ. of Cnty. of 

Summers, 202 W. Va. 228, 503 S.E.2d 541 (1998). 
ii

4. “‘[This Court] may, sua sponte, in the interest of justice, notice plain 

error.’ Syl. Pt. 1, in part, State v. Myers, 204 W. Va. 449, 513 S.E.2d 676 (1998).” Syl. Pt. 

1, Cartwright v. McComas, 223 W. Va. 161, 672 S.E.2d 297 (2008). 

5. “ ‘ “ ‘To trigger application of the “plain error” doctrine there must be 

(1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the 

fairness, integrity, or public reputation of the judicial proceedings.’ Syllabus point 7, State 

v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).” Syllabus Point 7, Page v. Columbia 

Natural Resources, Inc., 198 W. Va. 378, 480 S.E.2d 817 (1996).’ Syl. Pt. 12, Keesee v. 

General Refuse Service, Inc., 216 W. Va. 199, 604 S.E.2d 449 (2004).” Syl. Pt. 2, 

Cartwright v. McComas, 223 W. Va. 161, 672 S.E.2d 297 (2008). 
1

WOOTON, Justice:

The petitioners/defendants below, Officers Bradley Meacham and Glenna 

Hosby-Brown, Chief William Roper, and the City of Ranson, (“Ranson petitioners”), as 

well as Officer Todd Kent, Sgt. Mark Spessert, Chief Christopher Kutcher,1 and the City 

of Charles Town (“Charles Town petitioners”) (collectively “the petitioners”), appeal the

May 3, 2022, order of the Circuit Court of Jefferson County, West Virginia, partially 

granting the petitioners’ motion to dismiss the amended complaint filed by the 

respondent/plaintiff below, Christopher Sullivan. The respondent asserted twenty-three 

state law causes of action against the petitioners following a confrontation that he had with 

the petitioner police officers which led to his arrest on various charges including disorderly 

conduct and driving under the influence (“DUI”).

2

 The Ranson petitioners and the Charles 

Town petitioners filed two separate motions to dismiss the respondent’s amended 

complaint pursuant to West Virginia Rule of Civil Procedure 12(b)(6), alleging varying 

theories of immunity.

In its order resolving the petitioners’ motions, and of key importance to the 

issues before us, the circuit court applied both the analytical framework of West Virginia 

Regional Jail and Correctional Facility Authority v. A.B., 234 W. Va. 492, 766 S.E.2d 751 

1 All the respective law enforcement officers will sometimes be referred to 

collectively as the “petitioner police officers.” 

2 As discussed infra in greater detail, the respondent was eventually cleared of all 

charges.
2

(2014) and West Virginia Regional Jail and Correctional Facility Authority v. Estate of 

Grove, 244 W. Va. 273, 852 S.E.2d 773 (2020), as well as the West Virginia Governmental 

Tort Claims and Insurance Reform Act (“the Tort Claims Act”), W. Va. Code §§ 29-12A1 to -18 (2023), in resolving the immunity issues.

3

 

After careful review of the briefs of the parties, their oral arguments, the 

appendix record, and the applicable law, we reverse the circuit court’s decision and remand 

for further proceedings consistent with this opinion. Insofar as none of the petitioners’ 

assigned errors4 address the overarching error in the circuit court’s decision, we sua sponte 

find that the court committed plain error5 by basing its immunity decisions on common law 

3 The circuit court also dismissed the City of Ranson Police Department and the 

Charles Town Police Department, who were named defendants in the respondent’s 

amended complaint, and granted the petitioners’ motions to dismiss the respondent’s 

claims for punitive damages pursuant to West Virginia Code section 29A-12A-7 

(prohibiting punitive damages against political subdivisions). Neither of these rulings were 

appealed by the parties and, therefore, are not now before the Court. Further, the City of 

Ranson Police Department and the Charles Town Police Department are not named 

petitioners for purposes of this appeal.

4 On appeal, the petitioners raise four assignments of error: that the circuit court 

erred 1) by failing to dismiss the petitioner police officers on the grounds of qualified 

immunity; 2) by failing to dismiss all the respondeat superior claims against the City of 

Ranson and the City of Charles Town on the basis of qualified immunity; 3) by failing to 

dismiss the assault and battery claims against the petitioner police officers; and 4) by failing 

to dismiss the respondeat superior claims for battery against Chief Roper and Chief Kutcher 

on the basis of qualified immunity. Because we reverse on other grounds, we decline to 

address the issues raised by the petitioners. 

5 See Syl. Pts. 1 and 2, Cartwright v. McComas, 223 W. Va. 161, 672 S.E.2d 297 

(2008) (setting forth requisite elements for application of plain error doctrine and discussed 

infra in greater detail). 
3

qualified immunity principles which are only applicable to the State, its agencies, officials, 

and employees, rather than applying the provisions of the Tort Claims Act, which govern 

immunity for the claims asserted against the petitioners as they are undisputedly political 

subdivisions and employees of political subdivisions. 

I. Facts and Procedural Background

The respondent’s amended complaint alleges6 that on the night of September 

28, 2019, he observed the police vehicles of Officer Meacham and Sgt. Spessert parked in 

a privately owned parking lot that served the residents of an apartment complex where the 

respondent resided; however, their vehicles were not positioned in individually marked 

parking spaces. The officers were responding to a vehicle break-in call at the apartment 

complex. While he was driving past the officers, the respondent made remarks out his 

window to the officers about their parking, after which he parked his own vehicle. Officer 

Meacham then confronted him, allegedly without reasonable suspicion that the respondent 

had committed any crime, and a verbal altercation ensued between the two. During the 

verbal altercation which included profanity by both individuals and threats of jail and

hospitalization made by Officer Meacham, Officer Meacham warned the respondent to 

stop loudly cursing at the officers or else he would be arrested for disorderly conduct. The 

respondent started to walk away yet he continued to argue with Officer Meacham, using 

6 The allegations in the respondent’s amended complaint reference specific portions 

from the transcripts of the involved officers’ body cameras. 
4

profane language. Officer Meacham arrested the respondent for disorderly conduct and 

used two sets of handcuffs to restrain him, one of the sets coming from Sgt. Spessert. 

Additionally, as the respondent was being transported to the police vehicle, Officer 

Meacham used a leg sweep to take him to the ground after he asked the officers to pick up 

his belongings. He alleges that he injured his head when he fell to the ground and, despite 

his requests, none of the police officers contacted or sought medical assistance for him. 

After the respondent was placed in a police cruiser, Officer Meacham stated 

that he wanted to “add [driving under the influence (“DUI”)] now because he’s just running 

his mouth.” The officers claim that they detected an odor of alcohol on the respondent 

prompting them to reasonably suspect a possible DUI. The respondent rejected the 

officers’ request that he perform field sobriety tests but claims he did not refuse a 

preliminary breathalyzer test; however, the officers contend that they understood the 

respondent’s refusal to take the field sobriety tests as a refusal of the preliminary 

breathalyzer test. The respondent contends that he was not lawfully arrested because he 

did not affirmatively refuse either the preliminary or secondary chemical breath tests and 

he was not given paperwork explaining the penalties for refusing a breath test. He asserts

that he was further harassed and verbally abused by Officers Kent and Hosby-Brown after 

he was arrested and placed inside a police vehicle. 

Ultimately, the respondent was charged with disorderly conduct, DUI, 

battery on an officer, obstructing an officer, resisting arrest, fingerprint refusal, and 
5

destruction of property. The State later dismissed the charges for fingerprint refusal, DUI, 

and destruction of property; a jury found the respondent not guilty of obstructing an officer 

and disorderly conduct, and a magistrate entered a judgment of acquittal on the charge of

battery on an officer. 

On September 27, 2021, the respondent filed a 244-paragraph amended 

complaint7 against the petitioners, containing twenty-three counts for the following state 

law causes of actions: common law assault, common law battery, outrageous conduct, 

three counts of intentional infliction of emotional distress, three counts of negligent 

infliction of emotional distress, malicious prosecution relating to the Department of Motor 

Vehicles, three counts of malicious prosecution, negligence, gross negligence, four counts 

of negligence in employment (employment, entrustment, retention, training, and 

supervision), and failure to intervene. The amended complaint also contained respondeat 

superior claims against the petitioners the City of Ranson and the City of Charles Town 

related to the allegations against the petitioner police officers. 

In response to the respondent’s amended complaint, the Charles Town

petitioners and the Ranson petitioners filed separate motions to dismiss pursuant to West 

Virginia Rule of Civil Procedure 12(b)(6). Interestingly, the Ranson petitioners claimed

immunity only under the Tort Claims Act, see W. Va. Code §§ 29-12A-1 to -18, which 

7 The original complaint was filed on September 24, 2021.
6

affords immunity in certain circumstances to political subdivisions and their employees. 

In contrast, the Charles Town petitioners first argued that they were entitled to immunity 

under the Tort Claims Act but then later argued that they were entitled to “qualified 

immunity” under this Court’s body of case law developed in claims involving State 

agencies. 

By order entered May 3, 2022, the circuit court partially granted the 

petitioners’ motions to dismiss. Specifically, the court determined: 1) that the petitioner 

law enforcement officers were not entitled to “qualified immunity” because “the alleged 

actions of the officer defendants set forth sufficient details . . . to show that the 

Governmental Tort Claims Act under W. VA. CODE § 29-12A-5 (2002) does not 

apply[;]”8 2) that “the City and Chief Defendants are state actors and there is not an 

8 The circuit court’s analysis of “qualified immunity” tracked this Court’s analysis 

in Estate of Grove:

[W]henever a defendant raises the issue of qualified immunity 

in a motion to dismiss, the circuit court must look to our 

qualified immunity body of law and follow the steps this Court 

expressly has outlined to make the determination of whether 

qualified immunity applies under the specific circumstances of 

that particular case. Specifically, these steps include whether: 

(1) a state agency or employee is involved; (2) there is an 

insurance contract waiving the defense of qualified immunity; 

(3) the West Virginia Governmental Tort Claims and Insurance 

Reform Act, W. Va. Code § 29-12A-1 et seq. would apply; (4) 

the matter involves discretionary judgments, decisions, and/or 

actions; (5) the 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 
7

insurance contract that waives the immunity,” and “the City of Charles Town, the City of 

Ranson, and each city’s respective police department and police chief are entitled to 

qualified immunity from the Plaintiff’s negligence claims, including separate claims for 

liability under theories of supervisory liability throughout the Complaint[;]” 3) that the 

petitioner Charles Town Defendant’s Motion to Dismiss was granted “only to the extent of 

a failure to properly train as to Sgt. Spessert, Chief Kutcher, and the City of Charles Town, 

but not under the other theories of liability under Count II, Common Law Battery[;]” and 

4) that the respondent was “entitled to allege claims of negligence and intentional torts 

from the same facts.” (Emphasis added). It is from this order that the petitioners appeal. 

II. Standard of Review

In syllabus point five of State ex rel. Grant County Commission v. Nelson, 

244 W. Va. 649, 856 S.E.2d 608 (2021), we held that 

[u]nder Rule 12 of the West Virginia Rules of Civil 

Procedure, a circuit court’s denial of a motion to dismiss a 

complaint that is predicated on the statutory immunity 

conferred by the Governmental Tort Claims and Insurance 

Reform Act is an interlocutory ruling that is subject to 

immediate appeal under the “collateral order” doctrine.

fraudulent, malicious, or oppressive; and (6) the State

employee was acting within his/her scope of employment. See 

generally A.B., 234 W. Va. 492, 766 S.E.2d 751.

244 W. Va. at 283, 852 S.E.2d at 783. 
8

Similarly, we have held that “‘[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).” Estate of Grove, 244 W. 

Va. at 275, 852 S.E.2d at 775, Syl. Pt. 1. Further, “[w]hen a party, as part of an appeal 

from a final judgment, 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.” Syl. Pt. 4, 

Ewing v. Bd. of Educ. of Cnty. of Summers, 202 W. Va. 228, 503 S.E.2d 541 (1998). 

Finally, the Court held in syllabus points one and two of Cartwright v. McComas, 223 W. 

Va. 161, 672 S.E.2d 297 (2008):

“[This Court] may, sua sponte, in the interest of justice, 

notice plain error.” Syl. Pt. 1, in part, State v. Myers, 204 W.Va. 

449, 513 S.E.2d 676 (1998).

“‘“To trigger application of the ‘plain error’ doctrine 

there must be (1) an error; (2) that is plain; (3) that affects 

substantial rights; and (4) seriously affects the fairness, 

integrity, or public reputation of the judicial proceedings.” 

Syllabus point 7, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 

(1995).’ Syllabus Point 7, Page v. Columbia Natural 

Resources, Inc., 198 W. Va. 378, 480 S.E.2d 817 (1996).” Syl. 

Pt. 12, Keesee v. General Refuse Service, Inc., 216 W. Va. 199, 

604 S.E.2d 449 (2004).

Cartwright, 223 W. Va. at 162, 672 S.E.2d at 298, Syl. Pts. 1 & 2. It is under the guidance 

of these standards of review that we proceed to address the issues before us. 
9

III. Discussion

Our focus is on the law the circuit court applied in reaching its decision in 

regard to the immunities claimed by the petitioners. 9

 Immunity law can be difficult to 

understand under the best of circumstances, as it involves three separate and distinct legal 

analyses which apply to claims against three separate and distinct categories of entities and 

individuals. See infra text and notes 11-13. Where, as here, the analyses are conflated and 

the affected entities and individuals are not properly categorized, legal chaos ensues. This 

situation could have been avoided in the instant case had the court followed a two-step 

analysis: 1) categorize the party claiming immunity; and 2) determine whether the party 

is entitled to immunity under the facts and circumstances presented.10 

The first step is to properly categorize the party claiming immunity. In this 

regard, there are three sources of immunity in our jurisprudence: constitutional or 

9 As previously indicated in supra note 4, it is unnecessary to address any of the 

petitioners’ assigned errors. 

10 The framework we set forth herein, which focuses on a method for determining 

which type of immunity is applicable in a particular case, is offered as a means of 

simplifying the subsequent application of the law to the facts. We acknowledge that our 

case law has not been a model of clarity in this respect. 
10

“sovereign” immunity,

11 common law “qualified immunity,”12 and statutory immunity as 

set forth in the Tort Claims Act.13 It is well established that that claims for both 

constitutional and common law qualified immunity are available only for the State, its 

agencies, officials, and/or employees. See W. Va. Const. art. VI, § 35; see also A.B., 234 

W. Va. at 502; 766 S.E.2d at 761 (“In West Virginia, however, the Governmental Tort 

Claims and Insurance Reform Act, West Virginia Code § 29-12A-1 et seq., is limited to 

political subdivisions and their employees and does not cover claims made against the State 

or its agencies.”); Estate of Grove, 244 W. Va. at 283, 852 S.E.2d at 783 (“[W]e have 

developed a significant body of law in order to determine whether a state agency, a state 

employee, or both are entitled to be protected from suit by the doctrine of qualified 

immunity.”).

14 

11 The West Virginia Constitution article VI, section 35 provides for immunity of 

the State as follows:

The State of West Virginia shall never be made 

defendant in any court of law or equity, except the State of 

West Virginia, including any subdivision thereof, or any 

municipality therein, or any officer, agent, or employee 

thereof, may be made defendant in any garnishment or 

attachment proceeding, as garnishee or suggestee.

12 See generally A.B., 234 W. Va. at 503-05, 766 S.E.2d at 762-64 (discussing the 

evolution of common law immunity afforded to “the State, its agencies, officials, and 

employees, as well as the policy implications attendant to governmental immunity, in an 

attempt to formulate a workable rule for State-level governmental and employee 

immunities.”). 

13 See W. Va. Code §§ 29-12A-1 to -18.

14 The circuit court determined that the petitioner police officers “were acting under 

the color of state law when the alleged torts occurred[,]” implicitly making them “state 
11

Conversely, statutory immunity, as set forth in the Tort Claims Act, is 

available only to political subdivisions and their employees. The Tort Claims Act was the 

Legislature’s response to this Court’s abolition of common law qualified immunity first for 

municipalities,

15 and then for county commissions16 and county boards of education.17 In 

this regard, we invited legislative action in Long, noting that 

[f]or the foregoing reasons, we believe the rule of 

municipal government immunity from tort liability previously 

applied in this jurisdiction to be unsound and unworkable. In 

moving toward resolution of this problem we are acutely aware 

of the constraints of the doctrine of Stare decisis. Although, 

indeed, it would seem preferable for the Legislature to speak 

comprehensively on the subject, we do not wish to perpetuate 

actor[s].” However, here there are no claims alleged in the amended complaint under 42 

United States Code section 1983 where actions taken “under color of state law” would be

relevant. Thus, the court’s characterization of the officers as “state actors” in an attempt 

to place them within the framework of common law qualified immunity applicable only to 

the State, its agencies, officials, and/or employees defies the definitions of the Tort Claims 

Act discussed infra in greater detail. 

15 See Syl. Pt. 10, Long v. City of Weirton, 158 W. Va. 741, 214 S.E.2d 832 (1975) 

(“The [common-law] rule of municipal governmental immunity is now abolished in this 

State.”), superceded by statute as stated in Pritchard v. Arvon, 186 W. Va. 445, 413 S.E.2d 

100 (1991).

16 See Syl. Pt. 2, Gooden v. Cnty. Comm’n of Webster Cnty., 171 W. Va. 130, 298 

S.E.2d 103 (1982) (“Common-law governmental immunity for county commissions is 

abolished. A county commission shall be liable, just as a private citizen, to members of 

the general public, for injuries proximately caused by the negligence of its employees 

performing their duties.”), superseded by statute as stated in Pritchard v. Arvon, 186 W. 

Va. 445, 413 S.E.2d 100 (1991). 

17 See Syl., Ohio Valley Contractors v. Bd. of Educ. of Wetzel Cnty., 170 W. Va. 

240, 293 S.E.2d 437 (1982) (“Local boards of education do not have state constitutional 

immunity nor common law governmental immunity from suit.”), superceded by statute as

stated in Moore ex rel. Knight v. Wood Cnty. Bd. of Educ., 200 W. Va. 247, 489 S.E.2d 1 

(1997).
12 

bad law of judicial origin pending the fortuity of action by the 

Legislature. 

158 W. Va. at 783, 214 S.E.2d at 859 

 The Tort Claims Act was enacted in 1986. See W. Va. Code §§ 29-12A-1 to 

-18. The Legislature’s stated purpose for this statutory scheme was to “limit liability of 

political subdivisions and provide immunity to political subdivisions in certain instances 

and to regulate the costs and coverage of insurance available to political subdivisions for 

such liability.” Id. § 29-12A-1. Further, the Legislature defined exactly what it meant by 

a “political subdivision”: 

“Political subdivision” means any county commission, 

municipality and county board of education; any separate 

corporation or instrumentality established by one or more 

counties or municipalities, as permitted by law; any 

instrumentality supported in most part by municipalities; any 

public body charged by law with the performance of a 

government function and whose jurisdiction is coextensive 

with one or more counties, cities or towns; a combined citycounty health department created pursuant to article two, 

chapter sixteen of this code; public service districts; and other 

instrumentalities including, but not limited to, volunteer fire 

departments and emergency service organizations as 

recognized by an appropriate public body and authorized by 

law to perform a government function: Provided, That 

hospitals of a political subdivision and their employees are 

expressly excluded from the provisions of this article. 

Id. § 29-12A-3(c). Further, an “employee” was defined as 

an officer, agent, employee, or servant, whether compensated 

or not, whether full-time or not, who is authorized to act and is 

acting within the scope of his or her employment for a political 

subdivision. “Employee” includes any elected or appointed 
13 

official of a political subdivision. “Employee” does not include 

an independent contractor of a political subdivision. 

Id. § 29-12A-3(a). “Municipality” was defined as “any incorporated city, town or village 

and all institutions, agencies or instrumentalities of a municipality.” Id. § 29-12A-3(b). 

Finally, “State” was defined to mean “the State of West Virginia, including, but not limited 

to, the Legislature, the Supreme Court of Appeals, the offices of all elected state officers, 

and all departments, boards, offices, commissions, agencies, colleges, and universities, 

institutions, and other instrumentalities of the State of West Virginia.” Id. § 29-12A-3(e). 

The Legislature expressly provided that “‘State’ does not include political subdivisions.”18 

Id. (emphasis added). Thus, if a party meets the statutory definition of a political 

subdivision or employee, it is entitled to assert a claim of statutory immunity under the 

Tort Claims Act. 

18 Following these statutory definitions, this Court has repeatedly recognized that 

“[t]he West Virginia Governmental Tort Claims and Insurance Reform Act, West Virginia 

Code § 29-12A-1 et seq., obviously however, does not apply to claims against the State.” 

A.B., 234 W. Va. at 499 n.4, 766 S.E.3d at 758 n.4. This Court has also distinguished 

between State agency immunities and political subdivision immunity in other cases. See 

State v. Chase Sec., Inc., 188 W. Va. 356, 358, 424 S.E.2d 591, 593 (1992) (“[W]e make a 

distinction between the immunity that is available to state executive officials, such as the 

three individuals involved in this case, and the immunity afforded public officials who are 

employed by political subdivisions under W. Va. Code, 29-12A-1, et seq.”); Hess v. W. Va. 

Div. of Corrections, 227 W. Va. 15, 18 n.6, 705 S.E.2d 125, 128 n.6 (2010) (“[T]he Court 

notes that the West Virginia Governmental Tort Claims and Insurance Reform Act (“the 

Act”), West Virginia Code §§ 29-12A-1 to -18 (2008), applies to “the political subdivisions 

of this State [,]” such as a county commission or municipality. W. Va. Code § 29-12A-2 

and § 29-12A-3(c). By definition, the State of West Virginia is not considered a “political 

subdivision.” W. Va. Code § 29-12A-3(e)(“‘State’ does not include political 

subdivisions.”).”). 
14

We may readily resolve the first step in our immunity analysis, as it is 

undisputed that all of the petitioners herein fall within the statutory definitions of a political 

subdivision or its employee set forth in the Tort Claims Act. See W. Va. Code § 29-12A3. Thus, the circuit court’s overarching error here was in analyzing the immunity issue 

based on the principles set forth in Estate of Grove – principles established to govern 

common law qualified immunity cases involving the State, its agencies, officials, and/or 

employees, not cases involving political subdivisions and their employees. See 244 W. Va. 

at 283, 852 S.E.2d at 783. 

Having established that the sole framework for the immunity analysis in this 

case is set forth in the Tort Claims Act, we turn to the second step in the immunity analysis: 

whether the petitioners are entitled to statutory immunity under the facts and circumstances 

herein. See, e.g., C.C. v. Harrison Cnty. Bd. of Educ., 245 W. Va. 594, 600, 859 S.E.2d 

762, 768 (2021) (“Governing our assessment of the propriety of the circuit court’s 

dismissal of these two negligence claims, as well as the circuit court’s decision to dismiss 

these claims in the first instance, is the West Virginia Governmental Tort Claims and 

Insurance Reform Act . . . , which ‘limit[s the] liability of political subdivisions and 

provide[s] immunity to political subdivisions in certain instances[.]; W. Va. Code § 29-

12A-1 (eff. 1986).”); State ex rel. Town of Pratt v. Stucky, 229 W. Va. 700, 735 S.E.2d 575

(2012) (applying only Tort Claims Act in determining that Town of Pratt was entitled to 

statutory immunity); Beckley v. Crabtree, 189 W. Va. 94, 428 S.E.2d 317 (1993) (applying 
15

only the Tort Claims Act to analyze immunity claims advanced by a county sheriff and a 

county commission). 

As the Court explained in Randall v. Fairmont City Police Department, 186 

W. Va. 336, 412 S.E.2d 737 (1991), 

[t]he basic structure [or framework] of the Act is as follows.

Under the Act a political subdivision is stated to be 

immune generally from liability for damages in a civil action 

brought for death, injury or loss to persons or property 

allegedly caused by any act or omission of the political 

subdivision. W. Va. Code, 29-12A-4(b)(1) [1986]. The Act 

lists seventeen specific types of acts or omissions covered by 

the tort immunity available under the Act to a political 

subdivision. W. Va. Code, 29-12A-5(a)(1)-(17) [1986]. . . . 

The Act also immunizes an employee of a political 

subdivision from tort liability, unless his or her acts or 

omissions were manifestly outside the scope of employment or 

official responsibilities; or unless the employee’s acts or 

omissions were with malicious purpose, in bad faith or in a 

wanton or reckless manner; or unless any statute expressly 

imposes liability upon the employee. W. Va. Code, 29-12A5(b)(1)-(3) [1986].

On the other hand, the Act recognizes the tort liability 

of a political subdivision for acts or omissions in five fairly 

broad situations, W. Va. Code, 29-12A-4(c)(1)-(5) [1986], 

including liability in tort for damages “caused by the negligent 

performance of acts by their [political subdivisions’] 

employees while acting within the scope of employment[,]” W.

Va. Code, 29-12A-4(c)(2) [1986].19 For these situations where 

liability attaches, the Act imposes a $500,000 limit of liability 

19 West Virginia Code section 29-12A-4(c) also sets forth other instances wherein a 

political subdivision’s tort liability is recognized and subject to the specific immunities 

established in West Virginia Code section 29-12A-5(a). 
16

for the noneconomic loss of any one person, W. Va. Code, 29-

12A-7(b) [1986], and disallows punitive damages, W. Va.

Code, 29-12A-7(a) [1986].

The Act explicitly provides that “[t]he purchase of 

liability insurance . . . by a political subdivision does not 

constitute a waiver of any immunity it may have pursuant to 

this article or [of] any defense of the political subdivision or its 

employees.” W. Va. Code, 29-12A-16(d) [1986]. The liability 

insurance could be purchased by a political subdivision “with 

respect to its potential liability and that of its employees” under 

the Act. W. Va .Code, 29-12A-16(a) [1986].

Finally, the Act contains provisions regulating the costs 

and coverage of liability insurance available to political 

subdivisions. W. Va. Code, 29-12A-17 [1986].20

20 West Virginia Code section 29-12A-18 provides for certain instances wherein the 

Tort Claims Act does not apply:

This article does not apply to, and shall not be construed to 

apply to, the following:

(a) Civil actions that seek to recover damages from a political 

subdivision or any of its employees for contractual liability;

(b) Civil actions by an employee, or the collective bargaining 

representative of an employee, against his or her political 

subdivision relative to any matter that arises out of the 

employment relationship between the employee and the 

political subdivision;

(c) Civil actions by an employee of a political subdivision 

against the political subdivision relative to wages, hours, 

conditions, or other terms of his or her employment;

(d) Civil actions by sureties, and the rights of sureties, under 

fidelity or surety bonds;

(e) Civil claims based upon alleged violations of the 

Constitution or statutes of the United States except that the 
17

186 W. Va. at 341-42, 412 S.E.2d at 742-43 (footnotes omitted and footnotes added). 

The plain error herein is that the circuit court failed to analyze the immunity 

claims in this case under the Tort Claims Act, which is the sole source of immunity 

applicable to the petitioners. 21 Consequently, we have no choice but to reverse and remand 

this case for further proceedings. We decline to provide what would be an advisory 

analysis of the respondent’s claims, as that task is for the circuit court in the first instance. 

provisions of section eleven of this article shall apply to such 

claims or related civil actions.

We note that where the Tort Claims Act is inapplicable, a common law qualified 

immunity analysis may be appropriate. For instance, in cases where federal claims are 

alleged under 42 United States Code section 1983, we have applied federal common law 

qualified immunity. See, e.g., Hutchison v. City of Huntington, 198 W. Va. 139, 147-48, 

479 S.E.2d 649, 657-58 (1996) (finding statutory immunity applied to all state law claims 

alleged therein and discussing federal claim alleged under 42 United States Code section

1983 and stating that “[p]ublic officials and local government units should be entitled to 

qualified immunity from suit under § 1983, or statutory immunity under W. Va. Code, 29-

12A-5(a), unless it is shown by specific allegations that the immunity does not apply. See 

State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992).”); see also City of 

Saint Albans v. Botkins, 228 W. Va. 393, 398, 719 S.E.2d 863, 868 (2011) (“Our approach 

to matters concerning immunity historically has followed federal law due in large part to 

the need for a uniform standard when, as in the case before us, public officers are sued in 

state court for violations of federal civil rights pursuant to 42 U.S.C. § 1983.”). As 

previously mentioned, there are no claims involving section 1983 in this case. 

21 We have no problem noticing plain error in this case. See Cartwright, 223 W. 

Va. at 162, 672 S.E.2d at 298, Syl. Pt. 1. The error in this case involves the circuit court’s 

incorrect application of immunity law, which undeniably meets the requisite elements to 

establish plain error as it is an error “that is plain, and [] that affects substantial rights; and 

[] seriously affects the fairness, integrity, or reputation of the judicial proceedings. See id., 

Syl. Pt. 2. 
18

It is incumbent on the court to examine each count of the respondent’s amended complaint 

under the framework of the Tort Claims Act. 22 The court then must determine, based on 

the facts alleged, whether to grant or deny immunity to any of the petitioners on any claims, 

or whether additional factual development is needed. 

IV. Conclusion

For the foregoing reasons, the May 3, 2022, order of the Circuit Court of 

Jefferson County, West Virginia, partially granting the petitioners’ motion to dismiss the 

respondent’s amended complaint, is reversed, and this case is remanded for further 

proceedings consistent with this opinion.

Reversed and remanded.

22 “Rule 8(f) of the West Virginia Rules of Civil Procedure dictates that courts 

liberally construe pleadings so ‘as to do substantial justice[,]’”Mountaineer Fire & Rescue 

Equip., LLC v. City Nat’l Bank of W. Va., 244 W. Va. 508, 520, 854 S.E.2d 870, 882 (2020), 

and so “‘[t]he 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.’” Syl. 

Pt. 3, Chapman v. Kane Transfer Co., 160 W. Va. 530, 236 S.E.2d 207 (1977) (quoting 

Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Although the Court construes the factual 

allegations of the complaint, including all inferences arising therefrom, in the light most 

favorable to respondents, Chapman, 160 W. Va. at 538, 236 S.E.2d at 212, we are also 

guided by the principle that, “[i]n civil actions where immunities are implicated, the trial

court must insist on heightened pleading by the plaintiff.” Hutchison, 198 W. Va. at 149, 

479 S.E.2d at 659. However, where “the information contained in the pleadings is 

sufficient to justify the case proceeding further,” the motion to dismiss should be denied.

Id. at 150, 479 S.E.2d at 660.