C.C. and J.C., as next friends of the minor child M.C. v. Harrison County Board of Education ( 2021 )

FILED
June 17, 2021
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 20-0171, C.C. and J.C. as next friends of M.C. v. Harrison County Board of Education.
Armstead, Justice, concurring in part and dissenting in part:
As stated by the majority, and as confirmed by Petitioners during oral
argument in this matter, the Petitioners do not assign error to the dismissal of several counts
of their Complaint and have narrowed the focus of their appeal to their claims contained in
Counts 5 and 6 of their Complaint. To the extent the majority reverses the circuit court’s
dismissal of Petitioners’ negligence per se claims contained in Count 5 of the Complaint
and reverses the circuit court’s dismissal of Petitioners’ negligent retention claims
contained in Count 6 of the Complaint, I respectfully dissent.
As an initial matter, I believe that the conduct displayed by the Assistant
Principal in this matter was certainly inappropriate. With this fact in mind, I am perplexed
that the Petitioners did not name the Assistant Principal as a party in this matter. Certainly,
any party may choose to name, or decline to name, any party in civil litigation, and such
decisions are certainly within the purview of the respective client and his or her legal
counsel. It is not for this Court to second guess those decisions. However, by naming only
the Harrison County Board of Education (“Board”), Petitioners must accept that the ability
to prove their case against the Board may be governed by different statutory and common
law standards.
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With respect to Count 5, I believe that the majority is correct in finding that
the Board is entitled to immunity for Petitioners’ claims that it failed to adopt an anti-
harassment policy as required by West Virginia Code section 18-2C-3 or if it had adopted
such a policy, its policy was inadequate. Such claims clearly fall within the scope of
“failure to adopt a … written policy” and “[a]doption … [of] a … written policy[.]” for
which immunity is provided in W. Va. Code § 29-12A-5(a)(4). However, I disagree with
the majority’s conclusion that the circuit court erred by dismissing Count 5. In reaching
such conclusion, the majority finds that certain of Petitioners’ allegations assert negligence
claims that are not subject to immunity, namely the allegations that “Defendant [the Board]
was negligent per se in that the actions of its employee [the Assistant Principal] were the
exact type of atrocious, inexcusable actions that W. Va. Code § 18-2C-1 et seq. was
intended to prevent” and “Defendant [the Board] breached its duty by failing to
immediately act to address and remedy this situation.”
The majority proceeds to state, in its attempt to distinguish these allegations
from those it has already deemed subject to the immunity provisions of W. Va. Code § 29-
12A-5(a)(4), that “these allegations sound in negligence and complement the allegations
that the Board negligently retained the Assistant Principal once it became aware of his
conduct set forth in Count 6 of the Petitioners’ complaint.”
I believe the majority’s conclusion in this regard is wrong for a number of
reasons. First, in support of its decision to reinstate this particular claim, the majority
correctly notes that the four basic elements of a negligence claim are duty, breach,
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causation, and damages. However, as the majority proceeds to outline how the Petitioners’
allegations meet these elements, it clearly states that “[i]n support of their claim of
negligence per se, the Petitioners alleged the Board had a duty to the student to adopt an
anti-harassment policy. . .” (Emphasis added). Thus, the duty asserted by the Petitioners,
and relied upon by the majority, is the duty to adopt an anti-harassment policy. The
allegation that the Board breached this duty to adopt a policy clearly brings this claim under
the umbrella of immunity pursuant to the express language of W. Va. Code § 29-12A-
5(a)(4). The alleged breach of such duty, which is entitled to immunity, should not result
in the reinstatement of this particular claim.
Moreover, the majority alleges that “other conduct” alleged in support of
Petitioners’ negligence per se claim does not involve either the failure to adopt or the
adoption of a policy. However, such allegations do not warrant reversal of the circuit
court’s dismissal of the negligence per se claim. As stated above, the majority finds that
the Petitioners’ allegations “sound in negligence and complement the allegations that the
Board negligently retained the Assistant Principal once it became aware of his conduct set
forth in Count 6 of the Petitioners’ complaint.” (Emphasis added). This finding appears
designed to bootstrap these allegations to the one and only allegation within Count 6,
negligent retention, that the majority allows to proceed to trial.
However, I believe the allegations that the Board breached its duty by
“failing to act to address and remedy this situation” do not sound in negligent retention, as
the majority asserts, but instead allege a negligent supervision claim, similar to that which
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the majority finds was properly dismissed in Count 6. The Petitioners allege that the Board
was negligent per se “in that the actions of its employee” violated its policy and the Board
breached a duty to Petitioners by “failing to immediately act to address and remedy this
situation.” Petitioners assert liability on the part of the Board due to its alleged failure ”to
act” to address the Assistant Principal’s conduct, a responsibility that goes to the core of
an employer’s supervisory role to take disciplinary or corrective action when the offending
conduct occurs. Such allegations do not go to the Board’s earlier decision to renew the
Assistant Principal’s contract which had already taken place.
The majority correctly determined, in regard to the negligent supervision
claims asserted by the Respondents in Count 6 that “because all of the acts alleged to have
been committed by the Assistant Principal were comprised of intentional conduct, the
circuit court correctly ruled that the Petitioners had not made the requisite predicate
showing of the Assistant Principal’s negligence to support a claim of negligent supervision
by the Board and that their claim in this regard should be dismissed.” In support of this
finding, the majority cites this Court’s holding in Taylor v. Cabell Huntington Hosp. Inc.,
208 W. Va. 128, 538 S.E.2d 719 (2000)[ (per curiam) ] that “[t]he . . . claim of negligent
supervision must rest upon a showing that the [employer] failed to properly supervise [its
employee] and, as a result, [the employee] committed a negligent act which proximately
caused the appellant’s injury.” Id. at 134, 538 S.E.2d at 725. The holding in Taylor seems
equally applicable to the Petitioners’ negligence per se claims in Count 5.
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Finally, even if the Petitioners’ negligence per se claims could be read to go
beyond the scope of allegations that the Board was negligent in either its adoption or failure
to adopt a non-harassment and bullying policy, the language pointed to by the majority as
evidence that the Petitioners’ negligence per se claim should not be dismissed specifically
point to the responsibility’s discussed in W. Va. Code § 18-2C-1. Specifically, as discussed
by the majority, Petitioners allege that “Defendant was negligent per se in that the actions
of its employee Mr. Livengood were the exact type of atrocious, inexcusable actions that
W. Va. Code § 18-2C-1 et seq. was intended to prevent.” See Complaint ¶ 68.
However, the circuit court correctly held that:
[S]ections 18-2C-1 and 18-2C-3(b) impose merely a
responsibility on the HCBOE [Board], but not an express
liability. Therefore, because “[l]iability shall not be construed
to exist under another section of this code merely because a
responsibility is imposed upon a political subdivision,” the
HCBOE is precluded from liability to Plaintiffs under the code.
W. Va. § 29-12A-4(c)(5). Therefore, count five (5) alleging
negligence per se is dismissed because the HCBOE cannot be
liable to the Plaintiffs under sections 29-12A-5(a)(4) and 29-
12A-4(c)(5).
The circuit court did not err in its finding in this regard. Indeed, W. Va. Code § 18-2C-1
does not establish express liability but instead recites “Legislative Findings,” stating:
§18-2C-1. Legislative findings.
The Legislature finds that a safe and civil environment in
school is necessary for students to learn and achieve high
academic standards. The Legislature finds that harassment,
intimidation or bullying, like other disruptive or violent
behavior, is conduct that disrupts both a student's ability to
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learn and a school's ability to educate its students in a safe,
nonthreatening environment.
The Legislature further finds that students learn by example.
The Legislature charges school administrators, faculty, staff
and volunteers with demonstrating appropriate behavior,
treating others with civility and respect, and refusing to tolerate
harassment, intimidation or bullying.
W. Va. Code § 18-2C-1. The provisions of W. Va. Code § 18-2C-3(b) list provisions that
should be included in an anti-harassment policy. Neither of these statutory provisions
create the type of “liability” that must be “expressly imposed” in order to warrant an
exemption from the immunity provisions of W. Va. Code § 29-12A-4(c)(5). The clear
language of W. Va. Code § 29-12A-4(c)(5) provides:
In addition to the circumstances described in subsection (c)(1)
to (4) of this section, a political subdivision is liable for injury,
death, or loss to persons or property when liability is expressly
imposed upon the political subdivision by a provision of this
code. Liability shall not be construed to exist under another
section of this code merely because a responsibility is imposed
upon a political subdivision or because of a general
authorization that a political subdivision may sue and be sued.
W. Va. Code § 29-12A-4(c)(5) (Emphasis added). By merely citing the “responsibilities”
imposed by W. Va. Code § 18-2C-1 et seq., the Petitioners have failed to allege an
“expressly imposed” statutory duty that gives rise to liability on the part of the Board.
Indeed, the Petitioners acknowledged such requirement in their response to the Board’s
Motion to Dismiss, when they stated that “[a] litigant may pierce the shield of qualified
immunity by showing a government official has violated a clearly established statutory or
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constitutional right.” Accordingly, the Board is immune from liability for the allegations
contained in Count 5 pursuant to W. Va. Code § 29-12A-4(c).
Therefore, I believe the Petitioner’s negligence per se claim in Count 5 is not
only based on the adoption or failure to adopt a policy, which renders the Board immune
from such claims pursuant to W. Va. Code § 29-12A-5(a)(4), it further constitutes a
reiteration of Petitioners’ negligent supervision claim. Moreover, even if its allegations go
beyond a claim for the adoption or failure to adopt a policy, it still only alleges a
“responsibility” on the part of the Board, rather than an “expressly imposed” liability. The
Board is, therefore immune from liability for the allegations set forth in Count 5.
Accordingly, I believe Count 5, too, must be dismissed.
With respect to Count 6, the majority is correct in affirming the dismissal of
Petitioners’ claims for negligent hiring and negligent supervision for the reasons set forth
in the majority’s opinion. However, I further believe that the circuit court was also correct
in dismissing Petitioners’ claim for negligent retention.
This Court’s decision in McCormick v. W. Va. Dep’t of Pub. Safety, 202 W.
Va. 189, 503 S.E.2d 502 (1998), as was cited by the circuit court, identifies the relevant
burden a plaintiff bears in a negligent retention case. Specifically, McCormick states that:
[T]he inquiry upon which liability for negligent hiring or
retention should be determined is: “when the employee was
hired or retained, did the employer conduct a reasonable
investigation into the employee’s background vis a vis the job
for which the employee was hired and the possible risk of harm
or injury to co-workers or third parties that could result from
the conduct of an unfit employee? Should the employer have
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reasonable foreseen the risk caused by hiring or retaining an
unfit person?”
Id. at 193, 503 S.E.2d 502, 506 (1998) (Emphasis added).
At the outset I note that the majority concedes that liability for negligent
retention may only be imposed when an injury occurred as a result of an employer’s
retention of an “unfit employee” and such risk of injury was reasonably foreseeable to the
employer. In its analysis of the foreseeability issue, the majority simply states that
Respondent could have foreseen the possibility of additional confrontations by the
Assistant Principal after the bathroom encounter.
The Complaint states that the restroom incident occurred on November 27,
2018. The concession stand incident is alleged to have occurred on December 6, 2018.
Moreover, the record reflects that, following the bathroom incident in November 2018, one
or more meetings took place between school system officials and the Respondents.
According to the Petitioners’ complaint, following a meeting on January 11, 2019,
Superintendent Mark Manchin agreed to “[e]nsure an environment exists” where the
Assistant Principal would “have little or no interaction with” the [student]. Finally, the
Complaint alleges that the Board voted not to renew the Assistant Principal’s contract
during the week of March 20, 2019, and “soon after” reversed that decision and renewed
his contract. The renewal of the Assistant Principal’s contract, which appears to give rise
to the Respondent’s negligent retention claim, was made subsequent to the January 11,
2019 agreement.
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Reviewing the Petitioners’ Complaint, I agree with the circuit court’s
determination that the Petitioners “have alleged intentional conduct only” on the part of the
Assistant Principal” and “fail to allege sufficient facts to support a negligent retention claim
against the HCBOE [Board].” In reinstating Petitioners’ negligent retention claim, the
majority’s reliance upon allegations of the Assistant Principal’s presence in the cafeteria
of the school at which he is employed is misplaced. As the circuit court correctly held,
Petitioners fail to assert any allegation that the Assistant Principal interacted with the
student following his retention. The allegation that the Assistant Principal appeared in the
lunchroom “to further intimidate, harass and bully M.C.,” is conclusory in nature and not
supported by any allegation of specific conduct in which he engaged, other than his mere
presence, that constituted intimidation, harassment or bullying. In fact, there were no
allegations that the Assistant Principal conversed with or had interaction with the student,
or that he engaged in the type of conduct that was alleged to have occurred in November
and December of 2018, prior to the Board’s decision to renew his contract. The broad and
conclusory allegations contained in Petitioners’ negligent retention claim fail to state a
claim upon which relief may be granted under W. Va. R.Civ.P. 12(b)(6). This is
particularly true where, as here, the Assistant Principal’s conduct was intentional and the
principles of qualified immunity are implicated.
Because the Petitioners’ claims are asserted against the Board, a
governmental entity, it is even more crucial that Petitioners’ allegations allege a specific
duty on the part of the Board. In R.Q. v. West Virginia Div. of Corrections, No. 13-1223,
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2015 WL 1741635 (W. Va. April 10, 2015) (memorandum decision), this Court discussed
the “particularized showing” a plaintiff must make to prevail in an action for negligent
retention, negligent training and negligent supervision against a governmental entity. In
R.Q., the plaintiff, who was incarcerated in a Division of Corrections (“DOC”) facility,
alleged sexual misconduct by a correctional officer employed by the DOC. The plaintiff
brought claims against the DOC, inter alia, for negligent supervision, negligent training
and negligent retention. Citing this Court’s previous holding in W.Va. Reg’l Jail and Corr.
Facility Auth. v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014), the Court in R.Q. held:
“the broad categories of training, supervision, and employee
retention, as characterized by respondent, easily fall within the
category of ‘discretionary’ government functions.”. . . . [t]o
prove that a clearly established right has been infringed upon,
a plaintiff must do more than allege that an abstract right has
been violated. Instead, the plaintiff must make a
“particularized showing” that a “reasonable official would
understand that what he is doing violated that right” or that “in
light of preexisting law the unlawfulness” of the action was
“apparent.” . . . Petitioner failed to establish what the DOC did
or failed to do that it would have reasonably understood was
unlawful with regard to its supervision, retention, and training
of D.F. [the corrections officer].
Id. at 4-5. (Internal citations omitted) (Emphasis added). Accordingly, this Court found
that R.Q. had failed to establish an actionable claim against the DOC for, among other
claims, her claim for negligent retention. 1
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As recently as November 2020, this Court held, in West Virginia Regional Jail and
Correctional Facilities Authority v. Grove, 244 W. Va. 273, 852 S.E.2d 773 (2020), that
“[c]ases implicating immunity . . . are subject to a somewhat heightened pleading standard.
That is, plaintiffs ‘should supply in their complaints or other supporting materials greater
factual specificity and particularity than is usually required.’” (Internal quotations omitted).
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Respondents have failed to sufficiently assert specific factual claims that, by
retaining the Assistant Principal, the Board breached a duty to prevent injury that was
reasonably foreseeable conduct. Accordingly, the circuit court did not err in dismissing
their negligent retention claim.
The Respondents have simply failed to meet the pleading standard set forth in Rule 12(b)
of the West Virginia Rules of Civil Procedure, much less the heightened pleading standard
discussed in Grove.
In Hutchinson v. City of Huntington, 198 W. Va. 139, 479 S.E.2d 649 (1996), this
Court indicated that when a defendant raises the defense of qualified or statutory immunity,
the trial court “must insist on heightened pleadings by the plaintiff.” Id. at 149, 479 S.E.2d
at 149. In such cases, the circuit court should direct that a plaintiff file a “short and plain
statement of his complaint” and “may, on its own discretion, insist that the plaintiff file a
reply tailored to an answer pleading the defense of statutory or qualified immunity.” Id. at
150, 479 S.E.2d at 660. (Emphasis added). Finally, the Hutchinson Court found that “if the
individual circumstances of the case indicate that the plaintiff has pleaded his or her best
case, there is no need to order more detailed pleadings.” Id.Respondents in this matter argue that this Court’s holding in Doe v. Logan County
Board of Education, 242 W. Va. 45, 829 S.E.2d 45 (2019), supports their argument that
the circuit court’s dismissal of their Complaint should be reversed. Significantly, the
majority in its opinion in this matter does not rely on or address the holding in Doe.
Moreover, in oral arguments before this Court in this matter, Petitioners’ counsel expressly
stated that, while the Respondents request to conduct additional discovery, the Respondents
were not seeking to amend their pleadings.
In the present case, the Board filed a Motion to Dismiss based, inter alia, on its
assertion of immunity under the West Virginia Governmental Tort Claims and Insurance
Act. (“Tort Claims Act”). The Respondents filed a detailed response to such motion
asserting its position that its claims were not barred by immunity under the heading “There
are clear limits to immunity provided to political subdivisions by the West Virginia Tort
Claims Act. Plaintiffs’ claims against Harrison County Board of Education survive as the
acts of its employee were outside the scope of that immunity.”
This response would appear to fulfill the requirements set forth in Hutchinson that
a plaintiff be provided an opportunity to address a defendant’s assertion of immunity.
Moreover, the record before us does not reflect that Petitioners allege specific error on the
part of the circuit court for any alleged failure to provide them the opportunity to amend
their pleadings to address the Board’s assertion in its Motion to Dismiss that it was immune
from Petitioners’ claims pursuant to Tort Claims Act.
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For these reasons, I believe the circuit court was correct in dismissing
Petitioners’ Complaint in its entirety. Accordingly, I concur in the majority’s opinion
insofar as it finds that the Petitioner does not assign error in the circuit court’s dismissal of
all claims other than those raised in Counts 5 and 6, and that such other Counts are not
presently before us. I further concur with the majority’s finding affirming the circuit
court’s dismissal of the negligent hiring and negligent supervision claims asserted in Count
6. I respectfully dissent as to the majority’s decision to reverse the circuit court’s order
dismissing Count 5 of Petitioners’ Complaint, and further dissent as to the majority’s
decision reversing the circuit court’s dismissal of Petitioners’ negligent retention claim in
Count 6 and ordering reinstatement of such claims.
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