Dreama Bowden, Administratrix v. Monroe County Commission , 232 W. Va. 47 ( 2013 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2013 Term
FILED
September 27, 2013
released at 3:00 p.m.
No. 12-0614 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
DREAMA BOWDEN, as Administratrix of the
Estate of Lowell Bowden,
Plaintiff Below, Petitioner
v.
MONROE COUNTY COMMISSION, a political subdivision and
PATRICIA GREEN, individually and in her official capacity,
Defendants Below, Respondents
Appeal from the Circuit Court of Monroe County
The Honorable Robert A. Irons, Judge
Civil Action No. 11-C-18
REVERSED AND REMANDED
Submitted: September 4, 2013
Filed: September 27, 2013
Travis A. Griffith, Esq. Wendy E. Greve, Esq.
OLIVIO & GRIFFITH, PLLC PULLIN, FOWLER, FLANAGAN,
Charleston, West Virginia BROWN & POE, PLLC
Attorney for Petitioner Charleston, West Virginia
Attorney for Respondents
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. “Appellate review of a circuit court's order granting a motion to
dismiss a complaint is de novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan
Pontiac–Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).
2. “On appeal of a dismissal based on granting a motion pursuant to
West Virginia Rules of Civil Procedure 12(b)(6), the allegations of the complaint must be
taken as true.” Syl. Pt. 1, Wiggins v. Eastern Associated Coal Corp., 178 W. Va. 63, 357
S.E.2d 745 (1987).
3. “The 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).
4. “W. Va. Code, 29-12A-5(a)(5) [1986], which provides, in relevant
part, that a political subdivision is immune from tort liability for “the failure to provide,
or the method of providing, police, law enforcement or fire protection[,]” is coextensive
with the common-law rule not recognizing a cause of action for the breach of a general
duty to provide, or the method of providing, such protection owed to the public as a
whole. Lacking a clear expression to the contrary, that statute incorporates the common-
i
law special duty rule and does not immunize a breach of a special duty to provide, or the
method of providing, such protection to a particular individual.” Syl. Pt. 8, Randall v.
Fairmont City Police Dept., 186 W.Va. 336, 412 S.E.2d 737 (1991).
5. “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).
6. “The question of whether a special duty arises to protect an
individual from a local governmental entity’s negligence in the performance of a
nondiscretionary . . . function is ordinarily a question of fact for the trier of the facts.”
Syl. Pt. 3, in part, Wolfe v. City of Wheeling, 182 W.Va. 253, 387 S.E.2d 307 (1989).
7. “The purpose of the words ‘and leave [to amend] shall be freely
given when justice so requires’ in Rule 15(a) W. Va. R. Civ. P., is to secure an
adjudication on the merits of the controversy as would be secured under identical factual
ii
situations in the absence of procedural impediments; therefore, motions to amend should
always be granted under Rule 15 when: (1) the amendment permits the presentation of
the merits of the action; (2) the adverse party is not prejudiced by the sudden assertion of
the subject of the amendment; and (3) the adverse party can be given ample opportunity
to meet the issue.” Syl. Pt. 3, Rosier v. Garron, Inc., 156 W.Va. 861, 199 S.E.2d 50(1973), overruled on other grounds by Bradshaw v. Soulsby, 210 W. Va. 682, 558 S.E.2d
681 (2001).
iii
Per Curiam:
Petitioner/plaintiff below, Dreama Bowden, Administratrix of the Estate of
Lowell Bowden (hereinafter “petitioner”), appeals the Circuit Court of Monroe County’s
March 29, 2012, order dismissing the case pursuant to West Virginia Rule of Civil
Procedure 12(b)(6) as against respondents/defendants below, Monroe County
Commission and Patricia Green, individually and in her official capacity (hereinafter
“respondents”). Respondents moved to dismiss the subject complaint on the basis of
various statutory immunities set forth in West Virginia Code §§ 29-12A-4 and -5 (1986).
In response, petitioner asserted that she had sufficiently alleged facts to survive a
W.V.R.C.P. 12(b)(6) motion, which were not subject to the immunities identified by
respondents and, in the alternative, that she could allege facts sufficient to establish the
“special relationship” exception to the public duty doctrine, subject to the circuit court
granting leave to amend her complaint. Upon careful review of the briefs, the appendix
record, the arguments of the parties, and the applicable legal authority, we find that the
circuit court erred in dismissing petitioner’s case and failing to grant her motion to amend
the subject complaint; therefore, we reverse the order of the circuit court and remand the
case for further proceedings.
I. FACTS AND PROCEDURAL HISTORY
On November 27, 2009, petitioner’s decedent, Lowell Bowden
(hereinafter “Mr. Bowden”), was taking his customary walk along Broyles Cemetery
1
Road near Landside, West Virginia, when he was attacked by several American Pit Bull
Terriers (hereinafter “pit bulls”) owned by Justin Blankenship, Anna Hughes, and Mose
Christian, who lived together in a home owned by Justin’s mother, Kim Blankenship.
Mr. Bowden was maimed beyond recognition and ultimately died as a result of his
injuries. Petitioner alleges that “numerous” members of the community had previously
complained to respondent Patricia Green, the Monroe County dog warden (hereinafter
“Ms. Green”), about the pit bulls running loose and attacking or biting people. Petitioner
alleges that three weeks prior to the attack on Mr. Bowden, Ms. Green issued a citation to
Justin Blankenship for harboring vicious dogs, but did not seize and impound the subject
animals for lack of registration/payment of property taxes, as required by statute. 1
Although not set forth in her original complaint, petitioner sought amendment of her
complaint to further allege that she personally contacted Ms. Green to complain about the
pit bulls and that Ms. Green personally came to her home and assured her that she would
“take care of” the pit bulls.
Petitioner filed the subject action against respondents, as well as Justin
Blankenship, Anna Hughes, Mose Christian, Kim Blankenship, and American Modern
Insurance Company.2 Respondent Patricia Green was sued both individually and in her
1
Justin Blankenship pled guilty to nine misdemeanors arising out of this incident,
including involuntary manslaughter. Kim Blankenship was acquitted of charges against
her.
2
American Modern Insurance Company was the homeowners’ insurer of Kim
Blankenship. Default judgment was entered against Mose Christian, Anna Hughes, and
2
official capacity as dog warden. As to the respondents, petitioner alleged that they 1)
failed to impose and collect personal property tax on the pit bulls as required by West
Virginia Code § 19-20-2 (1998); 2) failed to impound the dogs due to non-payment of
taxes as required by West Virginia Code §§ 19-20-2 and 19-20-6 (1982); 3) failed to
impound the dogs for not having proper registration as required by West Virginia Code §
19-20-6; and 4) failed to impound and/or destroy the dogs for being vicious pursuant to
West Virginia Code § 19-20-20 (1981). Petitioner also alleged, more generally and
broadly, that respondents were negligent in performance of their statutory duties pursuant
to West Virginia Code § 19-20-1 et seq. Finally, Ms. Green was named individually in
the event that her acts would be found to be outside the scope of her employment or
willful, wanton, and reckless, which would strip her of immunity pursuant to West
Virginia Code § 29-12A-5(b)(1) and (2).
Respondents moved to dismiss the complaint pursuant to W.V.R.C.P.
12(b)(6), asserting the public duty doctrine, as expressed in West Virginia Code § 29­
12A-5(a)(5), and the specific statutory immunities provided in West Virginia Code §§
29-12A-5(a)(8) - (10) regarding taxation, licensing, and inspection functions. Petitioner
responded, asserting the “special relationship” exception to the public duty doctrine.
Significantly, petitioner also moved to amend her complaint to specifically incorporate
additional allegations of fact in support of the exception as indicated above, i.e. that the
Justin Blankenship. Justin Blankenship later appeared, by counsel, and a settlement was
reached with the Blankenships and American Modern.
3
dog warden came to her home and told her and Mr. Bowden that she would “take care of”
the pit bulls. Before ruling on the motion to amend, however, and without identifying the
specific basis of its ruling,3 the circuit court granted the motion to dismiss, which ruling
petitioner now appeals.4
II. STANDARD OF REVIEW
“Appellate review of a circuit court's order granting a motion to dismiss a
complaint is de novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac–Buick,
Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995). Moreover, “[o]n appeal of a dismissal
based on granting a motion pursuant to West Virginia Rules of Civil Procedure 12(b)(6),
the allegations of the complaint must be taken as true.” Syl. Pt. 1, Wiggins v. Eastern
Associated Coal Corp., 178 W. Va. 63, 357 S.E.2d 745 (1987). Finally, “[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 Company, Inc., 160 W. Va. 530, 236 S.E.2d 207 (1977) (citation omitted)
3
In its order, the circuit court reiterated the various immunities advanced by
respondent in its order, but did not make findings or specify upon which particular basis
it was dismissing the complaint.
4
At or around the time the court entered the order dismissing the case, Kim
Blankenship, Justin Blankenship, and American Modern settled with petitioner, leaving
the case active only as against the defaulted defendants Mose Christian and Anna
Hughes. Since this aspect of the case was technically still pending, petitioner’s counsel
requested the circuit court to indicate that the order granting respondents’ motion to
dismiss was a final, appealable order pursuant to W.V.R.C.P. 54. Respondents do not
assert before this Court that the order was not final and appealable.
4
(emphasis added); see also Dimon v. Mansy, 198 W.Va. 40, 47-8 n.5, 479 S.E.2d 339,
346-47 n.5 (1996) (“[T]he singular purpose of a Rule 12(b)(6) motion is to seek a
determination whether the plaintiff is entitled to offer evidence to support the claims
made in the complaint.”). With these standards in mind, we will address the parties’
arguments.
III. DISCUSSION
Petitioner asserts four separate assignments of error, which are largely
redundant, and will therefore be combined into two.5 In sum, petitioner asserts that the
circuit court erred in finding that the respondents were statutorily immune from liability
for the allegations set forth in her complaint and that the circuit court erred in failing to
rule on the pending motion to amend the subject complaint before dismissing the action.
We agree on both counts and further find that the latter error occasioned the first.
The immunity of political subdivisions and their employees, such as the
Monroe County Commission and Ms. Green, is governed exclusively by the West
Virginia Tort Claims and Insurance Reform Act set forth in West Virginia Code § 29­
12A-1 et seq. (commonly referred to as the “Tort Claims Act”). West Virginia Code §
5
See Evans v. Holt, 193 W. Va. 578 n.2, 457 S.E.2d 515 n.2 (1995) (consolidating
redundant assignments of error); Robertson v. B. A. Mullican Lumber & Mfg. Co, L. P.,
208 W. Va. 1 n.1, 537 S.E.2d 317 n.1 (2000) (combining five errors into two); Tudor’s
Biscuit World of America v. Critchley, 229 W.Va. 396, 402, 729 S.E.2d 231, 237 (2012)
(combining six errors into two categories).
5
29-12A-4(b) establishes the baseline principle that a political subdivision is not liable for
“governmental or proprietary function[s]” except as set forth in subsection (c).
Subsection (c) sets forth five general categories of negligence-based acts or functions for
which a political subdivision is not entitled to immunity and may be held liable including
specifically, “negligent performance of acts by [] employees while acting within the
scope of employment.” W. Va. Code § 29-12A-4(c)(2). Irrespective of whether a case
falls into one of the five categories set forth in subsection (c), stripping the political
subdivision of its general immunity, the Tort Claims Act goes on to enumerate seventeen
categories of specific functions for which a political subdivision is nonetheless still
immune. W. Va. Code § 29-12A-5(a)(1) – (17). Respondents assert that for purposes of
the allegations contained in the subject complaint, four specific immunities are
implicated, as follows:
A political subdivision is immune from liability if a
loss or claim results from:
***
(5) Civil disobedience, riot, insurrection or rebellion or the
failure to provide, or the method of providing, police, law
enforcement or fire protection;
***
(8) Assessment or collection of taxes lawfully imposed or
special assessments, license or registration fees or other fees
or charges imposed by law;
(9) Licensing powers or functions including, but not limited
to, the issuance, denial, suspension or revocation of or failure
or refusal to issue, deny, suspend or revoke any permit,
license, certificate, approval, order or similar authority;
6
(10) Inspection powers or functions, including failure to make
an inspection, or making an inadequate inspection, of any
property, real or personal, to determine whether the property
complies with or violates any law or contains a hazard to
health or safety;
W. Va. Code § 29-12A-5(a)(5), (8) - (10).
Petitioner claims that her case involves the negligence of a government
official, liability for which is expressly countenanced in West Virginia Code § 29-12A­
4(c)(2), supra. However, petitioner also appears to implicitly concede that, on its face,
her original complaint falls into one of the seventeen enumerated immunities set forth in
West Virginia Code § 29-12A-5(a). In particular, she argues that she has alleged a failure
to provide law enforcement as described in West Virginia Code § 29-12A-5(a)(5), which
both parties agree provides immunity for a breach of a duty owed to the general public.
Critically, however, petitioner maintains that her proposed amendment to the complaint
would have alleged facts sufficient to establish the “special relationship” exception to the
public duty doctrine.
Respondents, on the other hand, contend that the main thrust of the case, as
pled in the original complaint, involves taxation, licensing, and inspection functions for
which they have immunity pursuant to West Virginia Code § 29-12A-5(a)(8) through
(10). With respect to the immunity for “failure to provide law enforcement” contained in
West Virginia Code § 29-12A-5(a)(5), respondents argue simply that the bare allegations
contained in the original complaint do not sufficiently allege the “special relationship”
7
exception, that any post-hoc attempt to rehabilitate the complaint is “opportune” at best,
and that an amendment would have proven futile.
We first address petitioner’s claim for respondents’ failure to provide law
enforcement. This Court has held that West Virginia Code § 29-12A-5(a)(5) is the
codification of the common law “public duty doctrine” as pertains to political
subdivisions and is therefore subject to the “special relationship” exception:
W. Va. Code, 29-12A-5(a)(5) [1986], which provides, in
relevant part, that a political subdivision is immune from tort
liability for “the failure to provide, or the method of
providing, police, law enforcement or fire protection[,]” is
coextensive with the common-law rule not recognizing a
cause of action for the breach of a general duty to provide, or
the method of providing, such protection owed to the public
as a whole. Lacking a clear expression to the contrary, that
statute incorporates the common-law special duty rule and
does not immunize a breach of a special duty to provide, or
the method of providing, such protection to a particular
individual.
Syl. Pt. 8, Randall v. Fairmont City Police Dept., 186 W.Va. 336, 412 S.E.2d 737 (1991).
With respect to the “special relationship” or “special duty” exception, this Court has held
that
[t]o 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
8
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). Moreover,
“[t]he question of whether a special duty arises to protect an individual from a local
governmental entity’s negligence in the performance of a nondiscretionary . . . function is
ordinarily a question of fact for the trier of the facts.” Syl. Pt. 3, in part, Wolfe.
As previously noted, subsequent to the filing of respondents’ motion to
dismiss, petitioner moved to amend her complaint to allege that Ms. Green came to her
house and specifically assured her and her decedent that she was going to “take care of”
the subject pit bulls.6 However, when petitioner’s counsel appeared at the hearing on
petitioner’s motion to amend the complaint to include these additional facts, he was
provided with a copy of the circuit court’s order granting respondents’ motion to dismiss,
which had been entered four days earlier. Petitioner therefore maintains that the circuit
court erred in failing to first rule on the motion to amend prior to dismissing the
complaint, which would allow her to survive a W.V.R.C.P. 12(b)(6) motion based on
immunity. Petitioner maintains that W.V.R.C.P. 15 required the circuit court to permit
the amendment. To that end, this Court has held:
6
In addition to these newly-alleged facts, petitioner’s proposed amended complaint
made minor wording/stylistic changes for clarity. Respondents obtusely maintain that the
amended complaint proposed only to “add negligence claims that would have been
futile,” inexplicably failing to dignify the significant factual additions in support of the
“special relationship” exception clearly set forth in the proposed “First Amended
Complaint.”
9
The purpose of the words “and leave [to amend] shall be
freely given when justice so requires” in Rule 15(a) W. Va.
R. Civ. P., is to secure an adjudication on the merits of the
controversy as would be secured under identical factual
situations in the absence of procedural impediments;
therefore, motions to amend should always be granted under
Rule 15 when: (1) the amendment permits the presentation of
the merits of the action; (2) the adverse party is not prejudiced
by the sudden assertion of the subject of the amendment; and
(3) the adverse party can be given ample opportunity to meet
the issue.
Syl. Pt. 3, Rosier v. Garron, Inc., 156 W.Va. 861, 199 S.E.2d 50 (1973), overruled on
other grounds by Bradshaw v. Soulsby, 210 W. Va. 682, 558 S.E.2d 681 (2001).
Petitioner argues that no scheduling order had been entered and only minimal written
discovery had occurred; therefore, respondents would in no way be prejudiced by the
amendment. Respondents, characterizing the proposed amendment as “suspicious,” but
without demonstrable evidence, summarily contend they would be “overly prejudice[d]”
by the amendment.
As this Court has previously noted, motions to dismiss under Rule 12(b)(6)
are “viewed with disfavor and [should be] rarely granted.” John W. Lodge Distributing
Co., Inc. v. Texaco, Inc., 161 W.Va. 603, 606, 245 S.E.2d 157, 159 (1978). More
specifically, “[t]he trial court should not dismiss a complaint merely because it doubts
that the plaintiff will prevail in the action, and whether the plaintiff can prevail is a matter
properly determined on the basis of proof and not merely on the pleadings.” Id. (citing
Wright & Miller, Federal Practice and Procedure: Civil § 1216 (1969). In light of
W.V.R.C.P. 15(a)’s liberal construction and the fact that the allegations contained in
10
petitioner’s proposed amendment are clearly sufficient to survive dismissal under
W.V.R.C.P. 12(b)(6) by alleging an exception to the immunity provided in West Virginia
Code § 29-12A-5(a)(5), we agree that the circuit court erred in granting respondents’
motion to dismiss and in failing to grant petitioner’s pending motion to amend. We can
perceive no prejudice to respondents in permitting the amendment; certainly petitioner
alleged facts sufficient to entitle her to conduct additional discovery and develop the
evidence.7
Petitioner unquestionably sought to allege facts pursuant to her amendment
which may potentially draw her action outside of the ambit of statutory immunity—for
both the Monroe County Commission and Ms. Green. While employees of political
subdivisions are generally immune for their negligence as provided by West Virginia
Code § 29-12A-5(b), the complaint alleges, alternatively, that Ms. Green acted in a
manner that was “willful, wanton and/or [with] reckless disregard.” Such allegations are
sufficient to allege an absence of immunity as to Ms. Green personally under West
Virginia Code § 29-12A-5(b)(2), which strips an employee of immunity if the
employee’s acts or omissions “were with malicious purpose, in bad faith, or in a wanton
or reckless manner[.]”
7
Of course, respondents are likewise entitled to move for summary judgment on
the basis of statutory immunity at the close of discovery, at which point the circuit court
may make a more informed determination as to the applicability of immunity upon a fully
developed record.
11
Respondents argue, alternatively, that the immunities for taxation,
licensing, and inspection functions contained in West Virginia Code § 29-12A-5(a)(8)
through (10) essentially “subsumed” any actionable aspect of petitioner’s case. We
disagree. Without question, the complaint references specifically the statutory licensing,
registration, and taxation functions of counties and their dog wardens, as well as the
respondents’ failures to fulfill their duties in that regard.8 However, on their face, fairly
8
West Virginia Code § 19-20-1 et seq. governs registration/taxation/control and
management of dogs and cats. West Virginia Code § 19-20-2 requires the assessor to
assess and collect a dog tax; if the tax is not paid, the assessor must certify the tax to the
dog warden. If the tax is certified to the dog warden, he or she “shall take charge of the
dog for which the tax is delinquent and impound the same” for 15 days. Id. (emphasis
added). At the end of 15 days, the dog may be sold or killed. Id. Contemporaneously
with assessing the head tax, the assessor must require registration of the dog.
West Virginia Code § 19-20-6 sets forth the particular duties of the dog warden.
The dog warden’s duties are to “enforce the provisions of this code with respect to the
control and registration of dogs, the impounding, care and destruction of unlicensed
dogs.” W. Va. Code § 19-20-6(a). This section further states that the dog warden “shall
patrol the county in which they are appointed and shall seize on sight and impound any
dog more than six months of age found not wearing a valid registration tag . . . . They
shall be responsible for the proper care and final disposition of all impounded dogs.” Id.(emphasis added). If a dog is seized, the dog warden must give notice to the owner that
the dog will be “sold or destroyed if not redeemed within five days.” Id.Respondents curiously contend that they do not have any statutory authority to
seize and impound dogs. That is clearly incorrect, as West Virginia Code §§ 19-20-2 and
-6 both provide authority to seize, impound, and sell or destroy tax delinquent dogs and
unregistered dogs, respectively.
Critically, however, we note that this Code section gives significant leeway to the
counties to establish rules and regulations to control and manage the dogs in the county:
Any county commission may promulgate and enforce such
ordinances, rules and regulations, not inconsistent with the
provisions of this article, as it considers necessary or
convenient for the control and management of all dogs in the
12
read, these allegations would appear to simply describe circumstances giving rise to the
the “law enforcement” functions which petitioner claims the respondents negligently
failed to provide.
More importantly, none of the allegations pertaining to these functions,
based upon the necessarily limited record before us, appear to conform to the type of
immunity granted in these statutes. First, petitioner does not allege that her decedent’s
death arises out of the “[a]ssessment or collection of taxes . . . special assessments,
license or registration fees or other fees or charges imposed by law[.]” Rather, she
alleges that defendants failed to impose the statutory penalty of impoundment as a result
county . . . [p]rovided, that the county commissions may
promulgate and enforce such ordinances, rules and
regulations to the extent necessary for the implementation of
the provisions contained in this article.
W. Va. Code § 19-20-6(b) (emphasis added). More importantly for purposes of this case,
West Virginia Code § 19-20-19a provides that the county commission “may, at its
discretion, empower county dog wardens and deputy dog wardens to issue citations for
violation of provisions of this article.” Petitioner alleges that Ms. Green cited Justin
Blankenship for harboring vicious dogs three weeks prior to the attack and is critical of
Ms. Green for not impounding the dog for being unregistered pursuant to West Virginia
Code § 19-20-6(a), supra. However, the prohibition on keeping vicious dogs as set forth
in West Virginia Code § 19-20-20 makes no requirement of the dog warden to seize and
impound such a dog; rather, it provides that “[u]pon satisfactory proof before a circuit
court or magistrate that such dog is vicious, dangerous, or in the habit of biting or
attacking other persons or other dogs or animals, the judge may authorize the humane
officer to cause such dog to be killed.”
These statutes merely underscore the lack of critical discovery in this matter.
Significant issues regarding whether Ms. Green negligently performed her duties can
only be determined after further discovery on the county’s rules and regulations for
control and management of dogs.
13
of the dog owners’ failure to pay taxes on and register their dogs, i.e. respondents failed
to enforce these laws. Next, with respect to licensing immunity, this Court has held that
this immunity concerns injuries that are “caused by the conduct of a private party who
obtains a permit or license for that conduct from the political subdivision.” McCormick
v. Walmart Stores, Inc., 215 W. Va. 679, 684, 600 S.E.2d 576, 581 (2004). Petitioner’s
claim centers around the dog owners’ failure to obtain a proper dog license and the
respondents’ negligent failure to enforce penalties for such failure by impounding the
dogs. Finally, petitioner does not allege that respondents “fail[ed] to make an inspection,
or ma[de] an inadequate inspection, of any property, real or personal, to determine
whether the property complies with or violates any law or contains a hazard to health or
safety.” Rather, she alleges the opposite—that respondents inspected the pit bulls and
found that they were not properly registered and then failed to impound the dogs as
required by statute. As such, based on the bare allegations in the complaint, we do not
find these particular immunities sufficient to warrant dismissal of petitioner’s complaint
pursuant to W.V.R.C.P. 12(b)(6).
This Court has historically read these enumerated immunities in a very
limited fashion. See Randall, 186 W. Va. at 347, 412 S.E.2d at 748 (applying “general
rule of construction in governmental tort legislation cases favoring liability, not
immunity: unless the legislature has clearly provided for immunity . . . the general
common-law goal of compensating injured parties for damages caused by negligent acts
must prevail[]” (emphasis added)); see also Hose v. Berkeley Co. Planning Comm’n, 194
14
W. Va. 515, 522, 460 S.E.2d 761, 768 (1995) (same). There is nothing in the bare
complaint or amended complaint with which we are presented which would lead this
Court to construe them as broadly as respondents urge. At a minimum, further discovery
is necessary to determine precisely what the county policies were with regard to taxation,
licensing, and registration and whether Ms. Green failed in any of her ministerial duties
in that regard.
Accordingly, we find that the circuit court erred in granting respondents’
motion to dismiss on the basis of the statutory immunities contained in West Virginia
Code § 29-12A-1 et seq. and further erred in failing to grant petitioner’s motion to amend
her complaint.
IV. CONCLUSION
For the foregoing reasons, the March 29, 2012, order of the Circuit Court of
Monroe County is reversed and we remand for further proceedings.
Reversed and remanded.
15