eCases

(1996).
4.    “In cases arising under W. Va. Code § 29-12-5, and in the absence
of express provisions of the insurance contract to the contrary, the immunity of the State
is coterminous with the qualified immunity of a public executive official whose acts or
omissions give rise to the case. However, on occasion, the State will be entitled to
immunity when the official is not entitled to the same immunity; in others, the official
i
will be entitled to immunity when the State is not. The existence of the [] immunity of
the State must be determined on a case-by-case basis.” Syl. Pt. 9, Parkulo v. W. Va. Bd.
of Probation and Parole,

199 W. Va. 161

483 S.E.2d 507

(1996).
5.     “A public executive official who is acting within the scope of his
authority and is not covered by the provisions of W. Va. Code 29-12A-1, et seq. [the
West Virginia Governmental Tort Claims and Insurance Reform Act], 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. There
is no immunity for an executive official whose acts are fraudulent, malicious, or
otherwise oppressive.” Syllabus, in part, State v. Chase Securities, Inc.,

188 W. Va. 356

(1992).
6.     “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.” Syl. Pt. 4, Clark
v. Dunn,

195 W. Va. 272

(1995).
7.    “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
ii
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 judgments, decisions, and actions of the officer.” Syl. Pt. 6, Clark v. Dunn,
195 W.Va. 272,

(1995).
8.     “Unless the applicable insurance policy otherwise expressly
provides, a State agency or instrumentality, as an entity, is immune under common-law
principles from tort liability in W. Va. Code § 29-12-5 actions for acts or omissions in the
exercise of a legislative or judicial function and for the exercise of an administrative
function involving the determination of fundamental governmental policy.” Syl. Pt. 6,
Parkulo v. W. Va. Bd. of Probation and Parole,

199 W. Va. 161

483 S.E.2d 507

(1996).
9.     “The common-law immunity of the State in suits brought under the
authority of W. Va. Code § 29-12-5 (1996) with respect to judicial, legislative, and
executive (or administrative) policy-making acts and omissions is absolute and extends to
the judicial, legislative, and executive (or administrative) official when performing those
functions.” Syl. Pt. 7, Parkulo v. W. Va. Bd. of Probation and Parole,

199 W. Va. 161

483 S.E.2d 507

(1996).
10.    To determine whether the State, its agencies, officials, and/or
employees are entitled to immunity, a reviewing court must first identify the nature of the
iii
governmental acts or omissions which give rise to the suit for purposes of determining
whether such acts or omissions constitute legislative, judicial, executive or administrative
policy-making acts or involve otherwise discretionary governmental functions. To the
extent that the cause of action arises from judicial, legislative, executive or administrative
policy-making acts or omissions, both the State and the official involved are absolutely
immune pursuant to Syl. Pt. 7 of Parkulo v. W. Va. Bd. of Probation and Parole, 199 W.
Va. 161,

483 S.E.2d 507

(1996).
11.    To the extent that governmental acts or omissions which give rise to
a cause of action fall within the category of discretionary functions, a reviewing court
must determine whether the plaintiff has demonstrated that such 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 fraudulent, malicious, or
oppressive in accordance with State v. Chase Securities, Inc.,

188 W. Va. 356

(1992). In absence of such a showing, both the State and its officials or
employees charged with such acts or omissions are immune from liability.
12.    If the plaintiff identifies a clearly established right or law which has
been violated by the acts or omissions of the State, its agencies, officials, or employees,
or can otherwise identify fraudulent, malicious, or oppressive acts committed by such
official or employee, the court must determine whether such acts or omissions were
within the scope of the public official or employee’s duties, authority, and/or
iv
employment. To the extent that such official or employee is determined to have been
acting outside of the scope of his duties, authority, and/or employment, the State and/or
its agencies are immune from liability, but the public employee or official is not entitled
to immunity in accordance with State v. Chase Securities, Inc.,

188 W. Va. 356

(1992) and its progeny. If the public official or employee was acting within
the scope of his duties, authority, and/or employment, the State and/or its agencies may
be held liable for such acts or omissions under the doctrine of respondeat superior along
with the public official or employee.
v
WORKMAN, Justice:
The West Virginia Regional Jail and Correctional Facility Authority
(hereinafter “the WVRJCFA”) appeals the December 3, 2012, order of the Circuit Court
of Kanawha County denying its motion for summary judgment on qualified immunity
grounds. The circuit court found that the WVRJCFA was not entitled to qualified
immunity because 1) disputed issues of material fact precluded a determination as to
whether the WVRJCFA is vicariously liable for the alleged sexual assaults committed by
its employee; and 2) respondent’s claims of negligent supervision, training, and retention
do not encompass discretionary decisions in the administration of fundamental
government policy. Upon careful review of the briefs, the appendix record, the
arguments of the parties, and the applicable legal authority, we find that the WVRJCFA
is entitled to qualified immunity; therefore, we reverse the order of the circuit court and
remand the case for entry of an order granting summary judgment and dismissing the
action against it.
I. FACTS AND PROCEDURAL HISTORY
Respondent/plaintiff below, A. B. (hereinafter “respondent”), was
convicted in 2006 of two counts of third degree sexual assault for having intercourse with
her boyfriend’s fourteen-year-old son; she was sentenced to one to five years for each
count, to run consecutively. Respondent was paroled in August 2008, but violated her
parole and was reconfined. She was booked into the Southern Regional Jail in
1
September, 2009. Respondent alleges that beginning in October, 2009 while housed at
the Southern Regional Jail, she was vaginally and orally raped seventeen times by
Correctional Officer D. H. (non-participant in this appeal),1 who denies all allegations of
sexual contact with respondent. Shortly after respondent claims the alleged sexual
assaults commenced, on November 2, 2009, D. H. filed an incident report against
respondent indicating that she had improperly propositioned him, asking if he would be
willing to “trade a favor for a favor” in exchange for “anything.”
On November 23, 2009, a fellow inmate in transit to a court hearing
advised Sgt. Michael Francis and Correctional Officer Brian Ewing that respondent and
others had assaulted her in the pod, resulting in a black eye; she further advised that
respondent and Correctional Officer D. H. were having a sexual relationship. Sgt.
Francis and C. O. Ewing each filed incident reports with their superior, Lt. Bunting. Lt.
Bunting convened a meeting between Sgt. Francis, C. O. Ewing, and D. H., to advise D.
H. of the allegations. C. O. Ewing testified in his deposition that D. H. responded to the
allegations with “a snicker, you know, like, you know I can’t believe that” and that
Francis responded, “I knew when I heard it was your name, it wasn’t you.” No further
investigation was conducted and respondent was never questioned about the allegations
of sexual contact between her and D. H. It is undisputed that respondent never reported
1
D. H. does not assert that he is entitled to qualified immunity.
2
any inappropriate conduct by D. H. Respondent remained at the Southern Regional Jail
until April, 2010, when she was transferred to Lakin Correctional Center.
Respondent filed suit against D. H. 2 and the WVRJCFA alleging 1)
violation of 42 U.S.C. §1983 3 and the West Virginia Governmental Tort Claims and
Insurance Reform Act against D. H.; 2) intentional infliction of emotional distress against
D. H.; 3) invasion of privacy against all defendants; 4) negligent hiring, retention,
supervision, staffing, and training against the WVRJCFA; 5) a variety of common law
intentional torts against D. H.; and 6) civil conspiracy between the defendants. The
complaint expressly asserted that it was making no claims against the WVRJCFA under
Section 1983 or for intentional infliction of emotional distress. During the pendency of
the matter, respondent agreed to voluntarily dismiss her claims against the WVRJCFA
2
Respondent also named a “John Doe” employee of the WVRJCFA, who
“negligently allowed” the conduct of D. H. John Doe was dismissed by agreement of the
parties.
3
42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law . . .
.
In short, “[t]o state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law.” West v. Atkins,

487 U.S. 42

, 48 (1988).
3
for negligent hiring, invasion of privacy, violation of the Tort Claims Act, all West
Virginia Constitutional violations, and any Section 1983 claims (which were expressly
not pled in the complaint in the first instance), leaving only the negligent supervision,
training, and retention “direct” claims against the WVRJCFA.4
At the close of discovery, the WVRJCFA moved for summary judgment on
the basis of qualified immunity, arguing 1) that it could not be held vicariously liable for
the intentional, illegal acts of its employee and respondent had not demonstrated a
“clearly established” right which the WVRJCFA violated; and 2) respondent’s negligence
claims were barred because they involved the discretionary decisions involving the
administration of a fundamental government policy. Respondent contended that 1) the
WVRJCFA was vicariously liable for the acts of D. H. because the sexual assaults were
within the scope of his employment; 2) the WVRJCFA, through its employee, violated
West Virginia Code § 61-8B-105 and the federal Prison Rape Elimination Act of 2003;6
4
Although not expressly dismissed, no further mention of the negligent staffing
and civil conspiracy claims was made in the pleadings below. At a minimum, no
evidence beyond mere allegations was adduced on these claims.
5
West Virginia Code § 61-8B-10(a) provides, in pertinent part, that
Any person employed by . . . a jail or by the Regional Jail
and Correctional Facility Authority . . . who engages in sexual
intercourse, sexual intrusion or sexual contact with a person
who is incarcerated in this state is guilty of a felony and, upon
conviction thereof, shall be confined in a state correctional
facility under the control of the Commissioner of Corrections
(continued . . .)
4
and 3) the allegedly negligent acts of the WVRJCFA were neither “administrative” nor
involved “fundamental governmental policy.” The circuit court agreed with respondent
and denied summary judgment. The circuit court’s order specifically found that 1)
disputed issues of material fact precluded a determination as to whether the WVRJCFA
was vicariously liable for the alleged sexual assaults committed by its employee; and 2)
respondent’s claims of negligent supervision, training, and retention do not encompass
“discretionary decisions in the administration of fundamental government policy.” This
appeal followed.
II. STANDARD OF REVIEW
It is well-established that “[t]his Court reviews de novo the denial of a
motion for summary judgment, where such a ruling is properly reviewable by this Court.”
Syl. Pt. 1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80,

576 S.E.2d 807

(2002). Moreover, “[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.” Syl. Pt. 2, Robinson v. Pack,

223 W. Va. 828

679 S.E.2d 660

(2009).      This review, however, is guided by the following principle regarding
qualified immunity:
for not less than one nor more than five years or fined not
more than $5,000.
6
42 U.S.C. § 15601 et seq. (hereinafter “PREA”).
5
[t]he ultimate determination of whether qualified or statutory
immunity bars a civil action is one of law for the court to
determine. Therefore, unless there is a bona fide dispute as to
the foundational or historical facts that underlie the immunity
determination, the ultimate questions of statutory or qualified
immunity are ripe for summary disposition.
Syl. Pt. 1, Hutchison v. City of Huntington,

198 W. Va. 139

(1996).
With these standards in mind, we proceed to the parties’ arguments.
III. DISCUSSION
The WVRJCFA assigns as error the circuit court’s determination that 1) the
WVRJCFA is vicariously liable for the allegedly intentional, criminal acts of its
employee, D. H.; and 2) employee supervision, training, and retention are not
discretionary functions subject to immunity.
A.
Immunity and the Vicarious Liability of the State and Its Agencies
In the instant case, the WVRJCFA argues that it is not vicariously liable for
the alleged acts of its employee, D. H., because the sexual assaults alleged herein were
outside the scope of his duties as a correctional officer and therefore, it is entitled to
immunity. Respondent, on the other hand, suggests that the following portion of Syllabus
Point 9 of Parkulo v. W. Va. Bd. of Probation and Parole,

199 W. Va. 161

483 S.E.2d 507

(1996), settles the issue: “[T]he immunity of the State is coterminous with the
qualified immunity of a public executive official whose acts or omissions give rise to the
case.” Respondent contends, in essence, that this passage from Parkulo establishes a rote
6
respondeat superior liability for the State and its agencies since the State’s immunity is
“coterminous” with that of the public official whose acts give rise to the case. In other
words, respondent contends that where the official has no immunity (as in the instant
case), the State likewise has no immunity. Respondent argues, in the alternative, since
the sexual assaults allegedly occurred while D. H. was on-duty and abetted by his
position as a correctional officer, such acts were within the scope of his employment.
The circuit court, relying primarily on common-law master-servant
principles, found that a jury question existed as to whether D. H. was acting within the
scope of his employment. In so finding, the court relied on a case from the Eastern
District of Virginia, Heckenlaible v. Va. Peninsula Regional Jail Authority, 491 F.
Supp.2d 544 (E.D. Va. 2007), which held that because a correctional officer was required
to look at an inmate unclothed while she showered, his employment put him a particular
position to commit the alleged sexual assault; therefore, a jury could reasonably conclude
that he was within the scope of his employment.7
1.     The “Coterminous” Immunity of the State and its officials or employees
We begin our analysis by addressing respondent’s position that Syllabus
Point 9 of Parkulo stands for the proposition that where a State employee is not entitled
7
However, we note that there was no discussion of the issue of qualified immunity
in that case because Virginia expressly allows actions against the State for the negligence
of its employees committed within the scope of their employment pursuant to its State
Tort Claims Act. Va. Code Ann. § 8.01-195.3 (2007).
7
to qualified immunity, the State is likewise not immune. In point of fact, it is precisely
the remainder of this syllabus point which militates squarely against respondent’s
position:
. . . However, on occasion, the State will be entitled to
immunity when the official is not entitled to the same
immunity; in others, the official will be entitled to immunity
when the State is not. The existence of the [] immunity of the
State must be determined on a case-by-case basis.
Syl. Pt. 9, in part, Parkulo. See also Restatement (Second) of Torts § 895B cmt. h (1979)
(“The existence of immunity on the part of the State or its agencies does not necessarily
imply immunity on the part of its public officers, or vice versa.”). In fact, Parkulo further
specifically notes that “the vicarious liability of the State for its officer’s conduct is not to
be presumed merely from the absence of qualified immunity to protect the public
executive official from personal liability for that

conduct.” 199 W. Va. at 177

, 483
S.E.2d at 523. As such, it is clear in our jurisprudence that the immunity of the State
and/or its agency is not necessarily circumscribed by the extent of the public official’s
immunity or lack thereof.         The question which Parkulo and its progeny leave
tantalizingly unanswered is what standards are to be utilized to determine the extent of
the State’s immunity, irrespective of that of its employee? 8 Simply relegating this
8
The Court in Parkulo stated that “[b]ecause we do not have before us a factual
situation requiring further development of this approach to the scope of qualified
immunity for the governmental entities represented by public officials entitled to its
benefit, we leave the full development of that approach to another day.”

Id. at 178,

483
S.E.2d at 524.
8
determination to a “case-by-case” basis without further guidance is particularly
unedifying to both practitioners and the lower courts.
This appeal, in effect, presents this Court with an issue of first impression
inasmuch as our existing caselaw provides little to no guidance on the scope and extent of
the vicarious liability of the State and its agencies for its officials and employees. The
paucity of guidance, both in West Virginia and other jurisdictions, is occasioned almost
entirely by the fact most other jurisdictions have enacted some form of tort claims act
which governs actions against the state and its agencies. 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.    W. Va. Code § 29-12A-3(c) and (e); see also
Hess v. W. Va. Div. of Corr.,

227 W. Va. 15

705 S.E.2d 125

(2010).
As one commentator noted many years ago,
the relationship between governmental and officer liability
remains to a large extent ill-defined. The failure of
legislatures to resolve many of the problems that flow from
the coexistence of these two bodies of law has had the effect
both of transferring basic policy decisions to the courts and of
greatly complicating governmental tort claims litigation.
Furthermore, if there is any substance to the notion that the
prospect of personal liability instills an unhealthy insecurity
in public officials, uncertainty over the relationship between
governmental and officer liability probably only aggravates
the situation.
9
George A. Bermann, Integrating Governmental and Officer Tort Liability, 77 Colum. L.
Rev. 1175, 1213 (1977).9 Unfortunately, at least in West Virginia, little has transpired in
the intervening thirty-seven years to better define this relationship in absence of a
statutory tort claims act applicable to the State, its agencies, officials, and employees. In
most instances where immunity was addressed, where both the State and an individual
officer or employee were named defendants, this Court has simply ruled on the more
central issue of whether the complained of conduct underlying the case warranted
immunity and treated individual defendants and their employers collectively, without
separate analysis of whether the State or State agency is necessarily entitled to like
treatment and why. See, e.g., State v. Chase Securities, Inc.,

188 W. Va. 356

(1992); Clark v. Dunn,

195 W. Va. 272

(1995); Jarvis v. W. Va.
State Police,

227 W. Va. 472

711 S.E.2d 542

(2010).
2.     The Evolution of Immunity in West Virginia
In absence of any action by our Legislature to enact a statutory scheme
which would outline the scope of the State’s liability in tort, we are left to examine the
state of our law with respect to the immunity of the State, its agencies, officials, and
9
Professor Bermann’s law review article is quoted liberally throughout this
opinion and represents a particularly thorough treatment of this subject, more recent
discussion of which has been largely obviated by the passage of statutory tort claims acts
throughout the country. In fact, this article was commended for use in further
development of the principles herein by the Court in Parkulo: “A guideline for use in the
case-by-case approach to the problem of the interplay of governmental and public officer
personal tort liability . . . has been well-stated in [Professor Bermann’s]

article[.]” 199 W. Va. at 178

n.14, 483 S.E.2d at 524

n.14.
10
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.10 It is clear that relegating these issues to the lower courts to decide on a
“case-by-case” basis as instructed in Parkulo has compelled practitioners and the lower
courts to indiscriminately borrow phrases from what this Court has described as a
“patchwork of holdings” to cobble together an applicable rule. W. Va. Dept. of Health
and Human Resources v. Payne,

231 W. Va. 563

, ___,

746 S.E.2d 554

, 562 (2013).
As Professor Bermann noted, “[b]ecause the doctrines of sovereign and
officer immunity spring from distinct, if related, concerns, each has evolved
independently.”     Bermann, supra at 1181.           This independent evolution has
unquestionably occurred in West Virginia, as evidenced by the following brief history.
Our modern immunity law began to take a more clearly identifiable form in 1992 with
State v. Chase Securities, Inc.,

188 W. Va. 356

. In Chase Securities, this
Court noted that “our law with regard to public official immunity is

meager,” 188 W. Va. at 358

, 424 S.E.2d at 593, and borrowed from federal public official immunity caselaw11
10
Without question, “the task of balancing the interests relevant to governmental
tort litigation is legislative in character.” Bermann, supra at 1189. Nearly twenty-two
years ago, Justice Miller first raised the specter of legislative enactment which would
obviate the necessity for such issues to be foisted upon this Court by the Legislature’s
silence. See Chase

Securities, 188 W. Va. at 365

n.28, 424 S.E.2d at 600

n.28.
11
This Court has encouraged the use of federal precedent to guide our immunity
analysis because “it would seem appropriate to construct, if possible, an immunity
standard that would not conflict with the federal standard.” Chase Securities, 188 W. Va.
(continued . . .)
11
to craft the following syllabus point regarding the immunity of a public official “acting
within the scope of his authority”:
A public executive official who is acting within the scope of
his authority and is not covered by the provisions of W. Va.
Code, 29-12A-1, et seq. 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. There is no immunity for an
executive official whose acts are fraudulent, malicious, or
otherwise oppressive. . . .
Syllabus, in part, Chase Securities. This standard was thereafter extended to cover the
discretionary judgments of “rank-and-file” employees in 1995 in Clark v. Dunn, 195 W.
Va. 272,

.12 In Clark, plaintiff brought a negligence action against the
at

360, 424 S.E.2d at 595

. Unfortunately, however, with respect to the interplay between
the immunity of the State and its public official and employees, federal caselaw provides
little assistance for several reasons. Factually similar cases addressing immunity found in
federal caselaw are cases brought pursuant to 42 U.S.C. § 1983, which actions do not lie
against the State. See Will v. Mich. Dept. of State Police,

491 U.S. 58

, 71 (1989)
(“[N]either a state nor its officials acting in their official capacities are ‘persons’ under §
1983.”). Further, attempting to draw analogies between the contours of actionable claims
pursuant to § 1983 and those alleged herein are inadequate since § 1983 jurisprudence is
constrained by the federal courts’ interpretation of the language of § 1983 itself. Nothing
herein serves to supplant the federal § 1983 jurisprudence regarding immunity or
actionable claims thereunder inasmuch as “in Section 1983 litigation a state may not
create an immunity for state officials that is greater than the federal immunity.” Chase

Securities, 188 W. Va. at 359

, 424 S.E.2d at 594; see also Hutchison v. City of
Huntington, 198 W.Va. 139, 152 n.17,

, 662 n.17 (1996) (“[S]tate
immunity laws are not applicable to § 1983 actions.”); Howlett v. Rose,

496 U.S. 356

(1990) (in § 1983 litigation in state courts, a state may not create an immunity greater
than the federal immunity).
12
The Court summarily concluded that “Officer Dunn is properly considered a
public officer” without discussion as to whether the immunity of the “public official”
described in Chase Securities (which involved the Governor, the Treasurer, and the
Auditor—all high-ranking elected officials) perhaps differed in character from the type of
(continued . . .)
12
Department of Natural Resources and a DNR officer, who was found to be “engaged in
the performance of discretionary judgments and actions within the course of his
authorized law enforcement duties.”

Id. at 278,

465 S.E.2d at 380. Noting that the
officer did not violate a “clearly established . . . statutory law or constitutional right[],”
195 W. Va. at

278, 465 S.E.2d at 380

, the Court reaffirmed the above syllabus point from
Chase Securities and established what is now referred to as the “discretionary function”
immunity:13
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
immunity afforded a rank-and-file employee such as Officer Dunn. Clark, 195 W. Va. at

278, 465 S.E.2d at 380

(emphasis added). Our subsequent caselaw likewise has made no
such distinction.
13
This type of immunity is characterized by the Restatement (Second) of Torts as
somewhat “derivative” of the executive or administrative immunity: “A public officer
acting within the general scope of his authority is not subject to tort liability for an
administrative act or omission if [] he is immune because engaged in the exercise of a
discretionary function[.]” § 895D. However, in West Virginia, the type of immunity
afforded by the discretionary acts immunity, which is a qualified immunity, should not be
conceptually commingled with the executive/administrative act immunity for policy-
making acts which is absolute. Syl. Pt. 7, Parkulo,

199 W. Va. 161

483 S.E.2d 507

.
This is the trap into which respondent and the circuit court fell as evidenced by
their rejection of WVRJCFA’s “discretionary acts” immunity argument by concluding
that training, supervision, and retention were not acts which involved the “determination
of fundamental governmental policy.” It is clear that this Court has established, akin to
the federal courts, a distinct immunity for “discretionary” acts or functions of
governmental actors from the highest level down to the rank-and-file; it is wholly at odds
with the goal of this immunity to require that these discretionary acts must also rise to the
level of “policy-making” before such immunity may be invoked. See, e.g., Clark, 195 W.
Va. 272,

; but see

Hess, 227 W. Va. at 20

, 705 S.E.2d at 130 (dispensing
as premature the issue of whether the acts giving rise to the cause of action arise from
“discretionary, administrative policy-making” acts).
13
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.
Syl. Pt. 4, Clark,

195 W. Va. 272

(emphasis added). Speaking for the
first time specifically to the immunity of the State and its agencies, as opposed to merely
its public officials, the Court further held:
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
judgments, decisions, and actions of the officer.
Syl. Pt. 6, Clark, 195 W.Va. 272,

(emphasis added).
The following year (in our only reported case to discuss in any meaningful
fashion the immunity of the State and its agencies), the Court in Parkulo set out to recast
a “reasoned statement” of the current posture of common law

immunities. 199 W. Va. at 175

, 483 S.E.2d at 512. This “reasoned statement,” albeit well-intentioned and sorely
needed, resulted in a wandering, historical overview of immunity that unfortunately has
done little to clarify matters. The Court began by reiterating that the State and its public
officials are absolutely immune with respect to “judicial, legislative, and executive (or
administrative) policy-making acts and omissions.” Syl. Pts. 6 and 7, in part, Parkulo,

199 W. Va. 161

483 S.E.2d 507

. With respect to the immunity of the State and its
officials for matters falling outside the scope of judicial, legislative, or executive policy
14
making acts, the Court “endorsed” the Chase Securities rule regarding a public official’s
personal, qualified immunity for discretionary judgments and functions which are neither
in violation of a “clearly established law” nor “fraudulent, malicious, or otherwise
oppressive.” Syl. Pt. 8, in part, Parkulo.        As noted above, the Parkulo Court then
obliquely passed along the “general rule” of the “coterminous” immunity between a
public official and the State before allowing its undefined exceptions to quite literally
swallow and render meaningless this “rule.” See Syl. Pt. 9, Parkulo.
3.     Respondeat Superior and the Immunity of the State
Turning now to the specific issues presented in the case herein, the
WVRJCFA maintains that because any alleged sexual assault by D. H. would fall well
outside of the scope of his duties as a correctional officer, the WVRJCFA is entitled to
immunity. As previously noted, rather than exploring the issue of the scope of the State’s
immunity relative to that of its public officials and employees, the parties and lower court
relegated this issue to ordinary respondeat superior principles. While we reject a blind
application of common-law master-servant principles which fail to accommodate the
policy interests at play with respect to the immunity of the State and its agencies, we do
agree that the issue of whether the public official or employee’s actions are within the
scope of his duties, authority, or employment has long been a relevant inquiry in our
immunity law. As indicated above, beginning in Chase Securities and thereafter in
Clark, this Court has utilized the phrases “scope of authority” and “scope of
15
employment” at least as pertains to the immunity of the public official. Moreover, the
Restatement (Second) of Torts § 895D, provides that
[a] public officer acting within the general scope of his
authority is immune from tort liability for an act or omission
involving the exercise of a judicial or legislative function . . .
[or] administrative act or omission if . . . he is . . . engaged in
the exercise of a discretionary function . . . .
(emphasis added). Comment g to the Restatement notes that when an officer goes
“entirely beyond [the general scope of his official authority] and does an act that is not
permitted at all by that duty, he is not acting in his capacity as a public officer or
employee and he has no more immunity than a private citizen.”

Id. The rationale

for stripping a public official of his immunity informs the
issue of whether the State should likewise lose its immunity for and be vicariously liable
for acts of its officials or employees when they act outside of the scope of their authority.
Most tort claims acts include not merely exclusions for acts outside of the employee’s
scope of employment, but many specifically enumerate intentional torts for which the
government is expressly immune.         Such exclusions are necessary to “reliev[e] the
government of liability where its connection to the tort is too remote.” Bermann, supra at
1186. The rationale behind imposing personal liability upon a public official where his
acts are beyond the scope of his authority has been aptly described as follows:
First, the harm resulting from such conduct is probably more
easily avoided than the harm caused by simple negligence and
is therefore a poorer candidate for consideration as an
ordinary cost of government. Second, if the threat of personal
liability serves some deterrent purpose, its imposition would
16
seem particularly useful where willful or wanton misconduct
is concerned. Finally, even if such conduct cannot readily be
eliminated, it does not follow that the public should have to
pay for its consequences. On the contrary, retributive justice
would seem to demand that public officials answer personally
for egregious conduct.

Id. at 1197

(emphasis added). We can perceive no public policy which is justifiably
advanced by allocating to the citizens of West Virginia the cost of wanton official or
employee misconduct by making the State and its agencies vicariously liable for such
acts which are found to be manifestly outside of the scope of his authority or
employment. Such conduct is notable for being driven by personal motives which in no
way benefit the State or the public, nor is it reasonably incident to the official or agent’s
duties.14
Such a conclusion, however, necessarily implies that where a public official
or employee’s conduct which properly gives rise to a cause of action is found to be
within the scope of his authority or employment, neither the public official nor the State
is entitled to immunity and the State may therefore be liable under the principles of
14
See Syl. Pt. 6, Courtless v. Jolliffe, 203 W.Va. 258,

507 S.E.2d 136

(1998)
(“‘An act specifically or impliedly directed by the master, or any conduct which is an
ordinary and natural incident or result of that act, is within the scope of the employment.’
Syllabus, Cochran v. Michaels, 110 W.Va. 127,

157 S.E. 173

(1931)”); see also Griffith
v. George Transfer & Rigging, Inc., 157 W.Va. 316, 326,

201 S.E.2d 281

, 288 (1973)
(“‘Scope of employment’ is a relative term and requires a consideration of surrounding
circumstances including the character of the employment, the nature of the wrongful
deed, the time and place of its commission and the purpose of the act.” (emphasis
added)).
17
respondeat superior. We find that this approach is consistent with the modern view that
“the cost of compensating for many such losses is regarded as an ordinary expense of
government to be borne indirectly by all who benefit from the services that government
provides.” Bermann, supra at 1176. Much like the negligent performance of ministerial
duties for which the State enjoys no immunity, we believe that situations wherein State
actors violate clearly established rights while acting within the scope of their authority
and/or employment, are reasonably borne by the State.15
In Dunn v. Rockwell, 225 W.Va. 43, 62 n.20,

689 S.E.2d 255

, 274 n.20
(2009), we noted with approval the policy rationale historically underlying respondeat
superior liability as stated by the California Supreme Court: “(1) to prevent recurrence of
the tortious conduct; (2) to give greater assurance of compensation for the victim; and (3)
to ensure that the victim’s losses will be equitably borne by those who benefit from the
enterprise that gave rise to the injury.” (quoting Mary M. v. City of Los Angeles,

814 P.2d 1341

, 1343 (1991)). The Mary M. court observed that
[t]he doctrine is a departure from the general tort principle
that liability is based on fault. It is “‘a rule of policy, a
deliberate allocation of a risk[]’” [and] . . . based on “‘a
deeply rooted sentiment’” that it would be unjust for an
enterprise to disclaim responsibility for injuries occurring in
the course of its characteristic activities.
15
The mere fact that liability hinges upon the violation of a “clearly established”
right does not, in itself, suggest that the acts which give rise to a case are within the realm
of “fraudulent, malicious, or oppressive” acts for which a public official loses his
immunity. Rather, violations of clearly established rights frequently occur in absence of
any ill-intent which might militate against the imposition of vicarious liability.
18

Id. (citations omitted).

Likewise, with respect to governmental liability, it has been
observed that “the government through taxation can more easily distribute such losses
among all who benefit from its services.” Bermann, supra at 1194.             Further, “[b]y
encouraging higher standards of care in the selection, training, equipment, and
supervision of personnel, such a system can have at least as positive an effect on
governmental performance as one based upon liability of the individual official.”

Id. at 1195.

We find that such policy considerations well-justify extension of liability to the
State in such instances. Moreover, we agree that the public interest in ensuring that
public officials are “not [] impaired by constant concern about personal liability . . . need
not always prevent the attachment of liability to the State.” Parkulo, 199 W. Va. at

178, 483 S.E.2d at 524

. As further noted by the Restatement (Second) of Torts: “With respect
to some government functions, the threat of individual liability would have a devastating
effect, while the threat of governmental liability would not significantly impair
performance.” § 895D cmt. j.
4. Reconciliation of Existing Immunity Principles to Determine Coextensiveness of
Immunity
We therefore take this opportunity to harmonize our existing syllabus
points with respect to the immunity of the State, its agencies, officials and employees,
and further elaborate on the procedural analysis required to determine whether immunity
flows to an individual employee or official defendant, the State and its agencies, neither,
19
or both. To determine whether the State, its agencies, officials, and/or employees are
entitled to immunity, a reviewing court must first identify the nature of the governmental
acts or omissions which give rise to the suit for purposes of determining whether such
acts or omissions constitute legislative, judicial, executive or administrative policy-
making acts or otherwise involve discretionary governmental functions. This critical first
step may be evident from the nature of the allegations themselves or may be effectively
accomplished by identifying the official or employee whose acts or omissions give rise to
the cause of action. This individual identification may more easily permit a proper
examination of that particular official or employee’s duties and responsibilities and any
statutes, regulations, or other “clearly established” laws which are applicable to his or her
duties. This approach is compelled by the well-settled precept that “[g]overnmental
entities can act only through their officers, agents, and employees.” 57 Am. Jur. 2d
Municipal, County, School, and State Tort Liability § 145.
We recognize, however, that
some losses occasioned by governmental activity may not be
traceable to any particular official. For example, legislation
may impose duties upon the government that the latter simply
fails to implement. . . . More generally, however, a
governmental operation may suffer from inefficiency, delay
or other systemic disorders that cannot be laid at the feet of
any particular official yet still cause injury that warrants
compensation.
Bermann, supra at 1187. Moreover, “duties or obligations may be placed on the
government that are not imposed on the officer, and statutes sometime make the
20
government liable when its employees are immune.” Parkulo, 199 W. Va. at

177, 483 S.E.2d at 523

(quoting Restatement (Second) of Torts 2d § 895D, cmt. j, in part (1979)).
More importantly, however, “immunity is justified and defined by the functions it
protects and serves, not by the person to whom it attaches.” Forrester v. White,

484 U.S. 219

, 227 (1988). As such, identifying a particular official or employee whose actions
give rise to a cause of action is necessary only to the extent needed to guide the lower
court’s analysis of whether the complained of actions are legislative, judicial, executive
or administrative policy-making acts, or otherwise discretionary governmental functions.
To the extent that the cause of action arises from judicial, legislative, executive or
administrative policy-making acts or omissions, both the State and the official involved
are absolutely immune pursuant to Syl. Pt. 7 of Parkulo v. W. Va. Bd. of Probation and
Parole,

199 W. Va. 161

483 S.E.2d 507

(1996).
However, to the extent that governmental acts or omissions which give rise
to a cause of action fall within the category of discretionary functions, a reviewing court
must further determine whether the plaintiff has demonstrated that such 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 fraudulent, malicious, or
oppressive in accordance with State v. Chase Securities, Inc.,

188 W. Va. 356

(1992). In absence of such a showing, both the State and its officials or
employees charged with such acts or omissions are immune from liability. If the plaintiff
identifies a clearly established right or law which has been violated by the acts or
21
omissions of the State, its agencies, officials, or employees, or can otherwise identify
fraudulent, malicious, or oppressive acts committed by such official or employee, the
court must then determine whether such acts or omissions were within the scope of the
public official or employee’s duties, authority, and/or employment. Such determination
may or may not turn on disputed issues of material fact. In the event of a genuine dispute
of material fact the court may submit for resolution by a jury the issue of whether the
State actor was in fact within the scope of his duty, authority, and employment when
committing the acts which give rise to the case in accord with our admonitions in
Hutchison. See Syl. Pt. 1, in part, Hutchison,

198 W. Va. 139

(holding
that immunity is ripe for summary disposition except where there is a “bona fide dispute
as to the foundational or historical facts that underlie the immunity determination”).
To the extent that such official or employee is determined to have been
acting outside of the scope of his duties, authority, and/or employment, the State and/or
its agencies are immune from liability, but the public employee or official is not entitled
to immunity in accordance with State v. Chase Securities, Inc.,

188 W. Va. 356

(1992) and its progeny. If the public official or employee was acting within
the scope of his duties, authority, and/or employment, the State and/or its agencies may
be held liable for such acts or omissions under the doctrine of respondeat superior, along
with the public official or employee. We observe that our holdings today in no way
represent a seismic shift in this Court’s handling of governmental immunities, but rather,
reflect a clarification and elaboration on the scope of the State’s immunity vis-a-vis its
22
officials and employees, as reflected in our precedent and long-standing public policy
concerns. 16
5.     Application of Immunity Paradigm to Case Sub Judice
Turning now to the application of the foregoing to the facts of this
particular case, we find that D. H.’s general functions as a correctional officer, like most
law enforcement officers, are broadly characterized as discretionary, requiring the use of
his discretionary judgments and decisions. Having made that determination, however, it
is undisputed that D. H. is alleged to have violated a clearly established law, West
Virginia Code § 61-8B-10(a), leaving us only to determine whether he was acting within
the general scope of his authority and employment. As noted above, while fact questions
may on occasion preclude summary determination of this prong, we find that D. H.’s
alleged acts fall manifestly outside the scope of his authority and duties as a correctional
officer. There can be no question that these acts, as alleged, are in no way an “ordinary
and natural incident” of the duties with which he was charged by the WVRJCFA.
Respondent has failed to adduce any evidence bringing these alleged acts within the
16
Nor do our holdings expressly affect the liability of the State, its agencies,
officials, and employees for actions based upon breach of so-called “ministerial” duties,
which have been historically exempted from the realm of governmental functions for
which the State, its officials, and employees are entitled to immunity. See Clark, 195 W.
Va. at 278

n.2, 465 S.E.2d at 380

n.2 (“This opinion does not address causes of action
arising out of ministerial functions of government agencies or officers.”). However, in
Payne, we recognized and agreed with the observation of the Chase Securities Court that
application of the “clearly established law” principle “will ordinarily have the same effect
as the invocation of the ‘ministerial acts’ principle.” 231 W. Va. at __

n.26, 746 S.E.2d at 565

n.26 (citing Chase

Securities, 188 W. Va. at 364

, 424 S.E.2d at 599).
23
ambit of his employment beyond merely suggesting that his job gave him the opportunity
to commit them. As such, we conclude that the WVRJCFA is entitled to immunity for
respondent’s claims based on vicarious liability for D. H.’s acts.
B.
Negligent Training, Supervision, and Retention
With the foregoing framework in mind, we turn now to the WVRJCFA’s
claim of immunity for respondent’s negligent training, supervision, and retention
allegations.    The WVRJCFA contends that training, supervision, and retention are
inherently discretionary acts for which the State enjoys immunity and that respondent has
failed to identify a “clearly established” right or law which the WVRJCFA violated in its
supervision, training, and retention of D. H. Respondent counters that if employee
training, supervision, and retention are found to be discretionary functions, then the State
will have a de facto absolute immunity from suit. Respondent further argues that West
Virginia expressly recognizes a claim of negligent hiring/supervision/retention against a
State agency.
We begin by observing that it is of no consequence to our analysis that the
parties characterize this as a “direct” claim against the WVRJCFA; in fact, this claim too
is based on vicarious liability despite the absence of specifically named “bad actor(s)”
who allegedly negligently supervised, trained, and retained D. H. See

n.2, supra

. This
claim does not present a scenario where some general duty was statutorily or otherwise
24
imposed upon the State17 or where the negligence alleged in the complaint cannot be
traced to a particular individual(s). The training, supervision, and retention of D. H.
unquestionably fell to some public officer(s) or employee(s), from whose alleged
negligence respondent’s claim derives.     However, since respondent did not name a
specific individual defendant with respect to this claim, we are faced only with the issue
of whether immunity bars such a claim against the State in accordance with the principles
previously and herein enunciated.
Having clarified that this claim likewise derives from the alleged
negligence of some public officer(s) or employee(s) responsible for the training,
supervision, and retention of D. H., we are again guided by the principle first enunciated
in Clark:
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.
17
This is potentially the basis for a scenario where a public official or employee
may enjoy immunity, but the State would not—the sole configuration not otherwise
developed and analyzed herein. Given the clarification which we endeavor to provide
herein, we are loathe to leave this aspect of the public official/governmental immunity
paradigm untouched; however, such a scenario has seldom presented itself before this
Court and we resign ourselves to review of that issue at a later date.
25
Syl. Pt. 4, Clark,

195 W. Va. 272

. More specifically as pertains to the
immunity of the State or its agencies for negligence of its public officers and as placed
into proper context above:
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
judgments, decisions, and actions of the officer.
Syl. Pt. 6,

Id. (emphasis added).

However, as this Court noted last year in Payne and as
we have clarified herein:
[O]nce the “judgments, decisions, and actions” of a
governmental official are determined to be discretionary, the
analysis does not end. Rather, even if the complained-of
actions fall within the discretionary functions of an agency or
an official’s duty, they are not immune if the discretionary
actions violate “clearly established laws of which a
reasonable official would have known[.]”
231 W.Va. at ___, 746 S.E.2d at 563 (citing Syl. Pt. 3, Clark,

195 W. Va. 272