Summary
finding that the West Virginia Board of Education's extensive control over a county board of education resulted in the county board being a state actor for purposes of determining whether it was entitled to qualified immunity.
Summary of this case from Bd. of Educ. v. ShrewsburyOpinion
No. 18-0211
11-12-2019
Austin Joseph GOODWIN, Petitioner v. BOARD OF EDUCATION OF FAYETTE COUNTY, Political Subdivision of the State of West Virginia, West Virginia Board of Education, and Steven L. Paine, Ed.D., in his official capacity as West Virginia Superintendent of Schools, Respondents
Steven R. Broadwater, Jr., Esq., Kevin B. Burgess, Esq., Hamilton, Burgess, Young & Pollard, PLLC, Fayetteville, West Virginia, Attorneys for Petitioner Jared C. Underwood, Esq., Chip E. Williams, Esq., Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Beckley, West Virginia, Attorneys for Respondents
Steven R. Broadwater, Jr., Esq., Kevin B. Burgess, Esq., Hamilton, Burgess, Young & Pollard, PLLC, Fayetteville, West Virginia, Attorneys for Petitioner
Jared C. Underwood, Esq., Chip E. Williams, Esq., Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Beckley, West Virginia, Attorneys for Respondents
Hutchison, Justice:
The Petitioner, Austin Joseph Goodwin, brought this appeal from a January 31, 2018 summary judgment order of the Circuit Court of Kanawha County. The Petitioner filed a civil action against the Respondents based upon injuries he received while wrestling on a public school soccer field. The circuit court granted summary judgment against the Petitioner after concluding the Respondents were entitled to qualified immunity. The Petitioner contends that the Respondents are not entitled to qualified immunity. Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we affirm.
The Respondents are the Board of Education of Fayette County, West Virginia Board of Education, and Steven L. Paine, West Virginia Superintendent of Schools. When this case was filed, Michael J. Martirano was the West Virginia Superintendent of Schools. However, during the pendency of this case Dr. Paine was appointed to the position. Accordingly, pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure, Dr. Paine, in his official capacity as West Virginia Superintendent of Schools, has been substituted as a party in this appeal. See W.Va. R. App. P. 41(c) ("When a public officer is a party to an appeal or other proceeding in the Supreme Court in his official capacity and during its pendency ... ceases to hold office, the action does not abate and his successor is automatically substituted as a party.").
I.
FACTUAL AND PROCEDURAL HISTORY
The record in this matter indicates that on June 9, 2014, the Petitioner was enrolled as a junior at Oak Hill High School, Oak Hill, West Virginia. On that date, the Petitioner and another student, Katherine Deel, left the high school building without authorization after the seventh period of class. The Petitioner and Katherine went to a soccer field near the school, where they met two other students, Zach McCarthy and Levi Blevins. After watching Zach and Levi wrestle, the Petitioner decided to wrestle with Zach. While wrestling with Zach, the Petitioner severely injured his left arm. The Petitioner contends that he has incurred approximately $200,000 in medical expenses as a result of the arm injury.
The Petitioner was eighteen years old at that time.
Subsequent to the injury to his arm, the Petitioner filed a civil action on May 11, 2016, against the Board of Education of Fayette County, the Fayette County Sheriff’s Department and Deputy Matthew Kessler. The case was filed in the Circuit Court of Fayette County. The Petitioner amended the complaint on July 6, 2016, to name the current Respondents as defendants. The amended complaint alleged that the Respondents "were negligent in the operation of Oak Hill High School, in permitting students to depart the school premises unsupervised during school hours, and engage in horseplay and roughhousing, unsupervised[.]" After the amendment to the complaint, the case was transferred to the circuit court in Kanawha County.
The amended complaint did not name the Fayette County Sheriff’s Department or Deputy Matthew Kessler as defendants.
After a period of discovery, the Respondents moved for summary judgment in October of 2017. A hearing on the motion was held on December 8, 2017. At the conclusion of the hearing, the circuit court ruled from the bench that the Respondents were entitled to qualified immunity. The circuit court also ruled that, because the Petitioner was an adult when he left the school, the Respondents no longer owed him a duty at the time of the injury. The circuit court subsequently issued an order on January 31, 2018, granting summary judgment to the Respondents and dismissing the case. This appeal followed.
II.
STANDARD OF REVIEW
In this proceeding, we are called upon to review a summary judgment order of the circuit court. "A circuit court’s entry of summary judgment is reviewed de novo ." Syl. pt. 1, Painter v. Peavy , 192 W. Va. 189, 451 S.E.2d 755 (1994). We have long recognized that "[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. pt. 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York , 148 W. Va. 160, 133 S.E.2d 770 (1963). Mindful of the de novo standard governing our review, we proceed to consider the substantive issues raised.
III.
DISCUSSION
The Petitioner contends that the circuit court committed error in finding that the Respondents were entitled to qualified immunity. Two issues are involved with the question of the applicability of qualified immunity to the Respondents. The first issue is whether the Respondent, Board of Education of Fayette County (hereinafter "County Board"), was a state actor for purposes of qualified immunity. The second issue is whether the Respondents are entitled to qualified immunity. We will address the issues separately.
The Petitioner does not deny that the West Virginia Board of Education and the West Virginia Superintendent of Schools are state actors.
1. The County Board was a state actor . The Petitioner contends that the circuit court erred in finding the County Board had qualified immunity and was not subject to a civil action under the West Virginia Governmental Tort Claims and Insurance Reform Act because it was a state actor at the time of his injury. The Respondents argue that the circuit court did not err in finding the County Board was a state actor, because at the time of Petitioner’s injury the West Virginia Board of Education (hereinafter State Board) had intervened in the County Board’s school system pursuant to W. Va. Code § 18-2E-5.
See W. Va. Code § 29-12A-1 et seq .
As a general matter, we have recognized that W. Va. Code § 18-2E-5 "provides for the process of improving education, establishing education standards, conducting statewide assessments, requiring accountability measures, creating audit systems, establishing school accreditation levels, assigning school system approval levels, and intervening to correct low performance." West Virginia Bd. of Educ. v. Croaff , No. 16-0532, 2017 WL 2172009, at *1 (W. Va. May 17, 2017) (Memorandum Decision). The record indicates that the State Board intervened in the County Board school system in 2010, and that such intervention was in place when the Petitioner sustained his arm injury in 2014. At the time of the State Board’s intervention in 2010, its intervention authority over county school systems was contained in W. Va. Code § 18-2E-5(p)(4)(C), which provided:
Whenever nonapproval status is given to a school system, the state board shall declare a state of emergency in the school system. ... If progress in correcting the emergency, as determined by the state board, is not made within six months ... the state board shall intervene in the operation of the school system to cause improvements to be made that will provide assurances that a thorough and efficient system of schools will be provided. This intervention may include, but is not limited to, the following:
(i) Limiting the authority of the county superintendent and county board as to the expenditure of funds, the employment and dismissal of personnel, the establishment and operation of the school calendar, the establishment of instructional programs and rules and any other areas designated by the state board by rule, which may include delegating decision-making authority regarding these matters to the state superintendent;
(ii) Declaring that the office of the county superintendent is vacant;
(iii) Delegating to the state superintendent both the authority to conduct hearings on personnel matters and school closure or consolidation matters and, subsequently, to render the resulting decisions and the authority to appoint a designee for the limited purpose of conducting hearings while reserving to the state superintendent the authority to render the resulting decisions;
(iv) Functioning in lieu of the county board of education in transfer, sale, purchase or other transaction regarding real property; and
(v) Taking any direct action necessary to correct the emergency including, but not limited to, the following:
(I) Delegating to the state superintendent the authority to replace administrators and principals in low performing schools and to transfer them into alternate professional positions within the county at his or her discretion; and
(II) Delegating to the state superintendent the authority to fill positions of administrators and principals with individuals determined by the state superintendent to be the most qualified for the positions....[ ]
The statute has been rewritten and the State Board’s intervention authority is now found in W. Va. Code § 18-2E-5(m)(2) (2017) as follows:
When extraordinary circumstances exist ... the state board may declare a state of emergency in the school system. ... If progress in correcting the extraordinary circumstances, as determined by the state board, is not made within six months from the time the county board receives the recommendations, the state board shall intervene in the operation of the school system to cause improvements to be made that will provide assurances that a thorough and efficient system of schools will be provided. This intervention may include, but is not limited to, the following:
(A) Limiting the authority of the county board in areas that compromise the delivery of a thorough and efficient education to its students as designated by the state board by rule, which may include delegating decision-making authority regarding these matters to the state superintendent who may:
(B) Declare that the office of the county superintendent is vacant;
(C) Declare that the positions of personnel who serve at the will and pleasure of the county superintendent as provided in section one, article two, chapter eighteen-a of this code, are vacant, subject to application and reemployment;
(D) Fill the declared vacancies during the period of intervention; and
(E) Take any direct action necessary to correct the extraordinary circumstance.
The issue of whether a county school board is a state actor as a result of the State Board’s intervention under W. Va. Code § 18-2E-5 is one of first impression for this Court. However, Chief Judge Goodwin of the United States District Court for the Southern District of West Virginia was called upon in two cases to decide whether a West Virginia county school board becomes a state actor, for immunity purposes, when the State Board intervenes in its school system under W. Va. Code § 18-2E-5. In the first case, Workman v. Mingo County Schools , 667 F.Supp.2d 679 (S.D.W.Va. 2009), the mother of a child sought a religious exemption for the child from a mandatory public school immunization program. The exemption was denied and the mother filed a suit in federal court against the Mingo County Board of Education and others. At the time of the suit, the State Board had intervened in the Mingo County school system under the authority of W. Va. Code § 18-2E-5. Consequently, the Mingo County Board moved for summary judgment on the grounds that it was a state actor as a result of the State Board’s intervention in its school system. The Mingo County Board argued that it was entitled to state immunity under the Eleventh Amendment of the federal constitution. The federal district court agreed as follows:
Both cases decided by Chief Judge Goodwin involved the same version of W.Va. Code § 18-2E-5(p)(4)(C) that is applicable in the instant case.
The Fourth Circuit has enumerated a list of factors to determine whether an entity is an arm of the state. Cash v. Granville County Bd. of Educ ., 242 F.3d 219 (4th Cir.2001). While emphasizing that the most important factor "is whether a judgment against the governmental entity would have to be paid from the State’s treasury," this factor is not necessarily dispositive:
To examine the nature of the entity and its relationship with the State, we keep the State treasury factor in the calculus and look to three additional factors: (1) the degree of control that the State exercises over the entity or the degree of autonomy from the State that the entity enjoys; (2) the scope of the entity’s concerns—whether local or statewide—with which the entity is involved; and (3) the manner in which State law treats the entity. Under this "sovereign dignity" inquiry, a court must, in the end, determine whether the governmental entity is so connected to the State that the legal action against the entity would ... amount to "the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties."
Id. at 223–24 (internal citations omitted).
....
With respect to the first Cash factor, the "degree of control that the State exercises over the entity" is immense; the "degree of autonomy from the State that the entity enjoys" is negligible. For example, the statute empowers the State Board to "[l]imit the authority of the county superintendent and county board" in "any ... area[ ] designated by the [S]tate [B]oard." W.Va. Code § 18-2E-5(p)(4)(C)(i). The second Cash factor, "the scope of the entity’s concerns," is arguably more ambiguous; while the focus of the Mingo Board remains education in Mingo County, its takeover was conducted pursuant to a "process for improving education ... to provide assurances that ... high quality standards are, at a minimum, being met and that a thorough and efficient system of schools is being provided for all West Virginia public school students." W. Va. Code § 18-2E-5(a)(4). But the third Cash factor strongly suggests that the Mingo Board is an arm of the state. A consideration of "the manner in which State law treats the entity" reveals that the Mingo Board, after the takeover, has little to no rights of autonomy and self-control. Instead, the State
Board is empowered to manage the schools in Mingo County and accordingly control the Mingo Board. State law subjects the Mingo Board to the State Board’s authority in seemingly all spheres.
The State Board is an arm of the state of West Virginia and protected under the Eleventh Amendment. Because the State Board now effectively controls the Mingo Board, the plaintiff’s claims against the Mingo Board are constitutionally barred. The Mingo Board’s Motion for Summary Judgment is GRANTED.
Workman , 667 F. Supp. 2d at 686-687.
In the second federal case, B.E. v. Mount Hope High School , No. 2:11-CV-00679, 2012 WL 3580190 (S.D.W.Va. Aug. 17, 2012), the plaintiff was a student at a Fayette County high school when she was sexually assaulted by several students. The plaintiff and her parents sued the County Board and others in federal court. The County Board moved to dismiss the action against it on the grounds that it was a state actor, because the State Board had intervened in the Fayette County school system under W.Va. Code § 18-2E-5. As a result of such intervention, the County Board argued that it was entitled to state immunity under the Eleventh Amendment of the federal constitution. The federal district court, relying on the decision in Workman , agreed as follows:
[T]he plaintiffs argue that the "extent of the State Department of Education’s control over the Fayette County Board of Education has yet to be determined," and any determination that the Fayette Board is an arm of the state is premature. The plaintiffs also argue that there is disagreement as to the "extent and nature of the ‘degree of control’ " that West Virginia exercised over the Fayette Board.
....
When a county board of education is taken over by the state board of education pursuant to West Virginia Code § 18-2E-5, the county board of education becomes an arm of the state and is entitled to the Eleventh Amendment immunity afforded to the state. This principle was recognized in Workman v. Mingo County Schools , 667 F.Supp.2d 679 (S.D.W.Va. 2009). In Workman , this court found that § 18-2E-5 granted the State Board such broad powers that application of the Fourth Circuit’s factors to determine whether an entity is an arm of the state directed that the court’s conclusion that the county board was an arm of the state. See id . at 685–87.
The plaintiff in that case claimed that the Mingo County Board of Education’s mandatory immunization program violated her and her minor child’s First, Fifth, and Fourteenth Amendment rights. See Workman , 667 F.Supp.2d at 683. At the time of the alleged constitutional violations, the Mingo County Schools had been taken over by the State Board, and this court found that the takeover caused the Mingo County Board to become an arm of the state of West Virginia, and thus it was immune under the Eleventh Amendment. Similarly, in this case, the State Board took over the Fayette County Board, and thus the Fayette County Board is entitled to Eleventh Amendment immunity.
B.E ., 2012 WL 3580190, at *3.
In the instant proceeding the Petitioner has asked this Court to reject the analysis in the two federal cases because they "are misguided, and an overreaching effort to create an artificial cloak of governmental immunity." Although we are not bound to follow the federal decisions, we find that the record in this case supports reaching the same result that the federal decisions reached. See Barr v. NCB Mgmt. Servs., Inc ., 227 W. Va. 507, 514, 711 S.E.2d 577, 584 (2011) ("Although we are not bound to follow a federal court’s interpretation of a West Virginia statute, in this instance we agree[.]"). In view of the foregoing we now hold that, a determination of whether a county board of education is entitled to assert qualified immunity as a state actor in a civil action, after the West Virginia Board of Education has intervened in the county school system pursuant to W.Va. Code § 18-2E-5 [2017], will depend upon the degree of control the West Virginia Board of Education exercises over the county’s school system.
The State Board intervened in the County Board’s school system on February 11, 2010. The Minutes from the State Board’s meeting on that date show that it approved the following controls over the County Board school system:
[1] that the State Board limit the authority of the Fayette County Board of Education as to the expenditure of funds, the employment and dismissal of personnel, the establishment and operation of the school calendar, the establishment of instructional programs and rules and any other areas designated by the State Board by rule and delegate decision-making authority to the State Superintendent regarding these matters
[2] that the State Board delegate to the State Superintendent the authority to conduct hearings on personnel matters and school closure or consolidation matters and subsequently to render the resulting decisions, and the authority to appoint a designee for the limited purpose of conducting hearings while reserving to the State Superintendent the authority to render the resulting decision
[3] that the State Board limit the authority of the Fayette County Board of Education as to the ability to conduct real estate transactions and delegate to the State Superintendent the authority to act in lieu of the Fayette County Board of Education in a transfer, sale, purchase or other transaction regarding real estate
[4] that the State Board delegate to the State Superintendent the authority to replace administrators and principals in low performing schools and to transfer them to alternate professional positions within the county at his discretion
[5] that the State Board delegate to the State Superintendent the authority to fill positions of administrators and principals with individuals determined by the State Superintendent to be the most qualified for the positions
[6] that the State Board declare the office of county superintendent of schools of Fayette County to be vacant as of February 22, 2010
[7] that the State Board grant the State Superintendent the authority to hire a county superintendent to begin employment in Fayette County Schools on February 22, 2010 and set his/her salary
[8] that the State Board direct the Fayette County Superintendent and the State Superintendent, after consultation with the Fayette County Board of Education, to jointly develop and present to the State Board at a future meeting a set of standards and/or a strategic plan that must be implemented in order for the Fayette County Board of Education to regain control of the school system
[9] that the State Board direct the Fayette County Interim Superintendent and/or Superintendent to provide written and/or oral progress reports to the State Board as requested.
It is quite clear from the State Board’s Minutes that it exercised extensive, almost complete, control over the County Board’s school system. In view of our holding and the reasoning of the federal district court decisions, and in light of the above restrictions imposed on the County Board by the State Board, we find that the County Board is a state actor for purposes of determining whether it is entitled to qualified immunity along with the other Respondents.
2. Qualified immunity . The Petitioner argues that the circuit court committed error in finding the Respondents were entitled to qualified immunity, because the Respondents had a statutory duty to supervise him. The circuit court found that the Respondents did not violate any statutory duty to the Petitioner.
Several principles of law guide our resolution of the qualified immunity issue in this case. To begin, as a general matter "[q]ualified immunity is an immunity afforded to government agencies, officials, and/or employees for discretionary activities performed in an official capacity." Maston v. Wagner , 236 W.Va. 488, 499, 781 S.E.2d 936, 947 (2015). We have held that
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.[ ]
The circuit court found, and the parties do not dispute, that no evidence existed showing the Respondents’ "insurance contract waived the defense of qualified immunity." See Syl. pt. 2, in part, W. Virginia Bd. of Educ. v. Marple , 236 W. Va. 654, 783 S.E.2d 75 (2015) ("To waive the qualified immunity of a state agency or its official, the insurance policy must do so expressly[.]").
Syl. pt. 6, Clark v. Dunn , 195 W.Va. 272, 465 S.E.2d 374 (1995). This Court has also stated that
[t]o 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 involve otherwise discretionary governmental functions.
Syl. pt. 10, in part, W. Virginia Reg’l Jail & Corr. Facility Auth. v. A.B ., 234 W. Va. 492, 766 S.E.2d 751 (2014). Additionally, we have indicated that,
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, 424 S.E.2d 591 (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.
Syl. pt. 11, W. Virginia Reg’l Jail , 234 W. Va. 492, 766 S.E.2d 751.
In the instant case, the Petitioner contends that the Respondents had a nondiscretionary statutory duty to supervise him; alternatively, "if the statutory duty to supervise is deemed discretionary, the Respondents’ failure to supervise constitutes a violation of clearly established statutory laws rendering qualified immunity inapplicable." The statute cited by the Petitioner as imposing a mandatory or discretionary duty on the Respondents to supervise him is W. Va. Code § 18A-5-1(a) (2008), which states:
The Petitioner presented the deposition testimony of several students who testified to skipping class at various times. The Petitioner contends that this evidence establishes that the Respondents failed to carry out their duty of supervision.
The teacher shall stand in the place of the parent(s), guardian(s) or custodian(s) in exercising authority over the school and has control of all students enrolled in the school from the time they reach the school until they have returned to their respective homes, except that where transportation of students is provided, the driver in charge of the school bus or other mode of transportation shall exercise such authority and control over the students while they are in transit to and from the school.
The circuit court found that under W.Va. Code § 18A-5-1(a) "county school boards generally are under a duty to provide adequate supervision for its students." However, the circuit court determined that this provision did not impose a duty to supervise the Petitioner, after he left the school building without authorization, because he was an adult. In making this determination, the circuit court relied upon the definition of a student under W.Va. Code § 18A-5-1(g)(1), which provides:
"Student" includes any child, youth or adult who is enrolled in any instructional program or activity conducted under board authorization and within the facilities of or in connection with any program under public school direction: Provided, That, in the case of adults, the student-teacher relationship shall terminate when the student leaves the school or other place of instruction or activity .
The circuit court also noted that "school" was defined under W. Va. Code § 18-1-1(a) (2012) to mean "the students and teachers assembled in one or more buildings, organized as a unit."
We have previously recognized that "this Code provision [ W. Va. Code § 18A-5-1(a) ] embodies the in loco parentis doctrine which originated in the English common law and recognizes that a parent delegates part of his parental authority while the child is in their custody." W. Va. Dep’t of Human Servs. v. Boley , 178 W. Va. 179, 181, 358 S.E.2d 438, 440 (1987) (internal quotations and citation omitted). See Syl. pt. 7, in part, Cobb v. W. Virginia Human Rights Comm’n , 217 W. Va. 761, 619 S.E.2d 274 (2005) ("West Virginia public school teachers and school administrators stand in loco parentis to their students[.]"); Smith v. W. Virginia State Bd. of Educ ., 170 W. Va. 593, 597, 295 S.E.2d 680, 684 (1982) ("the in loco parentis doctrine contained in W.Va. Code, 18A–5–1, is merely an embodiment of the common law [.]"). Under the in loco parentis doctrine "schools share a special relationship with students entrusted to their care, which imposes upon them certain duties of reasonable supervision." Doe v. Logan Cty. Bd. of Educ ., 242 W. Va. 45, 829 S.E.2d 45, 52 (2019) (Workman, J. concurring) (internal quotation marks and citation omitted). In light of the unique facts of this case, we need not go into a detailed analysis of the duty to supervise public school students. This is because we agree with the circuit court that, under the narrow facts of this case, the Respondents did not owe a duty of supervision to the Petitioner once he left the school building without authorization.
"The term ‘in loco parentis’ means in the place of a parent, and a ‘person in loco parentis’ may be defined as one who has assumed the status and obligations of a parent without formal adoption." Doe ex rel. Doe v. DeSoto Par. Sch. Bd ., 907 So. 2d 275, 283 n.1 (La. App. 2005).
As we previously noted, the Petitioner was eighteen years old at the time of his injury. Pursuant to W. Va. Code § 2-3-1 (1974), the Petitioner was an adult. "Under this statute, upon turning eighteen an individual enjoys the rights and privileges, as well as sharing in the burdens and obligations, of adult status." McKinney v. McKinney , 175 W. Va. 640, 641, 337 S.E.2d 9, 10 (1985). Insofar as the Petitioner chose to skip a class and leave the school without authorization, the duty to supervise Petitioner terminated pursuant to W.Va. Code § 18A-5-1(g)(1) the moment he left the school building.
We are not concerned by the fact that the Petitioner was on Respondents’ property, the soccer field, when he was injured. The dispositive issue under the specific facts of this case is that the Petitioner was not authorized to leave the school building. As we noted in Glaspell v. Taylor Cty. Bd. of Educ ., No. 14-0175, 2014 WL 5546480, at *3 (W. Va. Nov. 3, 2014) (Memorandum Decision), school officials do not have a duty to know "what every student is doing ... throughout a school day, particularly at the high school level."
IV.
CONCLUSION
In view of the foregoing, we affirm the circuit court’s January 31, 2018, summary judgment order.
Affirmed.
JUSTICE WORKMAN dissents and reserves the right to file a dissenting opinion.
WORKMAN, J., dissenting:
Once again, under the guise of appellate review, the majority resolves issues which are underdeveloped below and in so doing renders this Court an adjudicatory body. I dissent from the majority’s cursory disposition of this case because it effectively blankets all local boards of education under any degree of state intervention with absolute immunity from suit. The majority’s new syllabus point states that whether a local school board is a State actor depends upon the "degree of control" the West Virginia State Board of Education ("State Board") "exercises over the county’s school system." Yet it provides no further guidance on factors to consider in making that determination; nor does it conduct a meaningful analysis of this issue. Instead, it concludes that the local board was a State actor without any factual development of the instant situation on that issue below. After summarily declaring the Fayette County Board of Education ("BOE") to be a State actor and therefore entitled to assert qualified immunity, the majority then makes a sharp left turn (providing no further immunity analysis), and reaches the clearly inaccurate conclusion that local school boards owe no duties to 18-year-old students injured on school property, but outside of the four walls of the school building. For these reasons, I must dissent.
See Cochran v. River Road PSD, No. 18-0302, 2019 WL 5849372 (W. Va. Nov. 7, 2019) (memorandum decision) (Workman, J., dissenting) (criticizing affirmance of dismissal on grounds not ruled on by circuit court); State ex rel. Universal Underwriters Ins. Co. v. Wilson , 241 W. Va. 335, 355, 825 S.E.2d 95, 115 (2019) (Workman, J., dissenting) (encouraging "full processing of a ... legal issue by its being fully considered by a lower court, a lower court making a ruling, the parties then briefing and arguing the issue at the appellate level"); State ex rel. Gallagher Bassett Servs., Inc. v. Webster , 242 W. Va. 88, ––––, 829 S.E.2d 290, 301 (2019) (Workman, J., dissenting) (discouraging premature resolution of "legal issues that hinge on facts" in prohibition).
In this case, petitioner alleges the BOE, by and through its employees, was negligent in its supervision of students at Oak Hill High School, which negligence proximately caused petitioner’s injuries on a school soccer field. Since the State Board had intervened in the BOE, the threshold issue in this case was whether the BOE was 1) rendered an arm of the State by virtue of this takeover and could therefore raise qualified immunity to petitioner’s suit; or 2) whether it continued to be governed by the Governmental Tort Claims and Insurance Reform Act ("Tort Claims Act"), which expressly provides for liability for negligent acts by employees such as those alleged by petitioner.
See W. Va. Code § 29-12A-4(c) (1986) (establishing liability for injuries caused by political subdivision employees for negligence in operating motor vehicle, negligence in "performance of acts" within scope of employment, negligence in failing to "keep" public areas and grounds, negligence which occurs "within or on the grounds of [public] buildings").
This distinction is obviously critical to petitioner’s claim: if the BOE is found to be an arm of the State and therefore may assert qualified immunity, petitioner’s claim would almost certainly fail inasmuch as the general notion of "supervision"—in absence of any well-established mandates—has been found to be an inherently discretionary act for which the State is immune. See W. Va. Reg’l Jail & Corr. Facility Auth. v. A.B ., 234 W. Va. 492, 514, 766 S.E.2d 751, 773 (2014) (stating that "broad categories of training, supervision, and employee retention ... fall within the category of ‘discretionary’ governmental functions" and collecting cases). On the other hand, if not found to be an arm of the State, the BOE continues to be subject to the Tort Claims Act and petitioner’s negligence claim clearly survives. Under the Tort Claims Act, political subdivisions such as the BOE are expressly "liable for injury, death, or loss to persons or property caused by the negligent performance of acts by their employees while acting within the scope of employment." W. Va. Code § 29-12A-4(c)(2).
In fact, petitioner concedes that "implementation and administration of compliance with the duty to supervise may constitute a discretionary function" and that the "manner in which the duty to supervise is maintained may be a question of discretion." Nevertheless, as is well-established, even if an act is discretionary, if an injured plaintiff establishes 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," qualified immunity will not lie. Syl. Pt. 11, in part, A. B ., 234 W. Va. 492, 766 S.E.2d 751. Petitioner identifies no such clearly established rights or laws, i.e. a specific directive regarding supervision which was violated, in order to overcome qualified immunity.
On this issue, the circuit court, without citation or analysis, declared summarily that
while the [BOE] was in [State Board] intervention, the [BOE] is necessarily part of the "State" defined in pertinent part as "all boards, offices, commissions, agencies ... and other instrumentalities of the state of West Virginia." W. Va. Code § 29-12A-3 and not within the purview of the West Virginia Governmental Tort Claims and Insurance Reform Act, W. Va. Code § 29-12A-l et seq.
Without addressing the circuit court’s complete lack of factual or legal analysis for this conclusion, the majority examines two cases from the Southern District of West Virginia wherein the District Court found two local boards of education to be arms of the State for purposes of Eleventh Amendment immunity. See Workman v. Mingo Cty. Schs. , 667 F. Supp.2d 679 (S.D.W. Va. 2009) ; B. E. v. Mount Hope High Sch. , No. 2:11-CV-00679, 2012 WL 3580190 (S.D.W. Va. Aug. 17, 2012). The majority then notes that in Workman , the District Court evaluated whether the Mingo County Board of Education was a State actor under the factors identified by the Fourth Circuit in Cash v. Granville County Board of Education , 242 F.3d 219 (4th Cir. 2001) :
The principal factor, upon which courts have virtually always relied, is whether a judgment against the governmental entity would have to be paid from the States treasury. ...
....
... [W]e keep the State treasury factor in the calculus and look to three additional factors: (1) the degree of control that the State exercises over the entity or the degree of autonomy from the State that the entity enjoys; (2) the scope of the entity’s concerns—whether local or statewide—with which the entity is involved; and (3) the manner in which State law treats the entity.
Id . at 223-24.
Despite tacitly endorsing the use of these factors to determine whether a political subdivision has been rendered an arm of the State, the majority adopts a relatively perfunctory new syllabus point stating that the determination of whether a local board is an arm of the State is dependent upon the "degree of control" exercised by the State Board. It ignores the state treasury factor entirely. Moreover, neither the syllabus point nor opinion itself gives even the slightest guidance regarding what "degree of control" actually means: whether the State’s "control" must actually be exercised or if the State Board must merely have the authority to control; whether the "control" must be exercised over the specific function of the local board at issue or the board and school system as a whole. More importantly, the majority apparently finds no fault whatsoever with the circuit court’s failure to conduct any such analysis below, nor is it concerned with petitioner’s inability to conduct discovery on this specific issue.
Petitioner and the BOE debated during oral argument whose burden it was to develop the record on this issue below. As this Court has stated, "Qualified immunity is an affirmative defense to liability, which under the Rules of Civil Procedure must be pled." W. Va. of Educ. v. Marple , 236 W. Va. 654, 667-68, 783 S.E.2d 75, 88-89 (2015). As such, it is the BOE’s burden to establish a record sufficient to establish itself as an arm of the State and therefore entitled to assert the affirmative defense of qualified immunity. Discovery on the underlying facts, however, appears to have been complete and revealed disputed issues of material fact regarding the BOE’s liability and the comparative negligence of petitioner.
Rather, the majority substitutes its own equally empty analysis of the issue and concludes that on the sole basis of the State Board’s pro forma meeting minutes that it "exercised extensive, almost complete control" over the BOE. In reality and as readily apparent to even a casual reader, the meeting minutes from the BOE authorizing the intervention simply parrot the language of West Virginia Code § 18-2E-5(p)(4)(C) which outlines the broad areas in which the State Board "may" intervene to "cause improvements" to the BOE. Aside from these minutes, the record is completely devoid of any evidence regarding the State Board’s control of the BOE and more importantly, devoid of evidence regarding the areas of control actually exercised by the State Board. The bases for state intervention in local school boards are varied and extensive and while the State Board may have reserved its right to intervene in any of the areas permitted by statute, it may well have exercised little to no control over the school functions which underlie petitioner’s claim. In that event, there is simply no purpose in extending a blanket of immunity for actions which are otherwise expressly subject to liability without even examining the parameters of authority or control the State actually exercised over that function.
Now W. Va. Code § 18-2E-5(m)(2) (2017).
For example, if the State Board intervened and exercised control only over the high-level matters of curriculum, school closure or consolidation, or budget expenditures, it certainly does not follow that the State Board was likewise necessarily involved in the day-to-day minutiae of the mechanics of student supervision or isolated end-of-year attendance issues. In fact, the likelihood of the State Board becoming involved in such situational and ad hoc particulars on an individual school level appears slim indeed.
The reason the exercise of actual authority is critical is because what we are actually determining in conducting this analysis is the applicability of qualified immunity. What the majority’s scant analysis fails to recognize is that qualified immunity for the State serves as protection for distinct functions of the State and its actors and that, unless those functions were actually undertaken by the State and proximately relate to the allegations asserted, there is no reasoned purpose for the extension of immunity. Qualified immunity serves to insulate the State and its actors from limitless liability for their discretionary and proprietary decisions for which there is no clear-cut and determinative guidance: "[T]he doctrine of qualified or official immunity bars a claim of mere negligence against a State agency ... 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, in part, Clark v. Dunn , 195 W.Va. 272, 465 S.E.2d 374 (1995) (emphasis added). This purpose quite simply does not translate in an action which is based upon a local school board’s simple negligence, unless the underlying function which proximately caused the plaintiff’s injury was, in fact, being controlled by the State and should be protected with the cloak of immunity.
But see n.2 supra regarding violations of clearly established rights.
Instead, in this case, so fundamental is the right of recovery for claims as those at least asserted by petitioner, that school boards are expressly made liable for such allegations, if proven, by virtue of the Tort Claims Act. Therefore, the analysis of whether the BOE is a State actor for qualified immunity purposes must be assessed in light of the specific conduct at issue in the case. Our qualified immunity caselaw makes this fundamental precept clear. See A. B. , 234 W. Va. at 507, 766 S.E.2d at 766 (" ‘[I]mmunity is justified and defined by the functions it protects and serves, not by the person to whom it attaches.’ " (quoting Forrester v. White , 484 U.S. 219, 227, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988) (emphasis in original)).
As inadequate as the majority’s analysis of the State actor issue is, perhaps more puzzling is its dispositive conclusion: that 18-year old students are owed no duties outside of the school building. The majority’s conclusion that since petitioner (age eighteen but still a junior in high school) left the building, "the duty to supervise [him] terminated" is abject nonsense. If an unsupervised child is struck by a car after escaping a school building, does the school escape liability because he was struck outside? The entire issue is whether petitioner was improperly supervised such that he could leave the building and injure himself. Furthermore, the property on which he was allegedly injured was school property.
The majority seemingly believes it is justified in this conclusion by virtue of the definition of "student" contained in West Virginia Code § 18A-5-1(g)(1) :
"Student" includes any child, youth or adult who is enrolled in any instructional program or activity conducted under board authorization and within the facilities of or in connection with any program under public school direction: Provided , That, in the case of adults, the student-teacher relationship shall terminate when the student leaves the school or other place of instruction or activity[.]
(emphasis added). First, nowhere in this definitional provision are adult students exempted from the duty and authority to supervise established in West Virginia Code § 18A-5-1 : "The teacher shall stand in the place of the parent(s), guardian(s) or custodian(s) in exercising authority over the school and has control of all students enrolled in the school from the time they reach the school until they have returned to their respective homes[.]" (emphasis added). Secondly, West Virginia Code § 18A-5-1(g)(1) specifically states that the student-teacher relationship does not end until the student leaves the school "or other place of instruction or activity." It is difficult to conceive of a place more emblematic of an "other place of ... activity" than an adjacent school athletic field. Other than including this phrase in their citation of the statute, the majority does not address this phrase of the statute in any fashion . In fact, it inexplicably declares itself "not concerned by the fact that the Petitioner was on Respondent’s property, the soccer field, when he was injured."
The suggestion that half of the statutory definition of "student" and a singular sentence in a 1985 case definitively establishes the parameters of a school board’s duties to adult students is a disturbingly sparse analysis.
Instead, the majority boldly declares that the BOE "did not owe a duty of supervision to the Petitioner once he left the school building without authorization." That is, of course, exactly the point: petitioner alleges he should not have been permitted to leave the building and escape to an unsupervised school area where he was injured. For purposes of supervisory negligence, the issue of duty is not defined by the location of an injury, but the scope of the employee’s duties and authority relative to supervising the injured party. And while the majority may bristle at the notion that an 18-year-old seeks to recover for what it perceives is his own negligence, that issue is for a jury to determine under proper instruction of law by the trial court. It is, in fact, no different than any other adult who is comparatively negligent in contributing to his or her own injury—this does not serve as a bar to recovery unless and until a jury finds him or her fifty percent negligent.
The majority’s use of the limiting phrases "[i]n light of the unique facts of this case" and "under the narrow facts of this case" signals a result-oriented approach, particularly when there are disputed facts below.
While not suggesting that petitioner has necessarily established a right of recovery, this dissent does find that the majority has injected itself into the undeveloped issue of whether the BOE was a State actor and then insinuated itself into the disputed underlying facts by summarily declaring that 18-year old students are owed no duty outside of the school building, even if on school property. The majority’s holding herein encourages local boards of education and their employees to act with complete impunity when under State intervention. It further decimates any semblance of duty owed to adult students who happen to turn eighteen before graduating in contravention of clear statutory law. This case should have been reversed and remanded for factual development of the areas of control the State Board exercised over the BOE and a determination as to whether that control rendered the BOE an arm of the State for purposes of these allegations. If the case survived the immunity analysis, a jury should have been permitted to decide the issues of negligence and comparative negligence under proper instruction of law. For these reasons, I respectfully dissent.