Brenda Albert v. City of Wheeling
Opinion
No. 15-0879 - Brenda Albert v. City of Wheeling FILED
October 27, 2016
released at 3:00 p.m.
RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Davis, Justice, dissenting, joined by Justice Workman:
In this proceeding the circuit court dismissed the plaintiff’s complaint under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. The circuit court found as a matter of law that the defendant, City of Wheeling, was absolutely immune from liability “for all claims arising out of or related in any way to fire protection.” In order to affirm the circuit court’s erroneous ruling, the majority opinion expressly and implicitly overruled precedents, and has rewritten the statute that provides limited immunity for losses caused during the delivery of fire protection. While the majority did not light the torch that caused the tragic fire that destroyed Ms. Albert’s home, it nevertheless, through its decision herein, has fanned the flames thus precluding any recovery from Ms. Albert’s devastating loss. Because the majority has ignored the settled law which governs this case and for the reasons set out below, I dissent.
On February 14, 2013, the plaintiff’s home caught fire, and the City’s fire department responded to the fire. The circuit court found that “[t]he Fire Department hoses became clogged by rocks in the Fire department’s fire hydrant system.” Due to the rock- induced clogged hoses, the plaintiff alleged that the City was negligent in the maintenance
of its fire hydrant system. As a consequence of this negligence, the plaintiff contended that the fire at her “home could not be contained[,] and the house became a total loss.” These allegations, as found in the circuit court’s order, have not been disputed. For the narrow purpose of defeating a motion under Rule 12(b)(6), these facts set out a cause of action. See John W. Lodge Distrib. Co. v. Texaco, Inc., 161 W. Va. 603, 606, 245 S.E.2d 157, 159 (1978) (“The plaintiffs’ burden in resisting a motion to dismiss is a relatively light one.”). Prior to the majority opinion in this case, our law was quite clear in holding that:
The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
Syl. pt. 3, Chapman v. Kane Transfer Co., 160 W. Va. 530, 236 S.E.2d 207 (1977). See also Collia v. McJunkin, 178 W. Va. 158, 160, 358 S.E.2d 242, 243-44 (1987) (“Motions to dismiss are generally viewed with disfavor because the complaint is to be construed in the light most favorable to the plaintiff and its allegations are to be taken as true.”). Under the liberal rules of pleading, “we have directed that the motion to dismiss for failure to state a claim should be viewed with disfavor and rarely granted.” Kessel v. Leavitt, 204 W. Va. 95, 119, 511 S.E.2d 720, 744 (1998) (internal quotations and citation omitted). See also Cantley v. Lincoln Cty. Comm’n, 221 W. Va. 468, 470, 655 S.E.2d 490, 492 (2007) (“A trial court considering a motion to dismiss under Rule 12(b)(6) must liberally construe the complaint so as to do substantial justice.”).
In order to defeat the plaintiff’s properly pled complaint, the circuit court and majority opinion determined that the City was entitled to “absolute” immunity under W. Va. Code § 29-12A-5(a)(5) (1986) (Repl. Vol. 2013). This statute provides that a political subdivision is immune from tort liability if a claim results from “the failure to provide, or the method of providing, police, law enforcement or fire protection.” The limited immunity provided under this statute is simply not applicable to the facts alleged in the plaintiff’s complaint.
This Court has historically construed the statutory governmental immunities in a very limited fashion. Indeed, we have adopted “the general rule of construction in governmental tort legislation cases favoring liability, not immunity: unless the legislature has clearly provided for immunity under the circumstances, the general common-law goal of compensating injured parties for damages caused by negligent acts must prevail.” Randall v. Fairmont City Police Dep’t, 186 W. Va. 336, 347, 412 S.E.2d 737, 748 (1991). See also Hose v. Berkeley Cnty. Planning Comm’n, 194 W. Va. 515, 522, 460 S.E.2d 761, 768 (1995) (same). Here, the plaintiff does not allege that the City failed to provide fire protection nor does she attack the City’s policy methods for providing fire protection. In her complaint, the plaintiff set out allegations of negligence in the maintenance of the City’s fire hydrant system. The negligence claims asserted by the plaintiff are clearly permitted against the City under W. Va. Code § § 29-12A-4(c)(2) & (3) (1986) (Repl. Vol. 2013), as follows:
(2) Political subdivisions are 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.
(3) Political subdivisions are liable for injury, death, or loss to persons or property caused by their negligent failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within the political subdivisions open, in repair, or free from nuisance, except that it is a full defense to such liability, when a bridge within a municipality is involved, that the municipality does not have the responsibility for maintaining or inspecting the bridge.
In Syllabus point 5 of Smith v. Burdette, 211 W. Va. 477, 566 S.E.2d 614 (2002), we recognized that claims of negligence may defeat the limited immunity granted under W. Va. Code § 29-12A-5(a)(5):
W. Va. Code, 29-12A-5(a)(5) [1986] does not provide immunity to a political subdivision for the negligent acts of the political subdivisions’ employee performing acts in furtherance of a method of providing police, law enforcement or fire protection.
This Court expressly recognized in Smith that
while a city may not be held liable for failing to install enough fire hydrants, based on the city’s policy decision as to the number of required hydrants, hypothetically, the same city could be held liable if one of the fire hydrants, due to negligent maintenance, in some way injured a person [or property].
Smith, 211 W. Va. at 480, 566 S.E.2d at 617. See also Hill v. City of Houston, 991 F. Supp. 847, 853 (S.D. Tex. 1998) (“No sovereign immunity exists to protect Defendant from liability
for negligent implementation of its fire protection policies.” (footnote omitted); Jenicke v. City of Forest Hill, 873 S.W.2d 776, 780 (Tex. Ct. App. 1994) (“[A]llegations of negligence [that] arise from carrying out the normal function of protecting a community from fires . . . may form the basis of liability for a governmental unit[.]” (citations omitted).
In order to get around the decision in Smith, the majority opinion overruled that 2002 well-reasoned and well-written decision and rewrote W. Va. Code § 29-12A-5(a)(5), so as to make that statute provide absolute immunity from any claim involving fire protection (and police protection). However, in Syllabus point 8 of Randall v. Fairmont City Police Department, 186 W. Va. 336, 412 S.E.2d 737 (1991) this Court rejected any notion that W. Va. Code § 29-12A-5(a)(5) granted absolute immunity as follows:
Free access — add to your briefcase to read the full text and ask questions with AI
Brenda Albert v. City of Wheeling (Brenda Albert v. City of Wheeling) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.