Brenda Albert v. City of Wheeling

Opinion

FILED No. 15-0879 – Brenda Albert v. City of Wheeling November 28, 2016 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

Benjamin, Justice, concurring in result:

I agree with the decision to affirm the trial court, but for reasons separate

from those set forth in Justice Loughry’s decision. I agree with my colleagues and with

Judge Cuomo crediting the complaint as having been artfully drafted. I also agree with the

circuit court that artfully pled claims do not trump facts when considering immunity issues.

After considering the nature of the petitioner’s claims, the circuit court

dismissed this matter with prejudice on the basis that both statutory and common law

immunity barred petitioner’s claims. Specifically, with respect to common law immunity,

the circuit court relied upon Wolfe v. City of Wheeling, 182 W. Va. 253, 378 S.E.2d 307

(1989), to conclude that there was no special duty owed to petitioner either pled or present,

thereby requiring dismissal. Petitioner appealed the order below only with respect to the

circuit court’s statutory immunity ruling. Petitioner did not raise the common law

immunity portion of the circuit court’s ruling in her Petition for appeal. In her Reply Brief

herein, in response to respondent’s arguments, she contends that because of the manner in

which her complaint was pled, common law immunity is not at issue. However, being an

independent basis of the circuit court’s decision below, the failure to appeal the common

law immunity portion of the circuit court’s order requires affirmation of the dismissal of

the matter below. I, therefore, concur insofar as this Court affirms the dismissal of this

matter.