Posey v. City of Buckhannon

723 S.E.2d 842, 228 W. Va. 612, 2012 WL 255337, 2012 W. Va. LEXIS 3
CourtWest Virginia Supreme Court
DecidedJanuary 27, 2012
DocketNo. 11-0565
StatusPublished
Cited by9 cases

This text of 723 S.E.2d 842 (Posey v. City of Buckhannon) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Posey v. City of Buckhannon, 723 S.E.2d 842, 228 W. Va. 612, 2012 WL 255337, 2012 W. Va. LEXIS 3 (W. Va. 2012).

Opinion

KETCHUM, C.J.:

This action is before this Court upon the appeal of petitioners Steven M. Posey and Michelle E. Posey from the order of the Circuit Court of Upshur County, West Virginia, dismissing their complaint, with preju[613]*613dice, against the respondent, the City of Buckhannon. The complaint alleged negligence against the City resulting in injuries to Steven M. Posey when he fell at the City’s solid waste transfer station. The circuit court dismissed the complaint pursuant to the immunity provisions of the West Virginia Governmental Tort Claims and Insurance Reform Act. W.Va.Code, 29-12A-1 [1986], et seq.

The Poseys contend that transfer stations, such as the one conducted by the City of Buckhannon, are not included in the governmental immunity provisions of the Act. Upon careful review, however, and for the reasons set forth herein, this Court finds that contention to be without merit. Accordingly, the order of the circuit court dismissing the complaint is affirmed.

I.

Factual and Procedural Background

The City of Buckhannon owned and operated a Solid Waste Disposal Complex in Ups-hur County. Although the Complex did not include a refuse dump or sanitary landfill, the City maintained a transfer station at the Complex for the collection of trash and other waste material.1 Trash and other waste material received at the transfer station were subsequently transported to an out-of-county dump.

On January 4, 2008, Steven M. Posey was unloading garbage bags and other material at the transfer station when he fell from the tailgate of his pickup truck and slid 18 feet down an open pit. His injuries included various fractures, a head laceration and a compression of the spine. His medical expenses exceeded $112,000.

In November 2009, the Poseys filed an action in the Circuit Court of Upshur County against the City of Buckhannon. They alleged, inter alia, that the City was negligent in failing to provide assistance to individuals depositing refuse at the transfer station and in failing to erect protective barriers along the exposed sides of the open pit.

Thereafter, the City filed a motion to dismiss alleging that the City is entitled to immunity from liability pursuant to the West Virginia Governmental Tort Claims and Insurance Reform Act. W.Va.Code, 29-12A-1 [1986], et seq. As the Act states, its purposes “are to limit liability of political subdivisions and provide immunity to political subdivisions in certain instances and to regulate the costs and coverage of insurance available to political subdivisions for such liability.” W.Va.Code, 29-12A-1 [1986].2 The motion to dismiss relied specifically on W.Va.Code, 29-12A-5(a)(16) [1986], which provides: “A political subdivision is immune from liability if a loss or claim results from: ... (16) The operation of dumps, sanitary landfills, and facilities where conducted directly by a political subdivision[.]”3

Following a hearing, the circuit court on November 30, 2010, granted the City of Buckhannon’s motion and dismissed the complaint with prejudice.

Citing Brooks v. City of Weirton, 202 W.Va. 246, 256, 503 S.E.2d 814, 824 (1998), [614]*614for the proposition that the West Virginia Legislature would not have included superfluous provisions concerning immunity in the Governmental Tort Claims and Insurance Reform Act, the circuit court concluded that the phrase and facilities in W.Va.Code, 29-12A-5(a)(16) [1986], was meant “to include a landfill-related and/or dump-related facility such as the transfer station at issue in this action.” Consequently, the circuit court held that the Poseys’ complaint fell squarely within the purview of a political subdivision’s immunity from liability as set forth in the Act.

The Poseys appeal to this Court from the November 30, 2010, dismissal order.

II.

Standard of Review

Pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, the filing of a motion to dismiss is authorized where the complaint fails to state a claim upon which relief can be granted. The granting of the motion is subject to de novo review by this Court. Syllabus point 2 of State ex rel. McGraw v. Scott Runyan Pontiac-Buick, 194 W.Va. 770, 461 S.E.2d 516 (1995), holds: “Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de novo." Syl. pt. 1, Lontz v. Tharp, 220 W.Va. 282, 647 S.E.2d 718 (2007). The de novo standard is especially relevant in the present matter since the material facts concerning the question of the City’s immunity in relation to Posey’s injury ai’e not in dispute. Thus, this Court held in syllabus point 1 of Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995): “Where the issue on appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. pt. 4, Harrison County Commission v. Harrison County Assessor, 222 W.Va. 25, 658 S.E.2d 555 (2008).

III.

Discussion

The question to be determined is whether a transfer station conducted directly by a political subdivision such as the City of Buckhannon, as a temporary collection site for solid waste to be transported to a dump or sanitary landfill, constitutes a “facility” within the meaning of the immunity provisions provided by W.Va.Code, 29-12A-5(a)(16) [1986]. The Poseys contend that since transfer stations only receive solid waste on a temporary basis, they are distinguishable from dumps and sanitary landfills where solid waste is permanently stored. Therefore, transfer stations are not facilities within the meaning of W.Va.Code, 29-12A-5(a)(16) [1986], On the other hand, the Poseys assert that transfer stations constitute facilities under that statutory section if they are located “on and operated in connection with” a dump or sanitary landfill, i.e., if the City of Buckhannon’s transfer station had been physically located on and operated in connection with a dump or landfill, the City would have had immunity from liability in this action. The Poseys derive their assertion from Calabrese v. City of Charleston, 204 W.Va. 650, 515 S.E.2d 814 (1999).

In Calabrese, this Court answered certified questions from the Circuit Court of Kanawha County concerning the West Virginia Solid Waste Management Act and upheld the court’s rulings that the City of Charleston was not entitled to immunity in the underlying action. The plaintiffs in Calabrese alleged that their basement was repeatedly flooded because of the City of Charleston's negligent operation and maintenance of its sewer system.

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723 S.E.2d 842, 228 W. Va. 612, 2012 WL 255337, 2012 W. Va. LEXIS 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/posey-v-city-of-buckhannon-wva-2012.