- posted: May 23, 2018
On May 14, 2018 the West Virginia Supreme Court of Appeals unanimously affirmed the Kanawha County Circuit Court's granting of the motion to dismiss based upon the qualified immunity of the West Virginia Department of Health and Human Resources, the Bureau for Children and Families and Child Protective Services. The Petitioner alleged a sole negligence claim against DHHR related to the removal from her parents' home due to abuse and neglect and subsequent placement in the home of her aunt and uncle where she claimed to have endured further abuse. The Court affirmed that where the only cause of action pled against public entities and officers is simple negligence, those entities and officers are entitled to qualified immunity for acts and decisions made in the scope of duty, authority, and jurisdiction in the making of such act or decision pursuant to the West Virginia Government Tort Claims and Insurance Reform Act found at W.Va. Code 29-12A-1. The Court specifically found:
“[p]leading simple negligence, without a violation of a clearly established right, is insufficiently to overcome qualified immunity” and finding that Plaintiff’s “general allegation that the DHHR’s acts and/or omission ‘were in violation of clearly established West Virginia constitutional, statutory, and legal rights of which a reasonable person would have known’ fails to satisfy the . . . pleading requirement necessary to defeat the defense of qualified immunity . . . .”
Additionally, the Court found that the Petitioner had failed to set forth, with sufficient particularity, any specific law that was allegedly violated by the Respondents such that no further detailed pleadings would be necessary to determine the outcome of the matter. Accordingly, the Court affirmed the dismissal of the case.
Congratulations to Julie Meeks Greco and Katie L. Hicklin Luyster Luyster for successfully defending our state agencies.
https://www.courtswv.gov/supreme-court/memo-decisions/spring2018/17-0564memo.pdf
