- posted: May 25, 2018
On May 14, 2018 the West Virginia Supreme Court of Appeals unanimously reversed the Kanawha County Circuit Court's denial of our client's motion for summary judgment based upon the statutory immunity of the City of Marmet and its police officer as governed by the West Virginia Government Tort Claims and Insurance Reform Act found at W.Va. Code 29-12A-1. In City of Marmet v. Hunter, the Marmet police were summoned to an apartment building by a 911 telephone call reporting a noise disturbance outside the building. Upon arriving at the building one of the two men who allegedly fatally beat the decedent spoke to the officer outside the building and assured the officer that he was leaving after having an argument. The officer departed the scene and the decedent's body was later discovered in a shallow grave in Raleigh County, West Virginia after having been apparently attacked at the apartment. The estate of the decedent filed a civil action against the City of Marmet asserting a single cause of action for negligence alleging that the City of Marmet had caused the death of the decedent by failing to more fully investigate the 911 call. In reviewing the Circuit Court's denial the City of Marmet's motion for summary judgment, the Court found that the City of Marmet is immune from suit as a political subdivision under W.Va. Code 29-12A-5(a)(5) and found that the "public duty doctrine" did not apply to the City of Marmet where the Respondent had failed to demonstrate that a "special relationship" existed between the decedent and the City of Marmet. Specifically the Court found:
"[T]here is no evidence of a special relationship in this case. The respondent has not presented any facts supporting an assumption of duty to act on behalf of the decedent, knowledge that inaction could lead to his harm, direct contact with him, or justifiable reliance by the decedent upon Marmet. Each of those components must be demonstrated to establish a special relationship."
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"The officer responded to a noise disturbance call and was informed that a man had been arguing with his girlfriend and was leaving. The officer had no reason to attempt to gain entrance into any of the apartments. This is precisely the situation the public duty doctrine envisions; the police do not have a duty to a particular member of the public with whom the police have no special relationship."
The case was then remanded to the Kanawha County Circuit Court with directions to enter an order granting the City of Marmet's motion for summary judgment. Congratulations to Duane Ruggier, Jake Layne, and Evan Olds for successfully defending our municipal client, the City of Marmet.
https://www.courtswv.gov/supreme-court/memo-decisions/spring2018/17-0493memo.pdf
