Did the trial court err in finding that both statutory immunity and common law immunity barred the plaintiff from bringing a cause of action against the city involving claims arising out of fire protection?
On February 14, 2013, a fire broke out in Brenda Albert’s home. The Wheeling Fire Department was notified and responded to the scene. While putting out the fire, the fire department’s hoses became clogged by rocks in the fire department’s fire hydrant system. As a result, the fire could not be contained and the house became a total loss. Thereafter, a raze or repair order was issued.
On March 13, 2015, Brenda Albert filed a complaint against the City of Wheeling. The city then filed a motion to dismiss citing immunity. The trial court recognized that there was no dispute that the City of Wheeling is a political subdivision. It then cited West Virginia Code §29-12A-5(5), which provides for complete immunity for claims arising out of fire protection. The trial court also relied upon Wolfe v. City of Wheeling, 182 W.Va. 253 (1989), pointing out that common law immunity for providing fire protection services has long been established under the public duty doctrine.
The trial court also noted that the only exception to this immunity is the special relationship doctrine. However, the court found that the plaintiff had not claimed a special relationship in the case, and therefore, the special relationship doctrine was not at issue. The trial court ultimately found that both statutory immunity and common law immunity operated to bar the plaintiff’s claims, and therefore, dismissed her claims.
According to Petitioner, the City of Wheeling is liable under West Virginia Code §29-12A-4(c)(2) &(3), due to negligent maintenance, negligent inspection and failure to keep the aqueduct “open, in repair or free from nuisance”. The Petitioner argues that the immunity provisions contained in West Virginia Code §29-12A-5 refers to the decision making or planning process in developing a governmental policy, including how that policy is to be performed. Because none of these were pled by Petitioner, the immunity did not apply.
Respondent argued that the Petitioner attempted to use artful pleading to circumvent the City’s immunity with regard to fire protection by relying on the language of §29-12A-4(c). However, the Respondent stated that even if this type of pleading were permissible, the very language of that section states that it is subject to the immunities contained in West Virginia Code §29-12A-5. Therefore, Petitioner cannot overcome the City’s immunity with regard to fire protection. Respondent also asserted that Petitioner’s claim was properly dismissed under the Governmental Insurance Claims and Tort Reform Act, as well as, well-established public policy of West Virginia.
Governmental immunity continues to be a hotly contested issue in West Virginia. This case will give the West Virginia Supreme Court yet another opportunity to examine the issue of governmental immunity. Specifically, it will permit the Court to address how West Virginia Code §29-12A-4(c)(2), -4(c)(3) and -5 relate to each other. Because this has been designated as a Rule 20 case, we can expect to see a new syllabus point.