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State ex rel City of Bridgeport v. McCarthy

State ex rel City of Bridgeport v. McCarthy

Case No. 
Type of Proceeding: 
Writ of Prohibition

How broadly will the immunity found in W.Va. Code 29-12A-5(a)(4) be applied?  Is a government entity immune where one of its policies applies to the underlying facts, but does not actually form the basis for the claim? 


Petitioner, the City of Bridgeport, has a volunteer program known as Volunteers in Police Service (“VIPS”).  Basically, VIPS cooperates with the police department in providing neighborhood patrols and other community-based services.  The city has a written policy governing VIPS, including a statement that all vehicular patrols involving VIPS “will be two person manned unless otherwise directed.”  On November 3, 2016, two VIPS volunteers, including Respondent, Michael A. Kraft, were operating a city-owned vehicle.  The vehicle left the roadway and collided with a tree, seriously injuring Respondent.  Respondent sued the city.

The parties participated in discovery and Petitioner then filed a motion to dismiss, citing the governmental immunity provision in W.Va. Code 29-12A-5(a)(4).  Specifically, this code section grants immunity where a claim “results from…[a]doption or failure to adopt a law, including…a written policy.”  The trial court denied Petitioner’s motion, concluding that the immunity language cited by Petitioner was inapplicable under the facts of the case.  Petitioner then filed a writ of prohibition challenging the court’s immunity ruling. 

Positions of the Parties: 


Petitioner argues that the “historical and foundational facts, which are undisputed,” warrant a finding of immunity.  According to Petitioner, Respondent’s “presence in the city-owned vehicle on the day of the accident was required pursuant to the adoption of [a] rule set forth in the city’s May 2016 written VIPS Policy and Procedure Manual.”  For this reason, Respondent’s claim “results from, or is a consequence or effect of, the City of Bridgeport’s adoption of this rule, contained within a written policy.”  Petitioner suggests that nothing more is required to trigger immunity under W.Va. Code 29-12A-5(a)(4). 


Respondent attacks the “tortured logic” of Petitioner’s argument.  Respondent notes this is a simple negligence claim--i.e., Respondent alleges that the driver negligently operated the vehicle and crashed into a tree.  Respondent did not suffer injuries as a result of a city policy but, rather, as a result of the driver’s negligence.  Petitioner’s interpretation “would essentially render the liability provisions for negligent operation of a vehicle [found in W.Va. Code 29-12A-4(c)(1)) meaningless.”

Probable Impact: 

This is a Rule 19 case, but the issue presented is still an important one.  Under existing law, immunity provisions must be interpreted narrowly so as to further the public policy of compensating those who are injured by government actors.  The Supreme Court should make it clear that W.Va. Code 29-12a-5(a)(4) does not confer immunity unless the policy in question forms the basis for the injured party’s claim.

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