Petitioner was an 18 year old junior attending Oak Hill High School in Fayette County. Petitioner received injuries while he and other students were skipping class and “hanging out” at the school’s soccer field. According to Petitioner, his injuries occurred on June 9, which was the next-to-last day of school for the year. Petitioner’s witnesses testified that the teachers were lax regarding attendance during the last week of school. Petitioner accompanied a group of students to the soccer field, including Levi and Zach, both of whom were wrestlers. After watching the two boys wrestling, Petitioner decided to try. Zach performed a take down, forcing Petitioner to the ground. Petitioner tried to catch himself with his arm, resulting in injuries.
Petitioner sued the Fayette County Board of Education. Because the Board was being overseen by the State of West Virginia due to performance issues, pursuant to W. Va. Code 18-2E-5, Petitioner also joined the West Virginia Board of Education and the West Virginia Superintendent of Schools. All of these entities are Respondents in this appeal. Respondents moved for summary judgment. On January 31, 2018, the trial court entered an order finding that the school was not under any duty to supervise Petitioner because he was an adult, he had left the “school,” and Respondents did not have actual knowledge that he was wrestling on the nearby soccer field. In any event, supervision of students is a discretionary duty and, therefore, Respondents were entitled to qualified immunity.
Where the state has exercised is intervention rights under W.Va. Code 18-2E-5, is the county a "state actor" for immunity purposes? If so, was the supervision of students by school personnel a discretionary duty?
The Court first addressed the issue of whether the county was entitled to the state’s immunity because of the state’s intervention under W.Va. Code 18-2E-5. This was an issue of first impression. The court looked at two federal cases for guidance and, in a new syllabus, concluded that the question of immunity hinged on the degree of control exercised by the state:
“A determination of whether a county board of education is entitled to assert qualified immunity as a state actor in a state action, after the West Virginia Board of Education has intervened in the county’s school system pursuant to W.Va. Code §18-2E-5 , will depend upon the degree of control a West Virginia Board of Education exercises over the county’s school system.”
Next, the Court examined the minutes from the meeting of the state board at which it approved intervention in Fayette County’s school system. The minutes listed nine specific areas where the state was intervening--a list which the court characterized as representing “expansive, almost complete, control over the county board’s school system.” Accordingly, the county was a state actor.
Having determined the county’s status as a state actor, the next question was whether the elements of qualified immunity had been established. Petitioner argued that Respondents had a nondiscretionary duty to provide supervision--a duty he found in the broad supervisory provisions of W.Va. Code 18A-5-1. The Court, however, rested its decision on W.Va. Code 18A-5-1(g), which applied specifically to adult students: “In the case of adult students, the student/teacher relationship shall terminate when the student leaves the school or other place of instruction or activity.” The Court interpreted this provision narrowly, finding that Respondent’s duty to supervise “terminated…the moment he left the school building.”
Justice Workman’s dissent.
Justice Workman criticized the Court’s analysis in two respects.
First, Justice Workman noted that the Court misapplied the state actor test it borrowed from the two federal court cases. These cases, she said, focused on the actual degree of control exercised by the state through its intervention and not merely the authority it had been given. The minutes of the state board meeting “simply parroted the language of West Virginia Code §18-2E-5(p)(4)(C) which outlines the broad areas in which the state board may intervene.” But the question of whether, and to what extent, the state board actually exercised its authority was never developed in the record.
Furthermore, the Court failed to fully analyze W.Va. Code 18A-5-1(g)(1), which deals with the duty owed to students who have turned 18 years old. W.Va. Code 18A-5-1(g)(1) says that the student/teacher relationship only terminates “when the student leaves the school or other place of instruction or activity.” Not only was the Court’s interpretation of “school” to narrow (it means more than the physical building), it also did no analysis whatsoever regarding “other place[s] of…activity.” It was for the jury to determine whether, or not, Petitioner’s presence on the school’s soccer field came within this language.
This case could have broad implication in counties where the state board has actively intervened. Rather than looking at the actual degree of control being exercised on a day-to-day basis, the determining factor is the state board’s authority--which means a review of the state’s board’s minutes. In all likelihood, the minutes will parrot the broad language of W.Va. Code 18-2E-5(p)(4)(C). As a consequence, there will be little opportunity for recovery because the county will be protected by the state’s immunity.